First, it is important
to understand that the Court did not rule on constitutional grounds. While constitutional arguments were raised,
the Court resolved the issue on statutory grounds under the Religious Freedom
Restoration Act (RFRA).
Second, I agree with the
result in the case. I think the Court’s
argument that for-profit corporations are entitled to protection under RFRA is
quite persuasive, and it is telling that Breyer and Kagan did not join the part
of Ginsburg’s opinion that argued otherwise.
(Only Sotomayor joined that part of the dissent.) And I think the Court’s conclusion that RFRA
nullifies the contraception mandate is the better reading of the statute. It is closer call than the question of
whether corporations are covered at all.
But I think the Court got it right.
Interestingly, however, the majority left a strong argument off the
table. When a federal law burdens
religion, RFRA requires that the law both (1) serve a compelling state interest
and (2) be narrowly tailored to serve that interest. The Court here ruled that the contraception
mandate violated (2). But the Court
assumed for the sake of argument that the mandate served a compelling interest
under (1). I’m actually skeptical
there. Based on my understanding of
compelling state interest doctrine more generally, I think there are some great
arguments that there is no compelling interest in requiring that employers
provide the full spectrum of contraception options. (The Court touched on some of these, but
didn’t dig into the analysis because it decided that a careful examination of
the narrow tailoring requirement is all that was necessary.)
Third, there has been
a lot of talk from Liberal sources about how great Ginsburg’s opinion was. I don’t think it was terrible, but I think
she is getting way too much credit. This
was not her best work. There were
multiple places in her dissent where I thought she was dead wrong or deeply
unpersuasive. She did make some good
points, both on whether corporations get RFRA protection and on whether the
mandate is narrowly tailored, but not enough to persuade me on either point.
Fourth, lots of people
are worried that this case will lead down the slippery slope to a parade of
horribles. But if it does, that isn’t
the Supreme Court’s fault; it is the fault of those who voted for RFRA in the
first place. Indeed, Justice Scalia
warned of precisely this possibility in 1990.
Let me elaborate.
Let’s start with a little
background. In the 1960s and 1970s, the
Supreme Court decided two cases—Sherbert & Yoder—under the Free Exercise
Clause of the First Amendment. These
cases required generally applicable laws that burden religion to meet a very
high standard. To determine whether a
challenged government action violated the Free Exercise Clause, the two cases
used a balancing test that asked whether the challenged action imposed a
substantial burden on the practice of religion, and if it did, whether it the
law was needed to serve a compelling government interest. This is a form of what is known as “strict
scrutiny,” the most difficult standard for the government to overcome when it
is potentially violating a constitutional right.
In 1990, in Employment Division v.
Smith, the Court overruled Sherbert & Yoder (and correctly so in my view),
and decided that strict scrutiny does not apply to generally applicable laws
that happen to burden religion. This is
the case that involved Native Americans using Peyote. The Court held that the Native Americans were
not entitled under the First Amendment to an exemption from the generally
applicable drug laws that forbid Peyote use.
Justice Scalia explained the basis for overruling Sherbert and Yoder
this way:
If the
“compelling interest” test is to be applied at all, then, it must be applied
across the board, to all actions thought to be religiously commanded. Moreover,
if “compelling interest” really means what it says . . . many laws will not
meet the test. Any society adopting such a system would be courting anarchy,
but that danger increases in direct proportion to the society's diversity of
religious beliefs, and its determination to coerce or suppress none of them.
Precisely because “we are a cosmopolitan nation made up of people of almost
every conceivable religious preference,” .
. . and precisely because we value and
protect that religious divergence, we cannot afford the luxury of deeming presumptively
invalid, as applied to the religious objector, every regulation of conduct
that does not protect an interest of the highest order. The rule respondents
favor [the Sherbert & Yoder rule] would open the prospect of
constitutionally required religious exemptions from civic obligations of almost
every conceivable kind-ranging from compulsory military service . . . , to the
payment of taxes . . . , to health and safety regulation such as manslaughter
and child neglect laws . . . , compulsory vaccination laws . . . , drug laws .
. . , and traffic laws . . . , to social welfare legislation such as minimum
wage laws . . . , child labor laws . . . , animal cruelty laws . . . ,
environmental protection laws . . . , and laws providing for equality of
opportunity for the races. The First Amendment's protection of religious
liberty does not require this.
494 U.S. at 888-889. In other words, Scalia’s point was that
applying strict scrutiny to all Free Exercise challenges to generally
applicable laws could lead to an explosion of litigation, threatening the
nation’s ability to govern in numerous areas.
RFRA was expressly intended to
reverse Smith and return us to the pre-Smith caselaw—the caselaw that Scalia
warned could lead down the slippery slope.
Of course, RFRA couldn’t change the Constitution. But the Federal Government is entitled to
limit the circumstances in which it acts by statute, and that is all RFRA
did. (Actually, it also tried to limit
the states, but the SCT ruled that Congress couldn’t do that in 1997.) RFRA provides that the Court should hold all
other federal statutes to the standard set forth in Sherbert and Yoder as a
matter of statutory law. If that leads
to an avalanche of litigation, the proper response from Scalia and the
Conservatives who joined him is “we told you so.” (Note that the Hobby Lobby majority has all
sorts of language in their opinion re. why this case doesn’t go as far as
people think. I thought most of those parts
of the opinion were not persuasive.
But only time will tell whether there will actually be a flood of
litigation and the effect it might have.
This is a matter of empirical fact, not legal analysis.)
Remember that RFRA was passed by
overwhelming majorities in both houses of Congress, had massive support from
Democrats and Liberal organizations, and was signed by Democrat President Bill
Clinton. Thus, in my view, Democrats and
Liberals have no one to blame but themselves for the predicament we may now be
facing.
Let me sum up my fourth
point. 1. Smith warned that the prior caselaw could
lead us down the slippery slope. 2. RFRA was passed expressly so that we returned
to that caselaw. 3. Now we might be faced with sliding down the
slippery slope into an avalanche of litigation.
Given 1 and 2, it is difficult for me to understand why legally educated
and other sophisticated folks are surprised that we are now at 3.
Fifth, I don’t
like the result of Hobby Lobby on policy grounds. I would repeal RFRA, or at least modify it
substantially. That wasn’t always my
view. RFRA was enacted around the time I
started law school. And when I read
Smith as a 2L in my Constitutional Law course, I thought Scalia was wrong. Thus, I liked RFRA. But by my third year of law school, I had
changed my views and concluded that Smith was correctly decided (at least
insofar as it overruled Sherbert and Yoder) and that RFRA was a dangerous
statute that could eventually cause all sorts of problems. Now, I’m not sure we will experience the
problems that Scalia warned about in Smith.
But if we do, the answer is to repeal or modify RFRA, not complain about
the actions of the Supreme Court.
Sixth, very
briefly, there is some language in the majority opinion that undercuts the
reasoning in Citizen’s United in pretty compelling ways re. the status and
nature of corporations. I doubt anything
will come of it, but it was quite interesting to see.
