RFRA's Application in Suits by Private Parties

An important question about the meaning of the Religious Freedom Restoration Act (RFRA) and parallel state laws is whether they protect against burdens imposed on religion through lawsuits by private parties.  The circuits have split on the issue.  It's posed in antidiscrimination suits against religious defendants, such as Elane Photography, where a lesbian couple sued the Christian photographer who declined to shoot their wedding; it's also posed in creditors' suits in the bankruptcy proceedings for the Archdiocese of Milwaukee.  So it's important: if RFRAs don't apply to private-party suits, that's a significant hole in their protection.  The split has arisen because, although one would think that a jury or bench verdict in a private civil suit imposes a governmental burden on religion (cf. New York Times v. Sullivan), the judicial-relief section of the statute says that parties may assert it as a claim or defense and "obtain appropriate relief against a government" (which some courts read to mean no relief, or claim or defense, against a private party).

Now a student of Doug Laycock's at UVA Law, Shruti Chaganti, has posted a paper demonstrating why RFRA should provide a claim/defense in private-party suits, showing what that "obtain relief" language really means.  This is a very valuable contribution to religious freedom litigation.  From the abstract:

In Parts I – III, the paper applies a purely textualist analysis, closely examining RFRA’s text and its drafting history. It concludes that the judicial relief section unambiguously provides a defense in citizen suits. Part IV supplements this conclusion by excavating the legislative history surrounding the religious liberty bills – the 1993 RFRA and the proposed 1999 Religious Liberty Protection Act (RLPA.) The record is clear that Congress had a shared understanding RLPA would provide a defense in citizen suits. In discussing the merits of the bill, both proponents and opponents cited to cases with private plaintiffs and advanced policy considerations based on the assumption that RLPA would apply in citizen suits.