It's been pointed out that the law that Justice Alito sited in his majority opinion in the Hobby Lobby case, the 'Religious Freedom Restoration Act of 1993', may in fact be unconstitutional itself, but so far no one has challenged it, however they still could now that the flaws in the law are being pointed out. And that is that the sole purpose of the law was to 'enhance' the protection of religious freedoms accorded individuals, as defined by the 1st Amendment. This law was passed by Congress after the Supreme Court had ruled against a Native American who had been busted for having a controlled substance, Peyote, which he claimed he was only using as part of a religious ceremony. Several people in Congress were so outraged by this affront to this persons 'religious beliefs' that they sponsored a bill and got it passed which was claimed to 'enhance' the protections of religious freedom for individuals so that something like this couldn't happen again (it's passage had no effect on the aforementioned court case since 'post de facto' laws are explicitly outlawed in the Constitution) since this would define, for all future courts, how the 1st Amendment was supposed to be applied. And since that law was passed, not one single case has been before a court where it was at issue one way or the other, so it has sat there, untested for 20+ years, until now.
The problem is that Congress has NO right to 'enhance' anything that's written in the Constitution or the Bill of Rights. That can only be done via the Amendment process, which requires that any changes, including any 'enhancements' or reinterpretations, must be approved by 3/4's of the States, which was never done. Therefore, the law which was sited as the sole basis for the Hobby Lobby decision was not even 'law'.
And on top of that, you don't hear anyone on the Right talking about a proactive court or legislating from the bench, not in this case, although that was being tossed around after the court's original decision concerning the constitutionality of the ACA or when the courts threw out DOMA, but not this time. No, this time the court got it right... Well it appears it was based on a law that any clerk should have noticed that it didn't pass the smell test, let alone how it was even legal as it attempted to redefine what the Bill of Rights was supposed to be protecting.
OCU
| 
