The Freedom From Religion Foundation and several other groups have filed an amicus brief in the Hobby Lobby and Conestoga Wood case challenging the contraception mandate. The brief was written by Marci Hamilton of the Cardozo School of Law and it takes a very aggressive stance, asking the Supreme Court to declare the Religious Freedom Restoration Act, upon which the plaintiffs’ case is largely based, unconstitutional.
This case is testimony to the extreme religious liberty rights accorded to believers by the Religious Freedom Restoration Act at the expense of others. 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
RFRA is Congress’s overt attempt to takeover this Court’s role in interpreting the Constitution. “Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith. Accordingly, it “contradicts vital principles necessary to maintain separation of powers . . . .” RFRA also is beyond Congress’s power, as an illegitimate exercise of power under the Commerce Clause.
RFRA also accords religious believers extreme religious liberty rights that yield a political and fiscal windfall in violation of the clearest commands of the Establishment Clause in a long line of cases.
The brief offers three grounds for declaring the law unconstitutional. First, that it violates the separation of powers because it overruled a Supreme Court decision, thus encroaching on the authority of the courts to interpret the Constitution. Second, that Congress lacked the constitutional authority to enact the law. And third, that by giving rights to religious believers to be exempted from laws that are enforced on everyone else, it amounts to an establishment of religion and thus violates the First Amendment. I think the third argument is the most persuasive.
Unfortunately, this is almost certainly for naught. The court is extremely unlikely to even address that question and, if they did, I suspect they would uphold the law anyway. Hamilton has long been the most outspoken critic of RFRA and similar laws. You can read the full brief here.