In my discussion of the Hobby Lobby ruling at the Cato Institute’s Constitution Day symposium yesterday, I mentioned that I disagreed with much of law professor Richard Epstein’s essay on the case in Cato’s newly issued Supreme Court Review for last term. I’ll amplify my critique here.
Let me say at the outset that I very much admire Richard Epstein for his plethora of creative insights and his dogged determination. The reader of his essay will find much of interest. But I think that Epstein’s larger points are unsound.
As his subtitle (“Right Results, Wrong Reasons”) indicates, Epstein’s “thesis is that the five-member majority reached the right result, albeit for the wrong reasons” (p. 38). Let’s consider his arguments:
1. Epstein contends that it was “a serious mistake” for Justice Alito to have “found it unnecessary to decide whether the government had a compelling interest in imposing its contraceptive mandate” (p. 38). According to Epstein, Alito should simply have concluded that the government had no compelling interest.
Epstein makes an extended libertarian argument that the federal government has no legitimate interest in “compel[ling] employers to make payments … that violate their religious beliefs when the very services at issue are freely available elsewhere” (p. 52; see generally pp. 50-58). (Yes, given the “organized repressive regimes in the Old South,” the Civil Rights Act of 1964 was justified as “a perfectly sensible second-best solution, but one that should not be kept in place now that the coercive institutional structure of segregation has been dismantled” (p. 66).)
The short answer to Epstein’s argument that Alito should have ruled on this basis is that Alito doesn’t have four colleagues who are Richard Epstein. Indeed, the most obvious explanation for Alito’s choice to assume arguendo the existence of a compelling interest, despite arguments to the contrary (see posts at 2.a here) that most justices would find much more appealing than Epstein’s, is that Alito couldn’t get a majority to hold that the HHS mandate didn’t serve a compelling governmental interest. (Epstein doesn’t mention Justice Kennedy’s concurring opinion, which, though rather opaque, certainly doesn’t signal that Kennedy was ready to make a majority on this point.)
2. Epstein contends that Alito not only shouldn’t have reached the least-restrictive-means inquiry but also “concluded, wrongly,” that the government “failed to choose the least restrictive means for its implementation” (p. 38). In a somewhat different criticism later, Epstein asserts that Alito’s least-restrictive-means argument “is at best incomplete because it brought no scrutiny to the overall system that it validated” (p. 59 (emphasis added).
Contrary to Epstein’s misunderstanding, Alito didn’t “validate” the overall system of the HHS mandate. Epstein thinks that Alito’s reliance on the accommodation for religious nonprofits as a less restrictive means requires Alito to have concluded that the accommodation satisfies RFRA. But he’s simply wrong on that point, for the reasons I’ve spelled out (see also point 3 here).
(This error of Epstein’s leads him further astray, as he wrongly asserts that Justice Sotomayor “may be right about the flip-flop” in the Wheaton College order (p. 51) and that “Alito should have been trapped … and Wheaton College sent packing” (p. 67).)
3. Epstein even faults Alito on his substantial-burden analysis. According to Epstein, the “correct analysis does not look at the cost of noncompliance, which may be high, but at the cost of compliance, which in monetary terms is far lower” (p. 46). In his libertarian universe, “it is hard to think that any explicit requirement that someone perform an action that violates his or her core religious beliefs could ever be dismissed as an insignificant burden” (p. 48 (emphasis in original).
I think that Epstein is clearly wrong to assert that it is somehow improper to look at the cost of noncompliance. Hobby Lobby and its owners were facing massive fines for noncompliance with the HHS mandate. How can it possibly be improper to look to those fines to conclude that the HHS mandate substantially burdens their adherence to their religious beliefs?
Further, is there any reason to think that Alito would have gotten a majority for the aggressive libertarian position Epstein advances?
4. On the question whether a corporation is a person entitled to protection under RFRA, Epstein finds it “regrettable” that Alito “did not make explicit reference to the doctrine of unconstitutional conditions, which certainly applies to this case” (p. 44). But Alito reached his conclusion through ordinary statutory analysis. There was no need to reach for a constitutional trump. (Epstein supports his assertion that the notoriously difficult doctrine of unconstitutional conditions “certainly applies to this case” only by citing his own law-review article.)
5. While I’m at it, let me note a few more errors or confusions. (I’m not being exhaustive.)
In the second sentence of his opening paragraph, Epstein asserts that the Court in Hobby Lobby held that RFRA “precluded [HHS] from issuing regulations under the Affordable Care Act that required Hobby Lobby … to supply health insurance coverage for contraceptive and abortion services ….” (Emphasis added.) No, the Court didn’t hold that RFRA precluded HHS from issuing the HHS mandate. It held merely that RFRA entitled Hobby Lobby to an exemption from the mandate.
One sentence later, Epstein asserts that “RFRA would not have applied at all if the ACA had explicitly required employers to observe the contraceptive mandate, because the latter specific statute would be a congressional trump of the earlier general statute.” That assertion is highly dubious at best. In a provision that Epstein is apparently unaware of, RFRA bolsters the already-robust presumption against implied repeal by stating that any repeal or override of its protections must be explicit: “Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”
Epstein refers to “Justice Antonin Scalia’s sharp about-face on the Free Exercise Clause in the 1990 case Employment Division v. Smith.” The passage would seem to suggest that Epstein is contending that Scalia himself reversed his position (did a “sharp about-face”) on the Free Exercise Clause. I’m guessing that Epstein means instead that the Supreme Court, as a result of Scalia’s majority opinion, reversed its position.