an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
When I teach the intersections between freedom of speech
and privacy, I like to introduce the concept of information
fiduciaries in order to explain what is at stake. The concept of an information fiduciary helps us understand how we might protect digital privacy while not running afoul of the First Amendment. It helps us understand how we might adjust the third party doctrine of Smith v. Maryland without abolishing the doctrine altogether. And it also has applications in other areas of cyberlaw.
True, it's public television -- and imported from BBC. Still, I commend the final episode of Season 6 of "Doc Martin" to those who want a -- to me -- quite powerful illustration of Bernard Williams's famous observation that sometimes the justifications one offers for one's action are "one thought too many." (The episode concludes with an almost literal presentation of Williams's point.)
Law and Economics: The Flow of Ideas is a Two-Way Street
Raul Carrillo and Rohan Grey have recently argued that "law students need macroeconomics…and macroeconomics needs us"---and I couldn't agree more. They have launched several initiatives at Columbia to build on the excellent finance curriculum offered there:
As Professor Robert Jackson opined in The Modern Money Network’s recent seminar, “The way we talk about money systems in law school has been blocked in a way, because we’re not really honest with each other about the fact that our money system is a legal choice… We may have covered, in legal academia, microeconomics in reasonable depth, but we need to do much more work in macroeconomics.”
Today, America's political system seems remarkably dysfunctional. Many people believe that our 225-year-old Constitution is the problem. But what looks like constitutional dysfunction is actually constitutional transition, a slow and often frustrating movement from an older constitutional regime to a new one.
Americans last experienced this sense of dysfunction during the late 1970s and early 1980s--the "last days of disco." The New Deal/Civil Rights regime had gradually fallen apart and was replaced by a new constitutional order – the conservative regime in which we have been living for the past three decades. By 1984, few people argued that the country was ungovernable, even if they didn't like President Reagan's policies.
In the same way, our current dysfunction marks the end of the existing constitutional regime and the beginning of a new one. This new regime may be dominated by the ascendant Democratic coalition of young people, minorities, women, city dwellers and professionals that elected Barack Obama in 2008 and 2012. Or insurgent populists associated with the Tea Party may revive the decaying Republican coalition and give it a second wind. As of yet, neither side has been able to achieve a successful transition, leading to the current sense of frustration.
Nevertheless, the transition to a new constitutional regime will be far more difficult than those effected in 1932 and 1980. First, the growth of the modern state and changes in the role of the presidency mean that even the most politically adept and fortunate presidents face greater obstacles to implementing transformative change than they once did; they are less able than past reconstructive leaders to disrupt existing institutions and clear the ground for a new politics. This, by itself, does not prevent the emergence of a new constitutional regime. But second, and perhaps more important, the current transition will be especially difficult because we are near the peak of a long cycle of increasing polarization between the nation’s two major political parties. That polarization greatly raises the stakes of a transition to a new constitutional regime. The defenders of the old order have every incentive to resist the emergence of a new regime until the bitter end.
A long and frustrating transition will have important side effects. First, a dysfunctional Congress tempts the Executive to act unilaterally, by asserting inherent executive authority or by creatively interpreting previous Congressional authorizations. Future presidents may use these new sources of power even when the period of dysfunction has passed.
Second, a period of sustained political dysfunction also tends to empower the judiciary vis-à-vis Congress. Courts will feel freer to assert themselves and will show Congress less deference. Moreover, judges appointed by the older dominant party, late in the regime, are less likely to engage in judicial restraint and more likely to push the jurisprudential envelope. This helps explain some of the Roberts Court's recent work. Assisted by conservatives in the lower courts, and by energetic litigation campaigns by conservative civil society groups, the Roberts Court appears to be solidifying and extending the old regime's ideological and constitutional commitments while it still can.
Our current political dysfunction will end, and a new constitutional regime will emerge. Yet injuries to our politics caused by years of political difficulty will remain. The coming constitutional order will offer new possibilities for political reform, but it will also bear the scars of previous struggles. Posted
by JB [link]
Wednesday, February 26, 2014
Bottlenecks symposium at Concurring Opinions this week
Viewers of the Winter Olympics on NBC over the past two weeks have been regaled with many ads that feature cute home videos of current Olympians as small children, making early forays on the ice or the snowy slopes with close parental support (and enormous parental patience). These parents, frankly, deserve quite a lot of credit for their children’s accomplishments. Being the best in the world at any sport requires great talent and great effort—thousands of hours of practice—and the latter almost always entails a lot of effort and sacrifice on the part of parents and families too.
My new book, Bottlenecks, is about equal opportunity. In this first post in a series, I want to raise some simple questions, starting with: What is equal opportunity? And why do we value it in the first place?
Imagine that, basking in the glow of this year’s Olympics, we wanted to give everyone in the U.S. an equal opportunity to compete in Winter Olympic sports. On one simple conception of equal opportunity, what we’d need is straightforward: procedurally fair tryouts, with unbiased judges, to select the best athletes in each discipline. On this view, equal opportunity means a fair contest.
Even at first blush, this seems like a rather limited conception of equal opportunity. Surely it is also important what opportunities people have to train and prepare before the big day. Those opportunities are extremely unequally distributed. In the United States there are exactly two tracks for the “sliding sports” (bobsled, luge, and skeleton)—one in Lake Placid, New York, the other in Park City, Utah. To be a world-class athlete in any of the sliding sports, you need to train a fair amount on one of those tracks. Long before that, or to achieve excellence even in a less exotic sport, like skiing, you’re going to need a lot of training, equipment, and snow.
Imagine a child with the potential to be a future gold-medalist in the Giant Slalom, if she had the luck to grow up in Utah with winter-sports-minded parents with the money and time to help her train. Instead, she grows up in sunny Florida, where nobody she knows has any interest in winter sports, including her parents. I want to be clear here: her story is not one of thwarted ambition. The ambition was never formed. A glance at the nation-by-nation medal count at the Winter Olympics (in some contrast to the Summer Olympics) suggests that indeed, much of the world is in this same situation: a fundamental lack of snow, nevermind the lack of a world-class sliding track, means very stark inequalities of opportunity in this domain. And those differences also shape people’s ambitions.
Against this backdrop, what would it take to equalize opportunity? It’s a challenge—and indeed if we really think about it, the solutions begin to look not utopian but dystopian. Even supposing that we could redistribute luge tracks, mountains, and snow in a more even way around the nation (!), would we really want to flatten out the distribution of parental resources—the ones that are on such prominent display in those heartwarming ads? If every child is to have an equal opportunity, we can’t have parents devoting hundreds or thousands of hours to suiting up their child and giving them time on the slopes. But what’s the solution to that? It seems both dystopian and impossible to prohibit parents from pursuing these activities with their children that both enjoy. So, somehow, it seems that we’re barking up the wrong tree. But how exactly? There are several responses to this problem, and they help set up some of the building blocks of my argument in Bottlenecks: A New Theory of Equal Opportunity. So let’s consider them.
Hobby Lobby Part IX: There is no "employer mandate," redux: The plaintiffs' arguments about the option of not offering an employee health insurance plan
In my most recent post, I explained why the individual plaintiffs in Hobby Lobby--members of the Green family who are the directors of two for-profit companies--may have failed to allege facts sufficient to demonstrate that they would be required to do something their religion prohibits if federal law required Hobby Lobby and Martel to provide their employees
with contraception insurance coverage. But even if I'm wrong about that--i.e., even if such a legal requirement would require the Greens to do something their religion forbids--that would not be sufficient to demonstrate that federal law imposes a substantial burden on the Greens' religious exercise because, as I've argued in several posts here [see posts III, III-A and III-B below], there is no such legal requirement. The Hobby Lobby brief mischaracterizes the law on this point. At page 3, for example, the brief asserts that the Affordable Care Act "imposes an 'employer mandate,' which
requires certain employers to provide 'minimum
essential' health coverage to employees" (citing 26 U.S.C.
§ 4980H). Three pages later, the brief again states that "small businesses with fewer than fifty
employees—96% of all firms in the United States—are
exempt from the ACA requirement that employers
provide health insurance to their employees."
There is, however, no such legal requirement that any employers provide health insurance to their employees. In support of the second quotation above (at page 6), the Hobby Lobby brief cites only one source of authority--a White House document that says no such thing. Indeed, the very first sentence of the document Hobby Lobby cites states exactly the opposite: "The Affordable Care Act does not include an employer mandate" (emphasis added). In my previous posts I've explained how the law in fact operates: If any employer, large or small, offers its employees a health insurance plan, that plan -- like all other health insurance plans in the U.S., employer-sponsored or not -- has a legal duty to include an array of required services, including cost-free coverage of many preventive services, one of which is coverage of 18 FDA-approved contraceptive methods. But any employer, large or small, is legally entitled to decline to offer its employees a health insurance plan, as many employers do. And in such a case its employees will then be able to purchase health insurance on an exchange -- from a plan that meets all the applicable federal standards, including contraception coverage -- and most such employees will be able to purchase such a plan with generous government subsidies. To be sure, the provision of the ACA that Hobby Lobby cites, 26 U.S.C. § 4980H, requires employers such as Hobby Lobby and Conestoga Wood to make an assessment to the government if they do not offer employee health insurance, in order to help offset the cost of the government subsidy for the employees' purchases on the exchange. As that same White House document explains: "In 2014, as a matter of fairness, the Affordable Care Act requires large employers to pay a shared responsibility fee only if they don’t provide affordable coverage and taxpayers are supporting the cost of health insurance for their workers through premium tax credits for middle to low income families." That assessment, however, is not a "penalty" or a "fine" (as the Conestoga Wood brief argues) for violation of a legal duty. It is merely a tax. Moreover, the cost of that tax to the employer will almost certainly be far less than what the employer would have paid (in premiums and administrative costs) to sponsor the insurance plan. Because this option is legally available to an employer such as Hobby Lobby, plaintiffs cannot establish that federal law imposes a substantial burden on the Greens' exercise of religion unless federal law imposes substantial pressure on the Greens not to avail themselvesof this alternative option and instead to offer their employees an insurance plan that includes contraception coverage.
Hobby Lobby asserts in its brief (p.11) that dropping its health care plan would result in "crippling consequences." But plaintiffs have not alleged, either in their complaint or their brief, any facts that would support such a conclusion, let alone allegations that are specific enough to satisfy Iqbal and Trombley pleading standards.
The closest Hobby Lobby comes on this point is its bald assertion (p.10) that "[d]ropping insurance
would place [Hobby Lobby and Martel] at a competitive disadvantage, and
hobble their employee recruitment and retention
efforts." (In its brief, Conestoga Wood likewise asserts (pp. 39-40), without any supporting factual allegations, that the company would be put at "a competitive disadvantage in the marketplace.")
Compendium of posts on Hobby Lobby and related cases
For our readers' convenience, I'm collecting here in one place links to all of my posts about Hobby Lobby, Conestoga Wood, Notre Dame, and Little Sisters, along with links to the briefs in Hobby Lobby/Conestoga Wood and to a few other important posts about these cases, published here on Balkinization and elsewhere. We'll try to keep the list relatively current as the litigation proceeds. My Posts on Hobby Lobby and other contraceptive-coverage cases
Can Corporations Exercise Religion?: A Response to Douglas Laycock
Over at Scotusblog,
Professor Douglas Laycock urges the Supreme Court to hold that Hobby Lobby,
Inc. and other secular, for-profit corporations exercise religion, arguing that
“Congress left a clear and explicit record that . . . [the Religious Freedom
Restoration Act] covers for-profit corporations and their owners.”Laycock is an immensely respected scholar of
the First Amendment, who has written a long list of major articles on the
Religion Clauses and argued a number of landmark Supreme Court cases, and his
views are entitled to very serious consideration.But his argument in favor of the proposition
that Congress intended to give secular, for-profit corporations the right to
the free exercise of religion for the first time in history – as part of a bill
designed to restore free exercise protections taken away by the Supreme Court
in Employment Division v. Smith– is unconvincing.Indeed, Professor Laycock’s arguments supporting
Hobby Lobby cannot be squared with Professor Laycock’s own prior scholarship on
the meaning of RFRA.
The crux of Laycock’s argument is that RFRA was designed to
provide “universal coverage under a single standard,” with no exceptions.Laycock admits, however, that he has no
evidence of a congressional intent to protect free exercise rights for secular
businesses: “Congress did not at that time discuss any actual religious-liberty
controversies involving for-profit businesses.”Nevertheless, he asserts, based on what he calls the “no-exceptions
principle,” that “Congress answered the question” whether corporations like
Hobby Lobby can invoke RFRA’s protections to obtain a religious exemption from
neutral, generally-applicable business regulations.This
begs the question of whether secular, for-profit corporations – which lack the
human capacities at the core of the free exercise right – can exercise religion
in any meaningful sense.
Exhibit A against Laycock’s claim comes from Professor Laycock
himself.In a 1994 law review article, Interpreting
the Religious Freedom Restoration Act, written shortly after the
passage of Act, Professor Laycock (along with co-author Professor Oliver
Thomas), analyzed RFRA’s text, context, and history, concluding that, under the
of religion’ thus has two main components: the religiously motivated conduct of
individuals and the operations of religious organizations.” Conspicuously absent from Laycock’s 36-page
article was any argument that secular, for-profit corporations were covered by
RFRA’s protections for the free exercise of religion.As described in Laycock’s article, any “corporate element” to the free exercise of religion involved claims by religious
entities, not business corporations.In
sum, Professor Laycock recognized what has long been black letter law – that the
Free Exercise Clause protects individuals and has special solicitude for the
rights of religious organizations, extending protections to churches and other
religious corporations that have never been granted to or claimed by secular,
for-profit corporations.Professor Laycock,
without explanation, is now walking away from his own comprehensive analysis of
The only concrete evidence Professor Laycock offers now to
support his argument that secular, for-profit corporations should be entitled
to claim religious exemptions under RFRA comes from the legislative history –
not of RFRA – but of the proposed Religious Liberty Protection Act, a failed 1999
effort to add protections to the free exercise of religion after the Supreme
Court partially invalidated RFRA.This
is legislative history of the worst kind.“Post-enactment legislative history,” the Supreme Court has made clear,
is a “contradiction in terms,” not a “legitimate tool of statutory
interpretation.” This is particularly
so here, since the bill in question failed to pass Congress.The later actions of one House of Congress
discussed by Professor Laycock are simply not probative of the meaning of RFRA.
Indeed, in 2000 – when Congress actually enacted new
religious freedom legislation, the Religious Land
Use and Institutionalized Persons Act – it provided protections to “religious
exercise of a person, including a religious assembly or institution.” Nothing in RLUIPA suggests that secular,
for-profit corporations exercise religion.Surely this text, actually enacted by Congress, counts for far more than
debates over a bill that failed to pass.
Professor Laycock derides as a “shell game” the government’s
argument that secular, for-profit corporations and their corporate owners are
not entitled to invoke RFRA to claim a religious exemption from neutral,
generally-applicable business regulations.But Professor Laycock ignores the basic fact that business corporations
and their owners have always been treated differently from individuals when it
comes to fundamental rights, such as the free exercise right, that protect
freedom of conscience and human dignity.Surely if Congress were doing something so revolutionary as recognizing
for the very first time in our nation’s history that secular, for-profit
corporations can exercise religion, the legislative history would have been
crystal clear.But speculation and bits
of post-hoc legislative history are all that Professor Laycock offers.For all his labors, Professor Laycock has
failed to point to any convincing evidence in the RFRA legislative record that
Congress intended to grant free exercise rights to secular businesses.
David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center, the author of Can Corporations Pray?, and a co-author of CAC's brief in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. This post is cross-posted at Text and History.
Hobby Lobby Part VIII: Hobby Lobby's identification of the "precise religious exercise at issue here," and some thoughts on whether federal law substantially burdens it
Most of my previous posts here about Hobby Lobby and Conestoga Wood have been devoted to the question of whether the plaintiffs have adequately alleged that federal law imposes a "substantial burden" on their exercise of religion--the threshold question under RFRA. I've tried to make two principal points: First, as I elaborated in this post, the overwhelming attention in the lower court decisions, and in the briefs, to the question of whether for-profit corporations have "beliefs" or can otherwise exercise religion, is misdirected: Although such for-profit corporations probably can exercise religion in at least some cases, they cannot sustain the sort of claim at issue in these cases, namely, that federal law requires them to violate a religious injunction. It's unlikely any religion imposes such obligations upon for-profit corporations and, in any event, there are no such allegations here. But that does not mean that the plaintiffs necessarily lose, since the real question is whether and how federal law might require or substantially pressure the individual plaintiffs--the Green family members in Hobby Lobby; the Hahn family members in Conestoga Wood--to violate their own religious obligations. I've argued further that the "substantial burden" aspect of these cases ultimately turns on whether federal law requires the Greens and/or the Hahns in their capacities as decision-makers (i.e., directors) of the companies to do something their religions prohibit--in particular, to decide whether the employee health insurance plans offered by the three companies in question should include (or "provide") coverage of certain contraceptive methods. Second, in a series of posts (see the Posts labeled III, III-A and III-B below) I have explained that, contrary to popular belief, there is no "employer mandate": federal law does not in fact require any employer to offer contraceptive insurance to its employees. To be sure, if employers choose to offer their employees a health insurance plan, that plan must include many required features, including coverage of persons with pre-existing conditions, coverage for dependents up through age 26, and cost-free coverage of such services as immunizations, colo-rectal cancer screening, and women's health services, including access to 18 contraceptive methods. But employers are legally entitled to decline to offer such an employee plan at all--and if they do so, it is likely that the direct effect would be a cost savings to the employer, even after accounting for a tax assessment that would be imposed on large employers such as Hobby Lobby, Martel, and Conestoga Wood. Of course, many employers will conclude, for an array of complex and firm-specific reasons, that it remains in their interest to offer a health-insurance plan to their employees. Even in those cases, however, it is at best uncertain whether federal law as a whole would impose substantial pressure upon them to do so. More to the point for present purposes, the plaintiffs in these cases have not alleged facts that would demonstrate such substantial pressure. And as long as this alternative legal option would not itself impose a substantial burden on plaintiffs' religious exercise, the RFRA claims should be rejected, regardless of whether an actual federal mandate to cover contraception would impose a substantial burden. Hobby Lobby's brief, filed last Monday, addresses both of these matters. I'll discuss the first in this post, and the latter in a follow-up post. The upshot of the points, taken together, is that Hobby Lobby's own brief calls into serious question whether the plaintiffs have alleged facts sufficient to establish that the HHS rule imposes a substantial burden on their exercise of religion. As for the first question: Hobby
Lobby's brief, like Conestoga Wood's, confirms that these cases are not
really about the question of corporate religious exercise that has
dominated the briefing and public reporting. Read more » Posted
by Marty Lederman [link]
Monday, February 17, 2014
Hobby Lobby Part VII: Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb"
In its brief filed last week, Hobby Lobby makes two principal arguments about why the government does not have a compelling interest in declining to provide religious exemptions for employers who object to certain forms of contraception coverage in their employee health plans. First, Hobby Lobby argues that although the government may have a general interest in advancing public health, it has not demonstrated that providing the exemption in question would compromise that interest and, in particular, has not shown that it is important for employer plans to include coverage of the four forms of birth control to which Hobby Lobby specifically objects--two types of IUDs, Plan B, and ella. There is something a bit artificial about trying to confine the case to four of the 18 forms of contraception covered under the HHS Rule. For one thing, as I wrote in an earlier post, dozens of for-profit employers
have filed cases against the HHS Rule,
and presumably the Court granted the petitions in Hobby Lobby and Conestoga Wood in
order to provide some significant guidance to the lower courts in resolving
those many other cases. A decision limited to an objection to four particular contraceptive methods would be unlikely to resolve the hard questions in those other
cases—most of which involve more categorical objections to all manner of
contraception. Therefore, unless the Court is inclined only to decide these two particular cases, and to wait until next Term to take up the more common, more comprehensive challenges from Catholic employers, it is likely to consider more broadly what effect a patchwork series of exemptions would have, including exemptions that would exclude contraception altogether. Moreover, it's not even clear that the Hobby Lobby and Conestoga Wood cases themselves are limited to the four named forms of contraception. Both sets of plaintiffs have alleged that they are religiously prohibited from allowing plan coverage with respect to any "items that risk killing an embryo" (Hobby Lobby brief at 9; emphasis added)--i.e., items that might, in some small percentage of cases, cause an embryo not to implant in the uterine wall. (Indeed, the four identified methods themselves are not likely to have that effect in any particular case, and there's no scientific certainty that some or all of them will ever prevent implantation. Plaintiffs' view appears to be that they are entitled to an exemption solely by virtue of the possibility of such effect in some unknown but small percentage of cases.) And if that's the case, these cases themselves may implicate many more than four types of contraception. As I wrote earlier with respect to Conestoga Wood's complaint:
[It] refers . . . vaguely to “several drugs or devices that may cause the
an already conceived but not yet attached human embryo.” Therefore
there is no way
of knowing at this early stage of the litigation which forms of birth
are at stake in the Conestoga Wood case—even by the plaintiffs’ own
Perhaps it’s the four methods identified by Hobby Lobby . . . or fewer;
perhaps even more: For example, although the FDA website doesn’t
it, the FDA-approved
labeling for Seasonale, a birth-control pill, reads: “Although the
primary mechanism of this action is inhibition of ovulation, other alterations
include changes in the cervical mucus (which increase the difficulty of
sperm entry into the uterus) and changes in the endometrium (which reduce the
likelihood of implantation.” Is Seasonale a potential “abortifacient” in
the eyes of Conestoga Wood’s owners? We don’t yet know. What we do
know is that there are plenty of groups (and presumably employers) out there
who think that more than four of the FDA-approved methods of birth
control are morally problematic because they might prevent implantation of the
embryo in some case: See, for example, this
website, concluding that ten or more of the methods involve “embryocide.”
But even if the Court were to consider only the four particular forms of contraception that Hobby Lobby identifies, the amicus brief filed by the Guttmacher Institute (see pp. 12-21 in particular) explains why coverage of such methods in health insurance plans will advance the government's interests by significantly reducing the incidence of unplanned pregnancies (which would, of course, have many salutary effects, not least of which would be fewer abortions). That brief demonstrates that cost is not only correlated with the regularity of the use of contraception; it is also a major factor in determining
which contraceptives women use. In particular, it is almost certain that cost-free access to all of the FDA-approved methods will result in much more common use of IUDs, which are among the most effective of contraceptive methods, but also among the most cost-prohibitive. Hobby Lobby and Conestoga Wood each seek an exemption that would, at a minimum, deny their female employees cost-free access to IUDs, a very valuable benefit that almost all other women in America can now take advantage of. Second, Hobby Lobby reiterates Conestoga Wood's argument that the government cannot possibly have a compelling interest in guaranteeing women cost-free access to contraceptive services, and in denying religious exemptions, in particular, since its own regulations are themselves said to be substantially underinclusive. Those regulations, Hobby Lobby argues, are so "honeycombed with religious and secular exemptions" that "millions" of women will not receive the articulated benefits. Eugene Volokh has explained
why such an underinclusiveness argument might be unavailing even if the
exceptions to the law were as extensive as the plaintiffs claim--pointing to cases such as Hernandez v. Commissioner (1989), United States v. Lee (1982), and Gillette v. United States (1971).
But even apart from that doctrinal point, I explained earlier that the factual predicate of this underinclusiveness argument is simply mistaken: With one minor exception, the purported “exemptions” Hobby Lobby identifies are not exemptions
at all; in each case, women will be entitled to cost-free contraception insurance. And that one exception—HHS’s exemption for churches—will
affect very few female employees who would otherwise make claims for cost-free
contraception coverage. The
contraceptive coverage here, therefore—like all of the other preventive care services
the statute requires, such as immunizations and colo-rectal cancer screening—is a benefit to which virtually all women in the United States
will be entitled. Hobby Lobby has not offered any arguments in its brief responding to the arguments that I've made (and that the government made in its opening brief) about why the regulations are not, in fact, underinclusive. Therefore I'll simply refer interested readers to my earlier post for further details.
My Posts on Hobby Lobby and other contraceptive-coverage cases
Hobby Lobby Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers
This past Monday, the plaintiffs in Hobby Lobby filed their brief in the Supreme Court, and the government filed its bottom-side brief in Conestoga Wood. (The briefing will be complete with the filing of Conestoga Wood's reply brief and the government's reply brief in Hobby Lobby, both of which are due on Wednesday, March 12. Oral argument is Tuesday, March 25.) In future posts, I'll discuss what these new filings (and some amicus briefs) have to say about the "substantial burden" and "compelling interest" questions under RFRA. In this post, however, I simply want to highlight one important common ground between the government and the plaintiffs, as well as one fundamental difference. The common ground is the parties' agreement that individuals can and do exercise religion in all aspects of their lives, including when they are engaged in commercial activities. As the Solicitor General puts it: "[T]he government’s argument in no sense depends on
the proposition that people of faith must check their
religious convictions at the door when they enter the
commercial arena. . . . The government does not question the importance
of religious exercise to the Hahns [the owners/directors of Conestoga Wood] or to the millions of other believers in this Nation. Nor does the government fail to appreciate that faith guides adherents
throughout their day, including when they carry out
responsibilities as corporate managers and directors."
Why, then, does the government argue that the Court should reject the Hahns' (and Conestoga's) RFRA claims at the outset, without even applying the RFRA standards? The answer to that question highlights a fairly fundamental divide reflected in the two briefs filed Monday. On the one hand, Hobby Lobby presses a simple point of logic, one that I flagged in my previous post: The language of RFRA itself does not exclude for-profit corporations. Therefore, if, as the government concedes, a RFRA claim for an exemption to a generally applicable law may be brought by a nonprofit corporation, and such a claim may also be brought by a for-profitindividual employer (as were the free exercise claims in Braunfeldand Lee), why couldn't such a claim likewise be brought by an incorporated for-profit employer--or, at a minimum, by the owners/directors of a closely held for-profit corporate employer who allege that a regulation of the employer burdens their own exercise of religion?
The government devotes a couple of pages of its Conestoga Wood brief (see pp. 29-31) describing "practical problems" that would arise if the Court were to recognize RFRA claims by for-profit corporations, in particular. But otherwise, the government does not expend a great deal of energy defending special rules for corporations, as such. Instead, the implicit theme of the government's threshold argument is that Congress could not have intended to require religious exemptions for for-profitemployers generally. This argument is grounded in history, and in a pronouncement of the Supreme Court in a 1982 free exercise case. The government notes that the plaintiffs and their many amici fail to cite a single case, other than those in the current contraception-coverage litigation, in which a court has ever held that either the Free Exercise
Clause or RFRA entitled a for-profit employer to an exemption from a generally applicable law based upon a burden on the religious exercise of the employer or its owners, managers, or directors. By contrast, in each such case that the Supreme Court has decided, the for-profit owners have overwhelmingly lost. In addition to Braunfeld and Lee, see, for example, Newman v. Piggie Park Enterprises, Inc. (1968), in which Maurice Bessinger, the president, majority stockholder and general
manager of a corporation, had argued that federal law requiring his restaurants to serve black customers
would violate his free exercise rights because he “believe[d] as a matter of
religious faith" that "any contribution" to "racial
intermixing" "contravenes the will of God," a belief he derived
from his reading of the Old Testament Pet. App. 21a (Second Amended
Answer, Sixth Defense), 126a (testimony of L. Maurice Bessinger). In a
single terse sentence, the Supreme Court unanimously held that this defense was
"so patently frivolous" that it would "manifestly
inequitable" not to reward attorneys' fees to the parties challenging the
discrimination. [UPDATE: Bessinger
a few days after I published this post, an unrepentant
racist to the end, whose restaurants proudly displayed confederate flags until just a
few months ago.]
(Moreover, even apart from RFRA and the Free Exercise Clause, legislatures have very rarely, if ever, extended specifically religious exemptions to for-profit entities. Occasionally for-profit institutions are included in statutory protections of conscience not limited to religion, such as in the 1973 Church Amendment, 42 U.S.C. 300-7(b)(2)(A) (providing that no public official is authorized to require an entity receiving a federal grant, contract, or loan to make its facilities available for the performance of any sterilization
procedure or abortion if the entity prohibits that procedure "on the basis of religious
beliefs or moral convictions"). Religion-specific statutory exemptions for for-profit entities are far less common, however.) In particular, and as relevant to these cases, the government stresses that "[t]his Court has never permitted a for-profit employer (corporate or individual) to obtain a religious
accommodation that comes at the expense of its employees" (emphasis added). The government's argument is, in effect, that the Congress that enacted RFRA could not have intended to create such a "sharp departure" from that unbroken historical record. Indeed, the government argues that Congress should be assumed to have adopted the "rule" the Court announced in United States v. Lee that “[w]hen followers of a particular sect enter
into commercial activity as a matter of choice, the
limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on
the statutory schemes which are binding on others in
that activity,” at least where "[g]ranting an exemption . . . to an employer operates
to impose the employer's religious faith on the employees." Of course, the fact that no court has ever afforded a for-profit employer a religious exemption at the expense of its employees does not necessarily mean that there could never be such a case, or that Congress intended to foreclose such cases. And even if the government were correct that such for-profit employer RFRA claims will or should inevitably fail on the merits, that would not necessarily mean that the Court should decline even to apply the RFRA test in the first instance. After all, in the two leading Supreme Court cases involving for-profit businesses, Lee and Braunfeld, the Court considered the burdens on religious exercise and the government's interests before rejecting the requested exemptions. (The Court announced its more categorical "rule" in Part III of Lee (quoted above) as though it were an independent holding . . . but only after it had applied the then-governing free exercise standards.) Nevertheless, the basic message of the government's brief is clear--namely, that to grant a religious exemption here, to a for-profit employer whose employees would bear the burden of accommodating the owners' religious commitments, would be a groundbreaking departure from the judiciary's (and Congress's) historical practice, one that could well pave the way for religious exemption claims by for-profit employers with respect to many of the myriad other statutes governing commercial enterprises, including nondiscrimination requirements, zoning regulations, taxes, and the like. Posted
by Marty Lederman [link]
Saturday, February 15, 2014
Federalism as a Way Station in Windsor
I have a new paper on SSRN that reads Windsor as an exemplar of doctrine in motion during a time of change. Specifically, I analogize the majority opinion's various invocations of federalism to other Bickelian devices for managing the processes of constitutional change, including manipulation of the tiers of scrutiny and the justiciability doctrines. I also analogize the Court's uses of federalism rhetoric as a way station on the subject of same-sex marriage to President Obama's similar past uses of federalism frames on this issue, and to Senator Stephen Douglas's championing of popular sovereignty during the 1850s as the preferred solution to the explosive problem of slavery in the territories. Here is the abstract:
This Article asks what the U.S. Supreme Court’s opinion in United States v. Windsor stands for, and finds that it exemplifies doctrine in motion during a time of social and legal change. According to Chief Justice Roberts, the Court invalidated Section 3 of the Defense of Marriage Act (DOMA) because it inferred animus from Congress’s extraordinary intrusion into an area central to state domestic relations law. Like some commentators, Roberts construed the Court’s emphasis on what might be called “extraordinary” evidence of animus as not impugning the authority of states to ban same-sex marriage. The Article shows that such a reading can account for much of the Court’s language, but not for the opinion as a whole given the Court’s emphasis on DOMA’s purposes, effects, and social meanings—none of which seem limited to DOMA.
Justice Scalia read the majority opinion as turning on what might be called “ordinary” evidence of animus. On that interpretation, which many commentators endorse, only a desire to harm same-sex couples can explain denying them the same dignity that opposite-sex couples enjoy by being able to marry. This Article shows that such a reading has force, but that there are limits to its explanatory power given the Court’s emphasis on DOMA’s interference with state decisions to allow same-sex marriage. The opinion resists any dispositive interpretation; it preserves a Delphic obscurity.
This Article seeks to understand why the Court’s opinion is written that way by examining its most puzzling aspects: its invocation of state control over domestic relations to qualify its embrace of the equal dignity of same-sex couples; its selective use of state developments in the service of living constitutionalism; and its novel, unnecessary use of the breadth of a federal law as evidence of animus. The Article reads Windsor as an exemplar of a phenomenon that is easily overlooked or misunderstood, but that becomes apparent once doctrine is understood dynamically rather than statically. Windsor is what judicial opinions may look like in times of transition, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such periods, federalism rhetoric—like manipulating the tiers of scrutiny and the justiciability doctrines—may be used as a way station toward a particular later resolution.
by Neil Siegel [link]
Bottlenecks: A New Theory of Equal Opportunity
Talk of equal opportunity is in the air. The President devoted his State of the Union address this year largely to declaring a year of action on his opportunity agenda. Republicans (who likewise argue that their policies will best promote equal opportunity) have advanced some unusual proposals too this year, such as Tennessee Governor Bill Haslam's recent call for two years of tuition-free community college or technical school for anyone with a high school degree.
There's no great mystery, I think, why equal opportunity is suddenly so salient. When economic times are good, and opportunities seem abundant, we worry less about questions of who has them and who doesn't. When times are tough, as they've been for quite a few years, all of the policy issues that "equal opportunity" calls to mind seem that much more urgent.
Thus, this is an opportune moment to be talking about equal opportunity. I'm happy to report that my own contribution to that conversation, a book called Bottlenecks: A New Theory of Equal Opportunity, is now out! For now, here is a brief abstract of what I have to say in the book. In a series of posts here and elsewhere over the coming weeks and months, I'll flesh out these ideas. (And I'll update this post with links to the full series as it develops.) Here goes:
Equal opportunity is a powerful idea, and one with extremely broad appeal in contemporary politics, political theory, and law. But what does it mean? On close examination, the most attractive existing conceptions of equal opportunity turn out to be impossible to achieve in practice, or even in theory. As long as families are free to raise their children differently, no two people's opportunities will be equal; nor is it possible to disentangle someone's abilities or talents from her background advantages and disadvantages. Moreover, given different abilities and disabilities, different people need different opportunities, confounding most ways of imagining what counts as "equal."
This book proposes an entirely new way of thinking about the project of equal opportunity. Instead of focusing on the chimera of literal equalization, we ought to work to broaden the range of opportunities open to people at every stage in life. We can achieve this in part by loosening the bottlenecks that constrain access to opportunities--the narrow places through which people must pass in order to pursue many life paths that open out on the other side. A bottleneck might be a test like the SAT, a credential requirement like a college degree, or a skill like speaking English. It might be membership in a favored caste or racial group. Bottlenecks are part of the opportunity structure of every society. But their severity varies. By loosening them, we can build a more open and pluralistic opportunity structure in which people have more of a chance, throughout their lives, to pursue paths they choose for themselves--rather than those dictated by limited opportunities. This book develops this idea and other elements of opportunity pluralism, then applies this approach to several contemporary egalitarian policy problems: class and access to education, workplace flexibility and work/family conflict, and antidiscrimination law.
The re-emergence of an important political convention and why it matters
Constitution can make it difficult for Americans to understand how Washington
operates. We think that we live in a dichotomous world where rules structure
constitutional disputes but not political competition. The reality is very
different. No bright line separates constitutional law from politics, rules
structure constitutional arguments but seldom settle disagreements, and
democratic politics becomes an impossible game without the existence of tacit
understandings between political elites who may agree on little else.
call these understandings political conventions. These are rules of political
morality that structure politics. They consider such rules to be an important part
of the study of constitutional law. The late political scientist Robert Dahl
wrote about the importance of informal, quasi-constitutional mutual guarantees
between political elites. These informal guarantees matter since they inform
elites that neither side will act in a way that turns politics into a destructive
rule free zone. The point is that unwritten conventions provide the necessary
putty for the text of the Constitution to do any real work.
of the debt ceiling illustrates the importanceof political conventions. The debt ceiling was established in 1917 and
did little real work—except for a Newt Gingrich inspired hiccup in the
1990s—until 2011 when Tea Party Republicans decided that the debt ceiling was a
fabulous tool by which a party in control of one branch of government could
dictate terms to the other two branches controlled by Democrats. The popularity
of Republicans in Congress tanked when they threatened to use the debt ceiling
as a means of implementing their preferred policies. The recent capitulation by
Republicans on the debt ceiling illustrates that the status quo ante has been
restored. Both parties understand that the debt ceiling may be not be used as a
means to obtain major concessions from the other party. This convention
re-emerged because it serves the self-interest of both parties.
re-emergence of the debt ceiling convention matters, though, in a non-obvious
way. The supposed wall between the Constitution and politics means that the
Supreme Court lacks the intellectual tools to play a constructive role in
buttressing the political conventions necessary for democratic politics to
flourish. Let me provide an example. Justice Kennedy in Vieth v. Jubelirer wrote that although state legislatures had lost
all sense of “decorum and restraint” in gerrymandering districts, it was not
the Court’s job to prevent political factions from entrenching themselves in
power. He is mistaken. The Court should seek to nurture the emergence of
conventions that facilitate political competition. To that end, we, as scholars
and teachers of constitutional law, need to find a way to educate law students
about the importance of political conventions.
Miguel Schor is Professor of Law at Drake Law School. You can reach him by e-mail at firstname.lastname@example.org