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.

Most Popular

PC Culture

Defiant Dave Chappelle

When Dave Chappelle’s Netflix special Sticks & Stones came out in August, the overwhelming response from critics was that it was offensive, unacceptable garbage. Inkoo Kang of Slate declared that Chappelle’s “jokes make you wince.” Garrett Martin, in the online magazine Paste, maintained that the ... Read More
Film & TV

Joker: An Honest Treatment of Madness

When I saw that the New York Times and The New Yorker had run columns berating the new Joker movie, criticizing it not simply on cinematic grounds but instead insisting that the film amounted to a clandestine defense of “whiteness” in an attempt to buttress the electoral aim of “Republicans” — this is a ... Read More
Elections

The Democrats’ Disastrous CNN LGBT Town Hall

A few days after Donald Trump committed the worst foreign-policy blunder of his presidency by betraying America’s Kurdish allies in northern Syria, former vice president Joe Biden, the elder statesman and co-frontrunner in the Democratic presidential primary, was on a national stage talking to CNN’s primetime ... Read More
White House

What Is Impeachment For?

W hat is impeachment for? Seems like a simple question. Constitutionally speaking, it also appears to have a simple answer: to cite and remove from power a president guilty of wrongdoing. Aye, there’s the rub. What sort of wrongdoing warrants removal from power? I’d wager that the flames of ... Read More
Elections

Beto Proposes to Oppress Church with State

Beto O’Rourke’s presidential campaign is within the margin of error of non-existence, but in his failure he has found a purpose: expressing the Democratic id. His latest bid for left-wing love came at a CNN forum on gay rights, where he said that churches that oppose same-sex marriage should have to pay ... Read More
Politics & Policy

Fox News Anchor Shepard Smith Resigns

Fox News Channel's chief anchor, Shepard Smith, announced on air Friday that he would be resigning from his post after 23 years with the network. “This is my last newscast here,” said Smith. “Recently, I asked the company to allow me to leave Fox News. After requesting that I stay, they obliged.” He ... Read More