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This Day in Liberal Judicial Activism—February 25


1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

On the HHS Mandate’s “Sieve” of Exceptions


On the Balkinization blog, law professor Marty Lederman has been writing a series of long posts defending the HHS mandate against the religious-liberty challenges brought by Hobby Lobby, Conestoga Wood, and others.

(Lederman provides a compendium of his posts at the end of his most recent post. I’ve previously explained—here and in a two-part reply to Lederman’s response—why I think that Lederman is wrong to contend that the absence of a legal duty on large employers to provide health insurance means that the HHS mandate doesn’t impose a substantial burden.)

As part of their argument that the burden that the HHS mandate imposes on them isn’t “in furtherance of a compelling governmental interest,” Hobby Lobby and Conestoga Wood cite the mandate’s “sieve” of exceptions—for example, for “grandfathered” plans (which are not subject to the HHS mandate at all) and for small employers (who face no penalty for failing to provide employee health coverage). (See Hobby Lobby brief at 49-52; Conestoga Wood brief at 58-60.) As Hobby Lobby puts it, “These numerous exceptions belie the government’s claim that the mandate is strictly necessary to further compelling interests in public health, gender equality, or anything else.” (Hobby Lobby brief at 51.)

In a post titled “The Myth of Underinclusiveness,” Lederman argues that “the statute here is not nearly as full of ‘holes’ as the plaintiffs would have it.” I will outline here why I think Lederman is wrong:

1. Let’s start with the “small employer” exception. Lederman observes (correctly) that employees of small employers who decline to provide qualifying health coverage “will be eligible for coverage on a government-subsidized exchange.” That means, he contends, that such employees “will be entitled to the full range of required, cost-free preventive services coverage.” (The term “cost-free” means without requiring insured persons to make copayments or pay deductibles.)

What Lederman is overlooking (or glossing over) is that such employees will be “entitled” to the “cost-free” contraceptive coverage that the HHS mandate requires of large-employer plans only if those employees actually make the decision to purchase coverage on an exchange. Under the saving construction of the individual mandate that the Supreme Court majority adopted in NFIB v. Sebelius, no one is under a legal duty to purchase such coverage. Further, it’s clear from the early experience with the exchanges that lots of individuals have decided to go without insurance rather than to purchase coverage on an exchange.

In short, the “small employer” exception from the employer-mandate penalty gives small employers a disincentive (vis-à-vis large employers) to provide health coverage for their employees. The predictable result is that many of those employees will not obtain coverage on the exchanges and thus will not obtain the cost-free contraceptive coverage that the Obama administration contends it has a compelling interest in requiring Hobby Lobby and Conestoga Wood to provide.

2. As for “grandfathered” plans: Lederman thinks it significant that the “percentage of employees in grandfathered plans is declining rapidly” and was down to “36% in 2013.” Looking into his crystal ball, he contends that at some undefined point “[i]n the not-so-distant future, the number of remaining grandfathered plans should be vanishingly small.”

I fail to see how a blanket exception that, as of the most recent data, covers a full 36% of all employees can be disregarded on the basis that it is supposedly transitional. (Never mind, as Conestoga Wood points out, that “grandfathered” status can continue indefinitely.) If the federal government doesn’t have a compelling interest in requiring that the tens of millions of employees (and their dependents) under grandfathered plans obtain cost-free contraceptive coverage, why does it have a compelling interest in requiring Hobby Lobby and Conestoga Wood to provide it to its employees?

3. Consider also the “accommodation” that the Obama administration has provided for objecting religious nonprofits. Lederman argues that the “government’s interests are not compromised in such cases,” since the accommodation ensures that employees of the religious nonprofits obtain the cost-free contraception coverage. But RFRA requires that the government demonstrate that “application of the burden to the person … is in furtherance of a compelling governmental interest.” If, as the Obama administration maintains, the accommodation respects the religious-liberty interests of the religious nonprofits, the question arises why the Obama administration does not provide that same accommodation to objecting for-profit employers.

4. Lederman fails to recognize that the arguments that he (wrongly) thinks so central to the substantial-burden inquiry—that large employers don’t actually have a legal duty to provide employee health insurance at all and that “most employers” would (supposedly) benefit economically by dropping their health plans and instead paying the tax—undercut his position on exceptions. To the extent that Lederman is right on the latter proposition, the employees of large employers will lose their employer-provided insurance and will be stuck with the choice of obtaining insurance on the exchanges or of going without insurance. Again (as with the small-employer exception), it’s predictable that some significant number of employees will choose the latter option and thus won’t obtain cost-free contraceptive coverage. So how is it that there is a compelling interest in requiring Hobby Lobby and Conestoga Wood to provide such coverage?

5. The Obama administration (acting with no legal basis) has already waived the employer-mandate penalty for large employers for 2014 and for a newly invented category of mid-sized employers through 2015. (The waiver doesn’t help Hobby Lobby and Conestoga Wood, as they remain subject to steeper penalties for providing non-compliant coverage.) Again, these waivers provide a disincentive to employers to provide coverage to their employees and thus operate to increase the number of individuals who will decide between obtaining insurance on the exchanges or going without insurance.

6. Lederman makes this blanket assertion:

If the [Hobby Lobby and Conestoga Wood] plaintiffs were to receive the relief they seek, it would mean that their female employees would have to pay for such contraception themselves—and thus they would not enjoy a virtually universal new health care benefit that will be available to more than 99% of other women in the United States.

As ought to be clear by now, his assertion that the benefit “will be available to more than 99% of other women” obscures two key limitations. First, by using the future tense (“will be available”), Lederman is referring to some time in the future when there will be few if any grandfathered plans. That is not the context in which the HHS mandate was imposed, and it is not the context now. Second, the proposition that the benefit “will be available” is very different from the proposition that most or all women who are deprived of employer-provided insurance will actually choose to avail themselves of insurance on the exchanges that includes the benefit. (Also, contrary to what Lederman implies, the employees of Hobby Lobby and Conestoga Wood could also obtain coverage on the exchanges, though I readily acknowledge that for them (as for many others) the economic case to do so might well be irrational.)

Further, the government could develop alternative means of providing cost-free contraception or contraceptive coverage to the employees of employers who have religious objections to some or all of the drugs and devices covered by the HHS mandate. (See Hobby Lobby brief at 58.)


Tuesday Book Event in D.C. for Fifth Circuit Judge Leslie Southwick


Just a reminder: Tomorrow (Tuesday) evening, February 25, Fifth Circuit judge Leslie M. Southwick will discuss his new book The Nominee: A Political and Spiritual Journey at an event jointly sponsored by the Ethics and Public Policy Center and the Catholic Information Center. I’ll have the privilege of introducing Judge Southwick.

See here for more information or to RSVP. (Last-minute drop-ins are welcome—especially if you buy the book.)

Halbig v. Sebelius, Part 3: The Whole Act Canon and the Constitution


In the third and final post of my three-post series about Halbig v. Sebelius (see Part 1 and Part 2) a lawsuit challenging unlawful Obamacare tax regulations promulgated by the IRS, I’ll summarize our amicus brief, which we recently filed on behalf of several members of Congress.

As I noted in my first post, the starting point for the interpretive task is the text of the Affordable Care Act itself, and the text creating the tax subsidy for exchange-bought health plans is unambiguous and perfectly clear: It applies to exchanges “established by the State under [Section] 1311 of the Patient Protection and Affordable Care Act.” In my second post, I explained the government’s argument and the district court’s opinion, which simply got it wrong.

Now, much federal legislation is imperfect, as anyone familiar with reading statutes will tell you. As a general rule, the Supreme Court has held that the interpretation of imperfect legislation requires a holistic view of the statute at issue. Nevertheless, under well-established principles of statutory interpretation, the text still governs unless the plain language would lead to absurd consequences.

The district court erroneously accepted the government’s argument that restricting the tax subsidy to exchanges established by a state (as the statute says) would lead to absurdity. In fact, there is ample evidence that Congress wanted to create incentives for states to create their own exchanges, since the Constitution forbids Congress from forcing the states to do so on their own. Incentives are clearly not an “absurd” result.

And this raises another important issue: At the government’s urging, the district court tried to create a textually harmonious interpretation of the ACA, that is, one that avoided all possible anomalies. But this approach is at odds with the typical principle that, in large, convoluted statutes such as the ACA, Congress often means different things when using the same words (we cite several examples in our brief). The district court’s opinion assumes a level of harmony in the statute that nobody who has ever read a large piece of legislation like the ACA should expect it to have.

Moreover, as we note in our brief, the language at issue originated with a Senate bill that was largely trying to strip the ACA of federal involvement. The bill passed the Senate and went to the House, but before the House and the Senate could agree on amendments that would pass both houses, Senator Scott Brown replaced Senator Ted Kennedy, altering the political balance. The bill that Congress passed under these circumstances reflects this balance of power.

These factors make adherence to the plain statutory language that much more important, lest the courts amend the ACA by substituting their own policy judgment for that of Congress. The Constitution, after all, vests the lawmaking power with Congress, not the courts or the IRS. By adopting the IRS’s general explanation of how the scheme should work, the district court effectively amended the ACA by giving the pro-federalization political forces a victory that they did not achieve through the political process.

We also raise the point that if the court concludes that the statute doesn’t mean what it says, then it would be, frankly, bizarre for the district court to conclude that the provision is unambiguous. Indeed, if the best interpretation of “established by the State under section 1311” is that it refers to exchanges established by the federal government under section 1321 of the law, then the better course is to declare the provision ambiguous and allow for a differing interpretation in the next administration.

That concludes the series on Halbig v. Sebelius. We will continue to follow this important case and note further developments. As the English say, watch this space.

Today’s Argument in Chamber of Commerce v. EPA


This morning, the Supreme Court will hold oral arguments in Chamber of Commerce v. EPA, which is yet another case of an agency interpreting its authority so aggressively as to abandon the actual language passed by Congress. In this case, the Environmental Protection Agency attempted to effectively alter the language of the Clean Air Act in order to accommodate its regulation of greenhouse gases (like carbon dioxide) as pollutants.

After the Supreme Court held in Massachusetts v. EPA (2007) that EPA had to conduct rulemaking regarding the regulation of greenhouse gases issued by motor vehicles, the EPA issued regulations interpreting Massachusetts to extend this requirement to other sections of the statute. In particular, the EPA applied the definition of greenhouse gases from mobile sources to sections of the act dealing with different types of stationary sources. Those sections have numerical pollution thresholds written into the law itself, which become problematic if applied to greenhouse gases like carbon dioxide that differ from traditional pollutants because they are necessarily present in huge quantities in the normal air we breathe.  

Applying EPA’s suggested interpretation with these numerical thresholds would expand the covered sources of carbon dioxide by orders of magnitude: from tens of thousands of sources to millions of sources and from covering things like major power plants and steel mills to implicating small businesses and private homes. As a result, EPA estimated that extending the law’s reach to such a degree could create delays of up to ten years in issuing permits. This, EPA recognized, would be an absurd reading of the statute.

But instead of avoiding the absurdity by choosing a reasonable interpretation — by taking the inability to work CO2 into the statutory framework as evidence that Congress didn’t intend it to be covered — EPA blamed the Supreme Court’s decision in Massachusetts v. EPA, claiming that it had no choice in the matter. In its effort to scapegoat Justice Stevens, who wrote the majority opinion in Massachusetts v. EPA, the agency reads the case as aggressively as it does the statute. As our amicus brief argues, the EPA’s aggressive reading of Massachusetts relies on dicta taken out of context, whereas the holding only required EPA to conduct a rulemaking that is grounded in the statute.

It would be bad enough if the EPA had just left us with its absurd interpretation and let the natural consequences of its hyperregulation play out. Instead, the EPA decided to rewrite the statute by changing the very numbers in its text. Not only does the Constitution forbid agencies from amending statutes like this, ad hoc amendments also create crippling uncertainty in the law. After all, if the EPA has the authority to alter the statute in this way, there is nothing to stop it from changing the thresholds again sometime in the future.

This discretion-maximizing approach to government is becoming the modus operandi of the current administration, most notably played out in the context of Obamacare, where government agencies have flatly refused to enforce the law.

Monday’s argument will be important for the continued viability of the Constitution’s separation of powers. The Court should put a stop to this administration’s thirst for unlimited discretion and the asserted power to ignore the law. If you’d like to learn more about this case, you can read our amicus brief here


Columbus Event on HHS Mandate Litigation


Next Thursday, February 27, I’ll be in Columbus to discuss the HHS mandate litigation at an event organized by the Columbus lawyers chapter of the Federalist Society. I’ll be discussing the religious-liberty challenges brought by for-profit entities and their owners, and Matthew A. Kairis of Jones Day, who represents various religious non-profits (including the University of Notre Dame), will be discussing their challenges. I will then invite Matthew to join me in a private meeting of the Richard Posner Fan Club

The event takes place at noon at the Athletic Club of Columbus and includes lunch. (Price is $20 for members of the public, $15 for chapter members, and $5 for students.) To RSVP, or to obtain further information, write to [email protected]

Another State Attorney General Neglects Duty to Voters


Last week, Oregon decided to abandon a state marriage amendment passed by voter referendum in 2004. In so doing, Oregon’s attorney general, Ellen Rosenblum, joins several other state AGs who would rather carry water for the Left than carry out their oaths of office.

As I have noted before, state AGs have an obligation to defend democratically enacted laws of their state, especially those enacted recently, if a nonfrivolous argument can be advanced in support of the law. Every schoolchild knows that there are democratic ways to deal with laws you happen to disagree with, but simply ignoring a law that is still on the books is not one of them, even if you’re a state attorney general. 

This Day in Liberal Judicial Activism—February 24


2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

This Day in Liberal Judicial Activism—February 23


1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat, where she will help fill This Day annals until her retirement in September 2013. (For more on Barkett’s egregious record, see here.)

2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:

I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.

Judge Posner’s Dog Regurgitates


Predictably, given his uninformed and ill-mannered behavior in last week’s oral argument in Notre Dame v. Sebelius, Judge Richard Posner has now delivered himself of an ill-judged opinion in the case.  The first unfortunate feature of it is that it speaks for a majority of his three-judge panel of the Seventh Circuit; Judge David Hamilton, who seemed last week to at least comprehend the university’s arguments, joined him, while Judge Joel Flaum filed a cogent dissent.

The second unfortunate feature of Judge Posner’s opinion is that he appeared to learn nothing from the clear and skillful argument of Notre Dame’s counsel last week.  But then the judge was not truly interested in listening to him, as anyone who listens to the oral argument’s audio recording can discover for himself.

And this leads to the third unfortunate feature of Posner’s opinion, that he cannot even competently describe the contours of the case he is deciding.  Last week, Posner expressed the view that, no matter what Notre Dame did, whether or not it filled out the “self-certification” form the the government requires of religious organizations seeking an “accommodation,” its third-party health insurance administrators Meritain and Aetna (the university self-insures and these companies administer the employee and student plans, respectively) would provide contraceptive services to its employees and students anyway.  Hence there could be no “substantial burden” on Notre Dame in just filling out the form.  The university’s counsel pointed out that this was not so, and cited the relevant regulation, which “states that the self-certification will be treated as a designation of the third-party administrator as plan administrator and claims administrator for contraceptive benefits, pursuant to section 316, and shall supersede any earlier designation.”

This information silenced Posner for a while during the oral argument, but in his opinion he persists in his original error, which requires him to misread the relevant law.  Notre Dame, Posner said, claims

that by filling out the form and sending it to the companies it “triggers” their coverage of the contraception costs and students, and that this makes the university an accomplice in the provision of contraception, in violation of Catholic doctrine . . .

Posner asserts that this is erroneous, and writes:

Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated.

Suppose the situation were as Posner describes.  Then it would certainly pass all understanding why the government has a compelling interest in forcing Notre Dame to fill out a form that has absolutely no effect on the actions of its third-party administrator vis-à-vis its insured employees, dependents, and students.  And one wonders whether Posner has noticed that, according to his own account, Aetna and Meritainby virtue of their contract with Notre Dame, would be obliged to supply the contraception.  Not Kaiser, not Blue Cross, but Aetna and Meritain—“unless and until their contractual relation with Notre Dame terminated.”

Keep reading this post . . .

This Day in Liberal Judicial Activism—February 22


1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

Tweeting Away


When it comes to social media (and a lot of other technologies), I’m a late adopter, so the fact that I’m now actively tweeting may be a sign that Twitter is becoming passé. In any event, if you’re interested, my Twitter account is @EdWhelanEPPC. My Facebook page is

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere.  Just fill out the form below.  If you do sign up, you’ll receive an e-mail asking you to confirm. Please note that your e-mail address will not be visible to other folks on the list and that I will make no other use of your e-mail address.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

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“Worst Judge in America”?


In response to my recent post on Judge Richard Posner’s appalling performance at a recent oral argument, a conservative appellate lawyer has e-mailed this comment to me:

I’ve been singing this tune for years. Posner is, bar none, the worst judge in America. He’s totally unprepared, irrational, and abusive. 

I’ve noted before that “a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge.” I’ve had a similar assessment of what I’ve read of his off-the-bench work.

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2


See Part 1 (on corporate exercise of religion)

Resuming my review of the Obama administration’s recently filed Supreme Court brief, I will address in this post DOJ’s remarkable argument that the HHS mandate does not substantially burden those employers who object on religious grounds to including potentially embryo-killing drugs and devices in their employee health-insurance plans. Once again, we see DOJ trying to smuggle into the threshold inquiry under RFRA the sorts of considerations that are fully taken into account when the Court applies strict scrutiny to the burden that that the HHS mandate imposes.

As Hobby Lobby spells out in its own brief, the affirmative case for the existence of a substantial burden is quite simple: “a fine imposed for adherence to religious beliefs is as direct and obvious a burden as one could imagine.” (Internal quotation marks omitted.) Hobby Lobby faces millions of dollars of fines for not complying with the HHS mandate. (The substantial burden in Wisconsin v. Yoder was a $5 fine.) Enough said.

What does DOJ have to say on this point? In astonishing gobbledygook that Hobby Lobby generously calls a “masterpiece of obfuscation,” DOJ (in both its opening brief in Hobby Lobby (p. 33) and its brief as respondent in Conestoga Wood (p. 37)) asserts that a court may find that a burden on religious exercise is not substantial

in cases where the nature of applicable legal regimes and societal expectations necessarily impose objective outer limits on when an individual can insist on modification of, or heightened justifications for, governmental programs that may offend his beliefs.

In supposed support for its unintelligible assertion, DOJ cites unrelated contexts in which “courts reject claims when a proffered injury is too attenuated or the independent actions of third parties are part of the chain of causation.” But there is nothing at all “attenuated” about a massive fine, and, as I discuss more fully here, the “independent actions of third parties” in a “chain of causation” are irrelevant to the substantial-burden inquiry. What Hobby Lobby and its owners object to is being pressured to engage in what they regard as improper complicity in immoral conduct, and Supreme Court precedent clearly establishes that the Court may not second-guess that judgment in the guise of declaring that a massive fine somehow isn’t a substantial burden.

DOJ weakly claims that the individual owners of an incorporated business “are a step further removed from the employees’ decision” to use the potentially embryo-killing drugs and devices. That claim is irrelevant to the substantial-burden inquiry for the same reasons. What matters for purposes of the substantial-burden inquiry for the individual owners is that the HHS mandate threatens their businesses with massive fines if they don’t direct those businesses, contrary to their own religious convictions, to comply with the mandate. (See Hobby Lobby brief at 30-32.)  

Congratulations to Andrew Brasher for Appointment as Solicitor General of Alabama


Alabama Attorney General Luther Strange recently announced the appointment of Andrew Brasher as solicitor general of Alabama. He has been deputy solicitor general since 2011. Brasher is a graduate of Harvard Law School and served as a law clerk to Judge William H. Pryor Jr. in the Eleventh Circuit. He is known as a strong supporter of limited constitutional government, and he joins a great group of like-minded SGs from all across the country.

We are pleased that Attorney General Luther Strange has recognized the importance of this office and empowered such an excellent candidate. We look forward to seeing the results of Brasher’s advocacy. 

Re: Judge Posner’s Dog Ate His Homework


I entirely concur in Matt’s assessment of Judge Posner’s appalling performance at oral argument last week on Notre Dame’s challenge to the HHS mandate. I’ll add that it was particularly outrageous that Posner told Notre Dame’s attorney, Matthew Kairis, to “stop babbling.” I think that anyone who listens to ten or so minutes of the audio (I listened to the first 45 or so) will recognize that Posner should have aimed that directive at himself.  

By contrast—especially in the face of Posner’s abusive conduct—Kairis’s presentation struck me as clear and concise and impressive.

Judge Posner’s Dog Ate His Homework


And while we are talking about wrestling with other people’s consciences (see below), let us consider the case of Judge Richard Posner of the Seventh Circuit.  Last week, presiding over oral argument in the Notre Dame v. Sebelius case over the HHS mandate, Judge Posner was on display to full advantage—full of himself, but devoid of understanding.  In a colloquy with Matthew Kairis (representing Notre Dame), Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.  You can listen to the audio here, with things beginning to heat up around the 10:30 mark.

Here is a sample of Posner’s inability to perceive what is at stake in the case:

Posner: You have no objection to . . . a single-payer system under which all health providers are required to provide all these contraceptives free.

Kairis: If Notre Dame played no role in that system. . . .

Posner: . . . [I]f Notre Dame hadn’t sent copies of the certification form to Aetna and Meritaine [third-party administrators of its health plan], but had simply written a letter to the government, you know to the Internal Revenue Service saying we’re a religious organization, and so we’re just not going to pay for any of these contraceptionves, would you have any quarrel with that?

Kairis: Well, you’re asking me to make . . .

Posner: No, no, answer my question, don’t fence with me.  You answer my question.

Kairis: I’m attempting to, Your Honor.  And you’re asking me to make a religious determination.

Posner: You answer, my question is extremely clear.  Would you have any objection simply to writing a letter to the government saying Notre Dame is a religious university, a Catholic university, and it will not make any financial contribution to contraception?

Kairis: It depends on the context and consequences of that act. . . .

Kairis is exactly right.  First of all, Posner was sketching a scenario that the law does not even allow—“writing a letter to the government” such as he describes—so what was the point of his question?  His persistence in asserting the relevance of it strongly suggested that he thought the law’s requirements amount to no more than such a letter, or could be assimilated to it.  But the HHS mandate requires an institution such as Notre Dame to fill out a form certifying its religious claim to an “accommodation,” and designating an insurer or third-party administrator (for self-insurers such as the university) to provide the contraception.  It can’t just “write a letter” and be finished with this business.  Moreover, Posner never supplied the “context and consequences” of his imaginary scenario involving such a letter, and yet he persisted in rudely demanding that Kairis answer his question yes or no.  Sorry, sometimes “it depends” is the right answer. 

Keep reading this post . . .

Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents


In a badly confused essay, the Atlantic’s Garrett Epps contends that Supreme Court precedent compels the conclusion that Hobby Lobby and its owners (and other for-profit businesses challenging the HHS mandate) “have not suffered any injury worthy of redress under the Constitution.” But Epps mistakenly invokes inapplicable precedents and ignores those that plainly govern.

Epps recites Hobby Lobby’s position that it “object[s] to being forced to facilitate abortion by providing abortifacients, and that objection does not turn on the independent decisions of their employees.” But he asserts that the Court “has repeatedly declared this ‘facilitate’ argument categorically false.”

Unfortunately, Epps confuses his categories. Epps is correct that the Court has (soundly) held in the Establishment Clause context that, as Chief Justice Rehnquist put it in the landmark school-choice decision in Zelman v. Simmons-Harris (2002), “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” (Citations omitted.) But although Epps slides from recognizing that this is an Establishment Clause principle to claiming that it is a principle that ought to govern the “religious rights of citizens” more broadly, he fails to justify that slide.

The pertinent legal question under the federal Religious Freedom Restoration Act and the Free Exercise Clause is whether the massive fines that an employer faces for providing an employee health plan that does not comply with the HHS mandate substantially burden the employer’s exercise of religion. As Hobby Lobby spells out (pp. 34-44 of its brief), the answer to that question is clearly “yes” under the Court’s precedents. Indeed, “‘a fine imposed for adherence to religious beliefs is as direct and obvious a burden as one could imagine.” (Brief at 36-37.)

Epps evidently imagines that he escapes these precedents (which he doesn’t even acknowledge, much less place in intelligible context for his readers) by pointing out that any decision to use the potentially embryo-killing drugs and devices that Hobby Lobby objects to is the employee’s “independent choice.” His point is irrelevant to the substantial-burden inquiry. What Hobby Lobby and its owners object to is being pressured to engage in what they regard as improper complicity in immoral conduct.

On the question of religious-liberty protection against improper complicity, Supreme Court precedent is entirely against Epps. As Eugene Volokh has spelled out:

[F]or purposes of RFRA, the question isn’t whether a judge or jury agrees with a person’s claim that a law [that] requires him to engage in behavior is sinful — it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line as to complicity; it is whether he sincerely believes that the complicity is sinful.…

Thomas v. Review Board (1981) is the classic illustration of this. Thomas had been working at a machinery company, and was transferred to a department that produced tank turrets. Thomas refused to work on such military production, and was fired. Under the Court’s Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion.…

Thomas wasn’t, of course, being required to kill anyone using a tank, to fire a tank gun, to ride in a tank helping the gunner, or to assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets — though not making steel that would go into a tank — was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The “substantial burden” requirement didn’t require that the connection be “substantial” enough in the secular legal system’s understanding of complicity.…

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools, or hiring employees who use those tools, is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line, and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners … but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

It did not matter to the substantial-burden inquiry under Eddie Thomas’s Free Exercise claim that it would be someone else’s “independent choice” to engage in an objectionable military use of the tank turrets he was making. Likewise, it is simply irrelevant to the substantial-burden inquiry under Hobby Lobby’s claim that the actual decision to use embryo-killing drugs or devices would be the “independent choice” of the employee (or of other insured family members).

In other words, Zelman and other cases establish only that, for purposes of the Establishment Clause, the government is not responsible when a private individual chooses to direct money to a religious school. They do not speak at all to the entirely different question, under RFRA and the Free Exercise Clause, of the range of permissible religious beliefs about what constitutes improper complicity in immoral conduct. As the Court made clear in Thomas, that is not a question “within the judicial function and judicial competence.”

In an odd twist near the end, Epps claims that Hobby Lobby is “assert[ing] a right to control employees’ private choice.” But a victory for Hobby Lobby will not change the fact that the decision whether or not to use embryo-killing drugs or devices will remain entirely with the employees. What it will mean is that employers will not be dragooned to be complicit in conduct that violates their religious consciences.  

Wading Into Other People’s Consciences


Yesterday, the latest column by Kirsten Powers at USA Today made quite a splash.  Commenting on a proposed law protecting religious freedom, which was passed by the lower house of the Kansas legislature but killed by the upper house, Powers goes straightaway to hypebole.  This would be like reviving Jim Crow for gay people!  Never mind, as Ryan Anderson pointed out yesterday, that Jim Crow laws coerced businesses to segregate the races and deal with them separarately, while the proposed Kansas law would free businesses and others from state coercion.  Powers mostly directed her fire at those people who, for religious reasons, would prefer not to participate in the “wedding” ceremonies of same-sex couples, as bakers, florists, or photographers, for instance. 

She wrote: “Whether Christians have the legal right to discriminate should be a moot point because Christianity doesn’t prohibit serving a gay couple getting married.”  And she enlisted a couple of Christian pastors who feel about this as she does.  Fine.  But as Ramesh Ponnuru noted, “the key point . . . is that whether the state should compel someone to violate his conscience or protect him in his exercise of it cannot turn on the contents of that conscience.”  And the contents of Kirsten Powers’ conscience, or of her favorite pastors’ consciences, are evidently very different from the consciences of other religious people. 

Andrew Walker met Powers’ argument at First Thoughts yesterday, squarely on the ground Powers herself chose, of the meaning of Christian principles.  And if Christians and others want to argue with one another’s consciences, that’s fine.  (Conscience, after all, isn’t what your “gut” tells you, but what your reason tells you about the application of your most considered moral and religious principles.)

But the government cannot rightly participate in that conversation, about what a Christian (or any other religious) conscience requires of anyone.  As I argued last week at Canon & Culture, when the government “does theology,” as it does whenever it makes a judgment that someone’s sincere claim of conscience is not to be credited as a genuine stand on a religious principle, it violates the freedom of religion.  So, in the HHS mandate cases, when the government argues that the mandate imposes no “substantial burden” on employers who object on religious grounds to providing contraceptives and abortifacients to their employees, and when judges say (as one judge did in November) that the mandate doesn’t require anyone “to do anything that violates the Catholic Church’s disapproval of contraception,” in the very moment when they decide that no one’s religious freedom has been violated, they’ve violated it.

Kirsten Powers has spoken out on behalf of the Little Sisters of the Poor, and rightly so.  But Hobby Lobby and other for-profit employers are in an indistinguishable situation.  And small business owners threatened with the destruction of their livelihoods by a government forcing them to do business in ways that violate their religious beliefs about the sanctity of marriage are in exactly the same position too.  The proposed Kansas legislation was a good-faith attempt to protect the consciences of religious believers.  If such a bill needs improvement, then improve it.  But the liberal reaction to it, as though it were the second coming of Jim Crow, is wildly out of proportion.  And the claim that such beleaguered Christians don’t have to be respected because “that’s not how I would behave as a Christian,” is a substitution of your conscience for theirs, and a license for the invasion of religious freedom by the government.


This Day in Liberal Judicial Activism—February 20


1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)


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