The cases raise a
host of potentially difficult and complicated questions. Eugene Volokh
has published a series of posts about many of those issues on the Volokh
Conspiracy; his introductory post is here.
I asked Eugene to consolidate them all in a published Word document for
readers’ convenience—and he did, in
53 single-spaced pages! In this case, length is a distinct
virtue: Eugene’s herculean effort is of enormous benefit to those wishing
to understand and follow the case; and he neatly separates out the various
topics so that the reader can easily pick and choose among them.
I agree with much,
but not all, of what Eugene writes; in the posts that follow I’ll focus on some
of the questions on which we disagree. But regardless of what one thinks
of the merits of many of these issues, Eugene’s magnum opus offers a very
useful and engaging exposition of the two cases and of many of the arguments we
can expect to see from the parties and their amici. In particular, Eugene’s
first three posts alone (1A through 1C) offer a very useful primer on the
statute at issue in these cases, the Religious Freedom Restoration Act
(RFRA)—which saves me a bunch of exposition here.
Meanwhile, here at
Balkinization, we’ve already published several important posts—this
one by Joey Fishkin, and a series of three posts on the Establishment
Clause questions raised in the case—here,
here
and here—co-authored
by Micah Schwartzman, Rich Schragger and Nelson Tebbe. These posts all
appropriately emphasize that although the parties in the two cases are
employers and the government, the legal questions depend crucially on how the
law affects a third set of actors who are not formally parties to the case—namely,
the millions of female employees of large, for-profit corporations.
In the series of
posts that I’ll be blogging in the coming days, I hope not to repeat much of
what Eugene and my fellow B’Zation bloggers have already written. I
thought it might be useful, however, to clarify some of the misconceptions and
confusions surrounding the cases and the laws governing them, and to probe a
bit further into some of the many complex questions they raise.
I begin, below the
fold, with a general framework for thinking about the cases—one that will
inform most of my posts to follow.
As Eugene Volokh has explained at much greater length, the principal questions presented to the Court in Hobby Lobby/Conestoga Wood concern the Religious Freedom Restoration Act, a 1993 statute providing that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government demonstrates that the application of the burden to the person in question (that is, denying an exemption) “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
As Eugene Volokh has explained at much greater length, the principal questions presented to the Court in Hobby Lobby/Conestoga Wood concern the Religious Freedom Restoration Act, a 1993 statute providing that the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government demonstrates that the application of the burden to the person in question (that is, denying an exemption) “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1.
The petition
in Conestoga Wood also nominally
invokes a claim under the Free Exercise Clause of the First Amendment.
I predict, however, that the constitutional question, as such, will consume
only a tiny fraction of the total briefing, and virtually none of the Court’s
attention, because if the plaintiffs win under RFRA they won’t need their Free
Exercise Clause claim, and if they lose under RFRA it’s virtually inconceivable
they’d win under the Free Exercise Clause. For that reason, virtually all
of my analysis in these posts will be about RFRA.
Even so, it’s
important to stress at the outset that Supreme Court precedents under the Free Exercise Clause are certain to play a
major role in the case, because it is fairly well-established, and not
significantly contested, that Congress intended RFRA to incorporate by
reference “the compelling interest test as
set forth in ... Federal court rulings [between Sherbert v. Verner (1963) and Employment
Div. v. Smith (1990)],” a body of law that Congress determined to be “a
workable test for striking sensible balances between religious liberty and
competing prior governmental interests.” Id. § 2000bb(a)(5).
Most of my posts here
will, in one way or another, address the question raised by the first part of RFRA’s two-part test—namely,
whether the plaintiffs’ complaints fairly allege that federal law “substantially
burden[s] [their] exercise of religion.”
From the face of
those complaints, and the plaintiffs’ briefs, it sure sounds as if the “Preventive
Services” Rule issued by the Department of Health and Human Services
(together with the Departments of Labor and Treasury) will, indeed, “substantially
burden” the plaintiffs’ religious exercise: Plaintiffs allege that that
Rule (together with other federal statutes) will require them to violate their religious obligations. As the Hobby
Lobby complaint puts it: “Plaintiffs will
face an unconscionable choice: either violate
the law,
or violate their faith.”
But
how, exactly, does federal law purportedly require the plaintiffs to violate an
obligation of their faith?
Well,
according to Hobby Lobby’s complaint, the religious beliefs of the Green family—who
own and operate Hobby Lobby—“forbid
them from participating in, providing access to, paying for, training others to
engage in, or otherwise supporting abortion-causing drugs and devices.”
Hobby Lobby further alleges that he HHS “mandate”—allegedly requiring Hobby
Lobby to include certain contraception coverage in the health insurance plan it
makes available to its employees—“coerces the Green family to violate their
deeply-held religious beliefs under threat of heavy fines, penalties, and lawsuits.” (Hobby Lobby’s brief
at the cert. stage clarifies that providing insurance
coverage for four particular methods of birth control “that risk killing an
embryo makes [the plaintiffs] complicit in the practice of abortion,” and that
therefore “they cannot cover these four methods without violating their faith.”
I discuss those particular forms of birth control in my next post.)
Similarly, the
Conestoga Wood complaint
alleges that the owners of that company, the Hahns, “believe that it would be
immoral and sinful for them to intentionally participate in, pay for,
facilitate, or otherwise support abortifacient drugs, contraception with an
abortifacient effect, and related education and counseling, as would be required
by the Mandate, through their inclusion in health insurance coverage offered by
Conestoga.”
As you can see, these
claims appear to depend upon at least four predicate assumptions or
allegations:
(i) that federal law
requires the companies in question to offer their employees access to a medical
insurance plan;
(ii) that the HHS
Rule requires such an insurance plan to provide for coverage of
“abortifacients”;
(iii) that the
companies’ provision of such insurance coverage would require the individual owners of the companies to “participat[e] in, provid[e] access to, pay[] for, train[]
others to engage in, or otherwise support[] [the use of] abortion-causing drugs
and devices”; and
(iv)
that the owners’ religions forbid them from doing so, because such actions make
them “complicit” in their employees’ eventual use of “abortifacients.”
Each of
these predicates is open to question, and raises puzzles of its own. I’ll
address them in the course of my posts to follow.