FFRF Urges Overturning of RFRA in Contraception Case

The Freedom From Religion Foundation and several other groups have filed an amicus brief in the Hobby Lobby and Conestoga Wood case challenging the contraception mandate. The brief was written by Marci Hamilton of the Cardozo School of Law and it takes a very aggressive stance, asking the Supreme Court to declare the Religious Freedom Restoration Act, upon which the plaintiffs’ case is largely based, unconstitutional.

This case is testimony to the extreme religious liberty rights accorded to believers by the Religious Freedom Restoration Act at the expense of others. The intense passions about religious freedom and women’s reproductive health in this case have obscured the issue that should be decided before this Court reaches the merits: RFRA is


RFRA is Congress’s overt attempt to takeover this Court’s role in interpreting the Constitution. “Congress enacted RFRA in direct response to the Court’s decision in Employment Div., Dept. of Human Resources of Oregon v. Smith. Accordingly, it “contradicts vital principles necessary to maintain separation of powers . . . .” RFRA also is beyond Congress’s power, as an illegitimate exercise of power under the Commerce Clause.

RFRA also accords religious believers extreme religious liberty rights that yield a political and fiscal windfall in violation of the clearest commands of the Establishment Clause in a long line of cases.

The brief offers three grounds for declaring the law unconstitutional. First, that it violates the separation of powers because it overruled a Supreme Court decision, thus encroaching on the authority of the courts to interpret the Constitution. Second, that Congress lacked the constitutional authority to enact the law. And third, that by giving rights to religious believers to be exempted from laws that are enforced on everyone else, it amounts to an establishment of religion and thus violates the First Amendment. I think the third argument is the most persuasive.

Unfortunately, this is almost certainly for naught. The court is extremely unlikely to even address that question and, if they did, I suspect they would uphold the law anyway. Hamilton has long been the most outspoken critic of RFRA and similar laws. You can read the full brief here.

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  • Hey, maybe this will get the “new commenters” from last week’s “Marcotte rips off Hannity’s necktopper and shits down the hole” thread to come up here and write a bunch of fucking nonsense.

    Every time that someone tells me that it’s okay for KKKristians to have their “strongly held religious beliefs” protected under the law, I think to myself.

    “Hmm, suttee, now THERE’S a practice that some people REALLY like.”

    Of course the practitioners of suttee are primarily MEN (and some greedy family members of the deceased) who want to make sure that women who are married to MEN with money and power don’t get it when the guy dies; I don’t think that they’re so big on widowers jumpin’ on their wives pyres, though. I think it’s very hypocritical of them. Wow, I just realized that their is an ecumenism of hypocrisy in both KKKristianity and whichever branch of Hinduism supports the practice of suttee–I never saw that coming! I kid, I kid.

  • D. C. Sessions

    From the standpoint of a judge, I’d argue that the “most compelling” award goes to “encroaching on the authority of the courts.” Partisan loyalty is one thing, but this is their turf, by damn!

  • dogfightwithdogma


    You’d think this would be the case. And it probably is for many judges. But I suspect that protecting their turf is not the highest of priorities for some members, perhaps a majority of members, of SCOTUS. Some members of this court are, I think, driven by an a set of ideas and principles that is a blend of a conservative/traditionalist legal philosophy, religious beliefs, and political convictions. And I suspect they will sacrifice some of their turf in exercising this ideology.

  • eric

    @2: maybe, but I am somewhat skeptical that’s really what happened. Its very common that Congress passes a badly written law, SCOTUS interprets it literally, and then Congress has to pass another law to do what they originally intended to do. So (despite Hamilton’s implication), Congress enacting a new law in response to a court ruling is not necessarily evidence Congress overstepped their bounds. It could be business as usual: the courts rule that law #12345.1 means X. Congress actually meant it to mean Y. So then Congress responds by passing law #12345.2, which explicitly says Y.

  • Stacy

    @democommie #1

    Hey, maybe this will get the “new commenters” from last week’s “Marcotte rips off Hannity’s necktopper and shits down the hole” thread to come up here and write a bunch of fucking nonsense.”

    And maybe if we play our cards right they’ll tell us how they really feel about Amanda Marcotte.

  • colnago80

    Re Stacy @ #5

    Speaking of Amanda Marcotte, this is sure to raise lardass limpdick Rush Limbaugh’s blood pressure.


  • Stacy

    @colnago80 #6, I hope she decides to run! I have a friend in Waxman’s district who was just the other day waxing pessimistic about the odds of his replacement being as progressive as he’s been.

  • colnago80

    Re Stacy @ #7

    I don’t know if she has ever lived in the district, let alone California but, apparently, her parents now live there, in which case she has a local address. AFAIK, she was born in Pennsylvania and went to college in New York State and DC. However, her fiancee, one Adam Mutterperl, is a producer in Tinseltown.


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  • Sandra moved to CA two years ago.