Several federal legislators who voted for the Religious Freedom Restoration Act of 1993 and continue to serve in the Senate or the House of Representatives filed an amici curiae brief in the Tenth Circuit earlier today. The lead amicus curiae is Senator Orrin G. Hatch, the principal Republican co-sponsor of RFRA.
I was pleased to have had the opportunity to work on the brief with superb lawyers not only here in Virginia (Matthew Fitzgerald and John Adams of McGuireWoods), but also in New Jersey (Brendan Walsh of PashmanStein) and Oklahoma (Andy Lester and Carrie Williams Vaughan of Lester, Loving & Davies). I will highlight various aspects of the brief in later posts, but for now I’ve posted the Statement of Interest and Summary of Argument below the fold.
Statement of Interest
Amici are federal legislators who were part of the broad, bipartisan coalition that enacted the Religious Freedom Restoration Act of 1993 (“RFRA”). Amici designed and passed RFRA to establish a blanket default rule that would insulate religious liberty from the shifting fortunes of interest-group politics. Defendants have ordered that certain employers’ insurance plans must cover all FDA-approved contraceptives without cost-sharing (the “HHS mandate”), but have refused to exempt many employers with sincere religious objections. Amici have an interest in vindicating RFRA’s blanket protections against the selective and stingy approach adopted by Defendants.
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Summary of Argument
Through the Religious Freedom Restoration Act, Congress sought to curb government-imposed infringements on religious liberty by providing that “government shall not substantially burden a person’s exercise of religion” unless the government is able to meet one of the most demanding tests known to law. 42 U.S.C. § 2000bb-1(a)-(b). Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291-92 (W.D. Okla. 2012). Congress could have carved out such a category of unprotected “persons” in RFRA itself or in a later statute, but it did not. And this judicially created carve-out is directly contrary to one of the primary reasons Congress enacted RFRA in the first place: to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not.
RFRA is a “super-statute” that cuts across the entire U.S. Code and applies a single, religion-protective principle for evaluating all actions of the federal government that substantially burden the exercise of religion. Congress can displace RFRA’s protection through ordinary legislation; but Congress must do so explicitly, and Congress did not do so in the Patient Protection and Affordable Care Act.
Although bound to formulate the HHS mandate in accordance with RFRA, Defendants ignored RFRA throughout the administrative process and began to attend to its requirements only in response to litigation and the pressures of public opinion. In taking this course, Defendants have not only violated RFRA but have undermined its central purpose of insulating the free exercise of religion from the forces of standard interest-group politics.
Rather than follow RFRA’s requirement of a single standard for all, Defendants have erected a three-tiered approach to religious objections rooted in a combination of state policies and political compromise, offering protection to some corporations while leaving others with none. Notwithstanding the District Court’s conclusion to the contrary, Defendants’ carve-out of a category of “persons” from protection under RFRA is entirely improper under that law. Defendants must satisfy strict scrutiny to justify their threatened imposition of coercive financial penalties on Plaintiffs for their refusal to cover “abortion-causing drugs and devices.” Jt. App., at 27a (Complaint, ¶ 56). Because Defendants cannot meet this heavy burden, the HHS mandate may not be enforced against Plaintiffs and, therefore, Plaintiffs should have been afforded preliminary injunctive relief.