Here are some unassailable facts about RFRAs enactment that make 1997 too late
to bring for profit corps under RFRAs intended reach
1. The vast majority of RFRA's Legis history is not about its actual content
but rather testimony critical of Smith and the Supreme Court.
2. The Coalition had an express agreement not to tell members or the press
what particular laws each hoped to overcome. They needed to stay mum on their
individual agendas to remain at the table together.
3. The abstract constitutional law level of scrutiny formula drove discussion
away from specifics.
4. No one remotely hinted that it would be applicable to for-profit
corporations or that there was any corporation in the US intent on avoiding
laws through RFRA
5. Had the ACLU, Americans United, and People for the American Way and the
Democrats understood RFRA at the time as the anti-civil rights bill the 10th
Cir found it to be, it would have gone nowhere. Inconceivable. One of its
virtues for members was anything loved by the left and right had to be good.
6. RFRA's feel-good, opaque formula led members not to challenge the lobbyists
to explain its actual impact. The few examples involved a minyan and autopsies.
Nothing in this history supports a claim that RFRA was intended to cover
for-profit corporations.
Marci
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 2, 2013, at 12:09 PM, James Oleske <jole...@lclark.edu> wrote:
> Marci - I agree that if one side or the other in the 1997 debate was
> attempting to make after-the-fact legislative history for RFRA, that history
> would be of marginal value. But that's not the theory of relevance that Doug
> offers in his article and that I asked about yesterday. Doug offered the
> theory that, if both sides in the 1997 had a common understanding about the
> language common to RLPA and RFRA, that would be relevant to interpreting
> RFRA. What's wrong with that theory as a general matter? To be sure, on the
> specific issue of whether for-profit corporations can invoke a defense under
> the language, the 1997 legislative history indicates that there was not a
> common understanding. But in cases where there was a common understanding on
> the record (as appears there might have been concerning individual
> landlords), I'm not sure why that common understanding wouldn't be a relevant
> interpretive tool (not the only tool, of course, but one such tool).
>
> Marc - Prior to reading the ACLU testimony yesterday, I would have been
> inclined to agree with your suggestion. But the ACLU testimony actually puts
> the issue in precisely the same terms we seem to be discussing it today ("The
> question of whether a corporate employer or corporate landlord may raise a
> religious liberty defense is less clear than whether an individual serving
> as an employer or landlord may raise that defense."). So I'm inclined to
> think the 1997 legislative history is relevant to our discussion of cases
> like Hobby Lobby case precisely because it shows that there was not a common
> understanding about RFRA protecting for-profit corporations, but there may
> have been a common understanding about RFRA protecting individuals engaged in
> commercial activity.
>
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton <hamilto...@aol.com> wrote:
>> Except that 1997 itself is an irrelevant date. The relevant dates are
>> 1990-93, during the enactment of RFRA.
>>
>> Marci
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>> On Aug 2, 2013, at 10:30 AM, Marc Stern <ste...@ajc.org> wrote:
>>
>>> IS it possible that the search for legislative history on the question of
>>> whether in 1997 Congress thought corporations could benefit from religious
>>> liberty provisions is anachronistic .Today, that question is colored by
>>> one’ s feelings towards Citizens United; in 1997 ( and especially when
>>> arguing to a political body like Congress and in an effort to muster public
>>> opinion) the issue was cast in less abstract terms.
>>>
>>> Marc Stern
>>>
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