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Bench Memos

NRO’s home for judicial news and analysis.

“Affirmative Action” and “Diversity”



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It was during freshman week in college, I believe, that I endured a longwinded speech by Harvard president Derek Bok on the wondrous virtues of diversity. “He keeps talking about ‘diversity,’ but he never explains what he means by the term,” I complained.

More than 35 years later, not much has changed. As Yale law professor Peter Schuck observes in an excellent essay for National Affairs (the outstanding quarterly journal founded and edited by my EPPC colleague Yuval Levin), “few discussions of diversity and the diversity rationale for affirmative action even address what diversity actually means, much less explain which groups and which kinds of attributes create diversity value.” In twenty crisp pages, Schuck explores the evasions and contradictions that plague defenses of so-called “affirmative action.” 

Schuck laments that the Supreme Court seems not to have learned the lesson that “universities that are keen to implement race-based affirmative action … will figure out a way to do so unless the Court emphatically and clearly prohibits it.” As Schuck points out—and as this City Journal review, by Mark Pulliam, of Tim Groseclose’s Cheating: An Insider’s Report on the Use of Race in Admissions at UCLA discusses more fully—even when state law does clearly bar racial preferences, universities will resort to subterfuges to evade the law.

Schuck concludes:

The public opposition to race-based affirmative-action programs on campus is amply justified. Affirmative action defies — indeed flouts — equal protection and other liberal values. It rests upon a diversity rationale that is theoretically incoherent and in fact produces little if any of the diversity value that alone might justify it (and then only under a dubious rationale). It cannot satisfy the constitutional tests that the Court has laid down and reaffirmed as recently as last year. It has failed to increase its political support in the nation after four decades of energetic advocacy. It fosters corrosive racial stereotypes, poisons race relations, and encourages opacity, dissimulation, and even evasion by its administrators and advocates.

And if that were not enough, affirmative action seems to grievously harm many of its supposed beneficiaries — not to mention the non-preferred groups who are disadvantaged by the practice.

The Anti-Hobby Lobby Bill



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On the Corner, I explain that under the guise of “protect[ing] women’s health from corporate interference,” the bill that Senate Democrats are proposing in response to the Hobby Lobby ruling would deprive religious entities of all religious-liberty protections against having the HHS mandate directly imposed on them. 

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Whither Law Schools?



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George Leef answers this question by arguing, “Wither, law schools.”

Law Professor: Court Packing Will Do the Trick in Halbig v. Sebelius



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According to Washington and Lee law professor Timothy Jost, court-packing works. In an op-ed reciting the IRS’s arguments in Halbig v. Sebelius and a related Fourth Circuit case, he concludes with this observation about what happens if the plaintiffs succeed in the D.C. Circuit:

If that happens, their success will be short-lived. The U. S. Court of Appeals for the 4th Circuit seems poised to uphold the IRS rule in an identical challenge, and the entire D.C. Circuit is likely to reverse the three-judge panel if it issues such an outlier ruling. There is no secret bomb in the ACA, as the courts have told us and will tell us, and the imaginary bomb will not destroy the law.

In other words, now that President Obama has packed the D.C. Circuit, we can count on it to uphold the administration’s interpretation of Obamacare no matter what the statute actually says.

This Day in Liberal Judicial Activism—July 10



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2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says.

But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling. 

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Fact-Checking Harry Reid



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The gloves are off over the Hobby Lobby decision. Come to think of it, they came off in the Hobby Lobby decision. The principal dissent by Justice Ginsburg was more than caustic. It was a declaration of war — upon the majority which, in turn and according to Ginsburg, had declared war on women. Justice Sotomayor rattled the saber some more three days later, in her nearly hysterical dissent — for herself and Justices Kagan and Ginsburg — from the Court’s grant of emergency protection for Wheaton College.

Justice Alito’s majority opinion in Hobby Lobby was actually sturdy, solid, and courageous. Some would even say that it was “manly”. 

Harry Reid would. In fact, Harry Reid did — yesterday, in the nation’s Capitol, when he declared his party’s support for a bill which would overrule Hobby Lobby. Reid’s stated rationale was belligerent, too. As quoted in today’s New York Times: “The one thing we’re going to do during this work period, sooner rather than later, is to ensure that women’s lives are not determined by virtue of five white men”. 

That will be news to Clarence Thomas.

George Leef on Hobby Lobby and Harris v. Quinn



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I was on vacation last week when the Supreme Court handed down Hobby Lobby and Harris v. Quinn. Moral: I should go on vacation more often. Here’s George Leef’s take on the two decisions.

This Day in Liberal Judicial Activism—July 9



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1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”

But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.” 

Hobby Lobby Dissent on Accommodation



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Justice Ginsburg’s dissent in Hobby Lobby purports to offer three independent grounds for ruling against Hobby Lobby: (1) for-profit corporations have no rights under the Religious Freedom Restoration Act, as they are not persons capable of engaging in an exercise of religion (pp. 13-20) (again, Justices Breyer and Kagan don’t embrace this ground); (2) the HHS mandate does not impose a substantial burden (pp. 20-23); and (3) the government has shown both that the HHS mandate furthers a compelling governmental interest (pp. 23-27) and that it is the least restrictive means of furthering that interest (pp. 27-31).

For reasons I have spelled out before, I think that Ginsburg is wrong on all counts.

I’d like to focus here on how feeble Ginsburg’s response (pp. 29-30) to Justice Alito’s majority opinion is on the question whether the existence of the so-called accommodation for religious nonprofits means that the government flunks the least-restrictive-means prong. Again, keep in mind that Alito used the accommodation (and the government’s robust claims about its supposed virtues) merely to show that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means of furthering its (supposed) compelling interest. In other words, because, on the government’s own account, the accommodation would be less restrictive than the HHS mandate of Hobby Lobby’s religious liberty (while serving the government’s stated interests equally well), the government failed to establish that the HHS mandate was the least restrictive means of furthering its interests.

What does Ginsburg have to say to dispute Alito on this point? Nothing, really.

First, Ginsburg contends that the majority “hedges” by not deciding whether the accommodation would itself satisfy RFRA. But what Ginsburg disparages as a hedge is simply the properly limited use that Alito makes of the accommodation. (A mere three days later in their Wheaton College dissent, Ginsburg, Sotomayor, and Kagan falsely claimed that the Court “retreat[ed]” from a supposed embrace of the accommodation in Hobby Lobby.)

Second, Ginsburg complains in a footnote (30 n. 27) that Hobby Lobby “barely addressed” the accommodation in their briefing and that the majority “is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations.” According to Ginsburg, “RFRA cannot sensibly be read to ‘requir[e] the government to … refute each and every conceivable regulation,” especially where the alternative on which the Court seizes was not pressed by any challenger.” (Citation omitted.)

But it’s the government that had the burden of demonstrating that the HHS mandate was the least restrictive alternative. Far from asking the government to “refute each and every conceivable” alternative, Alito relied on the government’s own accommodation to find that the government had failed to meet its burden. (Ginsburg also shifts in a few sentences from acknowledging that Hobby Lobby did raise the accommodation—as her backhanded “barely addressed” concedes—to claiming, falsely, that it was “never suggested in the parties’ presentations.”)

The Secular Jewish Cabal?



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In a Volokh Conspiracy post titled “The Supreme Court’s secular Jewish cabal’s war on religious freedom?,” law professor David Bernstein nails it:

“It’s no coincidence that three of the four dissenters in Hobby Lobby were Jews with limited attachment to their religious heritage. Such Jews have always been uncomfortable with public displays of religion in the United States, and are especially hostile to the sorts of evangelical Christianity that motivates the owners of Hobby Lobby to seek religious exemptions from providing their employees with certain types of contraception. It’s also not surprising that three of the dissenting Justices are unmarried women, two of whom have never had children, because they see pregnancy as a disease in need of ‘preventive care’ rather than a blessing.”

That’s really reductionist and offensive, right? Yet my Facebook and Twitter feeds are filled with equally reductionist and offensive blog posts talking about the Catholic male cabal on the Supreme Court….

[W]hile … I don’t think that criticizing someone’s religious views [is] out of bounds or should be dismissed as prejudiced, attacking a fully secular Supreme Court opinion on the grounds that its authors happen to be Catholic should be well-out-of-bounds. So stop it.

My Review of Rise and Decline of American Religious Freedom



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The new (August/September) issue of the must-read journal First Things includes my short but very favorable review of Steven D. Smith’s The Rise and Decline of American Religious Freedom:

Anyone who wants to understand the perilous condition of religious freedom in America should read this book. In lucid prose, University of San Diego law professor Steven D. Smith contests basic themes of the conventional story of American religious freedom and presents a provocative and compelling counter-narrative. His account culminates in a bracing discussion of the threat posed by the emergent new orthodoxy of secular egalitarianism.

According to the standard story, the framers adopted the First Amendment as a novel experiment in Church-state separation and religious freedom. That story, Smith explains, is doubly wrong. Rather than breaking cleanly with the past, the core concepts of the traditional American understanding of religious freedom developed as a “recovery, adaptation, and consolidation” of “distinctively Christian notions”: the medieval theory of the dual jurisdictions of Church and state, and the Reformation idea of individual conscience as an “inner church.” Further, in the framers’ understanding, the religion clauses of the First Amendment were primarily jurisdictional, not substantive: they made clear that matters of religion remained within the domain of the states. Smith sketches the long and bizarrely convoluted history by which the religion clauses came to be understood as setting forth substantive rights, first against the federal government, and later (under the incorporation doctrine ultimately applied to the Fourteenth Amendment) against the states.

Smith also powerfully argues that the usual narrative, in which the post-World War II and Warren-era Supreme Court rescued the nation from a shameful history of religious persecution and discrimination, has things essentially backwards. He celebrates the “practical genius” of the theoretically inelegant “American settlement,” which recognized specific commitments to separation of Church from state and to freedom of conscience and which saw fit not to resolve the competition between the broader “providentialist” and “secularist” interpretations of those commitments. (Under the providentialist reading, government can acknowledge a dependence on the Creator, and citizens and legislators may act on their religiously informed moral views in making public policy.) When the Supreme Court shattered this settlement by adopting the secularist interpretation, it engendered a destructive “discourse of accusation, anathematization, and abuse,” a discourse that has spread to judicial interventions on related issues like abortion and marriage.

Contrary to common fear-mongering about the supposed theocratic threat from the religious right, Smith cogently sets forth what he sees as the real dangers. First, religious freedom is eroded from within by the “self-subverting logic” of the secularist interpretation: If government can’t act on the basis of any religious views, then it can’t generate the rationales that historically justified religious liberty. Second, secular egalitarianism, especially as reshaped and bolstered by the gay rights movement, is fundamentally incompatible with a robust understanding of religious freedom. Indeed, it has all the markings of an oppressive orthodoxy—a single ultimate value, inordinate certitude of its righteousness, and a desire to “penetrate into hearts and minds” to purify beliefs and motives.
 

Megan McArdle on Hobby Lobby



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In an insightful essay, Megan McArdle explores how the secular left, in complaining that Hobby Lobby is supposedly imposing its religious views on its employees, could confuse itself into thinking that “not buying you something [is] equivalent to ‘imposing’ on you.”

One part of the answer, according to McArdle, is that the secular left holds a diminished view of religion, seeing it “as something more like a hobby.” But the larger part of McArdle’s answer is that there has been a “shift in the way [many people] view rights and the role of the government in public life.” We have a “clash of principles designed for a world of negative rights, in a society that has come to embrace substantial positive rights — as well as a clash between old and new concepts of what is private and what is public.” (Emphasis added.) We used to understand that “there was a large public space … that was nonetheless seen as private in the sense of being mostly outside of government control.” But under the Left’s “totalizing view of government,” “this massive public territory is all the legitimate province of the state.” In short, the secular left’s worldview is deeply opposed to the classical liberal—the classical American—understanding.

While I’m at it, let me also highlight, from last week, McArdle’s excellent “Answers to All Your Hobby Lobby Questions.” A couple of excerpts:

9) Why is it any of my employer’s business what birth control I use?

It’s not, but once you make them pay for it, you make them a party to the transaction. You can’t, on the one hand, mandate that someone pay for something, and on the other argue that it is a matter of supreme indifference to them….

12) What if my employer says it has a sincere religious belief in human sacrifice — can he kill me?

Yes. If your employer has a deeply held religious belief in human sacrifice, they can strap you in a cage, reach into your chest with their bare hands to pull out your still-beating heart, then drop the cage into a fiery pit. It’s a tough break, but from time to time, the Tree of Liberty must be watered with the blood of patriots. Sorry about that.

 

Is the HHS Mandate “Accommodation” Collapsing?



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In the Hobby Lobby case, the Obama administration bore the burden under the Religious Freedom Restoration Act of showing that the HHS mandate was the least restrictive means of furthering a compelling governmental interest. The Hobby Lobby majority properly found it easy to conclude that the Obama administration hadn’t made its showing, as the Obama administration’s robust account of the supposed virtues of the “accommodation” that it has extended to religious nonprofits made it impossible for it to explain why it couldn’t extend that same arrangement to Hobby Lobby and other for-profit objectors.

It now seems that the Obama administration may have hoisted itself on its own petard of deceptions. As this article two days after the Hobby Lobby ruling discusses, the third-party administrators who have been tasked with administering the accommodation say that—surprise!—it “hasn’t worked in the real world” and, rather than being cost-neutral, has “left them stuck with the bill” for “potentially … millions of dollars … with no certainty they’ll ever be paid back.”

The immediate victims of the unworkability are the third-party administrators. But, as the article states, these administrators “may ultimately choose to drop clients with religious objections” to the accommodation. And they have every reason to oppose the extension of the accommodation to for-profit objectors. So the accommodation may be on the verge of collapse.

That the accommodation may be proving to be unworkable, I emphasize, is in no way an indictment of the Hobby Lobby majority’s reliance on it. Again, it was the Obama administration that had the burden to show the HHS mandate was the least restrictive means of furthering its interest, and the Obama administration’s representations—or misrepresentations—about the accommodation meant that it failed to meet that burden.

This Day in Liberal Judicial Activism—July 6



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1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence. But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight. 

2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right.

Clueless on Wheaton College Order



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On Slate, Dahlia Lithwick and law professor Sonja West purport to explain the Court’s four-paragraph order granting Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.”

To discern how utterly clueless Lithwick and West are, one need go no further than their assertion that the Court “said” that the accommodation was “unconstitutional.” This assertion is doubly wrong. First, as anyone paying attention ought to know, the Hobby Lobby ruling rests on the Religious Freedom Restoration Act, not on any provision of the Constitution, and there is nothing in the Court’s Wheaton order to suggest that the Court is relying on the Constitution. Second, the Court didn’t “say” that the accommodation is illegal. On the contrary, it explicitly states that its order “should not be construed as an expression of the Court’s views on the merits.”

Lithwick and West mindlessly embrace the contradictions that inhere in Justice Sotomayor’s Wheaton dissent. I’ll note just two further points here.

Like Ruth Marcus, Lithwick and West assert that the three dissenters “share a highly relevant personal characteristic: a uterus.” Unless they mean to contend that the dissenters are, literally, hysterical (or, as Marcus suggests, thinking with their uteruses), I don’t see how that characteristic is relevant to their legal reasoning.

Lithwick and West also wrongly contend that the Hobby Lobby majority concluded that the accommodation “was the narrowest way to achieve the government’s goals.” But the Hobby Lobby majority merely used the accommodation to show that the HHS mandate was not the narrowest way to achieve the government’s goals (or, more precisely, that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means). Nothing in that use suggests that the accommodation is itself the narrowest way, and, indeed, the majority observed that the government failed to show that direct governmental payment for the objected-to drugs and devices “is not a viable alternative.”

Yesterday’s Wheaton College Order



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Yesterday, the Supreme Court granted Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.” Justices Ginsburg, Sotomayor, and Kagan dissented from the Court’s order. Justice Breyer evidently joined with the members of the Hobby Lobby majority in providing the relief. (If he had been unavailable, his nonparticipation would presumably have been noted.)

As the brief per curiam order makes clear, on the Obama administration’s account of the law, nothing in the Court’s order “affects the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” After all, the government “contends that [Wheaton’s] health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether [Wheaton] completes EBSA Form 700.” (Form 700 is also sometimes referred to as the self-certification form.) Thus, on the government’s understanding, there is no reason for the government to require Wheaton to use the self-certification form. (The Court makes clear that it is not embracing the government’s understanding: “this order should not be construed as an expression of the Court’s views on the merits.”)

Justice Sotomayor’s dissent, joined by Justice Ginsburg and Kagan, is built on two contradictions:

1. Sotomayor contends that the Court “retreats” from its position in Hobby Lobby in which it “expressly rel[ied] on the availability of the religious-nonprofit accommodation.” But as the Ginsburg dissent in Hobby Lobby (which Sotomayor and Kagan joined) complained about, the Hobby Lobby majority expressly did not decide whether the accommodation satisfies RFRA. All it did was recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.

In short, it is Sotomayor, Ginsburg, and Kagan, in falsely contending that the majority “retreats” from its position in Hobby Lobby, who in fact contradict their position in that case. Contrary to Sotomayor’s rhetoric that the order “evinces disregard for even the newest of this Court’s precedents,” the order is fully compatible with Hobby Lobby. (Never mind the slippery claim that it’s the “newest” precedents rather than the oldest that most command respect.)

2. Like the government, Sotomayor prominently contends that “the provision of contraceptive coverage is triggered not by [Wheaton’s] completion of the self-certification form, but by federal law.” But she contradicts herself in text that she buries in two footnotes. In footnote 5, she calls the notice on the back of the self-certification form “merely [!] an instruction to third-party administrators.” By her sentence construction, she avoids acknowledging that the form would require Wheaton to make that instruction. And in footnote 6, she states that “Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” (Emphasis added.)

This Day in Liberal Judicial Activism—July 4



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1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?

Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)  

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.

Victory for Hobby Lobby is Good News for Catholic Bishops



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In a confused essay in the National Catholic Reporter, Fr. Thomas Reese contends that the Hobby Lobby ruling is a “mixed blessing” for Catholic bishops. Fr. Reese claims, in particular, that “the decision’s discussion of the accommodation granted to religious corporations will make it very difficult for the bishops to win their case against it.”

One has to wonder whether Fr. Reese somehow imagines that the Catholic bishops would have been better off if Hobby Lobby had lost.

Notre Dame law professor Carter Snead explains on SCOTUSblog how a “careful reading” of the passages that Fr. Reese cites in fact “offers a great deal of hope” to nonprofit religious institutions challenging the accommodation. I provided my own similar assessment here. Without repeating all that Professor Snead and I have said, let me address the defects in Fr. Reese’s assessment.

1. Fr. Reese ignores, for starters, that the Court’s ruling on the question whether the HHS mandate imposes a substantial burden is an important victory for nonprofit Catholic institutions challenging the accommodation. Had the Court instead adopted the bizarre reasoning of Justice Ginsburg’s dissent—in which a massive fine isn’t a substantial burden because the connection between the religious objections and the use of the objected-to drugs and devices is “too attenuated”—the challenges to the accommodation would also fail.

Fr. Reese claims that the bishops objected to the accommodation because “they felt that participating in the process, even by just filling out a form saying they objected to the mandate, would violate their consciences.” His claim badly misses the authorizing role that the self-certification form plays. But, even if his claim were right, the Court’s ruling on substantial burden means that the accommodation does substantially burden those who sincerely believe that “just filling out a form … would violate their consciences.”

2. Fr. Reese misunderstands the role that the accommodation played in the Court’s reasoning. As Professor Snead and I explain, the existence of the accommodation shows that the mandate is not the least restrictive means of advancing a compelling governmental interest. Far from saying that the accommodation “is wonderful,” the majority expressly refrains from addressing whether the accommodation would satisfy RFRA.

Fr. Reese is also wrong in asserting that the Court “accepted the HHS argument that, since it is cheaper for insurance companies to pay for contraceptives than for births, [under the accommodation] there would be no cost to pass on to the corporation.” The Court recited HHS’s position on that point in order to show that the Obama administration was estopped from disputing that the accommodation fully serves its stated interests.

As it happens, a recent report from the real world indicates that the accommodation isn’t working out at all as HHS claimed it would—and that the Hobby Lobby ruling might render the accommodation even more dysfunctional.  

3. In that same real world, judicial results have already occurred that are difficult to reconcile with Fr. Reese’s pessimistic take. In the immediate aftermath of the Court’s ruling, two federal courts of appeals granted religious nonprofits the same relief that the Court had granted to the Little Sisters of the Poor, and a judge on one of those courts delivered a powerful opinion against the accommodation. On the evening of the ruling, the Court itself temporarily barred enforcement of the accommodation against Wheaton College.

4. Fr. Reese mistakenly states that the majority “granted that the government had a compelling interest in providing contraceptives to women.” Instead, the majority merely assumed arguendo the existence of a compelling interest.

As I discuss in point 4 here, the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. Because nothing in Hobby Lobby overrides circuit precedent on that issue, challengers to the accommodation should prevail in those circuits. And challengers in other circuits can prevail either by showing that the accommodation doesn’t serve a compelling governmental interest or by showing (as Matt Franck outlines) that the accommodation itself isn’t the means that is least restrictive of the religious liberty of objectors.

* * *

Bottom line: The American bishops and others challenging the accommodation are indisputably better off as a result of the Hobby Lobby victory. That doesn’t mean that victory is assured. But this would be a foolish time to abandon the fight.

Not a Jot of Difference



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A curious story appears on the front page of today’s New York Times, about the Declaration of Independence.  Danielle Allen, a scholar with whom I’m acquainted who works at the Institute for Advanced Study here in Princeton, has just published a book titled Our Declaration: A Reading of the Declaration of Independence in Defense of Equality.  I haven’t seen Prof. Allen’s book yet, but the story in the Times concerns something else: whether our usual copies of the Declaration of Independence contain a typo—an erroneously placed period, to be exact—and whether its presence or absence makes a difference.

I am as interested in precise historical accuracy as the next person—maybe more than most—so this story really caught my eye, and made me check the many copies of the Declaration I have ready to hand, in print or otherwise.  Prof. Allen has raised a question about this, the most famous passage in the Declaration:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

The portion I’ve underlined is what concerns her.  Does that period after “Happiness” belong there?  What you see above is what the National Archives publish as their transcription of the handwritten parchment copy on display in Washington.  But Professor Allen is convinced that the period is (in the Times reporter’s words) an “errant spot of ink.”

I have seen the Declaration published at least three ways, first as seen above with both a period and a dash.  Second, with a period and no dash:

. . . and the Pursuit of Happiness.  That to secure these Rights . . .

Third, with a dash and no period:

. . . and the Pursuit of Happiness—That to secure these Rights . . .

That is how the Bicentennial Commission, chaired in the 1980s by then-Chief Justice Warren Burger, printed the Declaration when it was published together with the Constitution in a pocket-sized pamphlet.  Prof. Allen would like to see it printed this way everywhere, and frankly I like it that way too.

But now the story goes a bit sideways.  Why is Prof. Allen so intent on getting this precisely right?  Is she just a punctilious punctuator?  No:

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. But as intended by Thomas Jefferson, she argues, what comes next is just as important: the essential role of governments—“instituted among men, deriving their just powers from the consent of the governed”—in securing those rights.

“The logic of the sentence moves from the value of individual rights to the importance of government as a tool for protecting those rights,” Ms. Allen said. “You lose that connection when the period gets added.”

This is evidently what brought the matter front-page attention in the TimesBut it makes no difference, so far as the meaning of the Declaration is concerned.  In other places, including collections of Jefferson’s writings based on careful scholarship, I have seen this passage punctuated with a semicolon (which is how I’d have done it if I’d been the editor in 1776), and even with a colon.  Any of them—period, dash, both together (a peculiar construction but not uncommon in the eighteenth century), colon, semicolon, or even comma—could have been used without having the slightest impact on the meaning.

For the fact is that, with the phrase “Pursuit of Happiness” (they were capital capitalizers in those days too—I suspect German influence), the list of “unalienable rights” has indeed come to an end.  The next thought—whether in a new phrase, clause, or sentence—begins “That to secure these Rights,” and that is a distinct shift from end to means.  The rights belong to every human being simply by virtue of our having been created equal and endowed with them by our Creator.  Giving them practical realization will take the creation of a government, possessing just powers to which we consent.  First end, then means.  To quote Hillary Clinton, “What difference at this point does it make” whether the Continental Congress gave us a period, a dash, or both?  One doesn’t “lose” a “connection,” one makes a particular kind of connection, and the punctuation has no substantive effect.

Prof. Allen’s interest in this rather trivial question is seconded by others:

Correcting the punctuation, if indeed it is wrong, is unlikely to quell the never-ending debates about the deeper meaning of the Declaration of Independence. But scholars who have reviewed Ms. Allen’s research say she has raised a serious question.

“Are the parts about the importance of government part of one cumulative argument, or — as Americans have tended to read the document — subordinate to ‘life, liberty and the pursuit of happiness’?” said Jack Rakove, a historian at Stanford and a member of the National Archives’ Founding Fathers Advisory Committee. “You could make the argument without the punctuation, but clarifying it would help.”

No, Prof. Rakove, it’s no help at all.  The relation is of ends to means, and the latter are always “subordinate” to the former.  How we punctuate the thought makes not the slightest difference in clarifying anything.  People first, government after.  That is the logic of the Declaration, punctuate it as you will, and there is no way to change that priority.  If the objective is to place the government’s power on the same plane as the people’s unalienable rights, erasing a period isn’t going to help.

Breakfast with E.J. Dionne—Part 2



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Some more observations (numbered serially from Part 1) on E.J. Dionne’s dog’s breakfast of commentary:

3. Dionne finds it “strange” that the Hobby Lobby majority “barely nodded at settling the factual question of whether birth control methods such as an IUD are abortion-inducing.” If Dionne were paying attention, he might have noticed that Justice Ginsburg, in her dissent, doesn’t even mention the issue. That might have led him to ponder why.

What is really strange is Dionne’s imagining that this was an issue for the Court to address.

Let me begin with what is, in the end, a side point: As I’ve explained before, the Obama administration approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” Further, as I put it in my summary of a careful reading of the amicus brief submitted by ACOG and others (“PRH brief”):

[T]he PRH establishes that the Hobby Lobby plaintiffs are right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). The PRH brief also reveals, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justifies the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of Plan B and ella (in addition to copper IUDs).

But the fact that the concerns of the Hobby Lobby plaintiffs are scientifically well grounded is, in the end, no business of the Court’s (as all nine justices recognize). To illustrate the point: Let’s say that science established that pork is no less pure than beef. Would that scientific finding mean that the owner of a kosher deli would not have a religious-liberty claim against being compelled to serve pork? Ludicrous.

(Courts can, I’ll note, satisfy themselves that the asserted religious conviction is sincerely held.)

4. Dionne perceives “a small victory for socialized medicine” in Justice Alito’s supposed declaration that the “best way” for the government to avoid burdening religious liberty would be for the government itself to provide the objected-to drugs and devices to any women who are unable to get them from their employers. What Alito actually said was merely that that would be the “most straightforward way.”

In any event, there shouldn’t be anything surprising about the proposition that an approach that doesn’t dragoon objecting employers doesn’t violate their religious-liberty rights. That proposition no more favors “socialized medicine” than it favors market-oriented approaches that don’t dictate to employers (or to other group providers of health-insurance coverage) the coverage they must provide.

5. Dionne finds “[o]ne bit of good news” in the “friendly remarks” that the majority makes about the so-called accommodation that has been offered to religious nonprofits. As I explain here, I think that he and others misread what the majority says.

6. Dionne endorses Justice Ginsburg’s claim that (in his paraphrase) the justices in the majority “want corporations to have it both ways”—“us[ing] the corporate form to escape ‘personal responsibility for the entity’s obligations’ … but then exercis[ing] the rights of individuals when doing so is convenient.”

Dionne fails to inform his readers that only Justice Sotomayor joined that part of Ginsburg’s opinion holding that for-profit corporations have no religious-liberty rights under RFRA. He gives no hint of Alito’s compelling statutory argument that corporations do have rights under RFRA. And he fails to acknowledge, much less contemplate, the extraordinary consequences of Ginsburg’s position.

7. Dionne closes with the exhortation that “Liberals should embrace religious liberty as their own cause.” If he meant that all Americans should embrace religious liberty as our cause, I would agree with him. But his petty and tendentious claim that religious liberty “should not be put to the service of reaction”—as though protecting people from being compelled to facilitate the killing of early human embryos is in “the service of reaction”—seems to indicate that Dionne approves of religious liberty only when it is in the service of his political agenda.

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