Balkinization  

Thursday, July 03, 2014

Not Bill Clinton’s RFRA

Guest Blogger

Richard Schragger, Micah Schwartzman, and Nelson Tebbe

Hobby Lobby is a case involving a challenge under the Religious Freedom Restoration Act (RFRA). In responding to criticisms of the Court’s decision earlier this week, some commentators have been making the point that RFRA was signed into law by President Bill Clinton, after passing through a nearly unanimous Congress in 1993. Democrats shouldn’t complain, so the argument goes, because they supported the very statute that the Court relied upon to protect the rights of Hobby Lobby and its religious owners.

As its name suggests, RFRA was designed to “restore” the law of religious free exercise to the legal principles and precedents that the Court had established prior to its heavily criticized decision in Employment Division v. Smith (The Peyote Case).

But as we argue in this piece at Slate, the Court in Hobby Lobby strongly misreads RFRA not as a restoration of religious liberty, but rather as a complete break from decades of pre-Smith jurisprudence. And in doing so, it tramples on earlier decisions that would have blocked it from granting exemptions to Hobby Lobby and other for-profit corporations, at least not without explicitly overturning long-standing precedent.

Specifically, the Court detaches RFRA from cases like United States v. Lee, which would have been an impediment to granting relief to a for-profit business. The Court erroneously thinks that RFRA gets to start on a fresh slate, freed from pre-Smith precedents. This is an underappreciated and radical reading of RFRA.

After Hobby Lobby, the Court is unbound from its precedents under the First Amendment, even those that RFRA was intended to restore. This isn’t Congress’s RFRA, or Bill Clinton’s.

Richard C. Schragger is Perre Bowen Professor Barron F. Black Research Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu

Micah J. Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schwartzman at virginia.edu


Nelson Tebbe is Professor of Law at Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at brooklaw.edu

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