After decades on the books will religious freedom law be overturned?
By Mark A. Kellner
A realistic assessment from pols and constitutional scholars
ASHINGTON Despite calls to repeal the 1993 Religious Freedom Restoration Act, commonly known as RFRA, the bill's original sponsors in Congress remain opposed to changing the landmark religious liberty bill. The 21-year-old statute was the linchpin of the Supreme Court decision involving privately held Hobby Lobby Stores, Inc.
According to Matthew Harakal, spokesman for Sen. Orrin Hatch, R-Utah, the senator "helped write RFRA and enact it into law, so no, he does not think it should be narrowed or repealed."
Rep. Bob Goodlatte, R-Virginia, chairman of the House Judiciary Committee also stands by the bill, spokeswoman Beth Breeding said: "Chairman Goodlatte was an original cosponsor of the Religious Freedom Restoration Act. He continues to support this law."
On the other hand, in a statement to the Deseret News, Sen. Patrick Leahy, D-Vermont, who chairs the Senate Judiciary Committee, said he is willing to consider changing RFRA, though not mentioning it by name: "The fact that five Supreme Court justices in the Hobby Lobby decision have again found that somehow corporate rights trump individual rights is something that all Americans should be concerned with. I know that many Senators are considering the best fix to this erroneous decision and I look forward to reviewing any legislation to respond to the Supreme Court's decision to grant corporations these new rights," he said.
At least one other Democrat Sen. Patty Murray of Washington hinted at taking on RFRA's freedom-of-conscience protections when she reacted to the Hobby Lobby ruling: "Since the Supreme Court decided it will not protect women's access to health care, I will," Murray said in a statement. "In the coming days I will work with my colleagues and the (Obama) Administration to protect this access, regardless of who signs your paycheck," she said.
Reaction to even a veiled suggestion of changes to the Religious Freedom Restoration Act was quick and strong:
"Changing RFRA because some disagree with one particular application of the law would set a dark precedent by undermining the fundamental principle of religious freedom for all, even for those whose religious beliefs may be unpopular at the moment," said the signers of a joint letter to House Speaker John Boehner (R-Ohio), Majority Leader Rep. Harry Reid (D-Nevada); House Minority Leader Rep. Nancy Pelosi (D-California) and Minority Leader Sen. Mitch McConnell (R-Kentucky). "Congress has never passed legislation with the specific purpose of reducing Americans' religious freedom. It should not consider doing so now."
Some opponents including a legal scholar and secularist lobby group of the Supreme Court's June 30 ruling are lobbying to repeal RFRA, which passed both houses with near-unanimity and was quickly endorsed by then-President Bill Clinton. Congress reauthorized the measure in 2000.
Justice Samuel A. Alito said the Department of Health and Human Services mandate failed that test, since the government made provisions for faith-based nonprofits to be exempted from the requirement, with HHS providing (and, presumably, paying for) the disputed items a compromise that was not offered to Hobby Lobby or Conestoga Wood Specialties.
After the ruling, critics pounced: RFRA was "never intended to restore anything, was overreaching, and would tip (the scales of justice) in favor of religious believers over all others," declared Marci A. Hamilton, a church-state law specialist and a professor at the Benjamin N. Cardozo School of Law of New York's Yeshiva University.
"Finally, the public is starting to see the essential goal for RFRA is either to discriminate against women (being) able to obtain emergency contraception after rape, for women to obtain all forms of contraception, or to block (equal rights for) gays and same-sex marriage," she said in a telephone interview.
Hamilton, who was a law clerk for Justice Sandra Day O'Connor when one of the cases that triggered RFRA's passage, Employment Division v. Smith, was decided by the high court, said the 1993 law is "an invitation to very extreme discriminatory behavior. The time is right to repeal it."
The Freedom From Religion Foundation, a Wisconsin-based atheist and agnostic activist group, took out a full-page ad in The New York Times on July 2, highlighting its opposition to the Hobby Lobby decision and urging the overturning of RFRA.
"None of our civil rights, established after decades and decades of struggle and education, will be safe until RFRA is overturned," Annie Laurie Gaylor, FFRF co-president, said in a statement. Gaylor termed the Supreme Court decision "outrageous and untenable."
Signers of the pro-RFRA letter included Bishop Gary E. Stevenson, Presiding Bishop of The Church of Jesus Christ of Latter-day Saints, as well as leaders of the Assemblies of God (USA); the Church of God in Christ; the Ethics & Religious Liberty Commission of the Southern Baptist Convention; the General Assembly of the Presbyterian Church in America; the General Conference of Seventh-day Adventists; the Lutheran Church-Missouri Synod; the Rabbinical Council of America; the Union of Orthodox Jewish Congregations of America; the United States Conference of Catholic Bishops; and the Wesleyan Church.
"The anti-RFRA hysteria is totally overblown, because the case was decided on the premise that female employees would get free contraception, without Hobby Lobby having to pay for it," Laycock said. "The (Supreme) Court said the impact on those employees would be 'precisely zero.' And that is right, except for the delay while the agencies go through the rulemaking process to extend the non-profit solution to for-profits."
He added, "The left-right coalition that enacted it agreed on the principle, knowing that they would disagree about specific applications."
Georgetown University emeritus law professor Ira C. Lupu, via email, said "RFRA will never be repealed. Who is going to stand up and vote against religious freedom in the abstract?"
However, Lupu, who said he testified against RFRA at a 1992 House subcommittee hearing because he believed the bill "over-restored" religious liberty, asserted RFRA has been trimmed "by various narrow interpretations" in lower federal courts.
"The contraceptive mandate cases (the whole set of them) represent the first and only socially important and major set of victories for religious exemptions under RFRA," Lupu said. "I suspect that the lower federal courts will find ways to read Hobby Lobby narrowly ... and will return to limiting the scope of RFRA with respect to federal law."
Lupu said "it's not necessary to repeal it, because in the future it will do little good and little harm. RFRA is frequently a charade, and I expect (and predict) it will go back to being one."
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© 2014, Deseret News