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View Diary: Hobby Lobby: Does RFRA violate the Establishment Clause? (263 comments)

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  •  That's City of Boerne v. Flores, (12+ / 0-)

    521 U.S. 507 (1997).

    I competed in a National Moot Court Competition several years ago in which I argued inter alia that RLUIPA, an offshoot of RFRA passed in the wake of Boerne, was unconstitutional under the Establishment Clause. The land use provisions of RLUIPA essentially give religious actors a right to literally make a federal case out of any and every decision of any and every local zoning board. A church could get a zoning variance that a layperson or secular business could not get; a church has a presumptive right to build what it wants, where it wants, without interference from local zoning boards or state zoning laws, that similarly-situated secular persons and entities don't have.

    Post-Boerne, RFRA applies its "substantial burden" test only to federal laws and federal actions; the Boerne decision striking down RFRA was limited to the states, pursuant to § 5 of the 14th Amendment.

    Maybe what should happen is this: If Hobby Lobby wins, and exercises the religious exemption that the SCOTUS is about to carve out for it, one of their female employees who is denied contraception coverage should turn around and sue Hobby Lobby, and include an argument that RFRA, which enabled the exemption, is unconstitutional under the Establishment Clause. I'd sign on to litigate that case.

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