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Tuesday, March 25, 2014

The Good and Bad of Hobby Lobby

As oral argument gets underway in the contraceptive mandate cases, the blockbuster RFRA case of the decade, here are a couple of quick thoughts about one or two good and bad things about these cases from the decidedly narrow perspective of the law and religion scholarly community. 

Bad: What has struck me more than anything else about these cases and the argument around them has been the highly aggressive "framing" of the case, its import, and the issues it raises. I am describing general tendencies as I have seen them, and there are always exceptions. But it seems to me that there has been a tremendous effort to frame the case as categorically "easy" one way or the other. Hobby Lobby might win, or at least get some traction, if the argument were that the exemptions already contained in the ACA were sufficient to make the failure to grant an additional accommodation discriminatory according to a decision like Lukumi Babalu Aye. Or it might lose if the question were whether there is a substantial burden here, particularly given the arguable separation between the corporation and its owners, or whether, even if there is a substantial burden, the government nonetheless has a compelling interest in enforcing the mandate.

These issues have certainly been discussed. But much more of the discussion has been about making categorical arguments. That is certainly true on the defendants' side, where there have been arguments that there is no mandate at all, or that corporations are categorically excluded from invoking RFRA (or, sometimes, that they have no Free Exercise rights, although see my last post), among other attempts to say that the plaintiffs don't lose at the balancing stage but lose early, categorically, and absolutely. I think it is perhaps less clear as a strategy on the plaintiffs' side, but even here I think that for many defenders of the plaintiffs' claims there has been an effort to focus on those aspects of the case that advocates believe the plaintiffs should win categorically, and some elision of the more difficult issues, such as where and how to draw the line (if anywhere) between different kinds of entity claimants or how to effect the balancing if there is a viable claim. 

The framing has been still more aggressive, on both sides, at the level of discussion of the stakes of the case. It is a normal strategy of advocates to emphasize slippery slope problems where that will help their case, and to emphasize the law's tendency to impose some common sense and live with slippery slopes where that will help. In this case, both sides have eschewed arguing about how we might draw some lines in this area, and instead have taken an almost apocalyptic view of what the "logic" of the other side's arguments will lead to, as if inexorable, unstoppable logic and nothing more drives the development of cases and lines of precedent. So, on the one side, a victory for Hobby Lobby will lead to the destruction of civil rights laws in general and to the obliteration of the rule of law. And on the other, the logic of those who defend the mandate will lead to the complete undoing of religious freedom. 

These framing efforts have been aided and abetted, by serious people on both sides, by fighting so much of the battle in the public sphere and not just in briefs and scholarly articles. On sites like Slate or columns like Linda Greenhouse's, or on corresponding conservative sites, there has been a constant pounding drumbeat on this case, and it's in the nature of those kinds of public debate that the rhetoric is heated and often outstrips the nuances, and ignores the possible saving constructions or reasonable limits that often figure in the actual decision of a case. In this the public commentators and the more serious academic types have, it seems to me, worked hand in glove. I consider that an unfortunate development.

One friend (with whom I respectfully disagree about the case itself, for what it's worth) has suggested to me that this is a product of the seeming success of the heavy ref-working in the NFIB case. That case offered to the legal and legal academic communities a template for the way that contentious legal issues will be played out in the press and elsewhere from now on. That's a fair lesson to take from that experience but, in my view, a deeply unfortunate one, especially for those legal academics who get involved in playing the public framing game. There are high stakes in this case even after the rhetoric is stripped away. But I see the job of legal academics and experts on a particular issue as being to explore and explain the nuances of cases, to show what the stakes are and what problems will be raised by deciding a case on particular principles, but also to explain why it is unlikely that any given case will turn on nothing more than principle and logic and how courts might, however clumsily or incoherently, soften the blows of particular legal principles. Certainly it's not their job to raise the stakes, or indulge the commentariat in its heated rhetoric, for purposes of encouraging a particular result.

Again, this is obviously a particular and personal perspective on the public discussion of the Hobby Lobby case. But I have been very disappointed by and worried about the nature of that discussion, and many academics' role in it.

Good: Until recently, my general view of the law and religion community in the United States, which is a fairly small group, has been that there is too much consensus. We mostly all get along very well (although some of this depends on how you define that scholarly community). We certainly don't all agree! On the whole, though, I thought we tended to agree on so much that at times we didn't fully appreciate or explore some fundamental issues and differences in this field. We took very different views on how to interpret the Religion Clauses, but most of us took religion itself seriously and thought religious liberty a good in itself.

I think that consensus, if I was right to see one there, has substantially dissolved in the past two years, quickly and startingly. It is illustrated in some ways by the letter referenced in this link, signed by several friends whose work I respect, which argues that whatever law and religion scholars and others might have thought about RFRA twenty years ago, we should question state RFRAs altogether today, partly because of their substance and partly because they will be "seen . . . as a shield against enforcement of civil rights laws (current and future)." (emphasis added) It is striking to me, although not necessarily unreasonable, that a group of scholars could now oppose state RFRAs that they might once have supported as much because of their purported "expressive meaning" as because of their substance. More generally, there has been a stark division in the law and religion ranks of late, one driven substantially by the standard conflicts between liberty and equality, and one that has played out in a dramatic and heated fashion with very little apparent middle ground.

As a middle-ground type myself, I am saddened by this development. But it may be that this loss of consensus will be good for law and religion scholars, insofar as it forces us to state our premises more clearly and defend them against more vigorous attack. I do worry that this will tend to make the issues seem more polarized than they actually are, and lead scholars in the field to ignore the messy real-world compromises, and the inevitable if questionable splitting of the difference on matters of principle, that actually take place on the ground in church-state relations and in contests between liberty and equality more generally. But it may lead to more clarity in the field, even if some of that clarity is ultimately directed at defining more precisely the areas in which there are unbridgeable differences between us. Whether any of that will benefit anyone outside the community of law and religion scholars is, of course, a separate question.   

 

Posted by Paul Horwitz on March 25, 2014 at 10:45 AM in Paul Horwitz | Permalink

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Comments

I had mixed feelings about RFRA and over time saw some merit in Prof. Hamilton's arguments in Boerne etc. I, however, thought she went too far (reading various columns at Verdict/Justia etc.).

So, perhaps, I too am in a "middle" position here. A telling point is the reference to sexual orientation in the letter, something that split people at Mirror of Justice. Anyway, I do think even general applicable laws that burden free exercise can be problematic, but perhaps some sort of intermediate scrutiny or "rational basis with teeth" scrutiny should be put in as a compromise, including in statutory exemptions.

The strict scrutiny type language in RFRA over time has been shown to be problematic though there are ways to apply that (see the affirmative action cases) to split the baby too. But, if a provision is not targeted at religion as such, it probably is not an ideal test to use except in limited cases such as purely internal matters.

Posted by: Joe | Mar 25, 2014 12:52:03 PM

Paul, a few comments:

First, the position that the right is taking on the
Hobby Lobby case is (to my understanding) one which
is not part of the legal mainstream. For-profit corporations
don't get religious exemptions.

Second, in this case the basic position of the plaintiffs
is that they claim religious objection to some aspect
of labor law, and therefore (a) they should get an exemption
and (b) their employees are out of luck. This is basically
(1) making 'religious freedom' a mater of the powerful having
it and the powerless not having it, and (2) voiding huge
chunks of labor law and the 1964 Civil Rights Act.

Third, (to my knowledge; IANAL) this is a fraudulent lawsuit; the owners of Hobby Lobby are claiming something which is not true (contraceptives
are arbotifacients). If it were true (as far as the
law and courts are concerned), they wouldn't have to file
the case; they'd be home free. Instead, they are claiming
that A=B, to get the benefit of the legal aspects of B,
analogous to claiming that 'Al-jibra' is 'Sharia Law',
to get out of math requirements.

Fourth, this is not a standalone lawsuit; it's part of a
coordinated effort by numerous groups to undermine and
change a large chunk of law. These groups include officials
in various Republican-run state governments, the standard
right-wing anti-religious freedom groups, and those
simply seeking to undermine laws which bind corporate
interests.

Given this, it's not surprising. The fault, however, is
pretty clear.

Posted by: Barry | Mar 25, 2014 4:51:22 PM

Sorry for the typo's. I should have been slower.

Posted by: Barry | Mar 25, 2014 4:56:49 PM

Joe, for-profit corporations may not be eligible for tax-exemptions, but this does not change the fact that employers have the right to shape the mission of their company according to their Faith and morals regardless if they are for profit or not for profit. While our Constitution serves to secure our inherent Right to Religious Liberty, it does not serve to protect a right to free contraception.

When the Obama Administration argued in Hosanna-Tabor that Cheryl Perich was not a minister and therefore the ministerial exception did not apply, rather than argue that Cheryl Perich was a person of Faith who the Church had selected to minister to the students of Hosanna-Tabor, who had been unjustly let go due to a disability, it was clear that the Obama Administration had changed the nature of the debate in an attempt to redefine Religious Liberty by limiting the number of people who qualify as “ministers”, and are thus entitled to have their Religious Liberty secured and protected. Having failed at redefining Religious Liberty through The Hosanna-Tabor Case, the Obama Administration is attempting, through the contraception mandate that was added after the Affordable Health Care Act was passed, to redefine Religious Liberty through an Administration Agency. Not only does an Administrative Agency not have the authority to determine who is and is not religious enough to have their Right to Religious Liberty secured and protected, but this Administrative Agency has placed an obscene fine of 36,500 per employee for providing Health Insurance that does not include contraception coverage, when the fine for failing to provide Health Insurance is only 2,000 dollars per employee, clearly a violation of the principle of proportionality and thus The Eighth Amendment as well as The First.

Posted by: Nancy D. | Mar 25, 2014 7:37:32 PM

Why free contraception and not some Life-sustaining drug such as insulin? One would have to be sleeping in Gethsemane to not recognize the truth from The Beginning; contraception is merely the means that is being used to redefine man as an object, for once we no longer recognize that our inherent Right to Life, to Liberty, and to The Pursuit of Happiness has been endowed to us from The True God, then anything can become permissible as we define what is good, God, no longer being part of the equation.

Posted by: Nancy D. | Mar 25, 2014 8:41:22 PM

"These framing efforts have been aided and abetted, by serious people on both sides, by fighting so much of the battle in the public sphere and not just in briefs and scholarly articles."

And this started with this case?

Posted by: Barry | Mar 26, 2014 6:18:38 AM

Nancy: "Joe, for-profit corporations may not be eligible for tax-exemptions, but this does not change the fact that employers have the right to shape the mission of their company according to their Faith and morals regardless if they are for profit or not for profit. While our Constitution serves to secure our inherent Right to Religious Liberty, it does not serve to protect a right to free contraception. "

The case has nothing to do with 'free contraception', in all ways, shapes and forms. The issue is can the owners of a for-profit corporation take advantage of all benefits of the separation legal incorporation, but also claim and take exemptions from any laws which they don't like.

"... it was clear that the Obama Administration had changed the nature of the debate in an attempt to redefine Religious Liberty by limiting the number of people who qualify as “ministers”, and are thus entitled to have their Religious Liberty secured and protected. "

You're lying, and this serves as an example of why the 'religious freedom' people on the right are finding themselves quite justly vilified. Cheryl's 'religious freedom' was not threatened by the Obama administration. Instead, her employer used 'religious freedom' as an excuse to fire her.

Posted by: Barry | Mar 26, 2014 6:22:28 AM

Paul, in short the reason for the discord in your community is that one group has decided to use 'religious freedom' as an excuse to screw over others.

Posted by: Barry | Mar 26, 2014 6:23:19 AM

Barry, contraception is not Life-affirming or Life-sustaining, and in some cases destroys human life, thus defining contraception as a health care benefit would be redefining the meaning of health care.

It is true that Cheryl Perich was fired due to a disability, for Hosanna-Tabor did not deny that Cheryl Perich was a person of Faith who they had selected to administer to their students. The Obama Administration, however, attempted to define the nature of the debate by not following the spirit of the Law, thus putting their client at a disadvantage, for the sake of attempting to redefine Religious Liberty.

Posted by: Nancy D. | Mar 26, 2014 10:45:00 AM

"Joe, for-profit corporations may not be eligible for tax-exemptions, but this does not change the fact that employers have the right to shape the mission of their company according to their Faith and morals regardless if they are for profit or not for profit."

A company can "shape the mission" in a range of ways, but if they are for profit public business corporations, they have certain obligations, including to their employees and customers. If they want to be more private in nature in promotion of "their faith and morals," they can become a religious corporation or a non-profit, which has more rights, including of a constitutional nature (e.g., ministerial decision-making).

"While our Constitution serves to secure our inherent Right to Religious Liberty, it does not serve to protect a right to free contraception."

The Constitution "serves to protect" the right to contraception in various respects (see, e.g., Griswold v. Connecticut), but regardless, the employees of these companies do not get "free" contraception. They work, and in return for working, they are compensated.

"When the Obama Administration argued in Hosanna-Tabor ... "

I will not try to analyze the complex contours of the ruling here, which left open various questions regarding its reach. Moving on, the case here is not about being "religious enough," but the obligations of for profit corporation. The corporation here has a right not to provide health insurance. If they do, voluntarily, decide to provide it, they get a tax break. Marty Lederman over at Balkanization discusses how it might be cheaper for the company here to forgo health insurance. Regardless, the tax penalty is in place because of the costs that arise if companies don't provide health insurance (including covering things that can be used to prevent pregnancies, in some cases reducing abortions) and that cost is spread to others, including the government.

Posted by: Joe | Mar 26, 2014 11:13:44 AM

One cannot change the essence of The Spirit of The Law, without changing the essence of The Law. Love Is Life-affirming and Life-sustaining.

That which is not Life-affirming and Life-sustaining, such as the contraception mentality, which sexually objectifies the human person, is not Good for the posterity or the prosperity of this Nation or The World.

No State or person has the right to coerce any person into violating their Religious Liberty by forcing them to condone the use of contraception in private or in public.

Posted by: Nancy D. | Mar 26, 2014 11:46:13 AM

Not going to debate religious doctrine here.

The companies here are not "forced" to "condone" contraceptive usage. They don't have to have provide health insurance. They are choosing to do so. Once they do, the tax benefit from the government comes with strings. If they don't, they get no tax benefit.

From past experience, I think I'll end there.

Posted by: Joe | Mar 26, 2014 4:07:46 PM

Actually, they do not have the option of providing their employees with Health Insurance, because the penalty to provide Insurance that does not violate a tenet of their Faith, is 36,500 per employee.

Posted by: Nancy | Mar 26, 2014 6:05:30 PM

Not to mention that an Administration Agency does not have the authority to define or interpret The First Amendment.

Posted by: Nancy | Mar 26, 2014 8:31:59 PM

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