Challenge to RFRA

I have written about the Religious Freedom and Restoration Act (RFRA) of 1993 which has been increasingly used by religious groups to avoid conforming to government requirements and mandates.

Lyle Dennison discusses a challenge to the constitutionality of RFRA. This comes in the case that is before the US Supreme Court where two companies have used RFRA to challenge the Affordable Care Act’s requirement that companies provide contraception coverage as part of the health insurance plans offered to their employees.

Up to now, neither side in the case had challenged RFRA itself but a new amicus brief seeks to change that.

The amicus brief, written by a prominent academic authority on religion and the law, Cardozo Law School’s Marci A. Hamilton, seeks to add a bold new dimension to the Court’s review of the Affordable Care Act’s “contraception mandate.’

“RFRA, “the document contended, “is Congress’s overt attempt to take . . . over this Court’s role in interpreting the Constitution. . . . [T]his novel federal statute, which is one of the most aggressive attacks on this Court’s role in constitutional interpretation in history, has fomented culture wars in the courts like the one ignited” in the pending cases by for-profit businesses seeking a RFRA-based exemption from the mandate to provide health insurance for pregnancy-related services to workers.

The new brief urged the Court to move on to the question of RFRA’s validity as it applies to federal laws, like the ACA. Its argument against the law was based on two claims: first, that the law violates separation-of-powers principles because Congress undertook to rewrite the constitutional rule the Court had laid down in the Smith case; and, second, that RFRA provides “a political and fiscal windfall” to religious organizations that violates the Constitution’s Establishment Clause, mandating separation between government and religion.

By saying that RFRA is taken away some of the court’s prerogatives, the filers may hope to get the court to take up the challenge.


  1. Wylann says

    This should be fun to watch. Several members of the court (I think) support the goal of the RFRA (more xian privilege), but will recognize the threat to the court’s domain when it’s pointed out so clearly.

    Gonna pop me some popcorn for this one. 🙂

  2. dmcclean says

    One problem with this argument is that, even if the RFRA can be construed to “take away some of the court’s prerogatives”, taking away some of the court’s prerogatives is a power granted to Congress by Article III, Section 2.

    Another is that the whole concept of different levels of scrutiny is kinda bonkers. To the extent that the RFRA requires the court to use strict scrutiny in evaluating laws that substantially burden free exercise, you really have to twist your head around to see that as a transfer of power from the court to the Congress. If anything, it seems to me that you would have better luck attacking it as a transfer of power from the Congress to the court.

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