Some Questions about RFRA from Hobby Lobby

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?

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
PC Culture

Kill Chic

We live in a society in which gratuitous violence is the trademark of video games, movies, and popular music. Kill this, shoot that in repugnant detail becomes a race to the visual and spoken bottom. We have gone from Sam Peckinpah’s realistic portrayal of violent death to a gory ritual of metal ripping ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More