Having been away, I’ll catch up quickly on Wednesday’s order by Justice Sotomayor, in her capacity as circuit justice for the Tenth Circuit, denying the emergency application by which the individual members of the Green family and their two closely-held family businesses sought an injunction, pending appeal, against the HHS mandate. That order puts the Greens in the appalling position of being forced to choose between violating their religious beliefs by providing insurance coverage for abortion-inducing drugs and subjecting their businesses to potentially crippling fines (which would also jeopardize the livelihood of their employees).
A few observations:
1. In ruling that the Greens failed to establish that their legal rights are “indisputably clear,” Sotomayor relies on the fact that the Court “has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders.” This seems to me an obfuscation.
It is indisputably clear that the Greens, as individuals, have rights under the federal Religious Freedom Restoration Act. It is indisputably clear under the Court’s precedents (see, e.g., Thomas v. Review Board (1981)) that, in determining whether a person is engaged in an “exercise of religion” (one element of the RFRA inquiry), judges should limit themselves to determining whether the person is acting from an honest religious conviction. It is indisputably clear that a monetary fine imposed on an exercise of religion “substantially burdens” that exercise of religion. (My essay here develops these and other points under RFRA.) The courts below that ruled against the Greens messed up these elementary points. (Further, as my Jewish-deli hypothetical here makes clear, there is no plausible basis for believing that the Greens’ rights over use of their property are diminished by the fact that they hold their property in corporate form.)
2. Under the Court’s usual (but not invariable) practice, Sotomayor should have referred the emergency application to the entire Court for decision. Her failure to do so deprived the Greens of the benefit of the Court’s collective wisdom. (Although it was theoretically open to the Greens to re-apply to another justice, that route is generally viewed as disfavored.)
3. The good news is that Sotomayor’s order shouldn’t be misread to mean that the Greens won’t win on the merits. Sotomayor held only that they did “not satisfy the demanding standard” of “indisputably clear” entitlement to relief. Although I think that she was wrong, the relevant point going forward is that in their Tenth Circuit appeal (as well as in any subsequent Supreme Court case) the standard will be the much lower ordinary one of whether they can show that their rights have been violated. Let’s hope that the Greens get better judicial decisionmaking than they have received so far.