Author Page for Scott Lemieux
Alito’s majority opinion in Hobby Lobby tried to sell it is a narrow one, leading to some predictable contrarianism. Alas, this narrative couldn’t even survive the week. Lithwick and West are great on the Wheaton College order:
The dissenters take issue with several aspects of the majority’s act. First is the professed scope of the Hobby Lobby decision. Try to remember all the way back to Monday, when, writing for the majority, Justice Alito folded up the decision into something he characterized as nearly trivial. Look, it practically fits into his pocket! The decision only applied to family-owned, closely-held corporations, he assured us. The ruling was not going to unsettle a thing. “Our decision in these cases is concerned solely with the contraceptive mandate,” he soothed. Nothing about the holding would undermine an employer’s responsibility to provide vaccines to his employees, or to abide by existing employment and antidiscrimination laws. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” he wrote. But nowhere in his opinion did Alito tell us how or why there would be no such fallout. It was an assertion; or, in light of what happened next, a nice little act of judicial three-card monte.
Justice Anthony Kennedy, in his own concurrence to Hobby Lobby, cautioned us not to read too much into the precedent that he had just helped set, insisting that the majority opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” But Justice Ruth Bader Ginsburg, as she is so often reminded, was not born yesterday. In her Hobby Lobby dissent, she disputed the narrowness of the rule and charged that the court had just waded into a “minefield.” She was right.
In the hours after the Hobby Lobby ruling came down, the court was already kicking a host of cases back to various lower courts for reconsideration in light of the new rule. Three courts of appeals were told to revisit decisions, including at least one that involved an employer with religious objections to all 20 contraception methods guaranteed under the ACA, and not just the four ruled out in Hobby Lobby. Another is the appeal from an employer whose claims about burdens on his religious liberty started out as religious, but became a libertarian screed. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Michael Potter, the head of Eden Foods confessed to MSNBC’s Irin Carmon last fall. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” That “religious” objection will now be taken seriously in the courts, bearing in mind, as Justice Alito cautioned, that “[i]t is not for us to say that their religious beliefs are mistaken or insubstantial.” These nearly instantaneous acts by the court quickly made the narrow little Hobby Lobby ruling seem like much, much more. (Meanwhile, at Guantánamo Bay, real-live detainees are now petitioning the court for the same personhood status as Hobby Lobby so that they too may exercise religious freedom.)
A couple additional points. First, I’m just amazed that anyone could have been fooled by Alito’s fauxminimalism at this late date. This strategy has been evident since before Alito joined the Supreme Court. We’ve seen it with church and state issues. We seen it with reproductive rights (Carhart II didn’t overrule Carhart I even though the judgments were reversed and the statutes essentially identical) and campaign finance. And, of course, we saw a faux-nanimous opinion on the Voting Rights Act cited four years later to assert a specious consensus in favor of reading Roger Taney’s theory of equal state sovereignty into the Constitution. How many times does Lucy have to take away the football before you get skeptical about this? I could (and have!) go on about this.
On a related point, I disagree with the argument that some experts have made about the Ginsburg dissent:
Ginsburg’s opinion, some legal experts say, may turn out to be a self-fulfilling prophecy. By stating that the opinion is much broader than the majority claims it to be, she may be providing lower-court judges with a stronger foundation to provide more religious exemptions in the future.
“If the dissenters had simply taken Kennedy at his word in his concurrence, and simply agreed it was narrow, the lower court judges would have had to work very hard to say this applies broadly,” said Eric Segall, a professor at Georgia State University College of Law. “Now they can just cite Ginsburg, and say she thought it applied broadly.”
If that sounds far fetched, consider that this kind of thing has not only happened before, it has happened recently. Last year, when the Supreme Court struck down part of the Defense of Marriage Act in U.S. v Windsor, Chief Justice John Roberts wrote that Kennedy’s majority opinion should not be construed as saying state laws barring same-sex marriage are unconstitutional. In another, much angrier dissent, Justice Antonin Scalia wrote that it pretty much did just that. “The majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.
I just don’t buy the causal argument here. Alito’s opinion gave lower court judges an essentially vacuous balancing test they could use to advance their goals if they choose. They weren’t going to refuse to use it had Ginsburg not pointed it out. And I would say the same thing about Windsor; I don’t think Scalia’s dissent is what’s causing appellate court judges to strike down same-sex marriage bans. it appears to be having that effect only because Scalia’s point was right. Ginsburg had nothing to use by explaining the majority’s disingenuousness as far as I can tell.
The Affordable Care Act, as supplemented by regulations, requires for-profit employers to provide health-care coverage that includes all 20 Food and Drug Administration-approved birth control methods.
These include four that prevent a fertilized egg from being implanted in the uterus. Some persons consider this tantamount to abortion and oppose these abortifacients for religious reasons. Why did Congress, having enacted RFRA, write this clearly [sic] incompatible birth control mandate? Congress didn’t.
In the ACA, Congress simply required health plans to provide “preventive care” for women. An executive branch agency decided this meant the full menu of 20 technologies. So, during oral argument in March, Justice Anthony M. Kennedy asked: “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?”
The answer is: The constitutional structure we have is the kind progressives prefer, wherein more and more decisions are made by unelected and unaccountable executive-branch “experts” exercising vast discretion. In this instance, the experts were, to say no more, willing to provoke a predictable controversy that would be convenient for the Democratic Party’s “war on women” trope. Today, this war consists of subsidizing only 16 of 20 birth control methods. The court has held that some “closely held” businesses — often family-owned and adhering to religious practices — have a right under RFRA to wage this war.
Let’s first look at the idea that there’s something illegitimate about the contraceptive requirement because it was announced through an executive branch regulation. This is, needless to say, absurd. There are cases in which executive agencies issue regulations whose connection to authorizing legislation is tenuous. This not one of them. Congress authorized the Department of Health to develop a list of what insurance has to cover for the purposes of “preventative care,” and…this is exactly what it did. (Note that Will doesn’t actually try to argue that contraceptives aren’t preventative care; he’s not even willing to explicitly endorse the scientifically erroneous assertion that some forms of birth control are “abortifacients.”) Congress has good reason to delegate, since medical knowledge is not static, and what is necessary to provide adequate preventative care coverage will change over time, and the discretion given to officials in this case was hardly “vast.” To argue that the contraceptive mandate wasn’t really authorized by Congress because it was implemented through a regulation issued under the specific authorization of Congress is silly.
Will’s justification for this war on the basic modern regulatory state is also amusing. It’s unclear how the executive branch officials who issued the regulations are “unaccountable.” They are directly accountable to the public official with the best claim to a national electoral constituency, and are also indirectly accountable to Congress, which was always welcome to exclude contraceptives from “preventive care” should majorities be persuaded by the views Will pretends to take seriously. Certainly, they rank higher on an “accountability” scale than the 5 justices who gave a strained reading of RFRA to uphold a weak religious freedom claim, so Will’s argument collapses on itself. And speaking of “vast discretion”, may I present you with Justice Alito’s balancing test with “substantial” safely written out of the statute, suitable to reach any policy outcome you desire in future cases.
Added to this nondelegation nonsense is the dominant strategy of defenders of the opinion: minimization that is not justified by the text of the opinion itself. The “16 out of 20″ talking point is a non-sequtiur, because employers who want the insurance they get a tax break to provide to cover 0 out of 20 get exactly the same exemption. The bulk of Will’s defense, in other words, consists of bullshitting his readers, who he hopes won’t know that Hobby Lobby wasn’t the only litigant here and that Supreme Court opinions apply in future cases. And nor is anything about the logic of the opinion limited to contraception; who knows what exemptions the whims of future conservative judges will enable employers to claim. The fact that defenders of the Court’s judgment, up to an including Alito himself, are disingenuously trying to claim that the opinion is narrower than it is speaks for itself.
I suspect my position that Oregon v. Smith was correctly decided and RFRA was a mistake will have a lot more takers than it did two years ago.
Lest people think I’ve become a Green Lanternite, I should say that the headline notwithstanding I don’t think Clinton should be the major figure of blame here. No president is going to veto a bill favored by virtually his entire party’s congressional caucus and most of the relevant prominent liberal groups. (And that goes double for a case where the veto would accomplish nothing in policy terms and the politics would be “Democrat Party President hates religious freedom.”) The problem was that the combination of a sympathetic litigant rejected by a Scalia opinion caused most liberals to not think clearly about what the legislation would accomplish.
Henrik Hertzberg reports on the latest Texas Republican Party Platform. It includes risible attempts to frame bully window the Overton pulpit:
We strongly support a woman’s right to choose to devote her life to her family and children.
And if they don’t choose that, we’ll do everything we can to choose it for them! Some of the things that Texas Republican Party wishes to eliminate:
- The Voting Rights Act
- Personal-income taxes
- Property taxes
- Estate taxes
- Capital-gains taxes
- Franchise and business-income taxes
- The gift tax
- Minimum-wage laws
- Social Security (“We support an immediate and orderly transition to a system of private pensions”)
- The Environmental Protection Agency
- The Department of Education and all its functions
- “Unelected bureaucrats”
- Supreme Court jurisdiction in cases involving abortion, religious freedom, and the Bill of Rights. [I'm guessing that #2 will be eliminated from the next edition...]
- The Federal Reserve
- “Foreign aid, except in cases of national defense or catastrophic disasters, with Congressional approval”
- Obamacare (but you knew that already)
And of particular relevance given the Hobby Lobby ruling:
All adult citizens should have the legal right to conscientiously choose which vaccines are administered to themselves, or their minor children, without penalty for refusing a vaccine. We oppose any effort by any authority to mandate such vaccines.
Whether employers will be permitted under judicial interpretations of RFRA to exclude immunizations from coverage will depend on whether immunization becomes a Republican culture war obsession like contraception. This is not a good sign.
And there is plenty more crackpottery where this came from; indeed, pretty much every plank should properly be followed by “P.S.: WE ARE NOT CRANKS.” If Rick Perry runs again he’s going to have even more gibberish to forget during debates.
Anybody know who has the second best run differential in MLB right now?
That’s right, your Seattle Mariners:
To dramatize the geographic power shift in the American League, the three top teams in baseball are all in the AL West. I don’t think the Mariners are actually the second best team in baseball or anything, but with better-than-even odds of making the playoffs I’d say that as of now Keri’s analysis of the Cano signing is looking better than mine.
I should elaborate a bit on why I agreed with Jonah conceptually although I disagreed with him about the specifics. I do agree that there’s a certain Stockholm Syndrome among some analytically inclined fans, who look at things from the perspective of the interests of the owners rather than the interests of the team. There are exceptions; if you’re a fan of the As or the Rays, the revenue potential of even an excellent team is so relatively limited that you have to worry about the $/WAR ratio. But, otherwise, winning is the point, not maximizing efficiency. What’s relevant is not whether someone is “overpaid” but the opportunity cost. As a Phillies fan, you should have hated the Ryan Howard signing, not because it cut into the owners’ profits but because it practically saddled you with an unproductive player for years (and not just in the back end after years of elite performance either.) But if a guy can play, and signing him doesn’t make it impossible for you to sign someone else because baseball doesn’t have a salary cap, that’s a different issue. There’s some opportunity cost risk associated with Cano on the back end, but (especially with increasing revenues likely to produce salary inflation) if he delivers several years of elite level performance, you can live with that, as long as the team is competitive during the period when the player still has a elite value. To my surprise, the Mariners in year 1 are competitive.
The other relevant question is whether this is just a complete fluke. But — and I can’t really understand this — but I don’t see it. Zunino is playing right in line with his ZIPS projection. Both Smoak and the new jobholder Morrison have been slightly better than replacement level. Cano has actually been below projection — although he’s still been essentially as good as any 2B in baseball except Kinsler and Altuve. (Which is exactly why rare elite free agents are a better gamble — they have value in an off year that mid-level free agents don’t.) Miller’s in line with expectations. Seager is having a good year, outperforming his ZIPS, but at 26 I wouldn’t assume his first half performance is unsustainable. The OF and DH slots looked like a train wreck before the year…have has been exactly that. King Felix has perhaps even been better than expectations, although not dramatically so, but if anything the rest of the rotation has underachieved; if Paxton cam come back before the end of the month there could be some improvement. The bullpen looked solid-not-great and has been exactly that. I don’t see any reason why the Mariners shouldn’t be similarly competitive in the second half. Indeed, the black holes in the OF represent the potential for improvement if the organization is serious, which is another way of testing whether the Cano signing make sense. There’s no point in springing a big salary for major talent if you’re not going to try to find some real outfielders once you have a real threat to make the playoffs.
At any rate, as long as the current condition of major league baseball — i.e. very high levels of competitive balance and elite free agents, especially at up-the-middle defensive positions, rarely hitting the FA market in their primes — persists, signing those elite free agents may well be a better strategy than is commonly assumed. There’s not a lot separating below- and above-average teams right now, and in that context a 5 or 6 WAR player (let alone higher) has a very significant impact.
Many smart people are, for obvious reasons, making fun of the latest round of Young Reactionaries With Exciting New Ideas. (You will be thrilled to learn that their plans for poverty involve letting them eat states’ rights.) A commenter had an idea, which I later originated, of a link that would serve as an all-purpose description of this genre of articles:
With great fanfare Monday, Taco Bell unveiled the Grandito, an exciting new permutation of refried beans, ground beef, cheddar cheese, lettuce, and a corn tortilla. “You’ve never tasted Taco Bell’s five ingredients combined quite like this,” Taco Bell CEO Walter Berenyi said. “The revolutionary new Grandito, with its ground beef on top of the cheese but under the beans, is configured unlike anything you’ve ever eaten here at Taco Bell.” The fast-food chain made waves earlier this year with its introduction of the Zestito, in which the beans are on top of the lettuce, and the Mexiwrap, in which the tortilla is slightly more oblong.
The Supreme Court has granted an injunction to Wheaton College, which argued that even having to fill out a form to exempt itself from the contraceptive coverage requirement violates its RFRA rights. The dissent, by Sotomayor and joined by Ginsburg and Kagan, notes what should be obvious:
RFRA requires Wheaton to show that the accommodation process “substantially burden[s] [its] exercise of religion.” “Congress no doubt meant the modifier ‘substantially’ to carry weight…”
Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.
An analogy used by the Seventh Circuit may help to explain why Wheaton’s complicity theory cannot be legally sound:
“Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: ‘you know this means we’ll have to draft someone in place of you’—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to ‘trigger’ the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replacement?”
Here, similarly, the filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation. If a religious nonprofit chooses not to pay for contraceptive services, it is true that someone else may have a legal obligation to pay for them, just as someone may have to go to war in place of the conscientious objector. But the obligation to provide contraceptive services, like the obligation to serve in the Armed Forces, arises not from the filing of the form but from the underlying law and regulations.It may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees. But that is far from a substantial burden on its free exercise of religion.
The idea that what constitutes a “substantial burden” has to be determined by the party alleging the burden is absurd. Unfortunately, that seems to be the standard that Hobby Lobby established, and as a result the opinion is both very broad and will prove to be completely unworkable.
…I note as well that Kim Scheppele’s analysis of Bush v. Gore seems applicable to an increasingly wide array of conservative jurisprudence. “The Knights Who Say Ni” seem to be the Federalist Society’s most influential role models.
You will be highly unsurprised that Damon Linker has once again done his “liberalism, properly understood, compels agreeing with conservatives” routine:
The Supreme Court’s 5–4 decision in the Hobby Lobby case — giving certain corporations an exemption under the Religious Freedom Restoration Act to the Affordable Care Act’s contraception mandate — is a travesty, an outrage, a monumental setback for the rights and reproductive health of women.
At least that’s what many liberals are saying.
Which is unfortunate. Because liberals should be cheering the decision on.
Yes, liberals should uphold individual rights, but they should also uphold the freedom of private entities like churches and businesses to maintain their religiously based identities, even when part of that identity clashes with the rights of individuals.
But wait! Isn’t that contradictory?
Of course it is. Just like life itself.
As everyone except children and ideologues understand, goods sometimes conflict with one another. Liberalism’s greatest virtue and strength as a political philosophy is its effort to adjudicate those conflicts, to allow people on various sides of moral and theological clashes to reach peaceful settlements that, on the whole, maximize human freedom.
This mode of argument — “this case presents a clash between potentially legitimate interests, so in conclusion, I win” — is, to put it mildly, unsatisfying. So there’s a clash of interests — why should we favor the company’s position when the logic applies equally the other way? Since Linker doesn’t actually use any discernible criteria to reach his conclusion, I thought it would be useful to try to actually think through this problem. It seems to me that there are three major things liberals should be thinking about when presented with this kind of problem:
Would this alleviate or reinforce domination? Democratic values should seek to increase individual liberty by attenuating power relations, private as well as public. In this case (since state power is implicated either way) this would compel siding with the workers, not the employers who wish to deny them something they have a right to based on religious values they don’t share. Linker, conversely, seems to side with Alito’s illiberal “kiss up, kick down” assumption.
Who would bear the greatest burden of the accommodation? This is both possibly the most important question and where the case for Hobby Lobby really collapses. I agree that liberals should in some cases accommodate religious belief where doing so doesn’t burden third parties. If there are two people working in pharmacy and one opposes Plan B on religious grounds, having the employee who doesn’t object fill the prescription makes sense. If this creates a de minimis burden on a third party — say, waiting an extra five minutes — that’s fine. If this means a substantial burden for the customer — say, waiting until tomorrow — then the employee should fulfill the prescription irrespective of her religious conscience.
In the case of the contraceptive requirement, the burden on third parties is clear, direct, and material. Employees will be denied a something they worked for and are entitled to under federal law without being compensated for the denial. The burden on employers, conversely, is so abstract and attenuated it’s hard to even explain what it is. The Greens are not required to use contraception or advocate the use of contraception. They are not making the decision about what insurance should cover, and they are not making any employee’s decision to use contraceptives (which, as Ginsburg’s dissent observed, is an autonomous choice of a woman and her doctor.)
When a clash of interests presents a substantial burden against a trivial one, it seems obvious that all things being equal the claims of the former should prevail. Combining points 1 and 2, Linker’s resolution of the problem produces a net diminution of religious freedom, rather strongly suggesting that he’s reached the wrong answer.
Is the Standard Workable? This this involves legal decisions that will apply to future cases, we also have to ask whether the standard created will lead to perverse consequences going forward. Alito’s Bush v. Gore-style attempt to make Hobby Lobby good for this day and train only notwithstanding, the decision logically gives employers who want to engage in various forms of discrimination a strong argument. Linker attempts to respond:
Which leads, inevitably, to another objection: Couldn’t racist business owners use the reasoning in the Hobby Lobby case to claim religious exemption from statutes that ban discrimination against African-Americans?
Answer: They can try, but they will fail.
Beyond the meticulous narrowness of Justice Samuel Alito’s majority opinion, there’s the fact that racism is much less deeply woven into the fabric of Judeo-Christian scripture, doctrine, and theology than are traditionalist teachings on sex and gender. For that reason it is far more difficult to craft a religiously grounded case for racial discrimination.
This distinction — between what is truly fundamental to a faith and what isn’t — is one that the courts absolutely cannot make. They might be able to inquire into whether a belief is sincere, and they can certainly inquire into whether a burden is substantial, but it would not merely be wrong but would also violate the Establishment Clause for judges to make inquiries into what “really” counts as a religious tenet and what doesn’t. I also note that the claim that opposition to contraceptives is “deeply woven” into the Greens’ Protestant faith is…highly questionable, a point Linker neatly elides by raising the question to the higher level of abstraction of “traditionalist teachings on sex and gender.” At any rate, if this is Linker’s limiting principle, the answer is that there is no limiting principle; the conflicts will be resolved by judges determining which litigants they take seriously and which they don’t.
There are cases where religious freedom might pose a difficult problem for liberalism. Hobby Lobby isn’t one of those; its claims plainly should have been rejected.
This has been a long-standing hobbyhorse of mine. But (much of the ludicrously incompetent journalism surrounding his nomination notwithstanding) if you’re a progressive between Alito and Scalia you’d much prefer the latter. Ian Millhiser brings more data:
What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives. Shortly after Hobby Lobby was handed down, ThinkProgress contacted several legal scholars and Supreme Court advocates asking if they could identify a single closely divided case where Alito broke with his fellow conservatives to join the liberals. Most replied that they could not think of any. One, Boston College Law Professor Kent Greenfield, added that “Scalia is a Roosevelt liberal in comparison” to Alito. Another, a progressive attorney who frequently practices in Alito’s Court, wrote back with just four words — “Nope. He’s the worst.”
Read the whole etc.