Yes. But City of Boerne v. Flores applied only to the RFRA’s enforcement against the states. As your quote clearly lays out: “…RFRA is a considerable congressional intrusion into the States’ traditional prerogatives…”
It’s still enforceable against the federal government: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006):
In fact, Footnote 1 of that case mentions Flores:
So if they rule the same way they did in Flores, I guess they’ll support Hobby Lobby, since the ACA is a federal mandate, not a state one.
I win if Hobby Lobby is exempt from the ACA mandate.
You win if Hobby Lobby must comply with the mandate.
Any other intermediate result, I’m willing to let Hamlet be the judge of whether the result substantially means a win for me, for you, or a push for the bet.
My charity for this bet: Little Sisters of the Poor Jeanne Jugan Residence and St. Joseph’s Villa in Washington, DC. The Little Sisters care for indigent elderly.
Considering that the order is elsewhere also fighting a battle against the ACA mandate, it seemed appropriate.
I’d go with “legal” information, rather than factual. I tend to think that us lawyers on the forum should offer such information to further the debate rather than present only one side of the information and claim that everyone else who is unaware are “ignoring” something.
It does.
My biggest concern is a highly factual, case by case determination that walks the thin line by saying some corporations can be “people” and can somehow magically exercise its religion, and some can’t, and then decide whether or not Hobby Lobby and Conestoga are in that magical group of closely held corporations that can. In that scenario, Hobby Lobby wins, but the court refuses to find all corporations are people that can exercise their religion and instead make it a case by case basis.
Personally, I can’t imagine, outside of blind extension of Citizen’s United to religion, that the Court would hold that all publicly held corporations can exercise their religious views and expect those views to exempt them from following the law. To me, that would be an even more idiotic expansion of the fiction of corporate personhood. If you’re a non-profit corporation, I can see it, but a for-profit? Not buying it.
However, I am, thanks to another wager, ahead one bottle of adult beverage of my choice. I have no problem accepting your “Hobby Lobby wins, you win” bet for that. If we move it to $100 to charity, I’d prefer the case by case determination that Hobby Lobby is different than say Exxon, would be a push.
This brings us back to my position that there is a compelling interest in providing ACA.
As interesting as a financial bet would be to me, I’d rather have pride be the factor instead (also, I’m in the middle of a kitchen remodel and not flush with disposable cash right now). So should I lose/be wrong, I’ll change my signature to “Bricker was right, I was wrong” with a link to this thread and of course, vice versa.
"Congress did not define the term “person” when it enacted RFRA, so our analysis begins with the Dictionary Act, which provides default definitions for many commonly used terms in the U.S. Code. According to the Dictionary Act, “unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” The relevant “context” courts should look to when construing terms found in the Dictionary Act is “the text of the Act of Congress surrounding the word at issue, or the texts of other related congressional Acts.” When considering RFRA, that “context” includes “the body of free exercise case law that existed at the time of RFRA’s passage,” which Congress explicitly invoked in the statute’s text. Hobby Lobby, 2013 WL 3216103, at *45 (Briscoe, C.J., concurring in part and dissenting in part). The statute being construed only has to “indicate” a definition of the contested term contrary to the baseline provided by the Dictionary Act, rather than “require” or “necessitate” such a result. Rowland, 506 U.S. at 200–01 (“[A] contrary ‘indication’ may raise a specter short of inanity, and with something less than syllogistic force.”).
Looking to RFRA’s relevant context, we find strong indications that Congress did not intend to include corporations primarily organized for secular, profit-seeking purposes as “persons” under RFRA. Again, Congress’s express purpose in enacting RFRA was to restore Free Exercise Clause claims of the sort articulated in Sherbert and Yoder, claims which were fundamentally personal."
“Our interpretation is also supported by RFRA’s legislative history. When enacting RFRA, Congress specifically recognized that individuals and religious organizations enjoy free exercise rights under the First Amendment and, by extension, RFRA. … In contrast, the legislative history makes no mention of for-profit corporations. This is a sufficient indication that Congress did not intend the term “person” to cover entities like Autocam when it enacted RFRA.” [citations removed].
I am unaware of any case out there, outside of the current disputes, that has extended the Free Exercise Clause or the RFRA to for-profit corporations. Am I missing a swath or caselaw that held that for profit corporations have the right to free exercise?
Not outside the current disputes, no – but then, the case you quote is ALSO not “outside the current disputes.”
Until the ACA was placed in lititgation, so far as I can tell no court has directly addressed the question of whether for-profit corporations are to be treated differently under the RFRA.
But since your quote, for support of your claim, a finding that the RFRA does NOT apply, let me quote the Tenth Circuit:
So, yeah. To read into the RFRA a distinction between for-profit and non-profit companies is to do what courts should NOT do: re-write the legislature’s words. Congress makes the laws; courts interpret what Congress has written…and should strongly disfavor adding their own words to the text.
It’s kinda hard to quote a case that neither the First Amendment nor the RFRA have free expression rights when no one, prior to this, ever even argued that it was. The fact is, if the Supreme Court does extend the definition of people for the Free Expression Clause or the RFRA, it will be the first time it happens.
So, as I said, it would be an extension of the current state of the, which has never, until now, recognized a for-profit corporation’s right to free exercise.
Wouldn’t you consider it odd that, in the entirety of the legislative history, from the language to the debates, to the very clearly stated purpose of the statute, NOWHERE does it mention that it applies to for profit corporations? I think it’s pretty clear that it is Hobby Lobby who seeks to “rewrite the legislature’s words” and apply it to a for-profit corporation. You’re attempt to shift the actualities of the case to pretend that it is this administration that is seeking a change or extension in the law is nigh but laughable.
No. The law says that it applies to corporations, and does not draw a distinction between for-profit and non-profit corporations. It’s not an extension of the law: it’s the actual text of the law.
For your distinction to be true, the words “for profit” and “non-profit” need to appear somewhere in the law. They don’t. You seriously think Congress needed to say, “All persons, which we’ve already said includes corporations, and oh, we really mean all corporations, not just non-profit corporations?”
Congress has passed laws in other contexts which do make exactly that distinction. So they know how to do it. The fact that they did not do it here means they had no intention of doing it.
OK, then show me where in the RFRA itself the term “person” is defined as a corporation.
It’s not.
So we, and the courts, have to look elsewhere to decide what the RFRA’s use of the term “person” means. You go to the Dictionary Act, take that definition, and you’re done. Nothing else to see here.
However, that’s not how the Dictionary Act itself says to do it. It says you look at the “context”. And, in looking at the context, which includes the state of the law when the act was enacted, as well as the legislative history, it becomes perfectly clear that no one who wrote, voted for, or debated the RFRA intended it to apply to for-profit corporations.
Just another example of the folly of blind adherence to textualism.
Again, the RFRA does not define the term “person”. It doesn’t define it as a for-profit corporation either.
So what do the courts do in cases like that, where the term is undefined. You would go to the Dictionary Act, read one sentence, put your fingers in your ears, and yell “I can’t hear you!!!” Person means corporations!!! Forget the actual intent of the legislatures, the context of the term, or the entire history of the statute and its interpretations!!! I’ve done my one step and I’m all done!!!"
That’s not how it works. For someone who trots out “the will of the people”, you sure are willing to ignore the intent of the law to get the result you want.
The Dictionary Act clearly says it applies to all acts of Congress. So don’t act like there’s some surprise in using it: Congress enacted the Dictionary Act so it did not have to include definitions of words in each and every law.
No, the context does not. The National Labor Relations Act contains an explicit carve-out for non-profits. So does Title VII. So does the ADA. See, that’s what happens when people who write, debate, and vote for a law intend intend an exception: they write it into the bill.
That’s what’s "perfectly clear. In order to get the result I urge, you simply read the words of the law. In order to get the result you urge, the courts have to become a little mini-legislature, re-writing the law to add the words, “this applies only to non-profit corporations,” to the law.
I get it. This is what you want the role of the courts to be. But I don’t ignore the will of the people. The will of the people is expressed through the plain text of their elected representatives’ legislative acts.