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Bench Memos

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Patrick Deneen on the Strong Versus the Ordinary



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Over the weekend, I ran across this very interesting essay from a month ago by Notre Dame political theorist Patrick J. Deneen. Reflecting on my Ethics and Public Policy Center colleague Yuval Levin’s highly acclaimed new book The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left, Deneen argues that the “ascendant intellectual figure of our time” is neither Burke nor Paine but John Stuart Mill.

Deneen explains in particular that Burke and Mill were fundamentally opposed on the matter of “Custom”—i.e., “ordinary everyday morality”—with Burke praising it as essential for society and Mill condemning it as the “enemy of human liberty.” A key excerpt:

Society today has been organized around the Millian principle that “everything is allowed.” It is a society organized for the benefit of the strong, as Mill recognized. By contrast, a Burkean society is organized for the benefit of the ordinary—most people who benefit from societal norms that the Great and the Ordinary alike are expected to follow. A society can be shaped for the benefit of most people by emphasizing mainly informal norms and customs that secures the path to flourishing for most human beings; or it can be shaped for the benefit of the extraordinary and powerful by liberating all from the constraint of Custom, mainly through the obliteration of Custom. Our society was once shaped on the basis of the benefit for the many Ordinary; today it is shaped largely for the benefit of the few Strong.

The results of this civilizational transformation are accumulating everywhere we look. The Strong are flourishing: congregating in the wealthy counties around Washington D.C., New York, Boston, Los Angeles, and the like, they participate merrily in a society that disassembles all the old Customs, while their growing wealth insulates them against the ravages of our new economy shorn of the old ways. Beyond their vision, in the “fly-over” country, their countrymen are sinking in the quicksand of their new liberties. Pre-marital sex, abortion, out of wedlock birth, an epidemic of fatherless children, the incapacity to hold down secure employment in a globalized and increasingly automated economy—these and a host of other social ills are the fruits of their liberty. Experiments in living will lead to a few successes and many failures; the latter are part of the price of success for the Strong.

Like Deneen (and Levin), I don’t see how a culture that undermines the lives of ordinary citizens can long survive.

This Day in Liberal Judicial Activism—February 18



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1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

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A Backgrounder on HHS Mandate and Hobby Lobby



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Over the weekend, my friend Professor Anthony Gill (a political scientist at the University of Washington, Seattle) interviewed me for his weekly podcast Research on Religion, supported by Baylor University’s Institute for Studies of Religion.  For about an hour we discussed the religious freedom issues at stake in the Hobby Lobby case that will be argued in the Supreme Court next month, going over the background in First Amendment jurisprudence, the passage of the Religious Freedom Restoration Act, the manner in which the HHS contraception-abortifacient mandate came about, and the prospects ahead in the decision of this important case.  Many readers of this blog will already be familiar with the case and the issues it involves.  But if not–or if you have friends who ask you “what’s that all about?”–this should be a useful primer.  Tony Gill is a terrific interviewer, and we covered a lot of ground.  You can find the podcast here.

 

This Day in Liberal Judicial Activism—February 15



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2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

Ninth Circuit Confirms a 2nd Amendment Right to Carry



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As I reported here and here, federal appellate judges around the nation have been inconsistent on the matter of carrying firearms outside the home. Most states in the U.S. have a “shall issue” policy, which means they will issue a permit for carrying a firearm to law-abiding applicants who have cleared a background check and passed a safety course. Some jurisdictions, however, opt for “may issue” policy, which allows them to pick which citizens will enjoy their Second Amendment rights and which will not.

You can add the U.S. Court of Appeals for the Ninth Circuit into the mix, which ruled yesterday that San Diego County could refuse to establish a “shall issue” open-carry policy or a “shall issue” concealed-carry policy, but not both.

In short, the ruling reminds San Diego County that there is a Second Amendment, and that it applies to citizens regardless if they are inside their home or away from it. The three-judge panel noted (internal citations omitted and hyperlink added):

Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.” For one thing, the very risk occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v. Madigan. One needn’t point to statistics to recognize that the prospect of conflict—at least, the sort of conflict for which one would wish to be “armed and ready”—is just as menacing (and likely more so) beyond the front porch as it is in the living room. For that reason, “[t]o speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage.” Id. To be sure, the idea of carrying a gun “in the clothing or in a pocket, for the purpose . . . of being armed and ready,” does not exactly conjure up images of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to start the morning’s coffee, or mother concealing a handgun in her coat before stepping outside to retrieve the mail. Instead, it brings to mind scenes such as a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.

In D.C. v. Heller, the U.S. Supreme Court held that “the inherent right of self-defense has been central to the Second Amendment right.” Here, the Ninth Circuit panel reasoned that the “most acute” need for the Second Amendment described in Heller implies that there is a less acute need outside the home, but a need nonetheless protected by our Constitution.

The Ninth Circuit notes the very relevant holding in Moore, namely that “to confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald [v City of Chicago].

Many of the courts that have not upheld this right fail to give much of a substantive basis for their ruling. In 2011, for example, the Fourth Circuit sidestepped the question entirely in U.S. v. Masciandaro, stating, “We think it prudent to await direction” from the Supreme Court.

The Ninth Circuit panel also noted that, because Heller and McDonald focus on the self-defense aspect of the Second Amendment, their decision yesterday is cabined to the self-defense issue before them and is not to be used to suggest the outer limit of this Constitutional right. Readers may be interested to know that, in a dissent when the Ninth Circuit rejected an en banc hearing to review Silveria v. Lockyer, Judge Alex Kozinski offered a possible answer to the outer limit of the Second Amendment:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

I will keep Bench Memos readers up to date on developments on this case, as further appeals seem likely. In the meantime, readers can bookmark this excellent rundown over at the Volokh Conspiracy on how different courts have ruled on the matter of firearms outside the home. As for yesterday’s decision, you can read the whole 127-page ruling here

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When the Government Does Theology



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The Ethics and Religious Liberty Commission (an arm of the Southern Baptist Convention), under its recently installed new president Dr. Russell Moore, has launched an important new site called Canon & Culture, devoted to the discussion of “Christianity and the Public Square.”  Its editor Andrew Walker invited me to contribute to C & C, and my first contribution is titled “When the Government Does Theology.”  Here’s a taste:

In his famous “Memorial and Remonstrance Against Religious Assessments” in 1785—one of the foundational texts of American religious liberty—James Madison remarked that every person’s first and highest duty is to God, and one cannot surrender one’s conscience even to all one’s fellow citizens combined. Therefore “civil society”—that’s his term for all of us, acting as the highest earthly political authority—can take no “cognizance” of religion, and must leave individuals and religious communities alone, free to act in matters of faith as their conscience dictates. Hence government, our political servant, obviously has no competence in religious affairs. And Madison concludes that no “civil magistrate” in any branch of government can ever be a “competent judge of religious truth.”

The Supreme Court has long endorsed this view of Madison’s, and in a number of precedents has made it clear (to quote one prominent example) that “it is not within the judicial function and judicial competence to inquire” whether any particular religious claim is true, or whether a claimant to religious freedom has relied on an orthodox view of the faith he espouses, or has even “correctly” understood the religious doctrine that lies at the base of his own legal claim. The courts must satisfy themselves that someone’s religious views are sincerely held, but beyond that they cannot venture into doctrine or theology.

Yet in case after case [on the HHS mandate], this is exactly where the intrepid lawyers of the Obama administration have ventured to go, and a dismaying number of federal judges—but thankfully, still a minority—have followed them into this forbidden territory.

Read the rest here.  And while you’re at it, check out the other great content–articles, interviews, and podcasts–at Canon & Culture.

This Day in Liberal Judicial Activism—February 14



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1992—The Third Circuit hears oral argument on Morristown, New Jersey’s appeal of a wonderfully wacky ruling by federal district judge H. Lee Sarokin that the Morristown public library’s policies governing behavior in the library are facially unconstitutional. Richard R. Kreimer, a homeless man, camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin ruled that the library was a traditional public forum like a street or sidewalk, that the carefully crafted policies were overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. Five weeks after oral argument, the Third Circuit unanimously reverses Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin had deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection. 

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

Ruling Against Virginia Marriage Laws



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I’m on the road through the weekend, so I’m just going to offer a few quick comments on the ruling late yesterday evening by federal district judge Arenda L. Wright Allen enjoining the state of Virginia from enforcing its marriage laws. 

Judge Allen rules that the definition of marriage as a union between a man and a woman is subject to, and fails, strict scrutiny under the Due Process Clause (pp. 19-33) and that it fails rational-basis scrutiny under the Equal Protection Clause (pp. 34-38). She stayed her ruling pending appeal (p. 41).

Allen’s ruling is no surprise, as she had rather clearly telegraphed the result. The fact that she raced to issue the ruling very late in the evening (after 9 p.m., according to one account) even as she stayed it pending appeal is very odd. That fact, together with the opinion’s often pompous prose, suggests that Allen’s ruling is much more an exercise in judicial vanity — a race to make history — than a sober and careful analysis.

The rush shows: As Josh Blackman points out, in her opening paragraph Allen misattributes to the Constitution the statement in the Declaration of Independence that “all men are created equal.” More fundamentally, she never confronts the reality that she is redefining what marriage is. Thus, for example, when she states, “In 1997, Virginia law limited the institution of civil marriage to a union between a man and an woman” (p. 9 (emphasis added)), she seems not to understand that that supposed limitation inheres in the very definition of marriage (which, of course, prevailed long before 1997).

Judicial Education Project Files Amicus Brief Urging Supreme Court Review of Drake v. Jerejian



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Yesterday the Judicial Education Project filed an amicus brief urging the Supreme Court to hear Drake v. Jerejian, an important case about the constitutional right to keep and bear arms. We argue that New Jersey has continued to deny its citizens their Second Amendment rights by woefully misinterpreting the Supreme Court’s holdings in District of Columbia v. Heller and McDonald v. Chicago. This case is an excellent example of lower courts’ pervasive unwillingness to obey controlling case law and their failure to be candid about what they are doing. You can read the amicus brief here.

This Day in Liberal Judicial Activism—February 13



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2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as dissenting judge O’Scannlain points out, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

Eric Holder and the Spirit of Windsor



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On Monday last Eric Holder instructed all DOJ employees to “ensur[e] equal treatment for same-sex married couples.” The attorney general wrapped his directive in the “Supreme Court’s historic decision in United States v. Windsor.” Holder’s directive nonetheless runs contrary to that ruling. For the DOJ is henceforth going to treat same-sex couples as “married” in, for example, Indiana even though my home state does not recognize any such thing. And, if the Windsor decision means anything, it means that the federal government must defer to the domestic relations’ law of each state.

The attorney general professes adherence to a wider spirit of Windsor. The Department will henceforth “interpret the terms ‘spouse’, ‘marriage’, ‘widow’, ‘widower’, ‘husband’, ‘wife’” and any cognate term to include same-sex couples legally married anywhere — including abroad — regardless of the law under which the couple presently finds themselves. Thus, two men married in, say, New Zealand, but who have lived in Indiana for years without recognition of their marriage by any public authority in this country, are now “married” under federal law, even while living in the Hoosier state.

On Monday the DOJ joined a long and growing list of federal departments which have adopted a “state-of-celebration” rule. The IRS and the Departments of Defense, State, and Education (among others) earlier declared their resolve to treat a couple as “married” in every state if their marriage was legally celebrated in any state. They are all in line with the president’s evident dedication to bring same-sex marriage to every corner of our country, notwithstanding the contrary wishes of any state’s citizens or the longstanding policy choices of their political representatives.

With this difference: Holder nowhere in his memo to Department personnel refers to a state-of-celebration rule. He refers instead to either the “place” or the “jurisdiction” of celebration, thus making it unmistakable that he means to subordinate (say) Indiana’s sovereignty over marriage to that of, not only sister states like Delaware, but also  Argentina, Portugal, South Africa, Canada, and all the other “jurisdictions” which have made SSM legal. His intention to do so is most clear in the first footnote to his memo, which says (in part) that “marriages celebrated outside the United States that are not generally recognized in the United States, such as non-consensual marriages, are beyond the scope of this policy.” He does not refer here to polygamous unions, which are not generally recognized in this country as marriages, yet.

This same footnote repeats what the other federal departments have said, namely, that this liberal recognition policy pertains only to couples who are legally married; those in civil unions which are legal marriages in all-but-name do not count. One might wonder why. After all, this administration possesses maximum sympathy for same-sex couples who wish to marry but who live in states which limit marriage to unions of a man and a woman. Why are all these departments abandoning those gay and lesbian couples who have at least made it to a state’s practically identical status?

The answer is simple: better to force those states to adopt same-sex marriage. As experience in the courts of New Jersey and elsewhere has shown, state laws creating “civil unions” typically predicate of them all the benefits of marriage. There are many federal benefits of marriage — but not to couples in civil unions. Eric Holder and his peers are thus making it impossible for these state laws to deliver what they promise to civilly united same-sex couples. So, these civil-unions laws implode.

Perhaps the attorney general thinks that this, too, is the “spirit” of Windsor.

In any event, this latest administration assault upon the rule of law as it pertains to marriage makes painfully clear the urgency of enacting the “State Defense of Marriage Act,” introduced in the House in early January by Texas Republican Randy Weber. Its operative clause declares that, in determining the meaning of any federal law as it pertains to “individuals domiciled in a state,” the term “‘marriage’ shall not include any relationship which that state . . . does not recognize as a marriage.”

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



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Fifth Circuit judge Leslie M. Southwick has published a very interesting memoir on his long path to his seat, The Nominee: A Political and Spiritual Journey. (Longtime readers may recall that I wrote extensively about Judge Southwick’s 2007 confirmation battle and the outrageous smears against him, including in this essay.)

I’m pleased to pass along that the Ethics and Public Policy Center (my organization) and the Catholic Information Center will be co-sponsoring a book event for Judge Southwick on Tuesday evening, February 25. See here for more information or to RSVP.

I hope to find time to write more about the book in advance of the event.

Nevada AG’s Folly



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Nevada attorney general Catherine Cortez Masto announced on Monday that she would not defend Nevada’s marriage laws in the Ninth Circuit in light of Judge Reinhardt’s dubious and mischievous ruling three weeks ago that the Supreme Court’s anti-DOMA decision in Windsor v. United States implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation. AG Masto is thus throwing away the victory that Nevada won in the district court.

Masto’s decision makes no sense. The ultimate question is whether the Supreme Court will strike down Nevada’s marriage laws. That question is obviously not determined by a Ninth Circuit ruling and remains unsettled. So while it’s true that Reinhardt’s ruling means that Nevada would face an uphill battle in the Ninth Circuit, Masto’s​ duty as attorney general means that she ought to be preparing to do her best to win the battle in the Supreme Court.

Re: Inane WaPo Defense of Virginia AG Herring



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Two weeks ago, the Washington Post editorial board wrongly applauded Virginia attorney general Mark Herring for violating his duty to defend his state’s marriage laws. Yet today it somehow sees fit to criticize him for “rank partisanship” in sending an “e-mail blast” that defends his decision and attacks opponents. According to the Post, Herring “seamlessly blends the role of political opportunist, building his mailing and fundraising lists for a future electoral campaign, with his role of chief counsel for the Commonwealth of Virginia.”

But what is also “seamless” is the connection between Herring’s larger dereliction of duty and his e-mail. As I explain in my Weekly Standard essay on the topic, “The very concept of the rule of law—of a realm of impartial decision-making according to neutral principles set forth in advance—depends on maintaining as distinct a line as possible between law and politics.” Having celebrated Herring’s trampling of that line, the Post can hardly be taken seriously in objecting to his e-mail.

Ken Starr on HHS Mandate Litigation



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Unfortunately, former Solicitor General (and current Baylor University president) Ken Starr gets a couple of things wrong in his otherwise commendable NRO essay today on the HHS mandate litigation:

1. Embracing the myth of judicial supremacy, Starr writes:

In a constitutional republic, the Supreme Court is indeed supreme when it comes to saying what the Constitution means. That much has been clear since 1803, when Chief Justice John Marshall spoke for a unanimous Court in the iconic case of Marbury v. Madison

But, as I have explained repeatedly, it wasn’t until 1958 that the Court first proclaimed its supposed supremacy. Further:

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledgedMarbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

(I’m also far less convinced than Starr is that the Court’s 1997 decision in City of Boerne v. Flores, which held that the federal Religious Freedom Restoration Act could not constitutionally apply against the states, is correct.)

2. With respect to the HHS mandate litigation, Starr wrongly thinks that the Department of Justice is arguing that for-profit corporations aren’t “persons” within the meaning of RFRA (and that the case “may well turn on this very technical debate”). But DOJ doesn’t in fact make that argument. It instead contends that for-profit corporations aren’t persons capable of the “exercise of religion.” DOJ’s contention is wrong (as I’ve spelled out), but it’s very different from the Dictionary Act argument that Starr imagines might be central. 

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



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Yesterday, the Obama administration filed its brief as respondent in Conestoga Wood Specialties Corp v. Sebelius, one of the two HHS mandate cases pending in the Supreme Court. (The Obama administration filed its brief as petitioner in Sebelius v. Hobby Lobby Stores a month ago. Its reply brief in that case is due next month.)

I’ve so far reviewed the portions of the brief (pp. 8-10, 18-35) in which the Department of Justice undertakes to contest the proposition that for-profit corporations have religious-liberty protections under the federal Religious Freedom Restoration Act. As I’ll outline in this post, DOJ’s argument is a tawdry exercise in misdirection, evasion, and obfuscation.

1. Much of DOJ’s argument is devoted to trying to smuggle into the threshold question whether for-profit corporations have rights under RFRA the sorts of considerations that properly come into play in applying strict scrutiny to the burdens that the federal government places on exercise of religion. When DOJ claims, for example, that “accommodations” for a for-profit corporation “would visit tangible harm on … the corporation’s employees and their covered dependents” (p. 8; see also pp. 22-25), it is trying to frontload its (badly flawed) claim that imposing the HHS mandate on Conestoga Wood and Hobby Lobby furthers a “compelling governmental interest.” That claim simply has no place in the initial inquiry whether Conestoga Wood and Hobby Lobby are capable of engaging in an exercise of religion.

2. Instead of conducting a straightforward inquiry into whether for-profit corporations are capable of exercising religion, DOJ continues to spin its convoluted and confused argument that the Court may look only to case law that precedes the Court’s 1990 decision in Employment Division v. Smith to determine what Congress meant by the term “exercise of religion” in RFRA. That argument is wrong on many levels. (See Hobby Lobby’s brief, filed yesterday, at pp. 18-22 and the amicus brief of the Ethics and Public Policy Center (my organization), at 6-20.) Even worse, in the course of making its argument, DOJ shows that it simply can’t be trusted:

a. DOJ falsely claims, “There is no indication in RFRA’s text or legislative history that Congress meant the statute” to afford religious-liberty rights to for-profit corporations (p. 19). But the amicus brief filed by law professor Douglas Laycock (on behalf of the Christian Legal Society and other religious- and civil-liberties organizations) exhaustively demonstrates what the amicus brief of the Ethics and Public Policy Center also shows—namely, as Laycock puts it, that “Congress explicitly understood RFRA to protect for-profit corporations and their owners.” There is nothing in RFRA’s text that excludes for-profit corporations from its protections. And DOJ doesn’t even acknowledge, much less try to explain away, the express statements in a House report that make clear that RFRA applies to for-profit corporations. (See Christian Legal Society brief at 20; EPPC brief at 12.)

b. DOJ claims that the “pre-Smith body of law” does not include “any case extending free-exercise rights to for-profit corporations” (p. 19). But that claim is either false or artfully deceptive. As EPPC’s amicus brief demonstrates (pp. 16-20), five justices in the 1961 case of Gallagher v. Crown Kosher Super Market “concluded that the corporate plaintiff in that case had asserted a cognizable burden on free exercise rights” (p. 20).

It’s striking that DOJ invoked Gallagher in its opening Hobby Lobby brief but that, now that its error in doing so has been made manifest, it simply avoids any mention of Gallagher.

3. DOJ makes the straw-man argument that “Congress did not intend RFRA to collapse the distinction” between a corporation and its shareholders (p. 19 (emphasis added)). But (to quote again from EPPC’s amicus brief): “It does no violence to the distinction between a corporation and its owners, direc­tors, or officers to recognize that those who under the applicable state law have the power to control the corporation’s activities can take affirmative steps to commit the corporation to a particular idea (such as a clean environment, support for particular legislation, etc.).” By contrast, DOJ’s “premise that corporations can ascribe to beliefs on all subjects other than religious ones makes no sense.”

4. DOJ claims that Conestoga Wood’s “amici” provide no “logical explication” for their position that publicly traded corporations “would not be in a position to assert a RFRA claim” (p. 21). But EPPC’s amicus brief spells out quite clearly why DOJ’s parade of horribles (with respect to both publicly traded and closely held corporations) is imaginary. DOJ piles on farfetched hypotheticals about “divisive, polarizing proxy battles” (pp. 29-30), supposedly “vexing” problems arising from internal corporate disagreements (p. 31), and “serious entanglement concerns” (pp. 32-33), but these problems are equally illusory.

Tellingly, DOJ offers no response to the far more disturbing implications of its position. As EPPC’s amicus brief puts it:

In the Gov­ernment’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an in­dependent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor. 

5. DOJ’s brief is replete with token expressions of respect for religious believers and religious institutions. Have in mind 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. Yet DOJ now has the gall to claim that recognizing the religious-liberty rights of closely held corporations and their owners  would “have the perverse effect of undermining the special place of religious institutions in our society” (p. 9; see also pp. 28-29).

(I expect to address other parts of DOJ’s brief, but perhaps not before next week.)

“The Arrogance of King George”



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In City Journal, Mark Pulliam provides a lacerating review of the “self-serving” and “mean-spirited” memoir of Ronald M. George, chief justice of the California supreme court from 1996 to 2011. (Pulliam’s well-informed take comports with my admittedly much more distant view of George.) As Pulliam sums it up, “George’s story is significant if only as an illustration of judicial hubris, of how power breeds arrogance, and of how a desire for respect from the establishment leads to activism from the bench.”

Halbig v. Sebelius, Part Two: When ‘State’ Clearly Means ‘Federal’



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This is the second in a series of posts about the Judicial Education Project’s amicus brief in support of the challengers in Halbig v. Sebelius. In Part One, I explained the background of the case and the central issue, namely, whether the IRS may extend the Affordable Care Act (ACA) tax subsidy to health plans purchased under a federally-run Exchange when the statute only says that the credit applies to an Exchange “established by the State.” As I noted last Friday, the IRS says that it may, and the challengers disagree.

The government’s explanation during the rulemaking process was, as such explanations typically are, very general. Aside from asserting that the credit is consistent with statutory language, legislative history, and the overall scheme, the IRS did not explain the precise source of its authority on this issue at the time.

The government’s challenge in this case is to convince the Court that the plain language of the statute means more than it says: that an exchange “established by the State” can also mean an exchange “established by the federal government because a State declined to establish an exchange.”

The government’s lifeline to escape its obvious problems with the text is a case that has become a cornerstone of administrative law: Chevron v. Natural Resources Defense Council.  This case establishes a regime whereby government agencies are given deference in their interpretations of the statutes they administer. 

The Chevron two-step process works like this.  First, a court decides whether a statutory term is ambiguous: whether Congress has “directly spoken to the precise question at issue.”  If the term has an unambiguous meaning – “if the intent of Congress is clear” – the court must give it effect.  If not, the court will proceed to step two of the analysis and defer to a permissible agency interpretation of the statute. 

Before the district court, the government suggested that the statutory language, taken the context of the entire ACA, was clear and required federally-run exchanges to be treated identically with the state exchanges they were “standing in the shoes of”.  The government went on to describe anomalies that would arise within the ACA from accepting the plain meaning of the phrase “established by the State,” invoking legislative history, the law’s purpose, and the ACA’s overall structure.

What is so impressive about the government’s position is that it declares that the case should be resolved at Chevron’s first step – i.e. the government claims the statute is unambiguous. This is truly remarkable: the government says the unambiguous meaning of the statute is that the text shouldn’t be read literally. 

The district court (in the person of Judge Paul J. Friedman, a Clinton appointee) agreed, holding that Section 1321 of the ACA not only allows the federal government to create an Exchange, but also to take the further step of standing in the shoes of “an Exchange established by the State under Section 1311” in all respects, thus allowing issuance of a tax subsidy.

Several consequences flow from the district court’s decision. First, the district court ensured that tax credits would flow to all health insurance purchasers buying their insurance from an Exchange, whether federal or state. This effectively means that the ACA gives no state any incentive to create an Exchange, a result at odds with the text and purpose of the ACA.

Second, by holding that the statute at issue is unambiguous, the district court comes to the head-scratching conclusion that the statute unambiguously means something contrary to its own text.  It would be one thing to make such a holding where the context throughout shows the literal reading to be absurd.  But the statutory context here actually provides good (if not unambiguous) support for the idea that Congress really meant to limit subsidies to State-created exchanges.  For examples, elsewhere in the ACA, Congress explicitly referred to federally-created exchanges with some frequency, and didn’t just lump them in with State-created exchanges.  Treating the terms differently indicates that the omission of federal exchanges from the tax credit language was neither accident nor oversight. Liberal commentators have suggested that the language at issue here was “an obvious drafting error,” but the tax subsidy provision has actually been amended several times since it was originally passed, and Congress never decided to “correct” its instructions.

Third, the district court effectively amended the statute to say “established by the State or by the federal government” by accepting the IRS’s rationale. But as I have noted before, the language of the statute that Congress actually passed, not the IRS’s post hoc rationalization of what would work better, is the best way to understand how the ACA is supposed to work. And that holds true even when a statute, like the ACA, is sloppily drafted, internally inconsistent, or incapable of effecting its stated goals.  As D.C. Circuit Judge Silberman noted recently, “’Emanations from the penumbra’ may once have served to justify constitutional interpretation, but it hasn’t caught on as legitimate statutory interpretation.” Well said.

These are problematic results, and they are sufficient for the Court of Appeals to reverse the district court’s holdings as a matter of law. But there’s much more to say about the stakes in the statutory interpretation issue, which will be the subject of my final post on Halbig v. Sebelius

Hobby Lobby’s Brief



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Hobby Lobby and its co-plaintiffs challenging the HHS mandate filed their Supreme Court brief as respondents today. I hope to read through it very soon.

(In the companion case, Conestoga Wood, as petitioner, filed its opening brief a month ago.)

Other Derelict State AGs



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My Weekly Standard article on the duty of state attorneys general to defend state marriage laws provided an illustrative, but not exhaustive, list of state attorneys general who have failed to carry out their ethical responsibilities.

In addition to Mark Herring of Virginia, Kathleen Kane of Pennsylvania, and Jerry Brown and Kamala Harris of California, other malefactors include David Louie of Hawaii (who had separate teams in his office simultaneously defend and oppose his state’s marriage laws), Ellen Rosenblum of Oregon, Gary King of New Mexico, and Lisa Madigan of Illinois. (King and Madigan refused to defend state marriage statutes against challenge under their state constitutions, so the case for their dereliction of duty requires the modest further proposition that state attorneys general ought to exercise a presumption that state statutes are compatible with the state constitution.)

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