Justice Kennedy & Religious Freedom

by Kathryn Jean Lopez


Tom Messner observes from Court this week:

Obamacare is a train wreck for religious freedom, and the federal courts are likely going to be forced into cleaning up the mess.

However, at Wednesday morning’s hearing in the Obamacare case, Justice Anthony Kennedy pointed a way for the Court to avoid the raft of divisive conflicts that Obamacare will force federal judges to resolve.

The moment occurred when the government argued that the Court should show “judicial restraint” in not throwing out the entire law if it finds part of it unconstitutional. Justice Kennedy, who is a key vote on this matter,challenged the government’s argument on the ground that judicial restraint might be better served in this case by striking down the entire law if the individual mandate fails:

“When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if…one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than…striking the whole [law].”

The Court would respect the separation of powers by striking down the entire law if it concludes that the individual mandate is unconstitutional. This is because, as Justice Kennedy observed, such an approach would keep the Court from creating an essentially new law that Congress did not envision.

More from Messner on religious freedom and health care here.