# Amicus Curiae Brief — Zubik v. Burwell, 136 S. Ct. 444 (2015) (No. 14-1418)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

Nos. 14-1418, 14-1453, 14-1505,
15-35, 15-105, 15-119 & 15-191

In The
Supreme Court of the Gnited States

S

DAVID A. ZUBIK, et al.,

Petitioners,

Vv.

SYLVIA BURWELL, Secretary
of Health and Human Services, et al.,

Respondents.

+

On Writs Of Certiorari To The
United States Courts Of Appeals For The
Third, Fifth, Tenth And D.C. Circuits

*

BRIEF OF AMICUS CURIAE
THE HONORABLE ROBERT C. “BOBBY” SCOTT
IN SUPPORT OF THE RESPONDENTS

+

MARCI A. HAMILTON, Esq.
Counsel of Record

36 Timber Knoll Drive
Washington Crossing, PA 18977
(267) 907-3995
hamilton.marci@gmail.com

Counsel for Amicus Curiae

COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS
Page
ey ee IIE cinconccnsncscnenscosensensneteinentes i
TABLE OF AUTHORITIES .....................:secceeeeees ii
INTEREST OF AMICUS CURIAE...................044. 1
SUMMARY OF ARGUMENT ................ccceeeeeeeees 2
EE ticnietinsecntinininninnstnseipinnnssqnninetssesninese 3

I. RFRA’s Legislative History Indicates Un-
raveling Support Amid Growing Concerns
about the Breadth and Scope of Its Im-
SEE dctssebunndiimmbiddanseniinmnaiiiininmeeninmnees 9

II. The Hobby Lobby Interpretation of RFRA
Threatens the Separation of Powers by
Delegating Lawmaking Power to the Un-
I vinincicuinninnnninnecniasiiinininsiiiaiiainn 21

III. The Petitioner’s Theory Would Result in
a RFRA Interpretation Unconstitutional
TT tittnisiiintinrictaiomnetéaiieninsetiénmnnines 26

I ipsccntdisnnnninninidinsinniinniianinnitadiubdiaeonseeiin 28

rH

TABLE OF AUTHORITIES
Page
CASES
Adkins v. Children’s Hospital, 261 U.S. 525
STITT oiitieisetaichteecinindees dialed cehnmaceeaceettlaneiiaiaaeniiiiaiiaiiianiid 23
Bob Jones Univ. v. United States, 461 U.S. 574
Ices iaiitecechiisiiich eat eal estan iidecieinsinabiiemmionniniel 6
Bowen v. Roy, 476 U.S. 693 (1986)..................cccceeeeeee 21
Burwell v. Hobby Lobby, 573 U.S. __, 134
Ss ITE ictincniiannoteaadunineinsnssnndsnnniniini passim
Catholic Health Care Sys. v. Burwell, 796 F.3d
ceil cl eh ireninioninnl 26
Church of the Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520 (1993)....................04. 9, 10, 11
City of Boerne v. Flores, 521 U.S. 507 (1997).....passim
Cutter v. Wilkinson, 544 U.S. 709 (2005)................... 23
Dole v. Shenandoah Baptist Church, 899 F.2d
IE, BI ninsiiiiercdidiniteiiaiieieinaiaiinmmetiemsamuneiel 6
East Texas Baptist Univ. v. Burwell, 793 F.3d
I I ial eecnacael 26
Employment Div. v. Smith, 494 U.S. 872 (1990) ....passim
Field v. Clark, 143 U.S. 649 (1892)............... eee 25

First Church of Cannabis v. Indiana, No.
49C01-1507-MI-022522 (Marion Co. Cir. Ct.
I i aalicaeaeeaiiatibilinalaaieitinadidibieaannbin 12

Geneva Coll. v. Sec’y United States Dep't of
Health & Human Servs., 778 F.3d 422 (3d
ee Se siciccessimnseiisiiennindinssennapiscnnsinnisniiiamieniuannnaniins 26

ill

TABLE OF AUTHORITIES — Continued

Page
Goldman v. Weinberger, 475 U.S. 503 (1986)............ 21
Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418 (2006)............. 12, 28
Grace Schools v. Burwell, 801 F.3d 788 (7th Cir.
lata aia aa a ates 26
Hammer v. Dagenhart, 247 U.S. 251 (1918).............. 26
Holt v. Hobbs, 135 S. Ct. 853 (2015).................... 22, 23
J.W. Hampton, Jr. v. United States, 276 U.S.
REESE APRESS ee ea ee 25

Jacobson v. Massachusetts, 197 U.S. 11 (1905)......... 21
Little Sisters of the Poor Home for the Aged v.

Burwell, 794 F.3d 1151 (10th Cir. 2015)........... 12, 26
Lochner v. New York, 198 U.S. 45 (1906)................... 23
Michigan Catholic Conference v. Burwell, 755

NE SIE vicinncicisesiideneinsstentemmnicemmmmenicions 26
Miller v. Davis, No. CV-15-44-DLB, 2015 WL

9461520 (E.D. Ky. Sept. 11, 2015)...................00... 12
Mistretta v. United States, 488 U.S. 361 (1989)........ 24
Nebbia v. New York, 291 U.S. 502 (1934) .................. 24
Nixon v. United States, 506 U.S. 224 (1993) ............. 21
O’Lone v. Estate of Shabazz, 482 U.S. 342

I aiken aint tata tinrat ines dined 22

Perez v. Paragon Contractors Corp., No. 2:13-
CV-281 RJS, 2013 WL 4478070 (D. Utah
a cinicsschiccdiasianciacialasiaasteniaemmuiaiis 12

iV
TABLE OF AUTHORITIES — Continued

Priests for Life v. United States Dep’t of Health
& Human Servs., 772 F.3d 229 (D.C. Cir.

I isteach citadel tata 26
Prince v. Massachusetts, 321 U.S. 158 (1944)........... 21
Sharpe Holdings v. Burwell, 801 F.3d 927 (8th

EIRENE Sooper ornare 27
Sherbert v. Verner, 374 U.S. 398 (1963)..................0.. 15
United States v. Carolene Products Co., 304

iis trnietatiaticiaeaiiiaarietiadialaatialitiieeaneaiciiiaell 24
United States v. Lee, 455 U.S. 252 (1982).................. 21
United States v. Virginia, 518 U.S. 515 (1996)............ 6
West Coast Hotel Co. v. Parrish, 300 U.S. 379

ical taeceeiitetltaltetlaa anti iindilas iain tian islet 24
Whitman v. American Trucking Association,

| TEL TI ee. 27
Williamson v. Lee Optical of Oklahoma, Inc.,

A 24
Wisconsin v. Yoder, 406 U.S. 205 (1972) ...................00. 5

STATUTES AND RULES

42 U.S.C. § 2000bb et seq. (2012).................. passim

Accommodations to Religious Observance and
Practice, 41 C.F.R. § 381.11 (2016)............00..00000.... 28

Exemptions Based on Religious Dietary Laws,
a Oe ee CE renectictensiinnncnnienccnsimntccnnnines 28

29 C.FR. § 1606.20 1) (2O1G) ..............ceccrcrrcccesscecsees 28

Vv

TABLE OF AUTHORITIES — Continued
Page
CONSTITUTION
Be I MII, 1 0110s re ccrtesindeniceninnnnamnietenimenial passim
U.S. Const. amend. I (Free Exercise Clause)..... passim
U.S. Const. amend. I (Establishment Clause) .... passim

U.S. Const. amend. I-X (Bill of Rights)............. passim
ts MII, BIIID cctrtsccncsccsnccsccsenonsncnocnnsies passim
UW. CORP. GUGM. BEV, § ©. .cccccccccsoccccscscessesccee passim
Ss EG MIEN TT dpittiidediceieninicinetninisisnniiatntnbinedscnmeidinieieons 25

LEGISLATIVE MATERIALS

Equality Act, H.R. 3185, 114th Cong. (2015)............. 19
H.R. 1691, 106th Cong. (1999)... passim
H.R. Rep. No. 106-219 (1999).................00000008 13, 16, 20

Religious Freedom Restoration Act of 1991:
Hearing on H.R. 2797 Before the House
Subcomm. on Civil and Constitutional
Rights of the H. Comm. on the Judiciary,

EEE eee ee OS 9
Religious Land Use and Institutionalized Per-
sons Act, S. 2869, 106th Cong. (2000)........ 16, 17, 18

Religious Liberty: Hearing on Issues Relating to
Religious Liberty Protection and Focusing on
the Constitutionality of a Religious Protection
Measure Before the H. Comm. on the Judici-
A, Te I i ceccinccccsiscoteceentccnntonecensencesones 15

vl

TABLE OF AUTHORITIES — Continued
Page
Religious Liberty Protection Act of 1998: Hear-

ing on H.R. 4019 Before the Subcomm. on the
Constitution & H. Comm. on the Judiciary,

Re I Ce iciitenisinsciicseccnnsaisaianniamaiitl 8, 13, 14
136 Cong. Rec. S17330-31 (1990).................cccseseccesseees fe)
146 Cong. Rec. S7774-01 (2000).............cccccccssscersssvees 16
OTHER AUTHORITIES

Brief for Petitioner, Church of the Lukumi
Babalu Aye v. City of Hileah, 508 U.S. 520
CR ES ee ceccsiniicessniccssiotetaeiieneecebuididasaiinnl 10

Brief of Julian Bond et al., as Amici Curiae
Supporting the Government, Sebelius uv.
Hobby Lobby Stores, sub. nom Burwell v.
Hobby Lobby Stores, 573 U.S. __, 134 S. Ct.

2751 (2014) (No. 13-3B54).............ccccccccsseesssssesseeeccesees 5

Campbell Robertson & Richard Pérez-Peja,
Bills on ‘Religious Freedom’ Upset Capitols in
Arkansas and Indiana, N.Y. Times, March 31,
2015, http://www.nytimes.com/2015/04/01/us/
religious-freedom-restoration-act-arkansas-
I I icccvicnitetsniininiiniiiiedenenisthiunieastaibs 18

Glen E. Summers, Private Property Without
Lochner: Toward a Takings Jurisprudence
Uncorrupted by Substantive Due Process,

142 U. PA. L. REV. 837 (1993)............sssecccsssssosceeeees 23

Vii
TABLE OF AUTHORITIES — Continued

Kristina Peterson, Supreme Court’s Hobby
Lobby Ruling Ignites Debate Over Religious-
Freedom Law, Wall St. J. (June 30, 2014)
http://www. wsj.com/articles/supreme-courts-

hobby-lobby-ruling-ignites-debate-over-religious-

freedom-law-1404155510.......... ccc ccc cece ees

Marci A. Hamilton, Gop vs. THE GAVEL: THE
PERILS OF EXTREME RELIGIOUS LIBERTY (Cam-

bridge Univ. Press 2014).................ccccecseeeeeeeeeees

Martha A. Field, Garcia v. San Antonio Metro-
politan Transit Authority: The Demise of a
Misguided Doctrine, 99 Harv. L. REv. 84

Press Release, Rep. Nadler, Supreme Court
Ruling on Hobby Lobby Case is a Defeat for

Women, Religious Liberty (June 30, 2014).......

Thomas Jefferson, Virginia Statute of Religious
Freedom, in Thomas Jefferson: Word for
Word (Maureen Harrison & Steve Gilbert

Page

1

INTEREST OF AMICUS CURIAE'

Congressman Robert C. “Bobby” Scott was first
elected to Congress in 1992 and served on the House
Judiciary Committee from 1993 until 2014 during
that committee’s deliberation of a number of key
religious liberty issues, including the Religious Free-
dom Restoration Acts of 1993 and 2000 (“RFRA”). As
Ranking Member of the Subcommittee on the Consti-
tution from 1997 to 1999, he also played a key role in
highlighting civil rights concerns as Congress re-
examined RFRA after the decision in City of Boerne v.
Flores, 521 U.S. 507 (1997), and during the considera-
tion of the Religious Liberty Protection Act (H.R. 1691).

In 2015, Congressman Scott assumed the Rank-
ing Member position of the House Education and the
Workforce Committee. The Committee shares juris-
diction on matters related to the Affordable Care Act,
as well as strengthening worker protections and
defending the civil rights of workers. It is Congress-
man Scott’s view that religious liberty and freedom
should not abrogate the civil rights protections of
workers.

«

* No counsel for a party authored this brief in whole or in
part, and no such counsel or party made a monetary contribu-
tion intended to fund the preparation or submission of this brief.
No persons other than the Amicus or his counsel made a mone-
tary contribution to this brief’s preparation or submission. All
parties have consented on the docket to the filing of amicus

curiae briefs.

2

SUMMARY OF ARGUMENT

Religious freedom lies at the heart of United
States history and tradition, and has nurtured not
only extraordinary religious diversity but also a
peaceful society in which everyone is protected from
harm regardless of their beliefs. Religious liberty
needs to be balanced with concerns for harm to oth-
ers, and that was the assumption of the bipartisan
support behind the Religious Freedom Restoration
Act of 1993 (“RFRA”). After RFRA was found uncon-
stitutional in City of Boerne v. Flores, 521 U.S. 507
(1997), many members of Congress began to question
whether RFRA was the balance between liberty and
protection from harm they assumed in 1993. Their
concerns were assuaged by RFRA’s proponents’ exe-
gesis of the bill, which repeatedly assured them that
RFRA would not trump civil rights laws and would
not be a tool for employers to overcome employee
anti-discrimination laws.

When RFRA is interpreted literally, without
reference to this legislative history, it becomes a tool
by which a court can insert its policy judgment for the
legitimate policy decisions of the elected branches.
Amicus curiae is concerned that this Court’s interpre-
tation in Burwell v. Hobby Lobby, 573 U.S. __, 134
S. Ct. 2751 (2014), crosses this boundary line into a
violation of the separation of powers. To rule in favor
of Petitioners in this case would be a certain violation
of the separation of powers, as the Court would be
putting itself in the shoes of the elected branches in
reaching permissive accommodation.

3

Petitioners are asking this Court to personalize a
fair and generous religious accommodation, to consid-
er only their beliefs, and not the beliefs or rights of
their employees. That is not the RFRA interpretation
that a bipartisan Congress supported in 1993 or
permitted to pass in 2000. It is certainly not the
history of religious tolerance and peaceful religious
coexistence that is the hallmark of the United States.

sf

ARGUMENT

Religious freedom is a cornerstone of American
law and society, a right that was of great importance
to the founding generation and protected by the First
Amendment. The notion that religious liberty is
important and valuable to the public good is an idea
embedded in American society, but the framing
generation also understood that there is such a thing
as too much liberty. Religious liberty must have a
limit, particularly when its effect is harm to others.
This “no-harm principle” was a notion articulated by
John Locke in the 17th century, widely shared by the
framing generation in the 18th century, and en-
trenched in modern philosophy and law by John
Stuart Mill. In essence, the principle is a firm rejec-
tion of individual (or institutional) autonomy from the
laws that protect others from harm. While the gov-
ernment has no business interfering in our beliefs, it
must legitimately protect us from others’ potential
harms. GOD vs. THE GAVEL: THE PERILS OF EXTREME

4

RELIGIOUS LIBERTY 278-313 (Cambridge Univ. Press
2014).

Indeed, the 1786 Virginia Statute for Establish-
ing Religious Freedom, which served as a basis for
the First Amendment, enshrined this very balance
between the freedom of conscience and not diminish-
ing the rights of others to the rights and protections
of civil law:

Be it enacted by the General Assembly, that
no man shall be compelled to frequent or
support any religious worship, place, or min-
istry whatsoever, nor shall be enforced, re-
strained, molested, or burthened in his body
or goods, nor shall otherwise suffer on ac-
count of his religious opinions or belief; but
that all men shall be free to profess, and by
argument to maintain, their opinion in mat-
ters of religion, and that the same shall in no
wise diminish, enlarge, or affect their civil
capacities.

Thomas Jefferson, Virginia Statute of Religious
Freedom, in Thomas Jefferson: Word for Word 55-57
(Maureen Harrison & Steve Gilbert eds., 1993). It is
the question of this very balance that is before the
Court in the case at hand.

Despite religion’s societal value, it has contribut-
ed to significant social ills as well, such as slavery,
sexism, anti-miscegenation, child abuse, and segrega-
tion, to name a few. At the beginning of our nation’s
history, some of the most fundamental inequalities
were justified by citing to religious beliefs. The Civil

5

Rights Act of 1964 was met with significant objection
based on religion, and although such criticisms were
ultimately rejected, resistance to the Act persisted
even after its adoption. See Brief of Julian Bond et al.,
as Amici Curiae Supporting the Government at 10-
27, Sebelius v. Hobby Lobby Stores, sub. nom Burwell
v. Hobby Lobby Stores, 573 U.S. __, 134 S. Ct. 2751
(2014) (No. 13-354).

The Religious Freedom Restoration Act, 42
U.S.C. § 2000bb (1993) (“RFRA”), was a direct con-
gressional response to the Supreme Court’s decision
in Employment Div. v. Smith, 494 U.S. 872 (1990).
Smith was met with extreme criticism by religious
entities and legal scholars alike, who cast the decision
as a dramatic, unjustified departure from previous
free exercise cases. Working with the characterization
of Smith’s supposed ill effects on religious liberty as
advanced by these religious groups and academics,
Congress passed RFRA three years after Smith was
decided. It did so on the premise that RFRA would
“restore” prior free exercise doctrine, that is, the
ordinary strict scrutiny test articulated by the Su-
preme Court in Wisconsin v. Yoder, 406 U.S. 205
(1972) and Sherbert v. Verner, 374 U.S. 398 (1963).
There was no discussion or expectation that the
Court’s free exercise outcomes other than Smith
would be altered by RFRA.

The Supreme Court majority's interpretation of
RFRA in Burwell v. Hobby Lobby, 573 U.S. ___, 134
S. Ct. 2751 (2014), came as a surprise to many, in-
cluding members of Congress who had supported

6

RFRA in the past. The statutory test had developed
beyond what they believed RFRA was intended to
accomplish and reneged on the promises RFRA’s
supporters had given that federal civil rights would
not be undermined by RFRA.

This Court and others have rejected the assertion
of religious beliefs as a justification for denying
Americans full civil rights protection. For example,
courts have rejected the claim that women should
receive less compensation than men on the belief that
men are the head of the house, the wife, and the
family. Dole v. Shenandoah Baptist Church, 899 F.2d
1389, 1392 (4th Cir. 1990). Similar invocations of
religious beliefs related to race and sex have been
struck down by the Court. See Bob Jones Univ. v.
United States, 461 U.S. 574 (1983) (holding that the
governmental interest in eliminating racial discrimi-
nation outweighed any burden on the religious beliefs
of a university. Bob Jones University refused to admit
African-American students engaged in interracial
relationships on the premise that it believed the Bible
forbade such relationships); United States v. Virginia,
518 U.S. 515 (1996) (finding no “exceedingly persua-
sive justification” for denying women admission to an
all-male military school and holding that classifica-
tions on the basis of sex may never be used to perpet-
uate gender stereotypes and the legal, social, and
economic inferiority of women).

Many members and advocacy groups, who active-
ly worked for RFRA’s passage, were surprised by the

7

court’s decision in Hobby Lobby.’ For others, Hobby
Lobby affirmed the troubling implications of RFRA
that began to emerge after its passage in 1993 and
led to the unraveling of support for it in 1999 during
consideration of H.R. 1691, 106th Cong. (1999), the
“Religious Liberty Protection Act” or RLPA.* H.R.
1691 was intended to restore RFRA’s applications to
the states post-Boerne decision, which was subject to
many objections and dissents in Congress. In Boerne,
the Court held that Congress had exceeded its consti-
tutional authority in part by applying RFRA to the

* For example, Senator Charles Schumer, who introduced
RFRA in 1993, responded to the Hobby Lobby decision that
RFRA “was not intended to extend the same protection to for-
profit corporations, whose very purpose is to profit from the open
market.” Kristina Peterson, Supreme Court’s Hobby Lobby
Ruling Ignites Debate Over Religious-Freedom Law, Wall St. J.
(June 30, 2014) http://www.wsj.com/articles/supreme-courts-hobby-
lobby-ruling-ignites-debate-over-religious-freedom-law-1404155510.
Rep. Jerry Nadler stated: “When we passed RFRA in 1993, we
sought to restore — not expand — protection for religion. We kept
in place the core principle that religion does not excuse for-profit
businesses from complying with our laws. Religious belief did
not excuse restaurants or hotels from following our civil rights
laws in the 1960s or an Amish employer from paying into the
Social Security system in the 1980s.” Press Release, Rep.
Nadler, Supreme Court Ruling on Hobby Lobby Case is a Defeat
for Women, Religious Liberty (June 30, 2014).

* It is worth noting that RLPA, H.R. 1691, was identical to
RFRA in that they both advanced an extreme religious liberty
test (imposing on the government the requirement of proving
that all laws serve a “compelling interest” in the “least restric-
tive means”). The main difference is that H.R. 1691 relied on the
Commerce Clause in the hopes of passing constitutional muster.
As a result, the legislative history and the debate of its provi-
sions are intertwined with the RFRA of 2000.

8

states absent a clear and persistent record of consti-
tutional violations. In short, the “bipartisan” broad
support for RFRA ended not long after this Court
decided Boerne and members re-examined RFRA.

In the 105th Congress, Ranking Member Robert
C. “Bobby” Scott of the Subcommittee on the Consti-
tution of the House Judiciary Committee, noted, “Mr.
Chairman, part of my concern about the constitution-
ality of this bill stems from some of the language in
Boerne, where the Court expresses almost a hostility
to this kind of legislation and gives me the idea that
it won’t take much for them to throw out the next
one. And the language that I am referring to says...
government's ability to enforce generally applicable
prohibitions of socially harmful conduct cannot de-
pend on measuring the effects of governmental action
on a religious objector’s spiritual development. To
make an individual’s obligation to obey such law
contingent upon the law’s coincidence with his reli-
gious beliefs, except where the State’s interest is
compelling, contradicts both constitutional tradition
and common sense.” Religious Liberty Protection Act
of 1998: Hearing on H.R. 4019 Before the Subcomm.
on the Constitution & H. Comm. on the Judiciary,
105th Cong. at 65-66 (1998).

This amicus brief outlines some of the complicat-
ed legislative history of RFRA that is important to the
Court’s deliberation on the matter at hand. Further,
the brief argues that the Hobby Lobby majority's
interpretation of RFRA risks violating the separation

9

of powers, particularly if it is applied to the facts of
this case.

I. RFRA’s Legislative History Indicates Un-
raveling Support Amid Growing Concerns
about the Breadth and Scope of Its Im-
pact

When RFRA was first enacted in 1993, a biparti-
san coalition supported the laudable concept of shor-
ing up protections for “religious liberty.” The statute’s
title claimed that it was simply “restoring” religious
liberty cases to a familiar, prior era. See Religious
Freedom Restoration Act of 1991: Hearing on H.R.
2797 Before the House Subcomm. on Civil and Consti-
tutional Rights of the H. Comm. on the Judiciary,
102nd Cong. 326 (1992) (statement of Professor
Douglas Laycock) (“RFRA makes the exception explic-
it rather than implicit, but the standard for satisfying
the exception should not change.”). The argument
was made that the only result of enacting RFRA
would be to overturn one case, Employment Div. v.
Smith, 494 U.S. 872 (1990). See 136 Cong. Rec.
S17330-31 (1990) (statement of Sen. Joe Biden) (goal
of RFRA was to “restore the previous rule of law,
which required the Government to justify restrictions
on religious freedom”).

Five months before RFRA was enacted in 1993,
when this Court decided Church of the Lukumi
Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993),
the tension between RFRA and the Court’s prior
doctrine began to emerge. In that case, Professor

10

Douglas Laycock, representing the church, argued
that the Court should apply an extreme version of
strict scrutiny wherein the government must prove
the law serves a compelling interest by the “least
restrictive means.” See Brief for Petitioner at 36,
Church of the Lukumi Babalu Aye v. City of Hileah,
508 U.S. 520 (1993) (No. 91-948). The Lukumi deci-
sion did apply strict scrutiny, because the law at issue
was not generally applicable. Lukumi, 508 U.S. at
545-46.

More importantly, the Lukumi opinion also
affirmed the two-part holding in Smith: (1) laws that
are neutral and generally applicable receive rationali-
ty review while, (2) laws that are not neutral or not
generally applicable, are subject to ordinary strict
scrutiny. Lukumi, 508 U.S. at 531 (stating that neu-
tral, generally applicable laws are subject to low-level
scrutiny but a law that is either not neutral or not
generally applicable is subject to strict scrutiny,
where the government must prove the law satisfies a
compelling interest by narrowly tailored means).

While Lukumi was being litigated, RFRA was
pending before its initial passage. RFRA purportedly
“restored” prior case law in its very title, but in fact
its language departs from both elements of the
Court’s free exercise doctrine summarized in Smith
and Lukumi: RFRA (1) subjects neutral and generally
applicable laws to extreme strict scrutiny (not ration-
ality review) and (2) it subjects laws that are not
neutral or not generally applicable to that same
extreme standard (not ordinary strict scrutiny).

11

Lukumi involved a law that was not generally
applicable, because it targeted a small religious group
and therefore strict scrutiny was applied under the
First Amendment. In addition, the Native American
Church (the entity at issue in Smith) had obtained
exemptions in many states and from the federal
government, and, therefore, negated the very need for
RFRA after Smith. Thus, the Lukumi case and the
legislative response to Smith show that RFRA was an
overreaction. Lukumi, 508 U.S. at 539.

The congressional record, unfortunately, is blank
on this score between this Court’s Lukumi decision
and RFRA’s passage a mere five months later. De-
parting from its plain intent, RFRA would become a
revolution in free exercise, empowering some to
overcome neutral, generally applicable laws across
the federal spectrum, and would therefore lead to
unpredictable results, like Hobby Lobby.

Although there appeared to be broad support for
RFRA and the need to “return to past doctrine,” there
was a clear failure to fully imagine the path we are
now on and the threat RFRA could pose to a sweep-
ing, endless array of issues, e.g., increasing the rights
of some to discriminate in housing against the emerg-
ing fair housing laws. Thus, in the hearings leading
up to its first enactment in 1993, examples of the
need for hyper-strict scrutiny of generally applicable
laws were scarce. This contributed to RFRA’s invali-
dation. City of Boerne v. Flores, 521 U.S. 507, 530
(1997) (“RFRA’s legislative record lacks examples of

12

modern instances of generally applicable laws passed
because of religious bigotry.”).

At the time of RFRA’s passage in 1993, there was
no inkling that RFRA would be wielded as a weapon
to restrict access to contraception or to harm LGBTQ,
women, or children. Burwell v. Hobby Lobby, 573 U.S.
__., 134 S. Ct. 2751 (2014); Little Sisters of the Poor
Home for the Aged v. Burwell, 794 F.3d 1151 (10th
Cir. 2015); Miller v. Davis, No. CV 15-44-DLB, 2015
WL 9461520 (E.D. Ky. Sept. 11, 2015); Perez v. Para-
gon Contractors Corp., No. 2:13-CV-281 RJS, 2013
WL 4478070 (D. Utah Aug. 21, 2013).

Nor did anyone imagine it would be a pipeline for
the legalization of drugs. Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418
(2006); First Church of Cannabis v. Indiana, No.
49C01-1507-MI-022522 (Marion Co. Cir. Ct. filed Jul.
8, 2015).

In 1998 and 1999, after the Court’s decision in
Boerne striking down RFRA, Congress revisited
RFRA-like legislation in an effort to find a constitu-
tional basis to re-enact it. Tellingly, it is this history,
and members’ reconsideration of RFRA, during which
many members’ deep concerns about RFRA’s broad
scope and its impact on civil rights, along with other
important government interests, began to emerge. In
hearings in the 105th and 106th Congress on this
legislation, it became clear that there was a question
of the interplay between the tests of RFRA and a host

13

of governmental interests to prohibit discrimination,
and protect child welfare and other interests. Reli-
gious Liberty Protection Act of 1998: Hearing on H.R.
4019 Before the Subcomm. on the Constitution & H.
Comm. on the Judiciary, 105th Cong. at 68-71 (1998).

As noted in Dissenting Views to the House Re-
port filed on the never-enacted H.R. 1691 or RLPA:

We believe that the Boerne decision also in-
dicates that Congress may have violated
separation of powers principles by enacting
RFRA, an issue the Court will be forced to
decide if RLPA is enacted . . .. We know from
our brief experience with RFRA and with
several state versions of that statute that
some religious groups will use RLPA to at-
tack state and local civil rights laws.

H.R. Rep. No. 106-219, at 36 (1999).

Yet, proponents of RFRA responded to such
concerns about the impact on civil rights with assur-
ances to counter those concerns:

Very briefly about civil rights laws, I would
emphasize again what is frequently lost
sight of. RLPA is not a statute that by itself
trumps any particular practice or statute. It
simply says you have got to look at it again
and see if the statute or practice meets these
standards: Does it serve a very important
government interest, and does it do so in a
way least burdensome to religion? It invali-
dates no civil rights law or any other law. In

14

that respect, it is much narrower than exist-
ing exemptions from civil rights laws that
give carte blanche to religious institutions to
engage in religious discrimination, which is a
typical feature of civil rights laws. Many civil
rights laws have broader provisions — apply
that same standard to anything a religious
institution does. RLPA is not that broad. It
gives the government a chance to justify its
regulation. As I say in detail in the testimo-
ny, there aren’t any religious organizations of
any significance, and I don’t know of any al-
together, that practice or encourage racial
discrimination. There are very few, and here
the picture is a little more cloudy with re-
gard to sexual discrimination. Moreover, it is
settled by case law, that outside the area of
hiring ministers, the claims of sexual equali-
ty are going to prevail over religious exemp-
tions. That is even for religious institutions,
to say nothing of for-profit institutions. I
don’t know of a single for-profit institution
that has ever raised a successful religious
freedom claim as against a civil rights claim.
We can go into later, if there are questions,
about how it would apply to marital status
discrimination and gay rights discrimina-
tion, but I would expect largely that same
pattern would hold.

Religious Liberty Protection Act of 1998: Hearing on
H.R. 4019 Before the Subcomm. on the Constitution &
H. Comm. on the Judiciary, 105th Cong. 56 (1998)
(statement of Marc Stern, Director, Legal Depart-
ment, American Jewish Congress).

15

And yet another RLPA proponent and religious
liberty expert assured members on questions involv-
ing employers:

As the employer becomes larger, or the na-
ture of the work becomes less integrated
with religious mission, this balance of inter-
ests changes. Soon it becomes impossible for
the employer to show a substantial burden
on religious exercise, and the state’s interest
in regulation grows in direct proportion to
the number of jobs at issue.

Religious Liberty: Hearing on Issues Relating to
Religious Liberty Protection, and Focusing on the Con-
stitutionality of a Religious Protection Measure Before
the H. Comm. on the Judiciary, 106th Cong. 153
(2000) (responses of Douglas Laycock to Questions
from Senator Kennedy). This certainly does not line up
with the court’s determination in Hobby Lobby, offering
RFRA protections to an employer operating six hun-
dred stores and employing thousands of employees.

Foretelling where RFRA would land, the Dissent-
ing Views from the House Judiciary Committee Report
on RLPA concluded:

By imposing an across-the-board strict scru-
tiny standard, RLPA will be used to attack
state and local civil rights laws, child welfare
laws and a host of other laws that may not
be compelling but nonetheless serve im-
portant governmental functions. In the end,
we find ourselves faced with a bill that even
the Sherbert Court may have recognized as

16

dangerous. As that Court expressed it, “Even
when []} action is in accord with one’s reli-
gious convictions, it is not totally free from
legislative restrictions.”

H.R. Rep. No. 106-219, at 38 (1999).

In the end, RLPA passed the House after the
defeat of an amendment offered by Rep. Nadler, a
RFRA supporter, to prevent harm to civil rights. But
the vote was far from unanimous, showing the frac-
turing of support for a clean RFRA bill: 306 in favor,
118 in opposition, and 10 not voting. H.R. 1691.
Clearly, the broad-based coalition of interests and
support for RFRA from members unraveled. As a
result of the civil rights concerns, the Senate never
voted on RLPA but rather considered a narrower
version, which re-enacted RFRA, but only as applied
to federal law, and the Religious Land Use and Insti-
tutionalized Persons Act, S. 2869 106th Cong. (2000)
(enacted); 146 Cong. Rec. S7774-01 (2000), (“RLUIPA”),
which only applies to state laws involving land use
and prisons.

As Senator Reid noted in his remarks on the
Senate floor in support of the more limited legisla-
tion:

While the companion measure [H.R. 1691]
passed the House of Representatives over-
whelmingly in July 1999, the legislation
stalled in the Senate when legitimate con-
cerns were raised that RLPA, as drafted,

17

would supersede certain civil rights, particu-
larly in areas relating to employment and
housing. These concerns were most troubling
to the gay and lesbian community. Discrimi-
nation based upon race, national origin, and
to lesser certainty, gender, would have been
protected, regardless of RLPA, because the
courts have recognized that preventing such
discrimination is a sufficient enough compel-
ling government interest to overcome the
strict scrutiny standard that RLPA would
apply to religious exercise. Sexual orienta-
tion and disability discrimination, however,
have not been afforded this high level of pro-
tection. Mr. President, as I was considering
the merits of the Religious Liberty Protection
Act, these concerns weighed heavily upon my
mind... . As I stated earlier, protecting hard
fought civil rights, including those which
prohibit discrimination based upon sexual
orientation, played an important role in my
desire to pursue a more narrowly-tailored re-
ligious freedom measure. I am proud to have
had the opportunity to work with Senators
HATCH and KENNEDY to accomplish the
worthwhile endeavor of protecting legitimate
civil rights while at the same time protecting
the free exercise of religion.

Religious Land Use and Institutionalized Persons Act
of 2000, 146 Cong. Rec. S7774-01 (2000) (statement of
Sen. Harry Reid).

To summarize, it was widely agreed that RFRA
as applied to the federal civil rights laws should not

18

trump those laws. It was only on the basis of these
assurances and understanding that led the concerned
members to clear the way for the new RFRA and
RLUIPA.

In a letter to Senator Hatch to support the nar-
rower legislation, the Clinton Administration’s De-
partment of Justice noted the civil rights implications
of RLPA, stating:

In addition, apparently there has been some
question about the potential effect of S. 2869
on State and local civil rights laws, such as
fair housing laws. Although prior legislative
proposals implicated civil rights laws in a
way that concerned the Department, we be-
lieve S. 2869 cannot and should not be con-
strued to require exemptions from such laws.

Id. at S7776 (letter from Robert Rabin, Assistant
Attorney General to Sen. Hatch).

Today, the fears and misgivings on the scope of
RFRA continue to grow. One only needs to look at the
recent threatened state boycotts that garnered na-
tional attention over state legislative RFRAs in
Arizona, Indiana, and Arkansas as indication of the
controversy that the once broadly supported legisla-
tion enjoyed as a measure of the complicated tempest
that is RFRA. Campbell Robertson & Richard Pérez-
Pefia, Bills on ‘Religious Freedom’ Upset Capitols in
Arkansas and Indiana, N.Y. Times, March 31, 2015,
http?//www.nytimes.com/2015/04/0 1l/us/religious-freedom-
restoration-act-arkansas-indiana.html?_r=0. Note that

19

state action on RFRAs intensified leading up to and
in response to the Obergefell v. Hodges, 578 U.S. __,
135 S. Ct. 2584 (2015), case as a preemptive strike
against an anticipated expanse of gay rights. As
Congress abandoned re-enacting a RFRA applicable
to the states in H.R. 1691 almost sixteen years ago, it
has set the stage for the battle in the states over
RFRAs even now.

There are some who have made the argument
that Congress has taken a hand’s-off approach to
RFRA with no attempt to amend or modify its scope,
implying that there have been no concerns or objec-
tions to its application or interpretation. This is not
only an inaccurate assertion, but it also fails to rec-
ognize the deep concern by members who feel that
legisiation must now be crafted to deal with the
misapplication of RFRA. For instance, the Equality
Act of 2015 was recently introduced to explicitly
prohibit discrimination based on sexual orientation
and gender identity in hiring, employment, educa-
tion, housing, credit, and public accommodation.‘ This
landmark bi-partisan civil rights legislation specifi-
cally carves out RFRA to ensure that it does not apply
to the bill’s provisions recognizing that RFRA is a
growing threat to the expansion of civil rights on the
basis of sexual orientation and gender identity.
Equality Act, H.R. 3185, 114th Cong. (2015).

* This legislation enjoys bipartisan support and has 172
co-sponsors.

20

While Hobby Lobby, and potentially this case if
Petitioners prevail, threatens to undermine the rights
of female employees not to be discriminated against
based on religion or gender, these threats to civil
rights are only the first to emerge from RFRA’s Pan-
dora’s Box when interpreted broadly and aggressively.
In 1999, some House Judiciary Committee members
warned, “If the Smith decision stands for anything, it
stands for the Court’s determination that an across-
the-board strict scrutiny standard would work a
substantial injustice to other important but not
compelling government interests.” H.R. Rep. No. 106-
219 (1999-2000). Yet, even then, members could not
have foreseen Hobby Lobby or the challenge at issue
in this case as to whether the simple act of filling out
a form constitutes an undue burden.

Due to the Hobby Lobby reasoning and if this
Court were to rule in favor of Petitioners in this case
along the same lines, the rights of female employees
not to be discriminated against based on religion or
gender will be severely undermined. Additionally, a
decision in the Petitioners’ favor interferes with
Congressional intent and affirmation of the policy to
extend contraception coverage to women as a key
component of good health care policy, which was only
arrived at after months-long deliberations, numerous
hearings, and consultations with a wide spectrum of
experts, including many health experts.

21

II. The Hobby Lobby Interpretation of RFRA
Threatens the Separation of Powers by
Delegating Lawmaking Power to the Une-
lected Judiciary

When the Court engages in constitutional analy-
sis, the structure of the Constitution and the re-
quirement of mutual respect for the other branches
play a significant role in the Court’s reasoning, overt-
ly or sub silentio. Nixon v. United States, 506 U.S.
224, 240-43 (1993). The constitutional free exercise
cases were routinely decided by this Court’s deference
to the hard policy judgments that Congress or the
military or prison authorities needed to make, or, in
other words, with a healthy humility for its institu-
tional limitations when it comes to policymaking.
This was true across a wide landscape of legal arenas.
See, e.g., Bowen v. Roy, 476 U.S. 693, 700-01 (1986)
(social security system); Goldman v. Weinberger, 475
U.S. 503, 507-10 (1986) (military uniform); United
States v. Lee, 455 U.S. 252, 261 (1982) (social security
tax system); Prince v. Massachusetts, 321 U.S. 158,
166 (1944) (child labor law); Jacobson v. Massachu-
setts, 197 U.S. 11, 27-31 (1905) (mandatory smallpox
vaccination).

When the Court’s free exercise jurisprudence was
redirected by Congress into a federal statute, the
Court’s role in these cases changed from one of
healthy deference and respect for its sister branches
to a statutory interpretation divorced from the

22

Court’s known shortcomings. The most serious consti-
tutional mischief has arisen in this Court’s interpre-
tation of the “least restrictive means” test.

In Hobby Lobby, the Court majority was comfort-
able not identifying the government’s “compelling
interest” in the Affordable Care Act’s contraception
mandate as it applies to for-profit employers, 134
S. Ct. at 2803, but then concluded that the “least
restrictive means” test granted it carte blanche to
second-guess how Congress and the Executive had
crafted a religious exemption. 134 S. Ct. at 2802.

A majority of the Court confidently concluded
that a “least restrictive means” would be for the
government itself to pay for women’s contraception in
circumstances where the for-profit employer would
not due to religious reasons. 134 S. Ct. at 2780. This
conclusion was not economically or politically feasi-
ble. It was plainly not an option that Congress could
have or would have chosen. But the Court majority
took RFRA’s language as an opening to set public
policy, and not to defer to legislative or executive
judgment, or political reality. The failure of deference
to the legislative process threatens the separation of
powers.

This extraordinary grab for power was repeated
in Holt v. Hobbs, 135 S. Ct. 853 (2015), when this
Court interpreted the same standard and, in the
course of doing so, abandoned its previous wholesome
deference to the executive branches operating the
prison systems. See, e.g., O’Lone v. Estate of Shabazz,

23

482 U.S. 342 (1987). Instead, the Court lectured
prison authorities on how long a beard must be to
form a security threat. Hobbs, 135 S. Ct. at 866. This
new tone is quite distinct from the Court’s interpreta-
tion of the same provisions in Cutter v. Wilkinson, 544
U.S. 709, 722 (2005), where a unanimous Court
warned lower courts to defer to prison officials on
matters of safety and security.

Of the Court’s prior cases, the Hobby Lobby
reasoning regarding the “least restrictive means”
hearkens back to the reasoning in Lochner v. New
York, 198 U.S. 45 (1906), because in both cases the
Court put itself in the position of invasively second-
guessing public policy. As with Lochner, the RFRA
interpretation starting in Hobby Lobby has the capac-
ity to raise questions about the Court’s legitimacy and
authority.

The Lochner approach was deployed by the Court
to block social reforms for the protection of rights for
workers, and particularly women and children,
Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding
federal regulation of child labor unconstitutional),
workers in hazardous working conditions, Lochner,
198 U.S. 45 (1905) (holding state regulation of work
hours unconstitutional), and women’s rights, Adkins
v. Children’s Hospital, 261 U.S. 525 (1923) (holding
minimum wage law for women unconstitutional);
Glen E. Summers, Private Property Without Lochner:
Toward a Takings Jurisprudence Uncorrupted by
Substantive Due Process, 142 U. Pa. L. REv. 837,
863-84 (1993) (“when the judiciary acts as a

24

‘superlegislature’ ... it serves to destroy the deviate
constitutional scheme of separation of powers, and, in
so doing, to undermine the intrinsic value and integ-
rity of the democratic process.”); Martha A. Field,
Garcia v. San Antonio Metropolitan Transit Authori-
ty: The Demise of a Misguided Doctrine, 99 Harv. L.
REV. 84, 94 (1985) (when choosing itself, “the court
becomes vulnerable to a charge that it is acting as a
legislature. The outcome, based on past experience, is
to harm both the Court and the country.”).

This Court eventually abandoned the Lochner
approach as beyond its institutional competency.
United States v. Carolene Products Co., 304 U.S. 144,
147 (i938); Williamson v. Lee Optical of Oklahoma
Inc., 348 U.S. 483, 488 (1955); West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 392 (1937); Nebbia v. New
York, 291 U.S. 502, 525 (1934).

That institutional capacity has not changed since
then, but the RFRA test of “compelling interest” and
“least restrictive means” for laws that are neutral and
generally applicable puts the courts in this untenable
position where it is least capable.

Thus, by imposing super strict scrutiny on the
government in cases involving neutral, generally
applicable statutes, RFRA, at least as interpreted by
this Court in Hobby Lobby, delegates lawmaking
power to the courts and, therefore, violates the sepa-
ration of powers. See Mistretta v. United States, 488
U.S. 361, 371-72 (1989) (“we have long insisted that
‘the integrity and maintenance of the system of

25

government ordained by the Constituted’ mandate
that congress generally cannot delegate its legislative
power to another branch.”) (citing Field v. Clark, 143
U.S. 649, 692 (1892)); J.W. Hampton, Jr. v. United
States, 276 U.S. 394, 406 (1928) (“It is a breach of the
national fundamental law if Congress gives up its
legislative power and transfers it to the President, or
to the judicial branch.”).

The same constitutional error arises when reli-
gious entities like the Petitioners ask the courts to re-
craft and micromanage religious exemptions under
the Hobby Lobby reasoning. This Court in Smith
made clear that in our democratic process, the legis-
lature is in the better and the traditional position to
shape religious exemptions and held that the Consti-
tution does not give the courts that same power. Yet,
the Hobby Lobby majority reversed the appropriate
role of the courts and legislature in this arena.

Members of Congress predicted this potential
constitutional pitfall — particularly when civil rights
are at stake — while considering RLPA, which was
touted as a “fix” for the Boerne invalidation of RFRA.
This is the other side of the separation of powers coin
that forbids Congress from enacting legislation that is
a constitutional amendment, as RFRA is. Boerne v.
Flores, 521 U.S. 507, 516, 529, 536 (1997) (“Shifting
legislative majorities could change the Constitution
and effectively circumvent the difficult and detailed
amendment process contained in Article V.”).

26

III. The Petitioner’s Theory Would Result in a
RFRA Interpretation Unconstitutional as
Applied

The Petitioner in this case is making such an
extreme claim that it potentially violates more than
one constitutional prohibition.

This is not a case where RFRA is being used to
attack a law with no exemption, but rather it is being
deployed for the purpose of re-crafting the existing
accommodation to the benefit of Petitioner’s religious
worldview. Nor should it be ignored that the Petition-
ers’ request would inflict harm on female employees.
This Court has never found that notifying the gov-
ernment of a need for religious accommodation is a
substantial burden on religion. This was certainly not
an argument ever raised or considered when ejther
RFRA were enacted in 1993 or 2000.

This argument against notifying the government
of a need for accommodation is, on its face and at its
base, specious, as the vast majority of federal appel-
late courts have held. Grace Schools v. Burwell, 801
F.3d 788, 791 (7th Cir. 2015); Catholic Health Care
Sys. v. Burwell, 796 F.3d 207, 216-26 (2d Cir. 2015);
Little Sisters of the Poor Home for the Aged v. Bur-
well, 794 F.3d 1151, 1173-74 (10th Cir. 2015); Michi-
gan Catholic Conference v. Burwell, 755 F.3d 372 (6th
Cir. 2014); East Texas Baptist Univ. v. Burwell, 793
F.3d 449, 459 (5th Cir. 2015); Geneva Coll. v. Sec’y
United States Dep't of Health & Human Servs., 778
F.3d 422, 442 (3d Cir. 2015); Priests for Life v. United

27

States Dep't of Health & Human Servs., 772 F.3d 229,
256 (D.C. Cir. 2014). But see Sharpe Holdings v.
Burwell, 801 F.3d 927 (8th Cir. 2015).

To hold to the contrary turns RFRA into a sword
that believers can wield against the thousands of
religious accommodations already in place in federal

law — to make them more and more extreme by
judicial fiat.

In Smith, this Court correctly recognized that
practice-specific religious exemptions have a long
history and that there is every reason to expect
lawmakers to be willing to provide exemptions in the
future. “Values that are protected against govern-
ment interference through enshrinement in the Bill of
Rights are not thereby punished from the political
process ... It is [] not surprising that a number of
States have made an exception to their drug laws for
sacramental peyote use.” Smith, 49 U.S. at 890. The
permissive legislative accommodation approved in
Smith (unlike the blunderbuss approach of RFRA),
turns on the assumption that only the lawmakers can
adequately consider how a particular exemption
harms public policy or others, or does not.”

* This argument applies whether the law is a result of the
legislative process or executive enforcement of a complex
legislative scheme wherein Congress has delegated enforcement
and application of the law to the executive. See, e.g., Whitman v.
American Trucking Association, 531 U.S. 457, 472 (2001)
(rejecting nondelegation doctrine as between the legislative and
executive branches). It is common for the executive branch to

(Continued on following page)

28

Lawmakers are in the position to make that call
in the best interest of the public. The courts simply
are not. Therefore, if this Court were to interpret
RFRA as Petitioners demand, it would violate the
separation of powers.

°

CONCLUSION

At the time of RFRA’s passage in 1993, the broad-
based coalition of its supporters sought only to enact
a statute that restored what was perceived as the
pre-Smith standard for religious liberty claims. It
was certainly never intended to allow one group to
use its religious exercise as a sword to usurp the
rights of others. It should be noted that Congress
rejected the notion that RFRA should be used in such
a way when it failed to re-enact it as applied to the
states, or RLPA, in 1999.

RFRA, as presented by the Petitioners’ claim,
does not reflect what its supporters intended at the

recognize religious exemptions that were not already built into
the original law. See, eg., Gonzales v. O Centro Espirita
Beneficente Uniao do Vegtal, 546 U.S. 418, 433 (2006) (“21
U.S.C. § 812(b)\(1) applies equal measure to the mescaline in
peyote, yet both the Executive and Congress itself decreed an
exception from the Controlled Substances Act for Native Ameri-
can religious use of peyote.”); Exemptions Based on Religious
Dietary Laws, 9 C.F.R. § 381.111 (2016); Accommodations to
Religious Observance and Practice, 41 C.F_R. § 381.11 (2016); 29
C.F.R. § 1605.2(cX1) (2016).

29

time of enactment. Moreover, such an interpretation
threatens to violate the separation of powers. Accord-
ingly, Amicus Curiae respectfully requests this Court
reject the extreme reading of RFRA proposed by
Petitioners, which would have the immediate effect of
curtailing the rights of female employees. Further,
such a reading would open the door for RFRA, in the
name of religious exercise, to inflict harm against
third parties across a broad array of important issues.
Therefore, I strongly urge the Court to instead inter-
pret RFRA in light of its legislative history and the
intent of its bipartisan supporters.

Respectfully submitted,

Marc! A. HAMILTON, Esq.
Counsel of Record

36 Timber Knoll Drive
Washington Crossing, PA 18977
(267) 907-3995
hamilton.marci@gmail.com
Counsel for Amicus Curiae

February 17, 2016

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0556%3A76. Public record. Not legal advice.