McCullen v. Coakley—Part 2

Having summarized the competing positions in today’s ruling in McCullen v. Coakley, I’ll now offer a few quick observations (including on a possible tea leaf bearing on Hobby Lobby):

1. A decision upholding the statute would have been a terrible First Amendment result. So avoiding that result is an important victory. Further, the fact that all nine justices voted to strike down the statute is a somewhat encouraging sign.

2. That said, I’m disappointed by how narrow the majority opinion is. For whatever reason (desire for a unanimous result?), the Chief Justice chose to pursue common ground with the four liberal justices rather than with the four who concurred in the judgment.

I confess that I’m especially baffled by the Chief Justice’s conclusion that the statute’s exemption for clinic employees doesn’t render it viewpoint-discriminatory. The fact that abortion clinics can authorize clinic escorts to speak about abortion in the buffer zones, and to counter the messages that sidewalk counselors can deliver only outside those zones, ought to suffice to show that the statute discriminates on the basis of viewpoint. [Clarification: The Chief says that an abortion clinic’s exercise of that power would render the exemption viewpoint-discriminatory and vulnerable to an as-applied challenge. My point is that I find it strange to have the question whether the exemption is viewpoint-discriminatory hinge on whether an abortion clinic chooses to exercise a power that it has.]

I share Scalia’s concern that the Court continues to apply “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” I hope that Scalia is right that future cases will establish that the majority “has sub silentio (and perhaps inadvertently) overruled” Hill v. Colorado (2000).

3. As I’ve suggested, in the Hobby Lobby case the Court has available to it a narrow resolution that might garner a supermajority or even unanimity—namely, that the HHS mandate is clearly not the least restrictive means of furthering any compelling interest that might be assumed to exist, and that it thus violates the federal Religious Freedom Restoration Act, because the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a means that is less restrictive of their religious liberty. Contrary to what some commentators seem to suppose, the Court’s reliance on this ground would not require the Court to hold that the accommodation itself satisfies RFRA. Instead, it or the lower courts would presumably resolve that question somewhere down the road in the pending litigation brought by religious nonprofits against the accommodation.

In his majority opinion in McCullen, the Chief Justice, in the course of discussing whether the statute is narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives. (See pp. 11, 23-27 & n.8.) I wonder whether the Chief Justice and some or all of the liberals who joined his opinion in McCullen will use the accommodation to similar effect in Hobby Lobby.

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