You’re asking questions on why Congress disagrees with something (secular protection) that doesn’t seem to have ever been debated in Congress. It isn’t like there was a vote on not including secular protections in RFRA.
Other than pointing out that the country has a few centuries’ worth of laws and debate on religions protections, there doesn’t seem to be a precise answer to your question: how do you draw a distinction between a position you have on a political issue and another political issue you’ve never thought about before?
But they are thinking about that political issue, in the context of general philosophical exercise protections. Lawmakers seemed to find it easy enough in other situations to look at an oppressed or harmed group and generalise that actual harm to potential harm for others, to the point that wider ranging protections were brought in. To recognise that a specific instance or specific instances of needed protection weren’t only relevant to themselves.
Saying that people would have no reason to look at secular protections when looking at religious protections to me seems like someone looking at Ford releasing a car that burst into flames when you turned the ignition key and starting work on a draft bill regulating new standards for Ford cars.
I’m happy not to. If they didn’t, as you say, that seems like a remarkable lack of reasoning, but I’m entirely prepared to accept that’s true of lawmakers.
Unfortunately the question then just becomes; why didn’t they? It’s not exactly a huge leap. And perhaps more to the point, if the only reason why secular protections aren’t in there is because they were never considered, should lawmakers be invited to consider them now?
I don’t know what point you are making. Slavery in the US is outlawed for everyone, not only non-whites, and the Nineteenth Amendment is an example of a protection for a group who suffered historically. Which is what you asked about.
That’s the point. Why aren’t religious protections for everyone, even for atheists? Freedom of Religion covers atheism, so why does this law discount any secular (aka atheist) beliefs?
Because the First Amendment gives special protection to the free exercise of religion, and this law is meant to preserve that. If atheists think there is something inherent to atheism that means that they can’t be forced to pay for abortifacients, then they need to petition the government to get a law passed. Just like abolitionists did for slavery and suffragettes did for women voting.
RFRA violates the separation of powers
No – Congress has bound itself. That’s certainly within its powers to do. I think this is a trivial issue, and also handles:
RFRA violates Article V
This is certainly not an amendment to the Constitution. All Congress has to do here is modify or repeal the RFRA to change its effect – and by a bare majority in each house, plus the President. No 2/3rds majorities plus 3/4s state concurrence needed.
RFRA isn’t justified by any of Congress’s powers
No, no matter which way you look at it. If you believe that Congress’ reach is reasonably expanded by the commerce clause hook to the many uses it is put today, this argument dies in the ambulance on the way to the hospital. And even if you are sympathetic to the idea that maybe the commerce clause has been used too much, and want to see more of US v. Lopez’s reasoning, the argument still fails: Congress can bind itself no matter what other powers it has.
But…
RFRA violates the Establishment Clause
There’s some meat on those bones. It’s fair to say that the RFRA provides legal ammunition to the religious that it denies to the atheist or the agnostic. So I admit the argument is at least debatable. But ultimately, I think the Constitution itself is fairly read to provide protection to the religious that the atheist does not get: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. This constrains the government from creating a religion but also from opposing it. It seems to follow, then, that someone can challenge a law based on his belief that it prohibits the free exercise of his religion. Naturally, what that means is not spelled out, and needs to be developed by statute and case law, and Congress has done so here.
In short: I believe that it’s true the RFRA carves out an area for the religious, but I also believe this is permissible under the Free Exercise Clause.
You’re quite correct. When lawmakers created the 13th, 14th and 15th Amendments, they looked out on a country in which a specific group, black people, were being enslaved, oppressed, and disenfranchised, and decided that they needed Constitutional protection. But the text of the amendments doesn’t specify the historically oppressed group; they says that, as you say,* every* person born or naturalised in the US is a citizen, and that no-one can be deprived of those rights which are essential to citizens.
When lawmakers created the Nineteenth Amendment, they looked out on a country in which a specific group, women, were being disenfranchised, both currently and historically, and decided that they needed Constitutional protection. But the text of the amendment doesn’t specify the historically disenfranchised group; it says that no person may be disenfranchised on the basis of their sex.
In both cases, lawmakers saw that there was historic oppression to a specific group - but enacted *general *protections. So your reply to me earlier is incorrect; laws aren’t passed just to remedy historical and current injustices, but to protect against injustices which haven’t yet happened to the same degree. To protect against potential injustices; and to protect not just the majority of those deprived of justice at the time, but to protect all who might be deprived of justice.
This all seems very reasonable, and to be honest I share the same interpretation of the Free Exercise Clause that you set out here. Not that my interpretation means much.
Of course to my mind that just means that it’s the Free Exercise Clause that needs changing, but hey.