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Bench Memos

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Clueless on Wheaton College Order



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On Slate, Dahlia Lithwick and law professor Sonja West purport to explain the Court’s four-paragraph order granting Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.”

To discern how utterly clueless Lithwick and West are, one need go no further than their assertion that the Court “said” that the accommodation was “unconstitutional.” This assertion is doubly wrong. First, as anyone paying attention ought to know, the Hobby Lobby ruling rests on the Religious Freedom Restoration Act, not on any provision of the Constitution, and there is nothing in the Court’s Wheaton order to suggest that the Court is relying on the Constitution. Second, the Court didn’t “say” that the accommodation is illegal. On the contrary, it explicitly states that its order “should not be construed as an expression of the Court’s views on the merits.”

Lithwick and West mindlessly embrace the contradictions that inhere in Justice Sotomayor’s Wheaton dissent. I’ll note just two further points here.

Like Ruth Marcus, Lithwick and West assert that the three dissenters “share a highly relevant personal characteristic: a uterus.” Unless they mean to contend that the dissenters are, literally, hysterical (or, as Marcus suggests, thinking with their uteruses), I don’t see how that characteristic is relevant to their legal reasoning.

Lithwick and West also wrongly contend that the Hobby Lobby majority concluded that the accommodation “was the narrowest way to achieve the government’s goals.” But the Hobby Lobby majority merely used the accommodation to show that the HHS mandate was not the narrowest way to achieve the government’s goals (or, more precisely, that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means). Nothing in that use suggests that the accommodation is itself the narrowest way, and, indeed, the majority observed that the government failed to show that direct governmental payment for the objected-to drugs and devices “is not a viable alternative.”

Yesterday’s Wheaton College Order



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Yesterday, the Supreme Court granted Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.” Justices Ginsburg, Sotomayor, and Kagan dissented from the Court’s order. Justice Breyer evidently joined with the members of the Hobby Lobby majority in providing the relief. (If he had been unavailable, his nonparticipation would presumably have been noted.)

As the brief per curiam order makes clear, on the Obama administration’s account of the law, nothing in the Court’s order “affects the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” After all, the government “contends that [Wheaton’s] health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether [Wheaton] completes EBSA Form 700.” (Form 700 is also sometimes referred to as the self-certification form.) Thus, on the government’s understanding, there is no reason for the government to require Wheaton to use the self-certification form. (The Court makes clear that it is not embracing the government’s understanding: “this order should not be construed as an expression of the Court’s views on the merits.”)

Justice Sotomayor’s dissent, joined by Justice Ginsburg and Kagan, is built on two contradictions:

1. Sotomayor contends that the Court “retreats” from its position in Hobby Lobby in which it “expressly rel[ied] on the availability of the religious-nonprofit accommodation.” But as the Ginsburg dissent in Hobby Lobby (which Sotomayor and Kagan joined) complained about, the Hobby Lobby majority expressly did not decide whether the accommodation satisfies RFRA. All it did was recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.

In short, it is Sotomayor, Ginsburg, and Kagan, in falsely contending that the majority “retreats” from its position in Hobby Lobby, who in fact contradict their position in that case. Contrary to Sotomayor’s rhetoric that the order “evinces disregard for even the newest of this Court’s precedents,” the order is fully compatible with Hobby Lobby. (Never mind the slippery claim that it’s the “newest” precedents rather than the oldest that most command respect.)

2. Like the government, Sotomayor prominently contends that “the provision of contraceptive coverage is triggered not by [Wheaton’s] completion of the self-certification form, but by federal law.” But she contradicts herself in text that she buries in two footnotes. In footnote 5, she calls the notice on the back of the self-certification form “merely [!] an instruction to third-party administrators.” By her sentence construction, she avoids acknowledging that the form would require Wheaton to make that instruction. And in footnote 6, she states that “Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” (Emphasis added.)

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This Day in Liberal Judicial Activism—July 4



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1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?

Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)  

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.

Victory for Hobby Lobby is Good News for Catholic Bishops



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In a confused essay in the National Catholic Reporter, Fr. Thomas Reese contends that the Hobby Lobby ruling is a “mixed blessing” for Catholic bishops. Fr. Reese claims, in particular, that “the decision’s discussion of the accommodation granted to religious corporations will make it very difficult for the bishops to win their case against it.”

One has to wonder whether Fr. Reese somehow imagines that the Catholic bishops would have been better off if Hobby Lobby had lost.

Notre Dame law professor Carter Snead explains on SCOTUSblog how a “careful reading” of the passages that Fr. Reese cites in fact “offers a great deal of hope” to nonprofit religious institutions challenging the accommodation. I provided my own similar assessment here. Without repeating all that Professor Snead and I have said, let me address the defects in Fr. Reese’s assessment.

1. Fr. Reese ignores, for starters, that the Court’s ruling on the question whether the HHS mandate imposes a substantial burden is an important victory for nonprofit Catholic institutions challenging the accommodation. Had the Court instead adopted the bizarre reasoning of Justice Ginsburg’s dissent—in which a massive fine isn’t a substantial burden because the connection between the religious objections and the use of the objected-to drugs and devices is “too attenuated”—the challenges to the accommodation would also fail.

Fr. Reese claims that the bishops objected to the accommodation because “they felt that participating in the process, even by just filling out a form saying they objected to the mandate, would violate their consciences.” His claim badly misses the authorizing role that the self-certification form plays. But, even if his claim were right, the Court’s ruling on substantial burden means that the accommodation does substantially burden those who sincerely believe that “just filling out a form … would violate their consciences.”

2. Fr. Reese misunderstands the role that the accommodation played in the Court’s reasoning. As Professor Snead and I explain, the existence of the accommodation shows that the mandate is not the least restrictive means of advancing a compelling governmental interest. Far from saying that the accommodation “is wonderful,” the majority expressly refrains from addressing whether the accommodation would satisfy RFRA.

Fr. Reese is also wrong in asserting that the Court “accepted the HHS argument that, since it is cheaper for insurance companies to pay for contraceptives than for births, [under the accommodation] there would be no cost to pass on to the corporation.” The Court recited HHS’s position on that point in order to show that the Obama administration was estopped from disputing that the accommodation fully serves its stated interests.

As it happens, a recent report from the real world indicates that the accommodation isn’t working out at all as HHS claimed it would—and that the Hobby Lobby ruling might render the accommodation even more dysfunctional.  

3. In that same real world, judicial results have already occurred that are difficult to reconcile with Fr. Reese’s pessimistic take. In the immediate aftermath of the Court’s ruling, two federal courts of appeals granted religious nonprofits the same relief that the Court had granted to the Little Sisters of the Poor, and a judge on one of those courts delivered a powerful opinion against the accommodation. On the evening of the ruling, the Court itself temporarily barred enforcement of the accommodation against Wheaton College.

4. Fr. Reese mistakenly states that the majority “granted that the government had a compelling interest in providing contraceptives to women.” Instead, the majority merely assumed arguendo the existence of a compelling interest.

As I discuss in point 4 here, the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. Because nothing in Hobby Lobby overrides circuit precedent on that issue, challengers to the accommodation should prevail in those circuits. And challengers in other circuits can prevail either by showing that the accommodation doesn’t serve a compelling governmental interest or by showing (as Matt Franck outlines) that the accommodation itself isn’t the means that is least restrictive of the religious liberty of objectors.

* * *

Bottom line: The American bishops and others challenging the accommodation are indisputably better off as a result of the Hobby Lobby victory. That doesn’t mean that victory is assured. But this would be a foolish time to abandon the fight.

Not a Jot of Difference



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A curious story appears on the front page of today’s New York Times, about the Declaration of Independence.  Danielle Allen, a scholar with whom I’m acquainted who works at the Institute for Advanced Study here in Princeton, has just published a book titled Our Declaration: A Reading of the Declaration of Independence in Defense of Equality.  I haven’t seen Prof. Allen’s book yet, but the story in the Times concerns something else: whether our usual copies of the Declaration of Independence contain a typo—an erroneously placed period, to be exact—and whether its presence or absence makes a difference.

I am as interested in precise historical accuracy as the next person—maybe more than most—so this story really caught my eye, and made me check the many copies of the Declaration I have ready to hand, in print or otherwise.  Prof. Allen has raised a question about this, the most famous passage in the Declaration:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.—That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

The portion I’ve underlined is what concerns her.  Does that period after “Happiness” belong there?  What you see above is what the National Archives publish as their transcription of the handwritten parchment copy on display in Washington.  But Professor Allen is convinced that the period is (in the Times reporter’s words) an “errant spot of ink.”

I have seen the Declaration published at least three ways, first as seen above with both a period and a dash.  Second, with a period and no dash:

. . . and the Pursuit of Happiness.  That to secure these Rights . . .

Third, with a dash and no period:

. . . and the Pursuit of Happiness—That to secure these Rights . . .

That is how the Bicentennial Commission, chaired in the 1980s by then-Chief Justice Warren Burger, printed the Declaration when it was published together with the Constitution in a pocket-sized pamphlet.  Prof. Allen would like to see it printed this way everywhere, and frankly I like it that way too.

But now the story goes a bit sideways.  Why is Prof. Allen so intent on getting this precisely right?  Is she just a punctilious punctuator?  No:

The period creates the impression that the list of self-evident truths ends with the right to “life, liberty and the pursuit of happiness,” she says. But as intended by Thomas Jefferson, she argues, what comes next is just as important: the essential role of governments—“instituted among men, deriving their just powers from the consent of the governed”—in securing those rights.

“The logic of the sentence moves from the value of individual rights to the importance of government as a tool for protecting those rights,” Ms. Allen said. “You lose that connection when the period gets added.”

This is evidently what brought the matter front-page attention in the TimesBut it makes no difference, so far as the meaning of the Declaration is concerned.  In other places, including collections of Jefferson’s writings based on careful scholarship, I have seen this passage punctuated with a semicolon (which is how I’d have done it if I’d been the editor in 1776), and even with a colon.  Any of them—period, dash, both together (a peculiar construction but not uncommon in the eighteenth century), colon, semicolon, or even comma—could have been used without having the slightest impact on the meaning.

For the fact is that, with the phrase “Pursuit of Happiness” (they were capital capitalizers in those days too—I suspect German influence), the list of “unalienable rights” has indeed come to an end.  The next thought—whether in a new phrase, clause, or sentence—begins “That to secure these Rights,” and that is a distinct shift from end to means.  The rights belong to every human being simply by virtue of our having been created equal and endowed with them by our Creator.  Giving them practical realization will take the creation of a government, possessing just powers to which we consent.  First end, then means.  To quote Hillary Clinton, “What difference at this point does it make” whether the Continental Congress gave us a period, a dash, or both?  One doesn’t “lose” a “connection,” one makes a particular kind of connection, and the punctuation has no substantive effect.

Prof. Allen’s interest in this rather trivial question is seconded by others:

Correcting the punctuation, if indeed it is wrong, is unlikely to quell the never-ending debates about the deeper meaning of the Declaration of Independence. But scholars who have reviewed Ms. Allen’s research say she has raised a serious question.

“Are the parts about the importance of government part of one cumulative argument, or — as Americans have tended to read the document — subordinate to ‘life, liberty and the pursuit of happiness’?” said Jack Rakove, a historian at Stanford and a member of the National Archives’ Founding Fathers Advisory Committee. “You could make the argument without the punctuation, but clarifying it would help.”

No, Prof. Rakove, it’s no help at all.  The relation is of ends to means, and the latter are always “subordinate” to the former.  How we punctuate the thought makes not the slightest difference in clarifying anything.  People first, government after.  That is the logic of the Declaration, punctuate it as you will, and there is no way to change that priority.  If the objective is to place the government’s power on the same plane as the people’s unalienable rights, erasing a period isn’t going to help.

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Breakfast with E.J. Dionne—Part 2



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Some more observations (numbered serially from Part 1) on E.J. Dionne’s dog’s breakfast of commentary:

3. Dionne finds it “strange” that the Hobby Lobby majority “barely nodded at settling the factual question of whether birth control methods such as an IUD are abortion-inducing.” If Dionne were paying attention, he might have noticed that Justice Ginsburg, in her dissent, doesn’t even mention the issue. That might have led him to ponder why.

What is really strange is Dionne’s imagining that this was an issue for the Court to address.

Let me begin with what is, in the end, a side point: As I’ve explained before, the Obama administration approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” Further, as I put it in my summary of a careful reading of the amicus brief submitted by ACOG and others (“PRH brief”):

[T]he PRH establishes that the Hobby Lobby plaintiffs are right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). The PRH brief also reveals, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justifies the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of Plan B and ella (in addition to copper IUDs).

But the fact that the concerns of the Hobby Lobby plaintiffs are scientifically well grounded is, in the end, no business of the Court’s (as all nine justices recognize). To illustrate the point: Let’s say that science established that pork is no less pure than beef. Would that scientific finding mean that the owner of a kosher deli would not have a religious-liberty claim against being compelled to serve pork? Ludicrous.

(Courts can, I’ll note, satisfy themselves that the asserted religious conviction is sincerely held.)

4. Dionne perceives “a small victory for socialized medicine” in Justice Alito’s supposed declaration that the “best way” for the government to avoid burdening religious liberty would be for the government itself to provide the objected-to drugs and devices to any women who are unable to get them from their employers. What Alito actually said was merely that that would be the “most straightforward way.”

In any event, there shouldn’t be anything surprising about the proposition that an approach that doesn’t dragoon objecting employers doesn’t violate their religious-liberty rights. That proposition no more favors “socialized medicine” than it favors market-oriented approaches that don’t dictate to employers (or to other group providers of health-insurance coverage) the coverage they must provide.

5. Dionne finds “[o]ne bit of good news” in the “friendly remarks” that the majority makes about the so-called accommodation that has been offered to religious nonprofits. As I explain here, I think that he and others misread what the majority says.

6. Dionne endorses Justice Ginsburg’s claim that (in his paraphrase) the justices in the majority “want corporations to have it both ways”—“us[ing] the corporate form to escape ‘personal responsibility for the entity’s obligations’ … but then exercis[ing] the rights of individuals when doing so is convenient.”

Dionne fails to inform his readers that only Justice Sotomayor joined that part of Ginsburg’s opinion holding that for-profit corporations have no religious-liberty rights under RFRA. He gives no hint of Alito’s compelling statutory argument that corporations do have rights under RFRA. And he fails to acknowledge, much less contemplate, the extraordinary consequences of Ginsburg’s position.

7. Dionne closes with the exhortation that “Liberals should embrace religious liberty as their own cause.” If he meant that all Americans should embrace religious liberty as our cause, I would agree with him. But his petty and tendentious claim that religious liberty “should not be put to the service of reaction”—as though protecting people from being compelled to facilitate the killing of early human embryos is in “the service of reaction”—seems to indicate that Dionne approves of religious liberty only when it is in the service of his political agenda.

Breakfast with E.J. Dionne—Part 1



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In his column today on the Supreme Court’s decisions in Hobby Lobby and Harris v. Quinn, E.J. Dionne Jr. serves up his usual dog’s breakfast of commentary. What an unsightly mess it is. An unappetizing sampler:

1. Dionne’s overarching theme is that the two decisions reflect the “profound class bias of the court’s majority.” Oh, really?

a. Dionne contends that the Hobby Lobby majority “fashioned” a “synthesis” of “social and corporate conservatives.”

Dionne somehow seems to have missed what another lefty commentator, David Gans of the Constitutional Accountability Center highlighted months ago (in a very strange essay): the “near-total silence” of “corporate America” on the Hobby Lobby dispute. As Gans pointed out, despite  the “mountain of amicus briefs,”

Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.

Perhaps most significant, the U.S. Chamber of Commerce—by far the most powerful and successful voice on behalf of corporations before the Supreme Court—remained on the sidelines in the case as well.

The fact of the matter is that the closely held corporations that might plausibly be expected to assert religious-liberty rights are family-run businesses. The families that own and operate them are drawn from a broad cross-section of social classes and have much less in common with our corporate elites than Dionne does.  

b. On Harris v. Quinn, Dionne contends that the Court “undercut the ability of low-paid workers to organize themselves for higher wages and benefits.” As it happens, the victorious plaintiff in that case, the primary caregiver for her disabled adult son, objected to the scheme in which the federal Medicaid funds intended to support his care were instead being diverted to public-sector union coffers by the fee that she was being coerced to pay. As Charles Lane explains (in his much more insightful Washington Post column), what this scheme really involved was a way for the “Democrats who run Illinois” to continue to win public-sector union “support at election time.” So much for Dionne’s class warfare.

2. Dionne complains that the Hobby Lobby majority “focused on the liberties of the company’s owners, not of those who work for them.” His complaint is trivial in one respect and untrue in another.

The plaintiffs in the cases were the closely held companies and their owners. They presented their claims that the HHS mandate violated their religious-liberty rights. So it’s no surprise that, in deciding those claims, the Court focused on those claims. What else was it supposed to do?

What Dionne obscures, though, is that (as the Religious Freedom Restoration Act contemplates) an essential part of the majority’s analysis was that the government had available to it alternative means, less restrictive of the plaintiffs’ religious liberty, that would equally serve the (assumed) governmental interest in ensuring that “those who work for them” have access to all FDA-approved contraceptives without cost-sharing. In other words, rather than engage in its own freestyle balancing of competing interests, the majority reconciled those interests in exactly the way that RFRA calls for.

More to come.

Who’s Being Partisan?



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ThinkProgress’s Ian Millhiser has a tiresomely tendentious essay lambasting Justice Alito as “The Most Partisan Justice.” Millhiser draws a sensible distinction between someone whose “decisions are driven by a fairly coherent judicial philosophy” (though he attaches the pejorative label “ideologue” to Justice Thomas in crediting him with this approach) and someone who simply reaches partisan results. But rather than try to give an example or two (beyond his wildly mistaken account of Hobby Lobby) of instances in which Alito has supposedly been unfaithful to his judicial philosophy in order to reach partisan results, Millhiser resorts to statistical flim-flam.

For Millhiser, Justice Ginsburg can’t be labeled a partisan because on one occasion in her 22 years on the Court, she “broke with her fellow liberals in a case brought by unions seeking to make it easier for them to collect funds.” Never mind that virtually no one has ever heard of the case, that her vote was unnecessary for the outcome, and that she concurred only in part and in the judgment.

By contrast, Millhiser won’t count to Alito’s credit the “handful of cases where Alito joined a 5 justice majority [sic] that included one other conservative and three liberals.” What Millhiser’s confusing phrasing (“joined a 5 justice majority”) seems designed to obscure is that Alito provided the decisive fifth vote in those cases. Further, in the one case that I quickly found that evidently is supposed to fit Millhiser’s description, the so-called “other conservative” was Justice Kennedy (who is no conservative).

For a vastly more intelligent account of Justice Alito’s decisionmaking—one that emphasizes how distinctive his judicial approach is from that of the “three other conservative justices with whom he is generally lumped​” and how that approach has led him to stand apart from them in major First Amendment cases—see Adam White’s 2011 Weekly Standard essay, “The Burkean Justice.”

Thinking With Their Uteruses?—Part 2



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Some additional observations (numbered serially from my Part 1 post) on Ruth Marcus’s claim that the fact that Justices Ginsburg, Sotomayor, and Kagan “have uteruses” helps to explain their dissents in Hobby Lobby:

3. Outside Marcus’s narrow world, there are, of course, countless women who believe that Hobby Lobby’s religious-liberty claim ought to prevail. Those women include Seventh Circuit judge Diane Sykes and D.C. Circuit judge Janice Rogers Brown (each of whom wrote opinions holding that the HHS mandate violates the RFRA rights of for-profit companies and/or their owners); the many talented lawyers who supported the challenge to the HHS mandate; and individual plaintiffs like Elizabeth Hahn and Barbara Green.

The ugly implication of Marcus’s suggestion that having a uterus should lead someone to oppose Hobby Lobby’s position is that these women aren’t really women, or are somehow less female than Ginsburg is, or are traitors to the Sisterhood.

In contrast to the fictitious “war on women” of the Left’s imagination, there seems to me something genuinely hostile in the insinuation that all women should think alike on any question that involves birth control.

4. Marcus argues more broadly that the “phenomenon of life experience influencing outcome … is embedded in the act of judging.” Well, yes and no. This is a large topic that I won’t try to explore fully here. I’ll instead set forth these propositions:

(a) As a general rule, the obligation of impartiality requires that a judge strive to ensure that his or her life experience isn’t improperly influencing how the judge construes or applies the law.

(b) There will nonetheless be some (perhaps many) legal questions in which the judge’s life experience inevitably influences the act of judging.

(c) Among the many defects of the “living Constitution” approach to constitutional interpretation are that it invites judges to indulge their life experiences and that it vastly multiplies the instances in which it is supposedly proper or inevitable for them to do so.

Thinking With Their Uteruses?—Part 1



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

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

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

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

But let’s be clear: It helps.

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

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

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

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

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

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

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

More in Part 2.

The Struggle That Follows Hobby Lobby



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Today at Public Discourse, I have an essay titled “After Hobby Lobby, the Struggle for Religious Freedom Continues.”  Here’s a sample:

The structure of the Court’s logic compels the conclusion that, for purposes of religious freedom, all the objecting employers are identically situated. Churches, houses of worship, and religious orders (now exempted), para-church institutions such as Notre Dame and EWTN (now “accommodated” but still, in their own view, morally complicit in evil), and private for-profit employers (coerced until two days ago and now in limbo for a time) can all equally claim religious freedom from the unjust coercion of the government. As artificial persons in the law—organized to serve and secure the interests of the natural persons they represent—they are in principle indistinguishable in their ability to claim the same sincere religious objection to the HHS mandate.

The government’s effort to distinguish these categories of employers amounts, in short, to a row of dominoes, all falling together by the logic of religious freedom enunciated by the Court in Hobby Lobby

You can read the whole thing here.

 

More on the Accommodation Alternative



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In the wake of yesterday’s Hobby Lobby ruling, there is, not surprisingly, quite a lot of speculation whether the so-called HHS mandate “accommodation” satisfies RFRA. With apologies for heading into the weeds, I offer some tentative observations on this matter:

1. On SCOTUSblog, Lyle Denniston states that it is “rather difficult” to read passages from Justice Alito’s majority opinion and Justice Kennedy’s concurrence “as anything other than a declaration” that the accommodation is “good enough.”

I disagree. Alito says explicitly, “We do not decide today whether an approach of this type [i.e., the accommodation] complies with RFRA for purposes of all religious claims.” He states only that the accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” As he puts it in a footnote, “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (Emphases added.)

In short, Alito clearly doesn’t reach the question whether the religious nonprofits currently subject to the accommodation may successfully challenge it under RFRA on the ground that facilitating insurance coverage by a third party (of morally objectionable drugs and devices) violates their religious beliefs. 

Kennedy’s language, I will acknowledge, is murkier. Denniston focuses on a passage in which Kennedy, in discussing the accommodation, states that “RFRA requires the Government to use this less restrictive means.” But, in context, this seems like just an imprecise way of stating that the government loses in Hobby Lobby because a less restrictive means is available (whether or not that less restrictive means would itself satisfy RFRA). Further, given that no one briefed or argued in Hobby Lobby whether the accommodation would satisfy RFRA and given the serious legal questions about how the accommodation would actually work, I think that it would be extraordinary to read into Kennedy’s brief remarks any judgment that the accommodation is fine. (Denniston,  I should note, nicely highlights some of the questions about how the accommodation would work and concludes that challengers to the accommodation “would have quite a strong argument” that the issue “actually remains unresolved.”)

2. As Denniston reports, yesterday evening the Supreme Court, over the recorded dissents of Justice Breyer and Justice Sotomayor, temporarily barred enforcement of the accommodation against Wheaton College, a religious nonprofit. If the justices in the Hobby Lobby majority had concluded that the accommodation satisfies RFRA, they would have had no reason to grant this temporary relief. Note also that the justices, in footnote 9 of the Hobby Lobby opinion, describe the relief from the accommodation that they previously provided the Little Sisters of the Poor in a way that is reasonably read, and has evidently already been read, to support extending that relief to other religious nonprofits who are challenging the accommodation.

To be sure, it’s possible that the justices in the majority have formed the tentative judgment that the accommodation is okay if the objecting employer isn’t required to complete the self-certification form that doubles as an authorization to its third-party administrator. But, as Denniston points out, government lawyers have argued that, without the employer’s authorization, the third-party administrator won’t have the legal authority to provide the objected-to coverage.

3. I emphasize again that the fact that the Court recognized the accommodation as a less restrictive means in no way implies that the Court must think that the accommodation itself would satisfy RFRA. Indeed, just three days before the Court’s ruling in Hobby Lobby, the Chief Justice illustrated the principle in a closely analogous context. As I discuss in point 3 of this post on the ruling on the buffer-zone law, the Chief Justice, in the course of discussing whether the law was narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives.

Under RFRA, the government has the duty to show that a burden on a person’s exercise of religion is the least restrictive means of furthering a compelling governmental interest. When the Court identifies a less restrictive means than the one the government has adopted, that suffices to show that the government hasn’t met its duty.

4. On the Corner, Matt Bowman, who has been litigating lots of challenges to the HHS mandate (including the accommodation), reminds us that the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. As Bowman points out, nothing in Hobby Lobby overrides circuit precedent on that issue. Given the clarity that Hobby Lobby provides on the threshold question of substantial burden, it ought to be easy for challengers to the accommodation to get past that threshold. Once they do so, those in the Seventh, Tenth, and D.C. Circuits will prevail on lack of a compelling governmental interest.

Tags: Hobby Lobby

This Day in Liberal Judicial Activism—July 1



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1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy races to the Senate floor to launch a viciously false attack on Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….

The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination.

2002—Federal district judge Jed S. Rakoff rules (in United States v. Quinones) that the federal death penalty is unconstitutional. In October 2002, a unanimous Second Circuit panel, in an opinion by Judge José A. Cabranes (a Clinton appointee), will reverse Rakoff’s ruling. 

9 Myths from Justice Ginsburg’s Hobby Lobby Dissent



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MYTH 1: “[T]he Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

FACT: Justice Alito wrote, “We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’” As always, RFRA requires that the burden on religious exercise be substantial before the government is held to the “compelling governmental interest” test.

MYTH 2: “In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.”

FACT: Justice Alito wrote, “[t]he effect of the HHS-created [nonprofit] accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.” (emphasis added)

MYTH 3: “[An exemption] would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.”

FACT: As noted before, women employees could receive free contraceptives through the less restrictive HHS accommodation procedure allowed to nonprofits.

MYTH 4: “Religious organizations exist to foster the interests of persons subscribing to the same religious faith.”

FACT: Countless religious charities exist primarily for the purpose of showing love to needy people, whatever their faith. The dissent totally neglects groups like the Little Sisters of the Poor, Samaritan’s Purse, and many others.

MYTH 5: “Workers who sustain the operations of [for-profit] corporations commonly are not drawn from one religious community.”

FACT: Employing people of the same faith isn’t required to receive a true exemption or accommodation. Religious nonprofit corporations, to which HHS has given an accommodation, often employ people from many different religious communities or from no religious community.

MYTH 6: Medical “experts [at the Institute of Medicine] determined that preventive coverage should include the ‘full range’ of FDA-approved contraceptive methods.”

FACT: In fact, the hastily-convened expert panel made no coverage decisions at all. Rather, it recommended consideration of all FDA-approved contraceptives, but explicitly made very clear that it could not consider the costs and benefits associated with coverage.

MYTH 7: “Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith.”

FACT: As Justice Kennedy observed in City of Boerne v. Flores (1997), RFRA “imposes in every case a least restrictive means requirement–a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify–which also indicates that the legislation is broader” than the constitutional test.  Justice Kennedy’s opinion was joined by—wait for it—Justice Ginsburg.

MYTH 8: “Although the Court’s opinion makes this assumption [that the compelling interest test is satisfied] grudgingly, one Member of the majority recognizes, without reservation, that ‘the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.’ Ante, at 2 (opinion of KENNEDY, J.).”

FACT: This badly mischaracterizes the concurring opinion. What Justice Kennedy actually said made clear that the majority opinion was assuming without deciding the compelling interest question:

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee. There are many medical conditions for which pregnancy is contraindicated. It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.

MYTH 9: “In a decision of startling breadth . . .”

FACT: This can’t be a decision of “startling breadth” because it only applies to closely-held corporations. Even Justice Kennedy said that “the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” If any opinion in his case has startling breadth, it is Justice Ginsburg’s own dissent, which, in denying religious freedom rights to owners of for-profit corporations, went too far even for two of her most liberal colleagues. 

[Update 7:25: An alert reader noted that Myths 3 and 5 failed to reflect the appropriate distinctions between "exemption" and "accommodation." ]

Tags: Hobby Lobby

Justice Ginsburg’s Dissent in Hobby Lobby



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Justice Ginsburg begins her overwrought dissent by labeling Justice Alito’s majority opinion “a decision of startling breadth.” But it’s Ginsburg’s own position that more aptly deserves that criticism.

As Matt Franck has pointed out, it’s striking that Justice Breyer and Justice Kagan refuse to join the seven full pages of Ginsburg’s dissent (pp. 13-20) in which she (joined only by Justice Sotomayor) takes the position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. I think that her position is clearly wrong, for the reasons that Alito elaborates. Consider also the remarkable consequences of her position, which the Ethics and Public Policy Center (the think tank I run) spelled out in our amicus brief. I here substitute “Justice Ginsburg” for “the Government” in several places in this excerpt from our brief:

[I]f there is any reading of RFRA and the Free Exercise Clause that raises disturbing implica­tions, it is Justice Ginsburg’s. According to Justice Ginsburg, the Government can make any market for goods or services a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporate entities rather than on natural persons.

In Justice Ginsburg’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.

On the remaining points in Ginsburg’s dissent, I’ll happily leave it to the interested reader to compare Alito’s careful analysis with Ginsburg’s implausible contentions. (I’ve covered these points amply before.)

Tags: Hobby Lobby

Eleventh Circuit Injunction Against Accommodation



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An Eleventh Circuit panel, evidently having read footnote 9 of today’s Hobby Lobby ruling, has granted the Eternal Word Television Network an injunction, pending appeal, against the accommodation for religious nonprofits.

Better yet, one member of the panel, Judge William Pryor, has written a powerful opinion (pages 3-29 of the order) explaining why EWTN is likely to succeed on the merits of its appeal. Judge Pryor “part[s] ways with the Sixth and Seventh Circuits … because the decisions of those courts are wholly unpersuasive.” Among other things, he explains that the Obama administration requires that the objecting religious nonprofit make the self-certification and deliver it to the third-party administrator of its health-insurance plan because federal rules treat the self-certification “as a designation of the third party administrator(s) as plan administrator and claims administrator for contraceptive benefits” and because “without the form, the administrator has no legal authority to step into the shoes of the [employer] and provide contraceptive coverage to the employees.”

Citing footnote 9 of Hobby Lobby, Judge Pryor further explains that the accommodation flunks RFRA’s least-restrictive-means test because (on the arguendo assumption that the HHS mandate serves a compelling governmental interest) the government could require an objecting employer—as the Supreme Court did with the Little Sisters of the Poor—merely to provide a written notification of its objection to HHS, rather than providing the self-certification to the plan administrator. (The government could then pursue alternative means of providing the objected-to drugs and devices to the employees.)

Tags: Hobby Lobby

A Big Day for Religious Liberty in Hobby Lobby & Conestoga Wood



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This morning the Supreme Court voted 5–4 to relieve Christian business owners of their legal burden to provide their employees drugs which, according to their religious beliefs, implicate them in the taking of human life. With Justice Alito writing, the majority (which also included Roberts, Scalia, Thomas, and Kennedy) set out a solid opinion making no groundbreaking or sweeping claims. This is a solid victory for religious freedom.

The businesses and their owners were challenging a regulation by the Department of Health and Human Services that required them to provide several forms of contraception that would have violated their religious briefs. These cases were brought by Hobby Lobby Stores, Inc. and its owners, the Green family, as well as Conestoga Wood Specialties and its owners, the Hahn family. (For simplicity, I will refer to Hobby Lobby as a stand-in for all of the plaintiffs.)

Hobby Lobby brought its claims under the 1993 Religious Freedom Restoration Act, also known as RFRA (pronounced riff-rah), which imposed strict scrutiny on all federal laws that created a substantial burden on religious exercise. RFRA passed by overwhelming bipartisan majorities and was signed into law by President Bill Clinton, and was designed to ensure that the government could not steamroll religious beliefs without providing a compelling reason. It was expressly directed at Justice Scalia’s opinion in Employment Division v. Smith, which said that neutral and generally applicable laws receive rational-basis review even if they substantially burden religious exercise.

In Parts I and II, Justice Alito gives a brief history of the case. The Affordable Care Act, sometimes called “Obamacare,” told HHS to develop a “preventive services” mandate for certain employer plans, but the ACA never made reference to contraceptives. HHS then mandated “preventive services” coverage that included 20 different forms of contraception. The plaintiffs, who object on religious grounds to 4 of the 20 contraceptives, brought suit to obtain an exemption from requiring those four.

Justice Alito explains in Part III that RFRA clearly covers the plaintiffs’ claim. The legal argument is really basic stuff: RFRA refers to substantial burdens on a “person,” the Dictionary Act defines “person” in federal law to include natural persons and corporations, ergo RFRA covers Hobby Lobby. Yes, it’s that simple. It took less than a page. But the government had insisted that RFRA couldn’t cover for-profit corporations, which it deemed incapable of exercising religion at all. This is puzzling, and as Alito observes, nonprofit corporations can be protected by RFRA, so this can’t make the difference. Alito then dispenses with the argument that the profit-making objective renders them irreligious, both with reference to prior case law and with several observations about the use of for-profit entities for purposes other than making money. If for-profit entities can pursue non-religious objectives, why can’t they pursue religious ones as well?  

Part IV concludes that the HHS mandate constitutes a “substantial burden,” which triggers strict scrutiny under RFRA. The burden on these companies is substantial, potentially costing $26 million in penalties against Hobby Lobby if they were to drop insurance coverage altogether (something their religious beliefs would not allow them to do). In any event, Justice Alito notes, it’s not the Supreme Court’s place to give a binding national answer to hotly contested moral and philosophical questions of moral responsibility and causation. (Can you even imagine what that would look like?)

Part V then evaluates the strict scrutiny prong of the RFRA analysis. Assuming without deciding that the government’s interest is compelling, the Court holds that the HHS mandate violates the least-restrictive-means test. Most simply, the government could have decided to provide free contraceptives directly to the insureds without implicating the employers at all. HHS could alternatively roll objecting employers like Hobby Lobby into an existing accommodation program adopted for nonprofits like the Little Sisters of the Poor. 

The last section of Part V is especially interesting because it is primarily directed at rebutting the claims of the three dissents. I won’t summarize them all now, but it’s worth reading, if for nothing more than to understand the parade of horribles being trotted out even as I write this.

Justice Kennedy’s concurrence starts with the important observation that “it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by [Justice Ginsburg’s] respectful and powerful dissent.” Kennedy then echoes his own language from the introduction to his majority opinion in Lawrence v. Texas, writing that for religious persons, free exercise “is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.” It then recedes into technicalities, focusing on the mechanics of providing an accommodation to the for-profit entities, just as the government has done for the nonprofits.

Justice Ginsburg’s dissent is sort of like an art film directed by a French existentialist: long, dark, and ultimately disappointing. There’s a lot to disagree with here, so I will be brief. It would have decided virtually every issue in favor of the government.

Joined by Justices Sotomayor and (in part) Justices Breyer and Kagan, the opinion’s introduction reads like a list of left-wing talking points. It begins by wrongly asserting that as a result of this decision, corporations can “opt out” of laws inconsistent with their owners’ religion. That’s not even remotely true; the corporation would still need to show that the burden doesn’t meet strict scrutiny. Even though the majority rests its decision solely on RFRA, the dissent goes out of its way to insist that Smith would apply to the constitutional claims. In addition, the dissent hangs its hat on a “hurts third parties” argument that allowing religious exemptions can’t be allowed to burden third parties. But as Justice Alito points out in the majority opinion, that sort of scheme would make it easy for the government to completely undermine religious liberty by couching all questionable legislation in the form of benefits provided to third parties.

Most disappointing is Justice Ginsburg’s strong implication that RFRA itself is a problem because it reduces the ability of the government to do what it wants. She doesn’t say exactly that, of course, but her arguments against RFRA’s individualized inquiry sound eerily like the sort of thing that Congress was trying to eliminate by passing RFRA. Justice Brennan, a historical champion of individualized religious liberty, would be disappointed.

The dissenting opinions of Justices Breyer and Kagan, interestingly, would have reserved the question of whether for-profit corporations or their owners could bring claims under RFRA. I suspect it’s because they realize what a jam such a holding would create for small business owners. This division suggests that the liberal justices don’t quite know what to make of people using their businesses for religious ends. If so, they’re out of touch with the millions of Americans who practice their faith seven days a week, and not just on Fridays, Saturdays, or Sundays.

Tags: Hobby Lobby

Breyer and Kagan’s One-Paragraph Dissent



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While digesting the implications of today’s very welcome ruling in Burwell v. Hobby Lobby Stores, I’ll note one interesting facet of the case that bodes well for the future of religious freedom, and of freedom generally.  In their one-paragraph dissent, Justices Breyer and Kagan say this (and this is their opinion in its entirety):

We agree with JUSTICE GINSBURG that the plaintiffs’ challenge to the contraceptive coverage requirement fails on the merits. We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993. Accordingly, we join all but Part III–C–1 of JUSTICE GINSBURG’s dissenting opinion.

Part III-C-1 of Justice Ginsburg’s opinion, concerning the rights of for-profit corporations, runs from page 13 to page 20 of her 35-page opinion, or about 20% of it.  There is no section of her opinion that is longer than this one.  Announcing that they do not join this part is the only reason for Breyer and Kagan to write separately.  They express neither disagreement nor agreement with the contrary conclusion of the Court that such corporations are protected under RFRA.  But it is very, very good news that there are only two justices on the Court–only Ginsburg and Sotomayor–who are willing to make the transparently bad argument that when you go into business for a profit under the corporate form, you lose your religious freedom under the law.

 

Tags: Hobby Lobby

Hobby Lobby Ruling



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Here’s a quick summary of (and a few comments on) Justice Alito’s majority opinion in Hobby Lobby:

1. For-profit corporations are persons protected under RFRA. (Pp. 16-20.)

2. Closely held for-profit corporations are capable of engaging in an exercise of religion protected by RFRA. (It “seems unlikely” that publicly traded corporations would “often” assert RFRA claims, but no need to decide whether they can.) (Pp. 20-31.)

3. The HHS mandate substantially burdens the exercise of religion by the Hahns, the Greens, and their companies. (Pp. 31-38.)

            a. Severe economic consequences.

            b. We need not reach novel claim that companies would be better off forcing their employees into the exchanges. But if we did reach the claim, we wouldn’t find it persuasive. (Pp. 32-38.)

4. We need not decide whether the HHS mandate is in furtherance of a compelling governmental interest. Even if we assume it is, the mandate flunks the least-restrictive-means test. (Pp. 38-40.)

5. The mandate flunks the least-restrictive-means test. (Pp. 39-45.)

The least-restrictive-means test is “exceptionally demanding.” (P. 39.)

The most straightforward way for the government to achieve its desired goal would be to pay the cost of the objected-to contraceptives itself. We see nothing in RFRA that supports the argument that the government can’t be required to create entirely new programs in order to comply with RFRA. (Pp. 41-43.)

We need not rely on the option of a new government-funded program because HHS has already demonstrated that it has at its disposal an approach that is less restrictive of religious liberty—the accommodation for religious nonprofits. “We do not decide today whether [the accommodation] complies with RFRA for purposes of all religious claims. At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Emphasis added.)

Commentary: There will be much parsing of this passage. I think that some mandate opponents, worried that a defeat is lying in this victory, will misread this passage. What I think that Alito is saying is that the objection to the accommodation is not to “providing insurance coverage” per se but rather to providing a self-certification that has the consequences of making the certifier morally complicit in the provision of objected-to drugs and devices.* This issue is being, and will continue to be litigated, in the pending suits against the accommodation.

Indeed, it bears highlighting that the majority, in a footnote (footnote 9 on page 10) has offered an expansive reading of the relief that it afforded the Little Sisters of the Poor in the Little Sisters’ challenge to the accommodation: That order means that all “eligible organizations” must “be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators.” Together with the Court’s sound understanding of substantial burden, that proposition ought to provide gives high hopes for a victory to the challengers to the accommodation.  

(In his brief concurrence, Justice Kennedy cites the passage above from the majority opinion in stating that the accommodation “does not impinge on the plaintiffs’ religious beliefs.” In context (given that Kennedy joins Alito’s opinion and does nothing more than cite the passage above), I think that it’s clear that he is saying nothing more than Alito is saying: only that the religious beliefs that plaintiffs have set forth in this case against providing insurance coverage wouldn’t be impinged by the accommodation.)

6. This ruling will not lead to the parade of horribles that the dissent trots out. (Pp. 45-49.)

* Justice Ginsburg, in her wildly overwrought dissent, offers a compatible reading on this narrow point, as she asserts that the government has shown that there is no less restrictive means that would “satisfy the challengers’ religious objections to providing insurance coverage for certain contraceptives.” (Dissent at 27-28.) 

Tags: Hobby Lobby

Today’s Rulings



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The Supreme Court is expected to issue its two final rulings of the term, in the Hobby Lobby/Conestoga Wood cases (religious-liberty challenges to the HHS mandate) and in Harris v. Quinn (First Amendment challenge to coerced support of public-sector union), in its session that begins at 10 a.m. If things go as I anticipate (and they well might not), Justice Alito will first announce the decision in Harris v. Quinn, and the Chief Justice will then announce the Hobby Lobby decision. Announcement of each decision could easily take several minutes. Plus, each case presents the prospect that a dissenting justice will read from the dissent. So we might not get the first word on Hobby Lobby until 10:15 or later. (For the initial news, I will be relying on SCOTUSblog’s live blogging.)

(For a skeletal outline of the various issues in Hobby Lobby along with links to my fuller takes on the issues, see this post. See also my two recent posts on Harris v. Quinn.)

After 10 a.m., I will update this post to provide quick news and comments on the results. I will reserve extended commentary for later posts.

Updates:

Both decisions from Alito!

Hobby Lobby: Victory for Hobby Lobby, 5-4. RFRA applies to closely held corporations. Government hasn’t shown that mandate is least restrictive means. Reasoning evidently mirrors this post of mine. Just received link to opinion.

Kennedy concurrence (might go further than rest of majority in reliance on accommodation for religious nonprofits). 

Dissent by Ginsburg for four liberals. (Breyer and Kagan don’t join part that says for-profit corporations don’t have RFRA rights.)

Harris v. Quinn: Court refuses to extend Abood​ but doesn’t overrule it. Narrow ruling, evidently. 5-4. Individuals who aren’t really public employees don’t fall within scope of dubious Abood​ ruling.

Tags: Hobby Lobby

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