DOJ’s Reply Brief in Hobby Lobby—Part 3

by Ed Whelan

See Part 1 and Part 2

In its reply brief, DOJ trots out an imaginary parade of horribles, even as it continues to disregard the genuinely horrible consequences (see end of this post) that would flow from acceptance of its arguments.

Consistent with the very un-SG-like tone of its entire brief, DOJ extravagantly contends that a victory for Hobby Lobby “would entitle commercial employers with religious objections to opt out of virtually every statute protecting their employees.” (Reply at 19-20.) DOJ offers four supposed examples: Title VII’s ban on employment discrimination, minimum-wage laws, Social Security taxes, and Obamacare coverage for recommended immunizations. (Reply at 20-22.)

DOJ’s sweeping assertions cannot be taken seriously. For starters, strict scrutiny under RFRA is highly context-dependent, so cookie-cutter conclusions about what an exemption from the HHS mandate would mean for other contexts should be rejected.

The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.

Further, it’s especially telling that Title VII, the minimum wage, and Social Security were not subject to the kind of grandfathering clause provided for the HHS mandate. When Congress passes a statute to further a genuinely compelling interest, like prohibiting racial discrimination, a potentially indefinite grandfather clause would be wholly out of place. It is hard to imagine Congress passing Title VII but saying that employers can continue to discriminate on the basis of race as long as they don’t change their pre-existing hiring practices. (The grandfathering provision is particularly damning to DOJ’s case because Congress deemed other Obamacare requirements—e.g., that insurance plans cover pre-existing conditions and children up to age 26 who live with their parents—sufficiently compelling that even grandfathered plans must include them.) 

It’s noteworthy that DOJ’s parade of horribles repeats the very examples that Justice Scalia cited in his majority opinion in Employment Division v. Smith. In response to what she called Scalia’s “parade of horribles,” Justice O’Connor maintained that the strict-scrutiny test enabled the courts to distinguish meritorious claims from meritless ones, by making “a case-by-case determination of the question, sensitive to the facts of each particular claim.” She further opined that the courts “have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.” Whether Scalia or O’Connor had the better of the constitutional argument in Smith, it is beyond debate that Congress adopted O’Connor’s position when it enacted RFRA to restore, as a statutory matter, the strict-scrutiny standard that Smith rejected.

Bench Memos

NRO’s home for judicial news and analysis.