Thinking With Their Uteruses?—Part 1

by Ed Whelan

The offensive charge in the title of this post is how the Washington Post’s Ruth Marcus explains the votes of Justices Ginsburg, Sotomayor and Kagan against the religious-liberty claims made by Hobby Lobby and its owners:

How did the Supreme Court manage to agree unanimously that police must obtain a warrant before searching cellphones yet split on whether employers must offer contraception as part of their health-care plans?

My explanation, slightly crude but perhaps compelling: All the justices, presumably, have cellphones. Only three have uteruses, and you know which way they voted.

Of course, a uterus is not a prerequisite for understanding the importance of access to birth control….

But let’s be clear: It helps.

At the risk of engaging in what Marcus might condemn as male logic, let’s consider her explanation:

1. The legal issues that divided the Hobby Lobby majority and the dissent do not properly turn in any way on competing understandings of the “importance of access to birth control.”

The first issue is whether for-profit corporations have religious-liberty protections under the federal Religious Freedom Restoration Act. Ginsburg’s extraordinary (and poorly reasoned) position means that an incorporated kosher deli could be required to serve non-kosher food. Judgments about the “importance of access to birth control” are no more relevant to this issue than judgments about the importance of access to non-kosher food are. (Kagan, along with Breyer, did not join Ginsburg’s dissent on this issue, so Marcus would presumably concede that her uterus explanation doesn’t apply here.)

The second issue is whether the massive fines that Hobby Lobby faced substantially burdened its exercise of religion. Ginsburg’s implausible escape from the obvious “yes” answer turns on her confused conclusion that “the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.” By her account, Ginsburg is relying on a general principle that a necessary “linkage” has been “interrupted by independent decisionmakers.” Alito powerfully explains why Ginsburg’s principle is wrong (the courts have no business deciding what religious beliefs about moral complicity are permissible) and contrary to precedent. (Pp. 35-38.) In any event, whether you agree with Alito or Ginsburg, their arguments do not implicate in any way competing assessments of the “importance of access to birth control.” 

The final issue on which the majority and the dissent divide is whether the HHS mandate is the least restrictive means of advancing a compelling governmental interest. On this least-restrictive-means inquiry, the majority determines that the government “has not shown that it lacks other means of achieving its desired goal” that are less restrictive of religious liberty. Among other things, it concludes that the accommodation alternative that has been offered to religious nonprofits would have “precisely zero” negative effect on the government’s desired goal. To be sure, Ginsburg disagrees with the majority, but her points of disagreement with it (e.g., “where is the stopping point to the ‘let the government pay’ alternative?”) again invoke supposedly general principles.

The one issue that might well invite competing assessments of the “importance of access to birth control” is whether the HHS mandate serves a compelling governmental interest. But the majority finds it “unnecessary to adjudicate this issue,” and assumes arguendo that a compelling governmental interest exists, as the government’s failure to satisfy the least-restrictive-means prong of RFRA means that the HHS mandate flunks RFRA.

2. Thus, if Marcus believes that Ginsburg, Sotomayor, and Kagan were in fact voting based on their “understanding of the importance of access to birth control,” she is in effect contending that their stated legal rationales were cover for reaching the result that they wanted. She may well be right, but that would hardly be something to praise or celebrate.

More in Part 2.

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