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    02.26.15 Professor Nelson Tebbe Testifies Before the House on Religious Freedom Restoration Act
    Professor Nelson Tebbe

    At the U.S. House Committee on Constitution and Civil Justice hearing on February 13, Professor Nelson Tebbe presented testimony on questions of religious freedom and equality law.

    The Religious Freedom Restoration Act (RFRA) provides that substantial burdens imposed by the federal government on religious practices are presumptively invalid unless the government can show that it was pursuing a compelling interest and that it was doing so using the least restrictive means. The Religious Land Use and Institutionalized Persons Act imposes a similar standard, but that standard applies only in the specific contexts of land use and institutionalized persons, usually inmates.

    These religious freedom laws, passed under President Clinton, are back in the spotlight because of last year’s U.S. Supreme Court cases Burwell v. Hobby Lobby Stores, Inc. and Holt v. Hobbs. Tebbe testified that Congress should amend the Religious Freedom Restoration Act.

    He highlighted a core problem with the Court’s application of RFRA in Hobby Lobby, namely that it shifted the costs of accommodating a religious employer onto its employees, who may not share the company’s beliefs. While ordinarily the costs of accommodating religious freedom are borne by the government or by the public, here those costs were placed on the shoulders of other private citizens.

    “These thousands of people have suffered harm that may well be irreparable,” Tebbe said of employees who have gone without coverage for their birth control. “Imposing meaningful costs on identifiable third parties not only should be avoided as a policy matter, but it also violates the Constitution.”

    Read Professor Tebbe’s full testimony.