The Public Meaning of RFRA versus Legislators' Understanding of RLPA: A Response to Professor Laycock

Abstract

This short essay is a response to Professor Laycock's spirited defense of his legislative-history argument in the contraception cases. Professor Laycock maintains that the objective public meaning of the Religious Freedom Restoration Act of 1993 can be discerned by examining a congressional debate over the never-enacted Religious Liberty Protection Act of 1999. Based on this examination, Professor Laycock concludes that the exemption rights in RFRA indisputably extend to the for-profit commercial realm.

The problem with this argument is two-fold: First, the 1999 RLPA included a "broad construction" provision that was not included in RFRA. As a result, legislators' hopes and fears about the breadth of RLPA cannot possibly be viewed as a definitive indicator of the pubic meaning of RFRA. Second, even putting aside the textual discrepancy between RFRA and RLPA, the legislative history of the latter — including Professor Laycock's own extensive testimony — appears to be in considerable tension with the claim that large employers like Hobby Lobby Stores Inc. are entitled to RFRA's protections.

Professor Laycock dismisses the apparent tension as "imaginary," contending that his RLPA testimony was solely about the merits of "civil rights cases," while the contraception cases "are not civil rights cases" and involve threshold questions about the viability of commercial exemption claims. Yet, in his RLPA testimony, Professor Laycock explicitly relied upon a non-civil-rights case for the proposition that "once the courts characterize [an operation] as commercial, the religious liberty claim loses." And under the Supreme Court's approach to discerning public meaning, which looks to the understanding of respected scholars as well as relevant precedent, Professor Laycock's testimony and the unanimous pre-Smith cases it mirrored are far more reliable indicators of the public meaning embodied in the consensus RFRA than statements by legislators in a floor debate over the hotly contested and more broadly drafted RLPA.

Keywords: Religious Liberty, Free Exercise, RFRA, Public Meaning, Civil Rights, Contraception, Employee Rights, Employer Rights,Corporate Rights, ACA, Obamacare, Legislative History, Hobby Lobby

JEL Classification: K10, K19, K30, K31, K32, K39, I11, I18