03.21.17

Sen. Schumer’s Religious Freedom Restoration Act Key Law At Issue In Hobby Lobby

Senator Schumer Said His Law Aimed To Allow ‘Maximum Religious Freedom’

The Religious Freedom Restoration Act Was Sponsored By Then-Rep. Chuck Schumer (D-NY): ‘The American People Today Know That Religious Freedom Is No Luxury, But Is A Basic Right Of A Free People’

RELIGIOUS FREEDOM RESTORATION ACT OF 1993: “FREE EXERCISE OF RELIGION PROTECTED: (a) In General.--Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability… only if it demonstrates that application of the burden to the person -- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (H.R. 1308, 103rd Congress)

The Religious Freedom Restoration Act of 1993 was sponsored by then-Rep. Chuck Schumer (D-NY) & Sen. Ted Kennedy (D-MA) and passed the Senate in an overwhelming vote of 97-3.  (H.R.1308, Bill Passed 97-3: D 55-2; R 42-1, 10/27/1993)

THEN-REP. CHUCK SCHUMER (D-NY): “Tell to millions and millions of Americans that religion is a luxury, and I think we get the reaction that we have had universally here on the floor from the most liberal to the most conservative Member.... Quite simply, we cannot allow this to continue. The Founders of our Nation, [and] the American people today know that religious freedom is no luxury, but is a basic right of a free people.” (Rep. Schumer, Congressional Record, 5/11/1993)

  • SCHUMER: “The bill will restore the First Amendment to its proper place as one of the cornerstones of our democracy.” (Rep. Schumer, Congressional Record, 5/11/1993)
  • SCHUMER: “Mr. Speaker, as the lead sponsor of the Religious Freedom Restoration Act… we all know, the First Amendment guarantees the right of free exercise of religion, and traditionally the Supreme Court interpreted that guarantee to mean religious freedom can be infringed only when Government has a compelling interest to do so. … But in 1990, in the infamous case known as the Smith case, the Supreme Court changed the standard radically and said that the Government only had to show a legitimate interest in order to burden religion, unless the religious practitioners could show they were directly targeted for persecution. In my opinion, that decision rubbed against totally the American grain of allowing maximum religious freedom.” (Rep. Schumer, Congressional Record, 5/11/1993)

REP. STENY HOYER (D-MD): “Mr. Speaker, to restore freedom is always timely, to restore in particular the rights that Americans hold so sacred under the First Amendment and in particular the right to practice their religion as they see fit. Mr. Speaker, after all, it was that right that was hallmark to the founding of this country, and it was that right that in many respects made us unique in the world….  I call this one of, and some would say it is, the most important bill affecting religious liberty in our lifetime.  That is an expansive statement, but I think it correctly enunciates the impact of this bill. … Since Smith, more than 50 cases have been decided against religious claimants. …one Catholic teaching hospital lost its accreditation for refusing to provide abortion services.” (Rep. Hoyer, Congressional Record, 5/11/1993)

SEN. DIANNE FEINSTEIN (D-CA): “Mr. President, just the other day, the Religious Freedom Restoration Act of 1993… passed the Senate by a nearly unanimous vote of 97 to 3. I am pleased to say that I was a cosponsor of this important legislation and that I voted for its final passage.” (Sen. Feinstein, Congressional Record, S.14702, 10/29/1993)

  • FEINSTEIN: “Mr. President, by once again making absolutely clear that Government may burden the free exercise of religion only for the most compelling of reasons and in the narrowest possible way, the Religious Freedom Restoration Act repairs serious damage done to a pillar of our democracy. That is why I, and virtually all of my colleagues in the U.S. Senate, resoundingly approved this important legislation.” (Sen. Feinstein, Congressional Record, S.14702, 10/29/1993)

REP. BEN CARDIN (D-MD): “As a long-time cosponsor of the Religious Freedom Restoration Act, I am pleased the bill has received the support of virtually every major religious denomination, the Clinton administration, and, most recently, the unanimous vote of the House Judiciary Committee. I urge my colleagues to support this legislation that strengthens one of our most fundamental rights-the free exercise of religion.” (Rep. Cardin, Congressional Record, H.1234, 5/11/1993)

REP. NANCY PELOSI (D-CA): “Mr. Speaker; I rise today to express my support for … the Religious Freedom Restoration Act of 1993, and to urge my colleagues to vote in favor of this measure. … In order to protect the constitutional rights of Americans, it is necessary to return the criteria for abridging religious freedom to pre-Smith days. Before this trial, any Government action restricting the free exercise of religion had to pass the ‘compelling governmental interest test’ to prove that the action was essential to further a compelling Government interest. This legislation is important because it protects an individual's religious freedom from unnecessary Government interference. It provides for the reestablishment of fair standards to determine if Government intervention is necessary. Religious freedom is one the founding principles of this Nation…. I hope that my colleagues will join me in supporting the protection of religious freedom by voting in favor of the Religious Freedom Restoration Act.” (Rep. Pelosi, Congressional Record, 5/11/1993)

BURWELL v. HOBBY LOBBY STORES: ‘The Question These Cases Are Seeking To Solve Is Whether For-Profit Companies Have A Right To Exercise Religious Freedom Under The Religious Freedom Restoration Act’

Burwell v. Hobby Lobby Stores and affiliated cases “…raise the question whether the religious rights of their owners — real people, who undeniably can act according to their faith — are violated by the requirement that their companies obey the contraceptive mandate.” (“Argument Preview: Religion, Rights, And The Workplace,” Scotusblog, 3/2/14)

“It all starts with the Affordable Care Act. The law stipulates that employers need to provide health care for their employees that covers all forms of contraception at no cost. However, some for-profit corporations have insisted they should not have to pay for all of these services — especially those that conflict with their beliefs. The owners of Hobby Lobby and Conestoga Wood Specialties don't have a problem with offering insurance that covers most forms of birth control, but they aren't willing to cover emergency contraceptives — like Plan B or ella -- or IUDs. Hobby Lobby contends its ‘religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception.’” (“Here’s What You Need To Know About The Hobby Lobby Case,” The Washington Post, 3/24/14)

JUDGE GORSUCH: RFRA Applies, “The Religious Freedom Restoration Act … Doesn’t Just Apply To Protect Popular Religious Beliefs’

JUDGE GORSUCH Concurring 10th Circuit Opinion: “[T]he Religious Freedom Restoration Act … doesn’t just apply to protect popular religious beliefs: it does perhaps its most important work in protecting unpopular religious beliefs, vindicating this nation’s long-held aspiration to serve as a refuge of religious tolerance... As we have seen, it is not for secular courts to rewrite the religious complaint of a faithful adherent, or to decide whether a religious teaching about complicity imposes ‘too much’ moral disapproval on those only ‘indirectly’ assisting wrongful conduct. Whether an act of complicity is or isn’t ‘too attenuated’ from the underlying wrong is sometimes itself a matter of faith we must respect.” (Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013) (en banc) (Gorsuch, J., concurring))

  • GORSUCH: “All of us face the problem of complicity.  All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.  For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability.  The Green family members are among those who seek guidance from their faith on these questions.  Understanding that is the key to understanding this case.  As the Greens explain their complaint, the ACA's mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong.” (Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1152 (10th Cir. 2013) (en banc) (Gorsuch, J., concurring))

“Burwell v. Hobby Lobby Stores, 2014: The Supreme Court ruled that the Religious Freedom Restoration Act gave closely held companies the right to opt out an Obamacare requirement that they provide contraceptive coverage to their workers. The decision upheld a Tenth Circuit ruling that Gorsuch had joined.” (“Seven Cases Where The Supreme Court Sided With Neil Gorsuch,” Bloomberg, 2/2/17)

Judge ‘Gorsuch Upheld The Rights Of Hated Prisoners’

“If you doubt Gorsuch's commitment to the law on this point, and believe he was just standing up for rich Christians, check out the judge's rulings in favor of men named Andrew Yellowbear and Madyn Abdulhaseeb.” (“Neil Gorsuch Upheld The Rights Of Hated Prisoners And Muslims,” Washington Examiner, 1/31/17)

‘Judge Gorsuch Was … Solicitous Of The Religious Rights Of A Native American’ Prisoner 

“Judge Gorsuch was equally solicitous of the religious rights of a Native American ... Gorsuch ruled in 2014’s Yellowbear v. Lampert that Andrew Yellowbear is entitled to engage in prayer and meditation in a sweat lodge erected on the prison grounds.” (“Decoding Gorsuch’s Picks For His 10 ‘Most Significant’ Opinions,” Reuters, 2/15/17)

“Yellowbear is a member of the Northern Arapaho Tribe, and his federal prison has a sweat lodge in the main prison yard. But Yellowbear is kept separate from the prison's general population — not because of any disciplinary infractions, but for his own protection. The prison denied Yellowbear access to the sweat lodge, arguing that escorting him there would be too costly and disruptive. A federal district court agreed with the prison and threw out Yellowbear's suit on summary judgment. But when the case came before him, Gorsuch noted that prisoners in protective custody are escorted daily through gen-pop for medical or legal issues. Gorsuch asked ‘why is this religious exemption offensive to the prison's putatively compelling no-lock-down interest when other secular exemptions are not?’ Gorsuch vacated the lower court's summary judgment and ordered them to hear out Yellowbear's religious liberty case. Gorsuch based his ruling on RFRA and the related Religious Land Use and Institutionalized Persons Act. ‘The whole point of RFRA and RLUIPA,’ he wrote, ‘is to make exceptions for those sincerely seeking to exercise religion.’” (“Neil Gorsuch Upheld The Rights Of Hated Prisoners And Muslims,” Washington Examiner, 1/31/17)

JUDGE GORSUCH: “Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murder... With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs or that they are the reason he seeks access to his prison’s sweat lodge — a house of prayer and meditation the prison has supplied for those who share his Native American religious tradition. Yet the prison refuses to open the doors of that sweat lodge to Mr. Yellowbear alone, and so we have this litigation. While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them — at least in the absence of a compelling reason. In this record we can find no reason like that….” (Yellowbear v. Lampert, 741 F. 3d 48 - Court of Appeals, 10th Cir. 2014)

JUDGE GORSUCH: ‘Mr. Abdulhaseeb … Has Been Forced To Choose Between Violating His Religious Beliefs And Starving To Death’

“Then there was the case of Madyn Abdulhaseeb, a Muslim man serving 150 years for rape and burglary. Abdulhaseeb sued the prison for not providing halal meals. Gorsuch ruled in Abdulhaseeb's favor and, in a concurring opinion, laid out a clear method, based in the text of the two laws, for weighing the state's interest against the individual's religious-liberty interests.” (“Neil Gorsuch Upheld The Rights Of Hated Prisoners And Muslims,” Washington Examiner, 1/31/17)

JUDGE GORSUCH: “This case compels us to address only whether prison officials can violate [Religious Land Use and Institutionalized Persons Act] by denying an inmate in their charge all means of accessing food he can eat consistent with his (uncontested) sincerely held religious beliefs — thus effectively forcing him to choose between remaining pious or starving.  We hold that RLUIPA does indeed apply in these circumstances.” (600 F.3d 1301 (10th Cir. 2010))

  • GORSUCH: “Mr. Abdulhaseeb … has been forced to choose between violating his religious beliefs and starving to death.  Whatever else might be said about RLUIPA, redressing this sort of Hobson’s choice surely lies at its heart.” (600 F.3d 1301 (10th Cir. 2010))

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