Marci - I agree that if one side or the other in the 1997 debate was
attempting to make after-the-fact legislative history for RFRA, that
history would be of marginal value. But that's not the theory of relevance
that Doug offers in his article and that I asked about yesterday. Doug
offered the theory that, if both sides in the 1997 had a common
understanding about the language common to RLPA and RFRA, that would be
relevant to interpreting RFRA. What's wrong with that theory as a general
matter? To be sure, on the specific issue of whether for-profit *corporations
*can invoke a defense under the language, the 1997 legislative history
indicates that there was not a common understanding. But in cases where
there was a common understanding on the record (as appears there might have
been concerning individual landlords), I'm not sure why that common
understanding wouldn't be a relevant interpretive tool (not the only tool,
of course, but one such tool).
Marc - Prior to reading the ACLU testimony yesterday, I would have been
inclined to agree with your suggestion. But the ACLU testimony actually
puts the issue in precisely the same terms we seem to be discussing it
today ("The question of whether a corporate employer or corporate landlord
may raise a religious liberty defense is less clear than whether an
individual serving as an employer or landlord may raise that defense."). So
I'm inclined to think the 1997 legislative history is relevant to our
discussion of cases like Hobby Lobby case precisely because it shows that
there was *not* a common understanding about RFRA protecting for-profit
corporations, but there may have been a common understanding about RFRA
protecting individuals engaged in commercial activity.
On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton <hamilto...@aol.com> wrote:
> Except that 1997 itself is an irrelevant date. The relevant dates are
> 1990-93, during the enactment of RFRA.
>
> Marci
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 2, 2013, at 10:30 AM, Marc Stern <ste...@ajc.org> wrote:
>
> IS it possible that the search for legislative history on the question of
> whether in 1997 Congress thought corporations could benefit from religious
> liberty provisions is anachronistic .Today, that question is colored by
> one’ s feelings towards Citizens United; in 1997 ( and especially when
> arguing to a political body like Congress and in an effort to muster public
> opinion) the issue was cast in less abstract terms. ****
>
> Marc Stern****
>
> ** **
>
>
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