During last week’s oral argument in Hobby Lobby v. Sebelius and Sebelius v. Conestoga Wood Specialties, Justice Kagan posed this odd question to Paul Clement (starting on page 13 of the transcript):
JUSTICE KAGAN: But, again, Mr. Clement[,] as Justice Ginsburg said, [RFRA] was a very uncontroversial law. Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.
Here are several factors that make this a strange question.
First, the statute is unequivocal. The text of RFRA plainly states repeatedly that RFRA requires federal law to meet the “compelling interest” standard when it substantially burdens religious freedom. The government hasn’t questioned this interpretation. So why is Justice Kagan calling it “your understanding” or “your interpretation?”
Second, Justice Kagan’s question assumes that this is somehow controversial. But RFRA was passed in 1993 with only three “no” votes and was signed by President Bill Clinton, not exactly an arch-conservative.
Third, there’s even a Supreme Court case that explicitly says that RFRA means what it says. Justice Kagan is doubtless aware of Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, a unanimous opinion applying RFRA to a religious exemption from narcotics laws. So why treat the challengers’ position as some bizarrely broad interpretation of RFRA when it’s just what the Court said RFRA means?
Fourth, if anything, shouldn’t the fact that RFRA was uncontroversial mean that this is really an easy case, not a hard one?
Should we interpret Justice Kagan’s questions as an indication that the left-wing of the Supreme Court is abandoning strong commitments to religious liberty as a first principle, or at least wants to abandon RFRA?