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While most of the attention on the Supreme Court’s HHS mandate cases has properly centered on whether the Court will interpret the protections of the First Amendment and the Religious Freedom Restoration Act (RFRA) to include corporations as well as individuals, an even more malignant threat to religious liberty lurks just beneath the surface. Twenty-one years after the RFRA was introduced in the House of Representatives by Chuck Schumer, passed nearly unanimously by Congress, and signed into law by President Bill Clinton, the Freedom From Religion Foundation has filed an amicus brief asking the Supreme Court to strike it down as an unconstitutional “takeover of the Court’s power to interpret the Constitution” and a violation of the Establishment Clause. Terming the protections of RFRA as “extreme religious liberty rights,” the Foundation and associated groups go beyond even what the Obama administration requests, asserting not only that Hobby Lobby and Conestoga Wood don’t qualify for the law’s protections, but rather that RFRA itself is unconstitutional.

There has always been some tension between the Establishment Clause and the Free Exercise protections of the First Amendment, but the Supreme Court, when considering a similar challenge to the Religious Land Use and Institutionalized Persons Act in 2005—wherein the Sixth Circuit Court of Appeals had ruled that granting protections to religious prisoners amounted to a violation of the Establishment Clause—ruled that alleviating a state-imposed substantial burden on religious practice did not violate the Establishment Clause. The assertion that legislation protecting an individual’s practice of religion amounts to an Establishment Clause violation would be a radical departure from the nation’s history of allowing generous religious accommodations. It would also open to challenge all sorts of currently protected behaviors that amount to religious accommodation, including the priest–penitent privilege and the conscientious objector exemption. These accommodations arguably impose a burden on third parties, yet courts have always viewed such burdens as necessary to the protection of a free society.

So though RFRA had near unanimous backing in 1993 and restores the Supreme Court’s free exercise doctrine which was accepted from the 1963Sherbertdecision authored by Justice William Brennan untilEmployment Division v. Smithin 1990, the applications of that doctrine are now said to be “extreme religious liberty rights.” Unlikely as it may be for the Court to go beyond the arguments presented by the parties themselves to rule RFRA unconstitutional, the phrase “extreme religious liberty rights” is one defenders of religious liberty ought to prepare to hear a lot of in the coming years.

The Becket Fund website has links to all the amicus briefs filed in these cases on both sides. The Freedom From Religion Foundation brief is here. A brief from constitutional law professors in defense of RFRA is here.

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