Thanks to Richard Epstein for his response to my critique of his Hobby Lobby essay. I offer these points in reply:
1. Epstein says that he and I “are operating on different levels”—the Platonic judicial ideal for him versus the “practical politics of the bench” for me—in our differing assessments of Justice Alito’s opinion in Hobby Lobby. I don’t think that’s really the case.
For starters, Epstein in his essay doesn’t limit himself to the judicial ideal. He says, for example, that Alito “made a serious intellectual and tactical mistake” in failing to hold that the HHS mandate did not serve a compelling governmental interest (p. 50 (emphasis added)). Any judgment as to tactics necessarily involves an assessment of what is possible.
(As I point out in point 2 of my original post, I think that Epstein is wrong to allege that Alito made a tactical mistake. I also think that the “intellectual … mistake” that Epstein alleges—“to think it possible to leap from the first [(substantial burden on an exercise of religion)] to the third question [(least restrictive means)] without addressing this middle question [(compelling interest)]” (p. 50)—isn’t an intellectual mistake at all. It is possible to make such a move, and courts, through arguendo assumptions of the sort that Alito makes, do it routinely.)
Epstein says, “To an academic, it is the reasons that should really matter.” Well, most of my critique is directed against what I think are Epstein’s intellectually wrong reasons.
In short, Epstein’s essay, like my critique, combines “intellectual and tactical” arguments, and he and I differ on both.
2. Epstein contends that “Whelan disagrees with my conclusion that once it turns out that there is an accommodation that works for Hobby Lobby it does not follow that it has to work for religious institutions as well.” (Emphasis added; I think that Epstein means “it follows” instead of “it does not follow.”)
Epstein misunderstands my point. I don’t agree at all that Alito holds that the “accommodation … works for Hobby Lobby.” What Alito holds is that the government’s representations about the accommodation for religious nonprofits mean that the government can’t meet its burden of showing that the HHS mandate is the least restrictive means (the means least restrictive of Hobby Lobby’s religious liberty, that is) of furthering its (assumed) interest. That says nothing about whether the accommodation itself satisfies RFRA. (For more on this point, see here and point 3 here).
3. On the issue of substantial burden, Epstein says that I miss his point, “which is only that compliance is not only an issue about cost.” But Alito never says that the substantial-burden inquiry is “only” about the cost of noncompliance. (Maybe it is; maybe it isn’t.) What I objected to was Epstein’s assertion that the “correct analysis does not look at the cost of noncompliance.” (In a similar passage in his essay, Epstein charges: “Justice Alito attacks this problem in the wrong way when he insists that the cost of noncompliance, measured in fines that can run into the millions, show [sic] that the burden is substantial.”) I don’t see how Epstein’s assertion is defensible.
4. In his closing paragraph, Epstein says that “what is needed is a substantive analysis that Whelan fails to supply.” He challenges me to say whether I think his “normative case” that the government does not have a compelling interest “to force a religious group to act against its conscience by supplying standardized products that are available in competitive markets” is “wrong or correct.”
It’s true, of course, that I didn’t use the occasion of my critique of Epstein’s essay about Alito’s opinion to restate the extensive “substantive analysis” that I’ve provided (in the posts collected here (at 2.a) and in this earlier law-review essay) on why the HHS mandate doesn’t further a compelling interest. Epstein will find, on the one hand, that my reasons are not as sweeping as his, and, on the other, that they do rest in part on the fact that contraceptives are widely available. (E.g., “It cannot be seriously maintained that there is a general problem of lack of access to contraceptives.”)
Do I think that Epstein’s “normative case” is “wrong or correct”? That depends on what Epstein means by the question. If he is asking whether I think it is (to use his phrase) “an extravagant abuse of state power” to “force a religious group to act against its conscience by supplying standardized products that are available in competitive markets,” my answer is a definite yes. Further, I thank him and credit him for his brilliant work showing how counterproductive nondiscrimination principles can be (work that I drew on in my testimony last year before the U.S. Commission on Civil Rights).
But if Epstein is asking whether I think that the term compelling governmental interest in the Religious Freedom Restoration Act should be construed according to libertarian principles, I’ll have to express my doubts. Under an original public-meaning approach to statutory interpretation, the relevant inquiry is whether the public meaning of compelling governmental interest at the time that RFRA was enacted would support Epstein’s position. I’m not aware of any showing that it would.