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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, July 09, 2014 ::
    ICYMI - and I'm sure you didn't miss it, if you visit here, but as the long-past Washington gossip columnist once said, if you haven't got anything nice to say, come sit right here next to me - Slate and Above the Law have been in a bit of a tiff over whether the law-school applications pool has finally cratered to the point where now may be a "buying opportunity," on the theory that with fewer lawyers at last coming through the law-school "python," there'll be a hiring bonanza in three years, and you want to get in on this opportunity now now NOW!

    I'll let ATL's Elie Mystal, who is right, be your portal to this one. Apologies for some of the language.

    :: David M. Wagner 11:22 PM [+] ::
    :: Tuesday, July 01, 2014 ::

    Hobby Lobby came out the Gonzales v. O Centro Espirita-way I mentioned yesterday, except with Alito writing rather than Roberts. On the surface it's a limited holding - applies only to closely-held corporations, depends entirely on the Religious Freedom Restoration Act (RFRA), and at that, on the second, "least restrictive means" prong of RFRA.

    1. RFRA gives protection to religiously-motivated conduct that goes beyond the Court's construction of the Free Exercise clause in Employment Division v. Smith, and even beyond the "pre-Smith cases," in that those cases were vague about whether their "compelling state interest" test had a "least restrictive means" prong or not, while RFRA clearly does.

    2. The Court may assume without deciding that providing access to contraceptives "without shared cost" (what normal people call "for free") is a compelling state interest; even so, ordering that this interest be carried out through mandates to private parties is not the least restrictive means, that is, the means with the least impact on religious liberty.

    In a brief solo concurrence that demonstrates everything objectionable about his style, Justice Kennedy says the Court affirmatively holds that providing access to all FDA-approved contraceptives "without shared cost" is a "compelling state interest." He is wrong. All the Court's opinion's discussions of this interest as "compelling" are kept in the hypothetical voice.

    (Please remember that a real "compelling state interest" is like a constitutional hand-grenade: it destroys what it's thrown at, such as otherwise-applicable constitutional rights. There's a compelling state interest in preventing reporting of an imminent U.S. military offensive, but that means active media censorship, so we're talking serious stuff. Sometimes the Court gets it wrong: it labelled prevention of a Japanese invasion of the West Coast a compelling state interest - and so allowed the Japanese-American internments in California. Stop handing out compelling state interests like candy. They're dangerous.)

    3. The decision is confined to for-profit corporations that are closely held. Does the for-profit status of respondent (they won below) Hobby Lobby, and appellant (they lost below) Conestoga, mean they can't have religious freedom? The Third Circuit in Conestoga said corporations "do not pray, worship, observe sacraments...." True, but so what? There goes a court, again, trying to define religion. Back in 1961, the plaintiffs in Braunfeld v. Brown, five Orthodox Jewish merchants who had a religious obligation to close on Saturdays, raised a Free Exercise objection to Pennsylvania's Sunday closing law. They lost on the merits - and this, to dissenting Justice Ginsburg, disposes of that precedent. It does nothing of the kind: tthe case of Braunfeld and his co-plaintiffs was heard, and no even breathed the suggestion that because they were proprietors of incorporated for-profit businesses - and indeed, loss of profit went hand-in-hand with their Free Exerise claim - that therefore they could not be heard to raise their claim. Win or lose, they were heard. (And they lost, per Chief Justice Warren's plurality opinion.)

    4. The future of the Obama Administration's "just sign here" alternative - where, instead of providing contraceptive coverage, you sign an affirmation that you object to doing so, and that triggers the insurance company providing it instead, without any further assistance from you - is at issue here. The Court points out (slip op. at 49) that it may be a "less restrictive means" than an order to provide abortifacient contraceptives or face massive fines, and this is enough to show that the latter Hobson's choice, at issue here, flunks the "least restrictive means" test.

    But the Court also goes out of its way not to endorse "just sign here." The dissent (appropriately) jumps on this: several cases testing the constitutionality of "just sign here" (that's my name for it, btw - no one else uses it) are working their way through the courts. Says the Court today: "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims." (Slip op. at 44) And it refers us back to today's note 9, which refers to the Court's injunctive relief granted to the Little Sisters of the Poor, to whom a "Just Sign Here" ultimatum was offered. (The reprieve was granted through Justice Sotomayor: credit where due.)

    So, is the Court disingenous for suggesting a "least restrictive means" that it believes might flunk the "least restrictive means" test on other facts? No, because the issue remains undecided, and because the Court also draws attention to the larger point: if a public good is as important as HHS says the provision of a complete menu of contraceptives is ("women's health and well-being," in the dissent's wording), then why should it not be paid for out of general government funds?

    I have a theory on that. Before he pre-Civil War, before the Thirteenth Amendment, the Constitution had, alas, a clause that demanded the return of escaped slaves to their masters (Art. IV Sec. 2 clause 3). It did not specify how this was this was to be done, and Congress passed Fugitive Slave Acts to implement it. The one enacted through southern power in Congress as part of the Compromise of 1850 imposed an obligation on all citizens to take part in returning runaway slaves. It was not to be a "mere" government duty, to which one contributed, reluctantly, only through taxes: you now had to do it. People with fundamental objections to slavery had to participate in it.

    Regulations like the HHS Mandate under the ACA are like that. It just frosts some people's shorts that they are sharing this country with people, even though few in number, who won't voluntarily have anything to do with abortion or abortifacients, or even, in some cases, with contraceptives. Call it "women's health" all you like, but there are still dissenters from the contraceptive culture. So, the thinking goes, we'll make them handle them. If not by handing them out directly, then through direct funding. If not through direct funding, then through a signature that acts as a trigger for - direct funding (the "just sign here" option). We'll see what happens to the Resistance when everyone's hands are dirty.

    So the Court is, I think, prescient in withholding premature endorsement from "Just Sign Here," even while noting, correctly, that it is a less restrictive means than mandatory funding, and therefore enough to prove that mandatory funding fails RFRA's "least restrictive means" test.

    Justice Alito is aware of what's at stake for religious freedom. Until now, Justice Ginsburg has not been known as a Smith enthusiast or a RFRA opponent (though as a matter of fact she concurred in City of Boerne, striking down RFRA as applied to state and local governments). Today Justice Alito (for the Court, of course) notes: "In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself."

    Why is that important? Because (the Court goes on to point out) it explained forcefully in Smith (and, I would add, more forcefully in Justice Scalia's concurrence in Boerne) the problems of judicial administration of religiously-based conduct exemptions. But Congress wanted the courts in that business anyway, and so enacted RFRA, which - at the federal level - it had a right to do. Justice Ginsburg, in other words, goes beyond the Court's considered option against religious exemptions from generally applicable statutes in Smith, and would apply that very interpretation to RFRA, which was enacted to counteract Smith! If there's an "animus" against religion here, it's not in the Smith majority.

    Besides judges calling close ones about religious exemptions, there's something else that Smith warned about, that RFRA happily does not promote, and that is - judges making decisions about the reasonableness of folks' religious beliefs. Yet today's dissent, while professing to share this disinclination, has a real problem with the petitioners' notions of moral causation and responsibilty. The dissent declares (dissent slip op. at 23-24) that the owners of Hobby Lobby and Conestoga shouldn't worry, because they're not buying abortifacients - it's just (some of) their employees that are. See? No problem! Well, that's one theory of collaboration in evil that some religions may adopt, but that others may have trouble with. (See what you can do thinking of your own hypos.) The Court responds (slip op. at 36):

    This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead  addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent itself but that has the effect of enabling or facilitating the commission of an immoral act by another. Arrogating the authority to provide a binding national answer to this religious and philosophical question, HHS and the principal dissent in effect tell the plaintiffs that their beliefs are flawed. For good reason, we have repeatedly refused to ake such a step. See, e.g., Smith, 494 U. S., at 887....

    :: David M. Wagner 12:19 AM [+] ::

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