Tag Archives: RFRA

Obama Administration Announces Plans to Revise the Contraceptives Mandate

This CNN story reports that the White House has announced “revisions” to the contraceptives mandates that was the subject of both the Hobby Lobby and more particularly the Wheaton College litigation. But after reading the body of the story, it may be more precise to say that the White House has announced that it plans to revise the mandate. Here’s a quote from an Administration official: “In light of the Supreme Court order regarding Wheaton College,” said the official, “the Departments intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing.” Though the Wheaton College order was not a final disposition on the merits but only a preliminary injunction, the announcement suggests that the Administration believes that it may lose on the merits as well.

The story reports that the revised rule will be issued “within the month.”

Justice Sotomayor’s Puzzling Dissent in the Wheaton College Case

Sonia_Sotomayor_in_SCOTUS_robe

Justice Sonia Sotomayor

The battle over the ACA’s Contraception Mandate continues. Yesterday, the Supreme Court granted a temporary injunction to Wheaton College, a religious nonprofit that is challenging the mandate in federal court. As a religious nonprofit, Wheaton qualifies for a regulatory accommodation. It can avoid the mandate by completing a form stating that it opposes covering contraceptives for its employees and giving this form to its third-party plan administrator; the administrator must then provide contraceptive coverage to the employees at its own expense. Wheaton objects that completing the form and submitting it to the administrator would make it complicit in providing coverage for contraceptives, which it opposes on religious grounds. As a consequence, Wheaton argues, the accommodation itself violates RFRA.

Yesterday, by 6-3 vote, the Court ruled that the government may not enforce the mandate against Wheaton pending final disposition of Wheaton’s legal challenge. As a result, until the case is resolved, Wheaton need not complete the form or provide it to the plan administrator. The government, which obviously knows about Wheaton’s challenge, may arrange contraceptive coverage for Wheaton’s employees in the meantime. The Court expressly stated that its grant of a temporary injunction “should not be construed as an expression of the Court’s views on the merits” of Wheaton’s challenge.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented. Her dissent is puzzling. On the one hand, she makes a valid point about the standard for granting this sort of injunction. Traditionally, a high bar exists. The Court will grant an injunction only if the legal rights at issue seem “indisputably clear.” At this point, it’s hard to say that about Wheaton’s claim. There are arguments on both sides and, as Justice Sotomayor points out, the district court hasn’t yet determined the facts and adjudicated the case.

But Justice Sotomayor didn’t stop there, and the rest of her opinion is unfortunately problematic. Here are three quick examples:

  • Internal Inconsistency: Notwithstanding her complaint that the Court had preempted the trial judge’s adjudication of the merits of Wheaton’s claim, Justice Sotomayor presumes to decide the merits herself. “Wheaton has not stated a viable claim under RFRA,” she writes. That seems rather a prejudicial statement, especially as Wheaton’s case, or one very like it, will undoubtedly reach the Court soon. Besides, the Court expressly stated that it wasn’t ruling on the merits of Wheaton’s claim. One should note that, later in her dissent, Justice Sotomayor says only that “Wheaton’s claim is likely to fail.” So perhaps her first statement was  just  a little careless. But one expects more in a Supreme Court opinion.
  • Unfair Criticism: Justice Sotomayor sharply criticizes the Court for going back on its word earlier this week in Hobby Lobby. In Hobby Lobby, the Court indicated that the accommodation is a less restrictive means of promoting the government’s interest in women’s health than the mandate itself. If the accommodation is an acceptable alternative in Hobby Lobby, she asks, why not in this case? This criticism is unfair. The Hobby Lobby Court didn’t say the accommodation is the least restrictive means of promoting the government’s interest, only that it is a less restrictive means than the mandate itself. True, the Court’s language in Hobby Lobby was a little opaque. But it’s wrong to suggest the Court is being sneaky or indecisive.
  • Pot and Kettle: You’d hardly know it from reading Justice Sotomayor’s opinion, but last January she herself joined the Court in granting a similar injunction to another religious nonprofit challenging the mandate, the Little Sisters of the Poor. In a footnote in yesterday’s opinion, Justice Sotomayor tries to distinguish the January case, but not very convincingly. The Little Sisters’ third-party administrator wasn’t going to cover contraceptives anyway, she writes, so, unlike Wheaton’s employees, the Little Sisters’ employees had nothing to lose. But does anyone think Wheaton’s employees will lose contraceptive coverage during the course of this litigation? Both Wheaton’s third-party administrator and the government are aware of the situation and will undoubtedly make such coverage available.

As I say, Justice Sotomayor could simply have discussed the high standard for a temporary injunction and left it there; that would have made for a much stronger opinion. As it is, her dissent suggests a level of frustration that the Court’s ruling yesterday really doesn’t merit. Perhaps Justice Sotomayor knows something she’s not saying about how the Justices will likely decide the next challenge to the mandate that reaches them.

Liberty Fund Comments on Hobby Lobby

I have a comment on the Hobby Lobby case over at the Liberty Fund’s blog in which I offer some speculations about the case (I do not know that they are “deeper meaning” speculations; they’re just some thoughts). There you will also see other good comments on the case by former CLR Forum guest Steve Smith, John McGinnis, Peter Lawler (with whom I strongly agree about judicial minimalism), and Hadley Arkes.

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

Reflections on the Hobby Lobby Oral Argument: On the Establishment Clause Claim

It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 (“Now what–what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”).

On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:

Justice Alito: Well is it your argument that providing the accommodation that’s requested here would violate the Establishment Clause

General Verrilli: It’s not our argument that it would violate the Establishment Clause. But it is our argument that you–in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.

43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That’s the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: “[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties.” 44

Of course, that the government disavows a claim does not mean that the Court can’t go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he “would suggest that we think about the position and the rights of the–of the employees[.]” Justice Kennedy then remarked that “the employees are in a position where the government, through its healthcare plans is…allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious–religious beliefs of the employer. Does the religious beliefs just trump?” 33

After a response from Mr. Clement, here’s what Justice Ginsburg said:

But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn’t override other significant interests. And that was true of Sherbert and that was true of Yoder. The–and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.

34. Later in the discussion, Justice Kagan referred specifically to the “tangible harm[]” that women will suffer who don’t get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.

Why Not Repeal RFRA?

The media coverage of the now-vetoed Arizona bill amending the existing Arizona RFRA has been abominable. The claim that the bill would have permitted private businesses to refuse to serve gay people is simply untrue; the bill did not say that. The bill was short–just two pages long. Anybody could have read it quickly to see what it provided: expansion of state RFRA coverage for businesses and an amendment that private actions are now covered (as in, what the government cannot do directly, it cannot do indirectly by giving private parties a cause of action). The bill would have done nothing to change the basic burden-shifting framework of the Arizona RFRA–the same framework used by the federal RFRA–in which a judge is charged to determine whether there is a substantial burden counterbalanced by a compelling government interest achieved by the least restrictive means.

Perhaps that is the point, though. Anger against this bill is entirely misdirected. If one truly believes that laws which provide for the possibility of religious exemptions against generally applicable laws are anathema, the obvious course is to repeal the state and federal RFRAs themselves. Several prominent law and religion scholars have been advocating vigorously for just that result for some time. It appears that public sentiment is turning in their direction.

Reinsch on RFRA and the Establishment Clause

Richard Reinsch has a post at the Liberty Fund’s Liberty Law blog discussing the claim (made here by a number of church-state scholars) that RFRA exemptions that impose significant burdens on an identifiable class of third parties violate the Establishment Clause. Richard agrees with me that the argument is not persuasive. A bit from his post involving the baseline from which one argues about what constitutes an entitlement, and therefore an establishment:

So if a religious liberty exemption requires cost-shifting in the manner of employees having to purchase—let’s be clear for Hobby Lobby and Conestoga Wood, the objection is to emergency contraceptives like Plan B, Ella, and also IUDs, and not the pill—their own emergency contraceptives, then we have an impermissible establishment of religion. As Eugene Volokh has argued, were the exemption to be granted the employees of Hobby Lobby or Conestoga Wood would return to the status quo before the mandate came down and one that many employees of companies exempt from Obamacare for various reasons will stay in. That is, if they want emergency contraceptives, well, then, they’ll pay for them with their salaries.

If you read only one amicus brief in the Hobby Lobby case…

Read this brief authored by Douglas Laycock on behalf of the Christian Legal Society and several other groups. Professor Laycock was right in the center of the legislative debates over the meaning of RFRA in the 1990s. In exploring the meaning of RFRA and its application, the brief describes those debates in very helpful detail, and it also discusses the legislative history of the Religious Liberty Protection Act, a statute that was in the offing (but ultimately was never passed, though portions of it made their way into the Religious Land Use and Institutionalized Persons Act, and portions were used to strengthen RFRA) after the Supreme Court struck down RFRA as applied against the states as in excess of Congress’s enforcement powers under section 5 of the 14th Amendment. Laycock demonstrates that Congress clearly intended RFRA (as well as RLPA) to apply to for-profit corporations, and reflected that intention in the words of the statute. There were many special interests that desired exemptions from RFRA. Those exemptions were rejected.

The Hobby Lobby and Conestoga Wood cases are, at bottom and after the swirling political fog is blown away, about the meaning of a statute. Professor Laycock’s brief is an important contribution in ascertaining that meaning. Here is the summary of the argument:

The Religious Freedom Restoration Act provides universal coverage. It applies to “all” federal law and to “all” cases where the free exercise of religion is substantially burdened.

The legislative history confirms the universality of the statutory text. The sponsors resisted all efforts to add exceptions to coverage. A definition in an early version of the bill, limiting coverage to “natural persons” and religious organizations, was eliminated in all later drafts.

After this Court invalidated RFRA as applied to the states, Congress sought to re-enact RFRA’s standard, in substantively identical language, for application to cases that could be reached under the Commerce and Spending Clauses. The debates on this bill, the Religious Liberty Protection Act (RLPA), reveal the public meaning of the nearly identical language in RFRA. The RLPA debate is highly probative because it was a serious fight on a live issue. It was not in any sense an attempt to make post enactment legislative history about RFRA, but it clearly demonstrates the public meaning of RFRA’s language.

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Constitutional Scholars’ Brief in Hobby Lobby

I was pleased to join this amicus brief filed by several constitutional law scholars in the Hobby Lobby/Conestoga Wood litigation (thanks to Nathan Chapman for taking up the pen). The brief argues against the view that the Establishment Clause prohibits an accommodation of the religious claimants. My own views on the matter, reflected in various portions of the brief, are also contained here and here. A post by Kevin Walsh raising an important problem is here. Opposing views may be found here, here, and here. Here is the Introduction and the Summary of the Argument of the amicus brief:

This brief argues that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (RFRA), properly applied, complies with the Establishment Clause. The brief responds to the recent proposal by several scholars that the Establishment Clause prohibits the government from accommodating “substantial burdens” on religious exercise, as RFRA does, when the accommodation imposes “significant burdens on third parties who do not believe or participate in the accommodated practice.”2 This brief does not address the issues directly before the Court, i.e., whether RFRA protects for-profit corporations like Hobby Lobby and Conestoga Woods, and whether either of those parties has a valid RFRA claim.3

The scholars’ proposed doctrine is contradicted by precedent, would needlessly require courts to analyze three speculative Religion Clause questions in most religious accommodation cases, and would threaten thousands of statutes that protect religious minorities.

First, precedent strongly supports the constitutionality of statutory religious accommodations, like RFRA, that allow courts to weigh the government’s “compelling” interests against claimant’s interests in religious exercise.

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American Freedom and Catholic Power

It was only a matter of time before this sort of thing was bound to appear, though perhaps it is somewhat disappointing to see it in the pages of US News and World Report. The specific claim seems to be that by granting an emergency stay in the Little Sisters of the Poor case, Justice Sotomayor is waging a “war on women” because she is imposing her Catholic views on the rest of the nation in violation of the law. But that claim is buried within lots of other mud, and I’m afraid I can’t do justice to it without letting much of the rest hatch out:

The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing….

Sotomayor’s blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if “you” are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor’s stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

Catholics in high places of power have the most trouble, I’ve noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can’t know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women’s rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.

Now, as it happens, I am Catholic. And, as it also happens, on the legal merits, I am persuaded that the statutory argument in favor of the Little Sisters of the Poor as to the issue of accommodation of non-exempted nonprofits is strong–stronger than the arguments the government advances. I also believe that a strong free exercise clause claim can be made in light of the individualized exemptions that have been meted out, though to date this argument is generally not being made. These are all legal claims, and so to the extent that any judge agrees with these claims, it would seem to me that they are putting the law first in ruling as they do. Others disagree with my legal views, and they, too, are putting the law first. They are acting and speaking appropriately about their views of the law–in good faith and by their best lights. I think it is a terrible error to believe that anytime a person disagrees with one’s legal views, the reason must be that they are acting in bad faith.

I will say that outside of the legal fight, and as to larger political questions, I do not see why exempting the members of “a nunnery” (as the author so tenderly puts it) from the compulsion to be provided with free access to contraception would constitute a Catholic war on women. I am informed that the members of the Little Sisters of the Poor are women. They seem not to want these products. I don’t believe anybody is waging a war on anybody else; it degrades the horror of war to speak in these terms. And yet, if anyone is conducting a hostile campaign against women, it is those seeking to compel these women to do what they don’t want to do.

Furthermore, if the author were even marginally more serious about providing evidence for her claims, she might have investigated how many of the other judges who have granted injunctions in these cases–18 other such courts, by my current count, and more judges than that–are Catholic. If they are all Catholic, is it also her view that they are all imposing Catholicism on the nation in violation of the law? If they are not all Catholic, what explains their legal findings? Are they all imposing their non-Catholic religious views notwithstanding the law? What if some of the judges who granted injunctions have no religious affiliation? Are they also imposing their non-religious views in finding for the Little Sisters? Or is it only when a judge is Catholic that it can be assumed that she is imposing her views? And what about the judges who denied injunctions? Are any of them Catholic? If they are not, are they imposing their views on the rest of us too? If they are Catholic, I suppose one could claim that they are the good sort of Catholic—Catholics like Nancy Pelosi, as the author puts it–judges who don’t impose their views at all. Still, it would be useful to have this information in order to assess the cogency of the claims.

I recognize that for people who write columns like this one, arguments of this sort are not likely to be persuasive. Indeed, once Ms. Stiehm identifies the source (me), she will surely dismiss out of hand anything that follows without bothering to read it. That is regrettable, but it follows directly from the reality that Ms. Stiehm is not really interested in law or argument at all. She’s interested in rhetoric; unfortunately the rhetoric that interests her is sloppy and misinformed.

Here is a different uncomfortable reality that columns like this should compel us to face. The long history of American hatred of Catholics is alive, and well, and flourishing. It is kept in fine and proud form by people like this, and given space to breathe in all kinds of prominent venues. It will intensify in the months and years ahead. Dark times are coming.