In the SG’s reply brief in Hobby Lobby, the United State addresses an issue that will some cruise into the forefront of our thoughts–the intersection of Title VII and RFRA. The government strongly signals that RFRA would not stand as a barrier to any type of civil rights claim. That is, someone asserts that requiring him (or his business) to service certain customers (let’s say a gay wedding) substantially violates his religious liberties.
This lengthy footnote alludes to this issue, in the context of Arizona SB 1062.
As McClure makes clear, this example is not hypothetical. In- deed, one of respondents’ amici expressly urges the Court to use this case to resolve what it describes as the “growing conflict be- tween religion and nondiscrimination principles” in favor of religion. See Liberty, Life, & Law Found. Amicus Br. 13. Similar arguments were recently advanced in favor of an amendment to Arizona’s state- level RFRA, Ariz. Rev. Stat. Ann. §§ 41-1493 et seq. (2011); see S.B. 1062, 51st Leg., 2d Reg. Sess. (Ariz. 2014), which was vetoed by the Governor. See Letter from Janice K. Brewer, Governor, State of Ariz., to the Hon. Andy Biggs, President of the Ariz. State Senate (Feb. 26, 2014), http://azgovernor.gov/dms/upload/PR_022614_ SB1062VetoLtr.pdf. As counsel for respondents’ amicus Christian Legal Society has explained, the vetoed Arizona bill would have expressly codified as a matter of state law respondents’ interpreta- tion of the federal RFRA, i.e., an extension of free-exercise rights to all corporations and recognition of a RFRA defense in litigation between private parties. See David Bernstein, Guest post from Prof. Doug Laycock: What Arizona SB 1062 actually said, The Wash. Post (Feb. 27, 2014), http://www.washingtonpost.com/news/ volokh-conspiracy/wp/2014/02/27/guest-post-from-prof-doug-laycock -what-arizona-sb1062-actually-said/; see also Gov’t Br. 43-45 (dis- cussing court of appeals decisions holding that RFRA does not apply in litigation between private parties).
I opined on this issue at length here, and addressed how there is a Circuit Split on the issue. This case should come to the Court soon enough.
For months, I’ve thought that the Justices can’t decide Hobby Lobby without Elane Photography in their minds. In other news, Elane Photograph is up for consideration at the next conference.
Update: More from Marty Lederman:
And that is why Hobby Lobby is—and why Arizona SB 1062 would have been—so striking and so important. However modest its language might have been, there is no doubt that SB 1062 was designed—and widely understood, including by Governor Brewer—to reflect a legislative view that commercial actors should be afforded religious exemptions much more often than they have been in the past (i.e., never), including when it comes to antidiscrimination norms.Likewise, in Hobby Lobby, the plaintiffs and their amici (including Senator McCain) are urging the Court not only to allow commercial for-profit enterprises to raise RFRA claims, but also to grant the requested exemptions—that is to say, they are urging the Court to make a sharp break from its unbroken doctrine. It is therefore not surprising that the government, in its just-filedreply brief, argues that “RFRA should not be read to attribute to Congress an intent to accomplish sub silentio the revolution in free-exercise law that respondents seek.”
Some of Hobby Lobby’s amici argue that the case (and the parallel recent proposals to amend state law) does not threaten such a sea-change with respect to commercial actors’ claims for religious exemptions that would significantly harm third parties. Doug Laycock, for example, has recently blogged that SB 1062 would not have presented much of a threat to antidiscrimination and other commercial laws because “[a]s a business gets bigger and more impersonal, courts would have become more skeptical about claims of substantial burden on the owner’s exercise of religion, and more open to the government’s claim of compelling interest.”
The Court’s decision in Hobby Lobby is likely to have a profound effect upon how other courts treat state and federal RFRA claims in the commercial sector going forward. If the Court were to hold that RFRA requires an exemption in these cases—and were to hold, in particular, in the case brought by a very large for-profit employer, that the law substantially burdens plaintiffs’ religious exercise and that the government lacks a compelling interest in denying religious exemptions—that would be a groundbreaking departure from the judiciary’s (and Congress’s) historical practice, one that could pave the way for claims for “myriad exceptions flowing from a wide variety of religious beliefs” (Lee) by commercial enterprises with respect to many other statutes, including nondiscrimination requirements, zoning regulations, taxes, and so on.