That strikes me as a perfectly fine argument, but one that goes to the
question of whether there actually were any relevant common understandings
of the language in 1997, not the question of whether the 1997 legislative
history would be irrelevant even if such understandings actually existed.
Of course, when courts look for common understandings in legislative
debates, they tend to look to the evidence on the record and not
unarticulated positions. The House report, both sets of dissenting views in
the report, and testimony from multiple opponents of the bill all assume
individuals running businesses like landlords could invoke RLPA. Is there
anything on the record running contrary to this apparent common
understanding?
If not, I tend to think that the RLPA legislative history, combined with
Lee, makes it very difficult to argue that all for-profit commercial
activity is categorically excluded from RFRA protections.
Less clear is whether for-profit corporations are categorically excluded (I
see Marci has sent a separate email arguing that inclusion of for-profit
corporations was not contemplated during the original RFRA debate; if
that's correct, when combined with the ambiguity of the 1997 legislative
record on the issue, I'd be inclined to conclude that neither the
legislative history of RFRA or RLPA is of very much help on the
corporate-coverage issue).
Even less clear is, assuming for-profit corporations are not categorically
excluded from RFRA, how might protection for those corporations nonetheless
be limited by the "commercial activity" language in Lee (the issue the
Hobby Lobby court neglected to address -- which brings me back to where I
started, and where I should probably step out of this discussion for the
time being).
Best,
Jim
On Fri, Aug 2, 2013 at 9:22 AM, Marci Hamilton <hamilto...@aol.com> wrote:
> My point yesterday is that the Coalition am the ACLU are not both sides.
> Far from it
>
> 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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