The three-part structure of RFRA's operative provision and the timing of the government's RFRA violations in Hobby Lobby & Conestoga Wood Specialties

I had occasion yesterday evening to revisit RFRA's primary operative provision, 42 U.S.C. § 2000bb-1 (included below). In reviewing its text, I was struck yet again by the way in which the statute's provision of a claim for judicial relief is a backstop of sorts to the primary way in which RFRA is to operate. Litigation under RFRA occurs only after the government has violated its rule against unjustified burdens on the exericse of religion. By the time that a claim for judicial relief has been sought, the statutory violation should have already happened: "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c) (emphasis added).

This feature of RFRA raises the interesting question of when the gvoernment's violation of RFRA took place for Hobby Lobby and Conestoga Wood Specialties. This is not a question I've seen addressed anywhere, but the best candidate seems to be when the government's intent to apply the mandate to these companies regardless of their religion-based objection was sufficiently definite and imminent to ground a claim for declaratory and injunctive relief. The precise date is not apparent to me, but if I were trying to track it down, I would look for the time at which the government adopted its since-then-firm (but soon-to-be-invalidated) position that for-profit corporations are categorically unable to seek relief from the contraceptives mandate under RFRA. 

(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

(c) Judicial relief. A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.

42 U.S.C. § 2000bb-1