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religious freedom challenges to Obamacare

December 3, 2016

In the upcoming religious freedom challenges to Obamacare, Supreme Court reporters are giving extraordinary attention to an argument by law professor Marci Hamilton, who submitted a friend-of-the-court brief claiming that the Religious Freedom Restoration Act is entirely unconstitutional.

But some court watchers have an extremely short attention span. Hamilton has presented this same argument unsuccessfully for 15 years.

RFRA exempts people from government coercion, but Hamilton argues that doing so violates the Establishment Clause of the First Amendment. It’s an ironic argument: even though the Constitution enshrines religious freedom, somehow it prohibits religious freedom, too.

Lyle Denniston of SCOTUSblog calls this “a bold new” idea. But Hamilton has repeated this same argument many times, including in 1996 as counsel for the petitioner in City of Boerne v. Flores. The Supreme Court didn’t agree, leaving RFRA in force against the federal government.

Robert Barnes of The Washington Post nevertheless asserts that in Boerne the court had “not confronted the question of [RFRA’s] constitutionality.” He may be unaware of Hamilton’s own brief in that case. She explicitly raised her Establishment Clause argument against RFRA as a “question presented” and explained at length that “RFRA violates the Establishment Clause.” It didn’t work.

Nine years later, in the O Centro Espirita case, Hamilton filed an amicus brief again insisting that RFRA violates the Establishment Clause. The Supreme Court passed over that argument and ruled in favor of the RFRA plaintiffs. That same year, Hamilton filed an amicus brief arguing that RFRA’s companion statute, the Religious Land Use and Institutionalized Persons Act, violates the Establishment Clause. The Supreme Court disagreed a third time.

In short, Hamilton’s latest Obamacare brief is more recycled than the paper it is printed on. Hamilton’s website, RFRAfolly.com, documents 20 years of trying to eliminate RFRA. Each subsequent failure to strike down religious freedom has made her argument less and less significant.

At a deeper level, Hamilton contends the Constitution should not give specific protection to religion because some religious people have committed terrible crimes like sexual abuse. While rhetorically provocative, her argument is ad hominem. It has nothing to do with the good families coerced by Obamacare.

Nor is it clear that Hamilton would apply this same idea to her side of the case. In the Obamacare lawsuits, the government is coercing religious people. If Hamilton is right that the sins of “religion” somehow prove religious believers are wrong, what do the sins of “government” do to the Obama administration’s case?

Religious freedom is a shield against tyranny. Governments have committed immeasurable crimes and trampled upon fundamental rights, especially when the executive branch places itself above the rule of law. Would Hamilton or her supporters sign an amicus brief arguing that the government should lose in the Obamacare cases because of Tuskegee, Abu Ghraib, White House drone strikes, and worse?

The idea that RFRA is unconstitutional is ultimately a distraction. The Obama administration is refusing to follow a clear religious freedom law that was passed by a nearly unanimous Congress and signed by President Clinton. The Supreme Court has upheld and applied RFRA and RLUIPA many times in the past 20 years. RFRA applies to Obamacare and protects religious freedom for all Americans, including families in business.

The administration is disregarding RFRA so it can force citizens to buy early abortion pills and birth control for other citizens. It’s not the only statutory command the White House has been willing to violate, inside and outside Obamacare. Laws do not become unconstitutional just because the executive branch wants to impose its will “with or without Congress.”

Dorinda C. Bordlee is senior counsel with Bioethics Defense Fund, which filed a Supreme Court amicus brief supporting Conestoga Wood Specialties and Hobby Lobby.