Bench Memos

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This Day in Liberal Judicial Activism—March 24


1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.)

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice.

This Day in Liberal Judicial Activism—March 23


1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent:

I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case.

2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.


This Day in Liberal Judicial Activism—March 22


1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Argentina Lining Up Amici, But How?


Forbes asks whether Argentina is using quid pro quo to convince other countries to file amicus briefs in an upcoming Supreme Court case against its bondholders:

However, there are some indications that Argentina has paid for one or more of the anticipated amicus filings.  The Supreme Court takes a dim view of that practice; it wants each amicus filer to truly be a “friend of the court,” not a “friend of a party.”  The Court does not strictly prohibit the filing of amicus briefs that have been paid for by a party.  But it requires that the fact of payment be explicitly disclosed in the opening footnote of the amicus brief.

Re: Can a For-Profit Corporation Have a Racial Identity?


In a Public Discourse essay titled “If a Company Can Be African American, Can’t It Be Religious,” Matt Bowman of the Alliance Defending Freedom nicely develops the implications of the recent Fourth Circuit ruling on corporate racial identity that I highlighted two weeks ago. (Bowman and ADF represent Conestoga Wood Specialties in its pending Supreme Court challenge to the HHS mandate.)

Bowman sums it up: “It would be hard to come up with a more blatant contradiction between what the government rejects as absurd in Conestoga and Hobby Lobby, and what it considers a given when it comes to combating racial discrimination.”


This Day in Liberal Judicial Activism—March 21


2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

UPenn Symposium on “Dictating Conscience”


I’m grateful to be the keynote dinner speaker at a March 31 symposium, titled “Dictating Conscience: Law as a Cultural Weapon,” at the University of Pennsylvania law school.

The afternoon-and-evening event, sponsored by the law school’s Federalist Society chapter, also features a talk by Princeton professor Robert P. George on “Mill and Newman on Liberty and Conscience” and panel debates on the HHS mandate cases and on marriage.

For you lawyers out there, I’ll highlight that CLE credit is available.

Important Elane Photography Cert Petition


Teed up for action at the Supreme Court’s conference tomorrow is Elane Photography’s cert petition raising a fundamental question on First Amendment speech rights: May a photographer be punished for refusing to create expressive images and albums that conflict with her beliefs?

Law professors Eugene Volokh and Dale Carpenter, who identify themselves as “supporters of same-sex marriage who also believe that photographers, singers, writers, and other creators of expression have a First Amendment right to choose which expression they want to create,” have submitted a strong amicus brief in support of Elane Photography’s petition. Volokh and Ilya Shapiro of Cato, who co-authored the brief, also had this op-ed in the Wall Street Journal earlier this week.

Let’s hope that the Court grants review and clarifies this important area of the law.

Selected Posts on Hobby Lobby


In advance of next Tuesday’s oral argument in the HHS mandate cases, here’s an outline of posts of mine that bear on the major issues:

1. Does the HHS mandate substantially burden the plaintiffs’ exercise of religion?

a. Is a for-profit corporation categorically incapable of engaging in an exercise of religion for purposes of RFRA? [No]

EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations

EPPC Amicus Brief on Meaning of “Exercise of Religion” in RFRA

EPPC Amicus Brief on Government’s Parade of Horribles

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 1

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 1

Can a For-Profit Corporation Have a Racial Identity?

b. Is the burden of which plaintiffs complain too attenuated and remote to be substantial? [No]

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

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

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2

c. Are the individual plaintiffs burdened by the HHS mandate? [Yes]

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2 (last paragraph)

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 2 (last paragraph)

2. Can the government satisfy both prongs of the strict-scrutiny test? [No]

a. Does the HHS mandate further a compelling governmental interest? [No]

On the HHS Mandate’s “Sieve” of Exceptions

DOJ’s Reply Brief in Hobby Lobby—Part 2

DOJ’s Reply Brief in Hobby Lobby—Part 3

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

b. Is the HHS mandate the least restrictive means of furthering the asserted governmental interests? [No]

[Addendum:] The “Accommodation” as Less Restrictive Means

DOJ’s Reply Brief in Hobby Lobby—Part 1

The HHS Contraception Mandate vs. RFRA—“Least Restrictive Means”

Judge Sykes Versus Judge Rovner on the HHS Mandate—Part 3

There are also some tangential issues that I’ve addressed in detail. On the irrelevance to the substantial-burden inquiry of the fact that large employers do not have a legal duty to provide health insurance, see:

Substantial Confusion on RFRA’s “Substantial Burden” Requirement?

Reply to Lederman on “Substantial Burden”—Part 1

Reply to Lederman on “Substantial Burden”—Part 2

On whether the drugs and devices that Hobby Lobby objects to can operate to kill human embryos, see:

On Embryo-Killing “Contraceptives”

DOJ’s Reply Brief in Hobby Lobby—Part 3


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.

Georgetown Religious Freedom Event


Next Monday, March 24–the day before oral arguments in the Hobby Lobby and Conestoga Wood Products cases–the Religious Freedom Project at Georgetown University’s Berkley Center will host an event, “Everybody’s Business: The Legal, Economic, and Political Implications of Religious Freedom,” at the Willard Hotel in Washington, D.C. from noon to 5:30 p.m.  (RSVP, as there is a buffet lunch at noon.)  The keynote of the event will be a conversation between Baylor University’s President Kenneth Starr and Harvard Law School’s Professor Alan Dershowitz, “Beyond Hobby Lobby: What Is at Stake with the HHS Mandate?”  Following that conversation, the balance of the afternoon will feature two panels, one on the Hobby Lobby case and its implications and another on the question, “Is Religious Freedom Good for Business and for the Poor?”  Each panel features outstanding legal and scholarly experts on religious freedom, with different views represented.  It should be a very illuminating afternoon.


Clarence Thomas, Originalism, and the Declaration of Independence


At the Witherspoon Institute’s Public Discourse yesterday, I had an essay, “Declaration Man: How Justice Clarence Thomas Earned His Enemies,” reviewing a fine new book by Ralph A. Rossum of Claremont McKenna College, titled Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration.  Rossum comprehensively reviews Thomas’s opinions since his appointment to the Supreme Court in 1991, and ably describes his eclectic originalism and his willingness to scrape away distorting precedents in order to see the Constitution’s own principles more clearly.  I asked:

Whence comes this devotion to discipline, to constitutional constraint, and its concomitant skepticism about precedent? For Clarence Thomas, it seems to come from the same foundation that undergirds the Constitution itself: the Declaration of Independence.

Alone on the modern Court, Justice Thomas is known to cite the Declaration as a source of legal principle in the decision of cases. For him, the foundation of all our law lies in the self-evident truths of the Declaration, beginning with human equality. His conviction that the Fourteenth Amendment was meant to make good on that truth accounts for his persistent invocation of Justice John Marshall Harlan’s dissent in Plessy v. Ferguson (1896), the proposition that the law of the land must be color-blind.

In a brief review, I could not do justice to either Thomas or Rossum, whose book is amazing for its thoroughness and critical care.  Not simply a Thomas cheerleader, Rossum tells his readers where he thinks Justice Thomas’s originalism may go astray, or where he might not have followed his own methods adequately.  It’s hard to imagine a better account of Thomas’s career so far, and I heartily recommend Rossum’s book.  Ditto his earlier book on Justice Scalia.


DOJ’s Reply Brief in Hobby Lobby—Part 2


See Part 1

In its brief, Hobby Lobby argues that the Obama administration can’t meet its burden of showing that the HHS mandate furthers a compelling governmental interest. (Brief at 45-56.) Among other things, the government’s asserted interests in public health and gender equality are too broadly formulated to count in the strict-scrutiny inquiry, and the sieve of exceptions to the HHS mandate contradicts the government’s newly asserted interest in ensuring comprehensive contraceptive coverage.

In its reply brief, DOJ contends that Hobby Lobby “all but ignore[s]” that its position would supposedly “extinguish the statutorily guaranteed rights of [its] 13,000 employees (and their covered dependents) to important health benefits that are part of the employees’ compensation.” (Reply at 1.)  DOJ repeatedly asserts that the Court’s 1982 decision in United States v. Lee defeats Hobby Lobby’s position. (DOJ also offers a parade of horribles; I’ll address that in my Part 3 post.)

Let’s consider some of the flaws in DOJ’s position:

1. What DOJ tries to depict as the unacceptable harm that would be inflicted on Hobby Lobby’s employees is exactly what the grandfathered-plan exception to the HHS mandate allows for tens of millions of employees (and tens of millions more of their covered dependents). Further, the small-employer exception from the employer-mandate penalty gives small employers an incentive to stop providing (or to continue not to provide) insurance coverage at all for their millions of employees.

2. DOJ is doubly wrong to refer to “statutorily guaranteed rights.” The contraceptive coverage of the HHS mandate is an exercise of regulatory discretion, not a matter of statutory right. And, as law professor Marty Lederman, an ardent defender of the HHS mandate, repeatedly points out,* the HHS mandate does not actually impose a legal duty on any employer to provide contraceptive coverage. It thus does not guarantee any rights to employees, who can be thrown at any time into the exchanges, where their supposed right to obtain “cost-free” contraceptive coverage will depend on their willingness to pay for insurance that includes it. (The term “cost-free” means no co-pay or deductible; it doesn’t mean that the laws of economics have been repealed.)

3. A victory for Hobby Lobby would leave its employees with the same legal rights with respect to contraceptives that they had before the HHS mandate: namely, no legal right to compel Hobby Lobby to provide coverage, and the free ability to obtain contraceptives, and contraceptive coverage, on their own.

4. In five separate places, DOJ quotes from two sentences of dictum from the epilogue of United States v. Lee, the case in which the Supreme Court held that the Free Exercise Clause did not entitle a member of the Old Order Amish to an exemption from paying the employer’s share of Social Security taxes. Somehow DOJ never quotes from, or even refers to, the part of the opinion that explains why there was a compelling governmental interest in mandatory employer contributions to the Social Security system:

The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. “[W]idespread individual voluntary coverage under social security . . . would undermine the soundness of the social security program.” S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 116 (1965). Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government’s interest in assuring mandatory and continuous participation in and contribution to the social security system is very high. [Emphasis added.]

It is difficult to see how anything remotely comparable could be said of the HHS mandate—which, again, does not actually impose a legal duty on any employer to provide contraceptive coverage.

Further, DOJ simply ignores the fact that the Court’s ruling in Lee relies very heavily on the tax context. The Court explains that the “obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes” and that the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious beliefs.” It was “[b]ecause the broad public interest in maintaining a sound tax system is of such a high order” (emphasis added) that the Court declared that “religious belief in conflict with the payment of taxes affords no basis for resisting the tax.” The HHS mandate does not implicate that interest.

5. There is no end to this DOJ’s confusions about religious liberty. Recall that this is the same DOJ that argued in the Hosanna-Tabor case that (as the Chief Justice summarized DOJ’s “remarkable view” in his unanimous opinion) “the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers” and that churches are instead limited to the rights that labor unions and social clubs enjoy.

It’s bad enough that DOJ now has the gall to present itself as a champion of “vibrant religious pluralism.” Even worse, it ludicrously contends that a victory for Hobby Lobby would threaten the “free exercise of religion” of Hobby Lobby employees.

Earth to DOJ: Private employees do not have any “free exercise” right to have their employer provide for their contraception.

* I’ve 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.

This Day in Liberal Judicial Activism—March 19


1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

Twelve Weeks and Counting: Analysis of the Arkansas ‘Heartbeat’ Ruling


Federal District Judge Susan Webber Wright last week struck down and declared unconstitutional the Arkansas “human heartbeat protection act,” which was passed in 2013 and would have prohibited abortion after twelve weeks. (Abortion would be prohibited under the Arkansas statute if “the heartbeat is detected and the gestational period is 12 weeks or more.” The prohibition did not apply to abortions for rape or incest or abortions performed in response to a medical emergency.)

This case has significance for those evaluating the wisdom of pursuing similar twelve-week limits or whether an approach that focuses on a mother-child strategy, limiting abortion later in pregnancy based on both the impact of abortion on women’s health and the pain felt by the unborn, should be considered instead.  

The judge granted summary judgment to the plaintiffs, which means she concluded that there was “no genuine issue of material fact” and that the plaintiffs were entitled to judgment as a matter of law. This means that no facts (other than the application of the prohibition at a point before viability, for which the judge relied on the affidavit of one physician) were relevant, in her judgment, to the constitutionality of the act, and that the law was clearly unconstitutional as a matter of law. 

The outcome of this hearing for summary judgment was foreshadowed by Judge Wright’s granting of a preliminary injunction against the twelve-week prohibition in May 2013 and her conclusion, at that time, that the plaintiffs were “likely to prevail” with their claim that the twelve-week abortion ban was unconstitutional. In fact, the state of Arkansas admitted to the court that it “recognize[d] the court’s determination that the prohibition of abortion after 12 weeks gestation… will be invalidated by the court.”

In the wake of the Ninth Circuit’s invalidation of the Arizona 20 week limit in 2013 in Horne v. Isaacson, and the Supreme Court’s refusal to hear that case in January, 2014, I was interested to see what Judge Wright’s reasoning would be, and what Supreme Court decisions, or other federal court decisions, the judge would quote or disregard. 

As it turns out, Judge Wright didn’t mention any Supreme Court abortion decisions (or any other federal court decisions including the Ninth Circuit’s 2012 decision in Horne v. Isaacson) except two: the Court’s 1992 decision in Planned Parenthood v. Casey and the Court’s 1976 decision in Planned Parenthood v. Danforth

Quoting the Court’s decision in Casey, 505 US 833, 845–846, Judge Wright concluded that “before viability ‘the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.’” The Court concluded that “the line between a woman’s interest in control over her destiny and body and the State’s interest in promoting the life or potential life of the unborn is drawn at viability” (summarizing Planned Parenthood v. Casey, 505 US 833, 845-846). 

Judge Wright concluded that “given plaintiff’s uncontroverted evidence, the court finds as a matter of law that the 12 week abortion ban included in Act 301 prohibits pre-viability abortions and thus impermissibly infringes a woman’s 14th amendment right to elect to terminate a pregnancy before viability.” In other words, as the judge viewed it, this was a “slam-dunk.” 

Judge Wright made no mention of Gonzales v. Carhart, did not apply the substantial obstacle standard, or the standard that I believe the Supreme Court established in 2007 in Gonzales v. Carhart: whether a prohibition is “a substantial obstacle to a safe abortion.” For Judge Wright, as for the Ninth Circuit in Horne v. Isaacson, the viability line of Roe v. Wade is a “per se” rule that does not permit any prohibition of any abortion before viability. In other words, there is no need to apply the substantial obstacle test to a prohibition before viability because the viability rule prohibits any prohibition before viability.   
However, the court upheld some of the rest of the Arkansas statute:  the heartbeat testing and the disclosure requirements, finding that they “are independently capable of furthering the stated purpose of act 301, to protect unborn children, and that they are severable from the unconstitutional 12 week ban.”

This matter isn’t over. 

The plaintiffs will likely appeal the judge’s upholding of the testing and disclosure provisions. It is not clear whether Arkansas will defend the twelve-week prohibition on appeal to the Eighth Circuit or whether they created an evidentiary record (on, for example, the state’s compelling interest in maternal health in the second trimester, or whether the act actually creates a substantial obstacle to a safe abortion) by which to defend the twelve-week prohibition.   

Whatever the outcome of this case, it is clear that legislators across the country have an interest in reining in an abortion industry that operates in the extreme. The U.S. is one of only four nations — along with North Korea, China, and Canada — that allows abortions through all nine months – for any reason at all and sometimes with taxpayer subsidies. Many Americans favor limits on abortion, and legislative efforts to reflect that view will continue to be on the rise. 

— Clarke Forsythe is Senior Counsel for AUL and author of Abuse of Discretion: The Inside Story of Roe v. Wade.

DOJ’s Reply Brief in Hobby Lobby—Part 1


In advance of next Tuesday’s oral argument in the HHS mandate cases, let’s consider the reply brief that the Obama administration filed last week in Hobby Lobby.

In my two posts on DOJ’s Round 2 brief in Conestoga Wood, I’ve already critiqued DOJ’s arguments that closely held for-profit corporations are categorically incapable of engaging in exercises of religion and that the HHS mandate does not substantially burden religious objectors. I see nothing new in DOJ’s reply brief on these threshold issues, so I’ll rest on what I’ve written.

Once we’re past these threshold issues, RFRA’s strict-scrutiny test applies. Under that test, the federal government “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Emphasis added.)

DOJ spends nearly all of the second half of its reply brief arguing that the HHS mandate furthers a compelling governmental interest. I’ll explain in my Part 2 post why I think its argument is deeply flawed. But for purposes of deciding the Hobby Lobby and Conestoga Wood cases, the Supreme Court has a simple path available to it that does not require it to sort through the competing arguments on compelling interest.

Specifically: It is clear that the HHS mandate is not the least restrictive means of furthering any compelling interest that might be assumed to exist, as the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a less restrictive means that, it says, “strike[s] the appropriate balance between respecting the religious considerations raised by non-profit religious organizations and increasing access to important preventive services for women.” RFRA therefore requires, at a minimum, that the Obama administration also make the accommodation arrangement available to others who object to the HHS mandate on religious grounds.

Nothing in this argument, as I see it, requires that an objector agree that the accommodation rule would eliminate his objections. It ought to be enough that the objector finds the accommodation even marginally less objectionable or less burdensome than the HHS mandate. (Hobby Lobby’s brief—pp. 5-6, 58—indicates that that is its position.) In other words, in challenges to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA whether or not the accommodation itself would survive a RFRA challenge. (Whether the accommodation satisfies RFRA is being litigated in the challenges brought by the Little Sisters of the Poor and other religious nonprofits.)

Slate Violates Limits of Corporate Personhood?


In a Slate essay, UCLA law professor Adam Winkler argues that “Hobby Lobby should only have the rights of legal personhood that are essential for its operations.” From which of his ears he has extracted that proposition is unclear. (It certainly doesn’t follow from the passage he quotes from Chief Justice Marshall’s famous 1819 Dartmouth College opinion.)

Insofar as Winkler purports to be describing the rights that Hobby Lobby actually has pursuant to its incorporation in Oklahoma, his analysis is oddly bereft of any reference to Oklahoma law. Ditto for rights under RFRA.

Insofar as Winkler is prescribing the rights that he thinks corporations “should” have, perhaps Slate—which (we learn at the bottom of the page) “is published by The Slate Group, a Graham Holdings Company”—should have followed his views. Winkler might grudgingly (“Perhaps”) allow corporations “some limited speech rights, as we ordinarily expect firms to advertise and communicate with employees and customers.” But, under Winkler’s theorizing, it surely isn’t “essential for [a corporation’s] operations” that it publish op-eds.

This Day in Liberal Judicial Activism—March 18


1963— As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day.

In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.

Regulatory ‘I’ve Got a Secret’: CFPB’s Disparate-Impact Guidance


How can you comply with a law when you don’t know what it prohibits?

That’s a question that lenders continue to ask about the Consumer Financial Protection Bureau (CFPB), an agency created by the 2010 Dodd-Frank legislation, which refuses to explain how it determines whether certain lenders are engaging in racially discriminatory behavior.

CFPB regulations generally prohibit lenders from discriminating based on race, gender, or ethnicity. To make sure that discrimination can’t happen in the back office, it prohibits lenders from even collecting information about an applicant’s race, gender, or ethnicity. Buttressing these legal requirements, economic self-interest discourages lenders from offering noncompetitive loans to potential borrowers. But as Ammon Simon has previously explained, under CFPB regulations, a lender can be held responsible for racially biased lending based on controversial “disparate impact” statistical analysis even if not a single instance of intentional discrimination exists.

So what can a law-abiding lender do to avoid the large fines and ugly publicity that come with accusations of discrimination? Normally, this would be fairly simple: determine the legal standard, design a business practice that complies with it, and make sure it’s followed internally. However, this strategy doesn’t work if the government won’t tell you how to determine if your business practices have a “disparate impact.” Unlike the CFPB, which can simply discontinue an internal evaluation program that has a “disparate impact” on its minority employees, lenders lose business when they discontinue lending. And because lenders aren’t even allowed to collect information about the race, gender, or ethnicity of loan applicants, they have no way of knowing whether their programs create a “disparate impact.”

The CFPB has played its methods so close to the chest that it has refused to articulate anything more than generalities despite bipartisan requests from both houses of Congress, reports the Wall Street Journal. Perhaps the agency isn’t just making it up as it goes along and really does know what it means by “disparate impact.” But it is hard to see justice in a scheme where the government writes the rules, enforces the rules, and won’t tell anyone what the rules mean.

This Day in Liberal Judicial Activism—March 17


1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”

2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”!


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