According to a majority of the 10th Circuit, the businesses owned by the Green family are religious persons, and, therefore, can have the benefit of RFRA. But the courts reasoning is utterly divorced from RFRAs history and the larger context of federal law generally.
It is critical to understand that due to the doctrine of constitutional avoidance which means that courts must address constitutional issues only after addressing potentially dispositive statutory issues RFRA displaces the courts role in the interpretation of the First Amendments free exercise clause. Its mechanism imposes a constitutional standard of review, strict scrutiny, upon neutral, generally applicable laws, meaning that it disables duly enacted laws to the benefit of religious lawbreakers.
There was no inkling during the three years of hearings preceding the enactment of RFRA that for-profit businesses would be able to invoke this extraordinary statutory right to get around duly enacted, neutral and generally applicable laws. The tenor of the push for RFRA was that powerless religious believers desperately needed more protection from the government than the Constitution provides.
To be certain, the examples considered in the midst of those hearings involved individual religious believers, with the focus, if you can call it that, on the Hmong and Orthodox Jews objecting to state-mandated autopsies in cases of suspected foul play. The leap from these examples to a holding that would make Bank of America a religious person if its corporate charter mentions Jesus is far outside the context of RFRAs enactment.
The specious reasoning of Hobby Lobby is even more troubling because the court majority drops a footnote saying that RFRA must include for-profit organizations because the Religious Land Use and Institutionalized Persons Act (RLUIPA) covers religious entities. This is nonsensical. RLUIPA mandates strict scrutiny against local land-use laws for religious persons and entities, meaning churches, mosques and synagogues.
On the reasoning of this 10th Circuit majority, all Toll Brothers needs to do to avoid ordinary land use law and zoning restrictions in order to install huge tract-housing developments is invoke a religious belief in placing its developments where they will make the most money.
If the decision were correct, it would mean that large employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs.
Hamilton is a law professor at the Benjamin N. Cardozo School of Law/ Yeshiva University in New York City.
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