Bench Memos

A Short, Final Response to Ed Whelan

My thanks to Ed Whelan for his prompt reply to my critique of his earlier views. At this point, I only wish to say why I referred to both my intellectual and tactical criticisms of Justice Alito’s opinion. 

First, the intellectual mistake was the failure to come to grips with the explicit command of the Religious Freedom Restoration Act:

The purposes of this chapter are—

(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened;

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

The sweep of this provision is broad. It covers “all cases” and is not limited to some particular subset. In light of this text, it is erroneous to assume that the general prohibitions of the Civil Rights Act always trump RFRA. I do not think that it is proper to look, as Whelan suggests, to “the public meaning of compelling governmental interest at the time RFRA was enacted” to ascertain the correct standard. The correct standard is derived from the statutory text itself, and its explicit reference to two cases imposes a far higher standard than Whelan embraces. My normative position dovetails with the statutory language. His does not.

Second, the tactical mistake to which I referred stems from the awkward response of the Supreme Court in dealing with the application of Wheaton College v. Burwell, which, I believe, required the Court’s majority to alter the views that it had stated less than a week before. In an earlier post Whelan claims that the only thing that the majority did was to “recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.” The implication is that there were a variety of methods that might meet this standard, so that the Court correctly decided to issue its “interim order” that left the resolution of this question to some future decision.

I think that Whelan’s reading cuts the salami too fine. Justice Alito observes that it is open to “the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” He then adds “We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty” (emphasis added). In my view, this method is not just a viable alternative, but an ideal method which could apply across the board, including the Wheaton College application. Indeed, what would a better accommodation look like? It was no surprise that Justice Sotomayor quoted just this sentence with telling effect.

It is therefore a far cleaner resolution to rule in favor of Wheaton College on the merits by making it clear, as I have argued, that the state did not satisfy the compelling-interest standard. The fact that Whelan and I can disagree over the correct reading of the Alito opinion shows at the very least the elusive interpretation of a question that need not have been addressed in the first place.

— Richard Epstein is the Laurence A. Tisch Professor of Law at the New York School of Law.

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