Bench Memos

DOJ’s Reply Brief in Hobby Lobby—Part 2

See Part 1

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

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

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

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

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 (The term “cost-free” means no co-pay or deductible; it doesn’t mean that the laws of economics have been repealed.)

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

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

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

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

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

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

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

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

* I’ve explained—here and in a twopart reply to Lederman’s response—why I think that Lederman is wrong to contend that the absence of a legal duty on large employers to provide health insurance means that the HHS mandate doesn’t impose a substantial burden.

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