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Posts Tagged ‘legislative history’

On May 13, 1992, ACLU National President Nadine Strossen appeared before the House Judiciary Committee, Subcommittee on Civil and Constitutional Rights, to testify in support of the Religious Freedom Restoration Act. (Interestingly, the Obama Administration’s former Domestic Policy Advisor, Melody Barnes, also attended, as assistant counsel to the subcommittee). Strossen’s prepared testimony, now included in the legislative history of the RFRA, includes a litany of examples showing how, “[i]n the aftermath of the Smith decision, it was easy to imagine how religious practices and institutions would have to abandon their beliefs in order to comply with generally applicable, neutral laws.” Among other threats to religious practices and institutions, Strossen observed that “[a]t risk were such familiar practices as . . . permitting religiously sponsored hospitals to decline to provide abortion or contraception services . . . .”

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If you’re interested in the severability of Section 5000A from the rest of the PPACA and would like a refreshingly clear-headed take on severability doctrine generally, check out Sense and Severability, the remarks of Tobias Dorsey at the University of Richmond Law Review’s 2011 Allen Chair Symposium, “Everything but the Merits: Analyzing the Procedural Aspects of the Health Care Litigation.” Dorsey’s prediction from last November  seems even more prescient today than when made:

[I]f we get to severability, I see a two-way split much like the two-way split in Booker, with the Chief Justice and Justice Kennedy joining the three more conservative Justices in holding the mandate unconstitutional, and the Chief Justice and Justice Kennedy joining the four more liberal Justices in taking the Solicitor General‘s point of view.

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