So, Congress will correct this erroneous decision?
I’m very leery of discussing what the intent of a law was, since different Congresscritters might have had different intents. But lets’s look at the purpose:
Can you point out where the clear purpose was contrary to the majority opinion?
And the Senator sleeps fitfully, his slumber burdened by ghostly voices…
“Does it change your opinion of Senator Tirebiter when you learn that he voted with the pro-Satan caucus to make religious freedom illegal?..”
And wakes up screaming and clutching his incumbency…
Your argument is rebutted by 42 USC § 2000bb, Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), which define the process for determining burden, and show specifically that it wasn’t the method you are using.
The law does not care that you believe that. The law does not assess burden by checking in with you.
The law doesn’t care that you perceive a contradiction. I “address” your concern by pointing out that the law is 42 USC § 2000bb, Sherbert v. Verner, Thomas v. Review Board, and Wisconsin v. Yoder. A contradiction is allowed.
The federal statute (not the court) explicitly says:
Written law, passed by Congress, says, “This chapter shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”
Do you understand what those words mean?
I’d be surprised if they did. There are enough conservative Congresspeople who would vote against a change that I can’t see it passing. Do you disagree?
Why would they state that the purpose of the statute was to do the opposite of something that no one thought to discuss or raise in the debates? They clearly didn’t pass RFRA with the intent that it NOT apply to for-profit corporations, because that issue was never even raised or considered. At no time in the history of Supreme Court decisions, did they hold for-profit corporations had the right to free exercise of religion, so there was no reason to even consider RFRA would have to overcome that too.
I do not disagree. Do you think the actual Congress that passed this law would have amended it if it had been challenged thusly the very year it was passed? I doubt it.
Why would they explicitly say “all cases” and “persons”? Are there no lawyers on the committees drafting these bills who wouldn’t immediately see that the wording could, and probably would, be used to mean “persons” in the legal sense of the term? Why not say “Religious Institutions” or “individuals and Religious Institutions”?
Did anyone even discuss it? Honest question, having no idea.
Certainly a formerly-tenable argument. Now, that ship has sailed.
Better question: why did OTHER laws, both before and after the RFRA was passed, manage to distinguish natural persons, or “for-profit” corporations? That shows Congress knew how to do it when they wanted to. Ergo, they didn’t want to.
That’s not the issue, though. The issue is that it wouldn’t have passed in the first place if they thought it would have extended religious liberties to for-profit corporations.
I think you give Congressmen way to much credit if you think they put that amount of thought into every piece of legislation. RFRA was, as it specifically states in the purpose section of its text, intended to restore Pre-Smith jurisprudence. And in zero of those cases had a for-profit corporation ever been granted free-exercise rights.
I know you love to get to the gloating, but read again what I wrote: “the one drawn between for-profits and non-profits is the much better, more reasoned, and more in line with the clearly stated intent of RFRA.” Nothing at all about what the Supreme Court actually ruled, but rather a critique of how the majority DID rule. Pointing out that the majority disagreed with me when I said the majority was wrong is really kinda pointless.
I’m not so sure about that, if we are talking about “closely held”, for-profit corporations like HL. If we’re talking about IBM, I would agree.
Are there SCOTUS decisions similar to the HL decision where the court explicitly denied closely held, for-profit corporations free-exercise rights? Or was it just a matter of their being no settled law on the issue?
I could buy this current result being just another unintended consequence. A bit of feelgood legislation saying that Native Americans can have their peyote being seized upon during a perfect storm of increasing right-wing paranoia, corporate greed and fuck-you-Obamism.
But, once again, they didn’t even consider the difference between those two because there was never the intent that RFRA extend religious liberty rights to for-profit corporations.
There was no settled law because no one brought it up. No for-profit corporation ever thought to sue because of their religious liberty rights (well one, but the court specifically didn’t deal with it). Kinda like no corporation thought to use the RFRA to escape a law of general applicability until the ACA came along.
OK.
Then: “No, it isn’t.”
Since there was no settled law on the issue, I’m not sure how you can state so confidently that the purpose was not to protect closely held corporations. It’s entirely possible that legislators did want to give protection to closely held corporations. There are no shortage of lawyers in Congress, and I find it hard to believe that not one proposed an amendment to make that clear. Not one.
Because the status quo at the time was that no one had extended religious exercise protections to for-profit corporations. The fact none of the corporations in the past 200 years had tried also indicates that was the status quo. And, as Ginsberg points out, had Congress intended to change the status quo in such a drastic way (to do something that had never been done before), someone tends to mention it.
Why then did not a single person mention it? Why during the debates, during the speeches, during the enactment, did not a single person say “hey, this applies to for-profit corporations for the first time ever”.
“Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001) (Congress does not “hide elephants in mouseholes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for profit corporations.”
Just so you know, I do kinda get tired of having to correct you so often.
Speaking of gloating…
Was there ever a law like this one that tried to force closely held corporations to violate their religious principles?
Those in favor of it doing so wouldn’t need to. Those against, would.
I suspect Congress often tries to hid elephants in mouseholes. That is the way you get legislation through that a few people are passionately in favor of but most people aren’t. How often does one here reports speak of legislation passed “quietly” or “with little fanfare” or some other such description of legislation that the sponsors are happy to downplay.
Sure, the opportunity has been there. Sunday closure laws would have been huge, but none of the cases were brought by the corporations (except the one I mentioned before where the court refused to deal with it), instead brought people.
Doesn’t this kind of stealth lawmaking kinda fly in the face of the very reason we look to legislative intent? If one Congressperson sees that maybe they can extend religious liberties to for-profit corporations, but doesn’t mention it, doesn’t bring it to the notice of the rest of Congress, and there are other Congressmen that specifically state: “In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] . . . new rights for any religious practice or for any potential litigant” why would we credit that one guy’s hope compared to what is openly discussed, debated, and passed?