During oral argument, Clement said that when Congress passed RFRA in 1993, it intended the bill to apply “broadly to any exercise of religion by any person.” In so doing, Clement argued, Congress intended for RFRA to include a “substantial burden” test that asks whether the policy or law being challenged places a substantial burden on an employer’s exercise of religious freedom.  In the clip below, Justice Ginsburg reminds Clement that the Senate already dealt with the question of whether employers should be allowed to deny health insurance coverage based on religious objections.  Justice Ginsburg, in discussing the introduction—and subsequent rejection—of a “conscience amendment” to the ACA in 2012 is referencing the Blunt Amendment. The Blunt Amendment would have enabled “secular employer and insurance providers to deny coverage on the basis of religious beliefs.”  Justice Ginsburg here makes the point that had Congress intended to exempt employers from providing coverage based on religious beliefs, Congress would have likely done so by passing the Blunt Amendment.  Therefore, Justice Ginsburg is essentially saying that the rejection of the Blunt Amendment to the ACA is more instructive of Congressional intent regarding employers’ religious objections than the passage of RFRA in 1993.

Note:  In the clip, Clement begins by referencing RFRA, followed by a question from Justice Ginsburg regarding how easily RFRA passed.  She then transitions to discussing the Blunt Amendment when she says, “there was an effort to adopt a conscience amendment” in 2012.