Nine senators and two representatives that were members of the original bi-partisan coalition that passed the 1993 Religious Freedom Restoration Act have filed a Friend of the Court brief in support of Hobby Lobby and their fight against the HHS mandate. A Federal District Court judge in Oklahoma denied Hobby Lobby relief from the HHS mandate based on their finding that Hobby Lobby, as a secular corporation, does not enjoy religious freedom. In the brief, the legislators comment on their intent in writing the RFRA:
Through the Religious Freedom Restoration Act, Congress sought to curb government-imposed infringements on religious liberty by providing that “government shall not substantially burden a person’s exercise of religion” unless the government is able to meet one of the most demanding tests known to law. 42 U.S.C. § 2000bb-1(a)-(b). Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291-92 (W.D. Okla. 2012). Congress could have carved out such a category of unprotected “persons” in RFRA itself or in a later statute, but it did not. And this judicially created carve-out is directly contrary to one of the primary reasons Congress enacted RFRA in the first place: to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not.
Does the HHS mandate comply with the standards of the RFRA? The legislators think not:
Rather than follow RFRA’s requirement of a single standard for all, Defendants have erected a three-tiered approach to religious objections rooted in a combination of state policies and political compromise, offering protection to some corporations while leaving others with none. Notwithstanding the District Court’s conclusion to the contrary, Defendants’ carve-out of a category of “persons” from protection under RFRA is entirely improper under that law.
Did the administration consider RFRA and religious freedom when developing the HHS mandate? No, say the legislators:
Defendants have known of religion-based objections to the HHS mandate from the beginning of the lengthy administrative process through which they have attempted to implement it. But Defendants ignored RFRA in formulating the narrow religious exemption at the outset and have only begun to attend to its requirements because of litigation and the reaction to public scrutiny. As a consequence, Defendants have erected a three-tiered approach to religious objectors that provides third-class treatment to Plaintiffs at the bottom of Defendants’ invented hierarchy and violates RFRA’s single religion-protective standard.
In fact, the legislators say that:
Defendants’ refusal to address RFRA in any meaningful way (except when sued in federal court) is remarkable. But it is also consistent with the way Defendants have treated the law of religious freedom from the beginning of the HHS mandate. When questioned by RFRA sponsor Senator Hatch at a February 15, 2012, hearing, Secretary Sebelius testified that she never requested an analysis of religious freedom issues surrounding the HHS mandate from the Department of Justice.
It’s clear that the Obama administration did not follow the requirements of RFRA when they developed the mandate. It’s equally clear that the Obama Department of Justice is ignoring the RFRA as they defend against lawsuits by religious and secular entities.