Bench Memos

Law & the Courts

Guide to Zubik/Little Sisters Merits Briefs—Part 4 (No Compelling Interest)

See Parts 1, 2, 3

On to the real battleground: Can the federal government satisfy the strict-scrutiny test that RFRA imposes? I’ll address the compelling-interest prong in this post and the least-restrictive-means prong in the next.

The Little Sisters brief (pp. 56-71) and the Zubik brief (pp. 27-52) compellingly demonstrate that the federal government cannot establish that the burden that it has placed on the religious nonprofits is in furtherance of a compelling governmental interest. Some highlights:

1. The government’s claim of a compelling-governmental interest is defeated by the pervasive non-religious exemptions to the HHS mandate. How can the government claim that its interest in enforcing HHS’s regulatory definition of “preventive services” is so compelling as to preclude exemptions for religious employers when Congress itself created a broad exemption for grandfathered plans (see Part 2, point 1)—and did so for no other reason than to avoid the inconvenience of amending an existing plan? Surely religious objections are at least as weighty as administrative convenience.

How can the government assert that its interest is compelling when Congress entirely exempted small businesses from any duty to provide health coverage to employees? If the option of insurance obtained on the exchanges is good enough for employees of small businesses, it’s good enough for those who don’t like the coverage exclusions that their nonprofit religious employers adopt.

2. The government’s claim of a compelling-governmental interest is also defeated by the religious exemptions that it has granted. (See Part 2, point 2.) How can the government deny an exemption to religious employers who object to the mandate while exempting religious employers who have no objection to it? How can it sustain its evidence-free claim that the religious employers that it has exempted are more likely to have employees who share the exemption than those that it has subjected to the accommodation? How can it justify drawing the line in a different place than Congress drew the line for employment practices? What possible “compelling interest” can explain such haphazard line-drawing? 

Most Popular

The Imaginary Trump

Like Andrew Jackson, Donald Trump is man who represents the age in which he lived. Whatever you may think of the age. Jackson embodied a generation of men who had risen and made their mark in a young country. He represented their desire for greater representation, even if it had costs for slaves and Indians. He ... Read More

The Imaginary Trump

Like Andrew Jackson, Donald Trump is man who represents the age in which he lived. Whatever you may think of the age. Jackson embodied a generation of men who had risen and made their mark in a young country. He represented their desire for greater representation, even if it had costs for slaves and Indians. He ... Read More
White House

Implications of the Flynn Pardon

President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the ... Read More
White House

Implications of the Flynn Pardon

President Trump granted a pardon to Michael Flynn, his former national-security adviser, today. Flynn had pled guilty to lying to FBI agents about conversations, during the 2016 transition, with the Russian ambassador about sanctions. Flynn’s pardon should bring to an end one gross violation of the ... Read More
History

Thanksgiving Is Not a Lie

We live in a time of heedless iconoclasm, and so one of the country’s oldest traditions is under assault. Thanksgiving is increasingly portrayed as, at best, based on falsehoods and, at worst, a whitewash of genocide against Native Americans. The New York Times ran a piece the other day titled, “The ... Read More
History

Thanksgiving Is Not a Lie

We live in a time of heedless iconoclasm, and so one of the country’s oldest traditions is under assault. Thanksgiving is increasingly portrayed as, at best, based on falsehoods and, at worst, a whitewash of genocide against Native Americans. The New York Times ran a piece the other day titled, “The ... Read More
Economy & Business

Shopping Superstitions

It’s the boss-bossiest time of the year, when Americans getting ready to open up their wallets to buy Christmas presents are lectured by illiterate halfwits about where and how to spend their money. The usual demands: Buy local, or buy from small businesses. This is pure nonsense, and you should feel free to ... Read More
Economy & Business

Shopping Superstitions

It’s the boss-bossiest time of the year, when Americans getting ready to open up their wallets to buy Christmas presents are lectured by illiterate halfwits about where and how to spend their money. The usual demands: Buy local, or buy from small businesses. This is pure nonsense, and you should feel free to ... Read More
Film & TV

Bowing Down to Obama

‘How can we miss you when you won’t go away?” political podcaster Yvette Carnell joked two years ago when Barack Obama began his comeback tour by making sideline pronouncements about the state of the nation after his brief retirement. Now the comeback is official, with two new Kool-Aid-drinker Obama ... Read More
Film & TV

Bowing Down to Obama

‘How can we miss you when you won’t go away?” political podcaster Yvette Carnell joked two years ago when Barack Obama began his comeback tour by making sideline pronouncements about the state of the nation after his brief retirement. Now the comeback is official, with two new Kool-Aid-drinker Obama ... Read More
Culture

On Being Grateful

My mother always enjoyed making Thanksgiving dinner. She took a traditional Southern woman’s pride in being a good cook, following her mother’s recipes, and my family made a rare display of kindness by declining to inform her that she was a fairly dreadful cook, one whose kitchen alchemy on the electric range ... Read More
Culture

On Being Grateful

My mother always enjoyed making Thanksgiving dinner. She took a traditional Southern woman’s pride in being a good cook, following her mother’s recipes, and my family made a rare display of kindness by declining to inform her that she was a fairly dreadful cook, one whose kitchen alchemy on the electric range ... Read More
U.S.

Gratitude: What We Owe to Our Country

Editor’s Note: The following essay by National Review founder William F. Buckley comes from the first chapter of his 1990 book, Gratitude: Reflections on What We Owe to Our Country. I have always thought Anatole France’s story of the juggler to be one of enduring moral resonance. This is the arresting and ... Read More
U.S.

Gratitude: What We Owe to Our Country

Editor’s Note: The following essay by National Review founder William F. Buckley comes from the first chapter of his 1990 book, Gratitude: Reflections on What We Owe to Our Country. I have always thought Anatole France’s story of the juggler to be one of enduring moral resonance. This is the arresting and ... Read More