Imaginary Contradictions: A Reply to Professor Oleske

Abstract

This is a short reply to an attempted rebuttal of an amicus brief that I filed in the Supreme Court’s contraception cases. The brief says that for-profit corporations are covered by the Religious Freedom Restoration Act, and that this is the objective public meaning of RFRA’s language. Both sides in Congress read RFRA’s language this way when it was copied into the proposed Religious Liberty Protection Act.

In congressional testimony on that bill in 1998 and 1999, I said that civil rights enforcement would usually be a compelling government interest and that only a few RLPA defenses to civil rights claims would succeed.

Professor Oleske claims that this testimony is inconsistent with the brief. The brief is about coverage at the threshold in any and all cases. The testimony was about success on the merits in one set of cases — civil rights cases. There is no contradiction.

Keywords: religious liberty, religious freedom, free exercise, free exercise of religion, conscientious objection, exemption, accommodation, abortion, same-sex marriage, contraception, contraceptive mandate, Affordable Care Act, Religious Freedom Restoration Act, RFRA, Religious Liberty Protection Act, RLPA