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Blank Slate’s Empty Critique



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Wow. Is it too much to ask that those condemning a decision actually read it enough to have a basic understanding of it?

On Slate, Emily Bazelon and Dahlia Lithwick lambaste D.C. Circuit judge Janice Rogers Brown for supposedly having held yesterday, in her opinion in Gilardi v. U.S. Dep’t of Health and Human Services, that “the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception ‘trammels’ the religious freedom of an Ohio-based food service company”:

This is a company we are talking about, not its owners. But following headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United that corporations are people, too, Brown found that the mandate violates the company’s strongly held religious convictions.

Later in their essay, Bazelon and Lithwick similarly assert that Brown “waves her Citizens United wand” to “confer personhood” on the company.

Let’s set aside their elementary error in believing that the Obama administration’s mandate on contraceptives is set forth in a statutory provision, when it is in fact an HHS regulation. What’s remarkable—all the more so as Bazelon and Lithwick purport to engage in a “close reading” of Brown’s opinion—is that they get her basic holding completely wrong.

As I outlined yesterday, and as any competent reader of the opinion would readily discover, Brown in fact rules that the plaintiff companies, as “secular corporations,” do not have any religious-freedom rights (see slip op. at 7-15) but that their individual owners do: “When it comes to corporate entities, only religious organizations are accorded the protections of the [Free Exercise] Clause.” (Slip op. at 13.) Brown explicitly declines to apply the reasoning of Citizens United (which isn’t that “corporations are people” but rather that people operating through corporations, like the corporation that publishes the New York Times, don’t lose their free-speech rights) to support “a free-exercise right for secular corporations.” (Slip op. at 13.) Instead, she concludes that under existing Supreme Court precedent, “we have no basis for concluding a secular organization can exercise religion.” (Slip op. at 15.) Thus, the last sentence of her opinion “affirm[s] the district court’s denial of a preliminary injunction with respect to the Freshway companies.” (Slip op. at 32.)

Charles P. Pierce of Esquire offers a similarly incompetent critique: “This ruling is preposterous on its face — Companies do not have a right to freedom of religion. People do.”  

I should highlight that I don’t think that Brown is right to draw a line between secular and religious corporations. While, as I’ve explained, I believe that courts can rely on the religious-liberty rights of individual business owners in enjoining the HHS mandate, there is a powerful argument (made here by law professor Mark Rienzi and  here by law professor Kevin Walsh) that for-profit corporations engaged in secular lines of business have religious-liberty rights under the federal Religious Freedom Restoration Act.

(Bazelon and Lithwick also trash Judge Priscilla Owen’s recent ruling on a provision of Texas abortion law. I haven’t read Owen’s opinion yet, so my silence on their commentary shouldn’t be misconstrued to mean that I think that it meets the minimal bar of competency.)

[Update (11/4): Bazelon and Lithwick have now appended a convoluted “correction” (dated yesterday) to the end of their essay. They now make the flabby assertion that Brown’s ruling “effectively confers personhood on the company rather than directly doing so,” and they leave uncorrected their false statements about Brown’s use of Citizens United.]



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