Scholar claims in legal brief that RFRA is unconstitutional

A coalition of child welfare organizations, survivors of clergy sexual abuse and non-believers says the Religious Freedom Restoration Act pushes aside the Supreme Court’s role in interpreting the Constitution.

By Bob Allen

Amid a flurry of legal briefs anticipating a Supreme Court decision this year to decide whether a 20-year-old law protecting an individual’s right to religious exercise also applies to corporations, one high-profile legal scholar argues the law itself is unconstitutional.

Marci Hamilton“The intense passions about religious freedom and women’s reproductive health in this case have obscured the issue that should be decided before this Court reaches the merits: RFRA is unconstitutional,” Marci Hamilton, a professor at Yeshiva University’s Benjamin N. Cardozo School of Law, claimed in a friend-of-the-court brief dated Jan. 27.

The acronym refers to the Religious Freedom Restoration Act, a law passed by Congress in 1993 and signed into law by President Clinton to help prevent laws that substantially burden a person’s free exercise of religion. The Southern Baptist owners of Hobby Lobby and a Mennonite business owner in Pennsylvania cite the law as basis for their claim that the Affordable Care Act cannot force business owners to pay for insurance coverage of contraceptives if they object on religious grounds.

Hamilton, a recognized academic authority on religion and the law, claims the sole intent behind RFRA, to restore high levels of religious-liberty protections struck down in a landmark 1990 decision Employment Division v. Smith, was “Congress’s overt attempt to take over this Court’s role in interpreting the Constitution.”

In that case, the Supreme Court ruled in a 6-3 majority opinion written by Justice Antonin Scalia that the Free Exercise Clause permitted Oregon to prohibit sacramental use of a controlled substance and thereby deny unemployment benefits to two drug counselors fired for using the hallucinogenic drug peyote in a ceremony of their Native American church.

The decision prompted a broad coalition of religious groups including the Baptist Joint Committee for Religious Liberty to call for legislation restoring previous Supreme Court doctrine, which interpreted the First Amendment to mean that a state can substantially burden a person’s religious exercise only for a compelling reason and by the least-restrictive means.

In reaching the Smith decision, Hamilton says the Supreme Court “carefully considered and weighed the various possibilities and the most appropriate balance between history, doctrine and the Court’s experience over 100 years with free-exercise cases.”

“With a simple majority vote for RFRA, Congress shoved the Court aside and handed believers the most extreme religious liberty regime ever in place in the United States,” Hamilton argues.

Hamilton claims that RFRA violates not only the Constitution’s separation of powers doctrine but also Article V, because it amounts to amending the Constitution by a simple majority vote of Congress.

Hamilton represents clients including the Freedom From Religion Foundation, a group based in Madison, Wis., formed in 1978 to educate the public about “non-theism” and to defend the constitutionally mandated separation of church and state, and the Survivors Network of those Abused by Priests, an advocacy and support group that claims that RFRA and its state counterparts “create even more barriers than already exist for victims to safeguard children, expose predators and obtain justice from religious organizations and individuals” in cases involving child sex abuse by clergy.

Hamilton said her clients “respectfully ask this Court to hold that RFRA is unconstitutional once and for all, and to restore common sense to United States religious liberty guarantees.”

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