In his recent NRO post responding to my essay on the Hobby Lobby case, Ed Whelan agrees that the decision in Hobby Lobby was correct, but thinks that I am incorrect to attack Justice Alito for slips in his reasoning. What is clear from his opening remark is that we are operating on different levels. The key claim in my essay is that the state does not have a compelling state interest to eradicate discrimination on grounds of race, or indeed anything else, in a competitive market. I summarized these arguments extensively elsewhere, most notably in my recent article in the Stanford Law Review where I offered my views on Title II of the 1964 Civil Rights Act that deals with discrimination in public accommodations. Ed Whelan’s position instead focuses on the practical politics of the bench. His “short answer” is that Justice Alito could not have garnered five votes for my position. End of story.
Whelan’s short answer is no answer at all. For all I know, Justice Alito could not have garnered even his own vote for the position I espouse. Indeed, if I were writing an analysis of the politically possible, I might have chosen to praise Justice Alito for his pragmatic accommodation that avoided a question that might have ripped his coalition asunder. But as someone whose views on the antidiscrimination laws have long disqualified him for holding public office in the United States, I am not interested in the politics of the situation. The title that I wrote was Right Result, Wrong Reasons.
To an academic, it is the reasons that should really matter. In my view there is a rising sense of authoritarian impatience that is running through the land and one of the instruments that is used to facilitate the unworthy extension of state power is the civil-rights laws in all their unsound applications. As I stated in my Stanford article, I understand, indeed insist, that some antidiscrimination law is the right response to monopoly power or to private coercion, where people are denied any alternative choices. But to say that there is a compelling interest for the government to force a religious group to act against its conscience by supplying standardized products that are available in competitive markets is to countenance an extravagant abuse of state power in my mind. I think that it is both necessary and proper to state that proposition in the most forceful way possible. Others are free to disagree, and prove me wrong. But silence in this case means that no one will try to prove incorrect a position that I regard as deeply subversive to any conception of individual liberty. I only wish that more Supreme Court Justices saw it that way. Certainly, nothing written by any Justice in Hobby Lobby examines my case. True, I did not refer to Justice Kennedy’s opinion, but his conclusory remarks only shows just how inbred judicial opinion has come on this question. He writes: “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.” No argument; no explanation; no nothing.
Whelan disagrees with my conclusion that once it turns out that there is an accommodation that works for Hobby Lobby it does not follow that it has to work for religious institutions as well. In my view, there is no reason why a supposed accommodation that gives full relief to for profit firms can’t do the same for all sorts of religious institutions. But the key point is one that Whelan does not address, namely, that there is no reason to get into the question of least restrictive means if there is no compelling state interest to satisfy in the first place.
Whelan also takes me for task for saying that “the “correct analysis does not look at the cost of noncompliance, which may be high, but at the cost of compliance, which in monetary terms is far lower.” But his argument misses the point, which is only that compliance is not only an issue about cost. If it were the ability to avoid fines by outright payments, then of course the firm should do that. But the real point here is one of conscience. As I insisted in my article, paying one dime in support of a cause that one does not believe is the crux of the matter. No one should be required to pay any exaction, however small.
His statutory points are nits. I will mention just one. I mentioned that if Obamacare had specifically addressed this issue, it would count as a congressional trump. Whelan mentions a provision that I overlooked. “Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.” True enough, Obamacare did not do that. But the responses are two. First, if it had explicitly excluded the provision, my analysis would stand. Second, it is not clear to me that a first statute can declare its own dominance over a second one by specifying the way in which it is to be overruled any more than it could claim that the initial statute could only be overturned by a 60 percent vote in both Houses of Congress. It is a nice point for casuistic debate and I am uncertain as to its likely outcome.
The real battle between Whelan and myself is on the core application of the framework of the Religious Freedom Restoration Act to the contraceptive mandate under Obamacare. On that big question, what is needed is a substantive analysis that Whelan fails to supply. My challenge to him is to ask whether he thinks that my normative case is wrong or correct. On that issue, a tactical silence will just not do.
— Richard Epstein is the Laurence A. Tisch Professor of Law at the New York School of Law.