Balkinization: February 2014

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
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 yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Bottlenecks symposium at Concurring Opinions this week

What is equal opportunity?

Hobby Lobby Part IX: There is no "employer mandate," redux: The plaintiffs' arguments about the option of not offering an employee health insurance plan

Can Corporations Exercise Religion?: A Response to Douglas Laycock

Online Symposium on "We, The People" III

We the People: The Civil Rights Revolution

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

Hobby Lobby Part VII: Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb"

A Thought for President's Day

Hobby Lobby Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Federalism as a Way Station in Windsor

Bottlenecks: A New Theory of Equal Opportunity

The re-emergence of an important political convention and why it matters

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Wednesday, February 26, 2014

Bottlenecks symposium at Concurring Opinions this week

Joseph Fishkin

For those who are interested, the blog Concurring Opinions is hosting a symposium this week about Bottlenecks: A New Theory of Equal Opportunity.

The first couple of posts are up now. More are on the way from a great group of participants: Sam Bagenstos, Liz Emens, Wendy Greene, Jessica Roberts, Brishen Rogers, Lea Shaver, Zofia Stemplowska, and David Strauss (and I'll write in also).

Posted 10:48 PM by Joseph Fishkin [link]

Monday, February 24, 2014

What is equal opportunity?

Joseph Fishkin

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.

Read more »

Posted 2:42 AM by Joseph Fishkin [link]

Friday, February 21, 2014

Hobby Lobby Part IX: There is no "employer mandate," redux: The plaintiffs' arguments about the option of not offering an employee health insurance plan

Marty Lederman

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 themselves of 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.")

There are several problems with this.

Posted 9:26 AM by Marty Lederman [link]

Thursday, February 20, 2014

Can Corporations Exercise Religion?: A Response to Douglas Laycock

David Gans

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 statute, “‘[e]xercise 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 RFRA.

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.

Posted 4:53 PM by David Gans [link]

Online Symposium on "We, The People" III

Gerard N. Magliocca

We will be holding a Symposium on Professor Ackerman's new book in April. Participants include:

David Fontana
David Garrow
Jamal Greene
Florence Roisman
Richard Primus
John McGinnis
and some of the Balkinization regulars.

Posted 9:09 AM by Gerard N. Magliocca [link]

Wednesday, February 19, 2014

We the People: The Civil Rights Revolution

Bruce Ackerman

We the People: The Civil Rights Revolution is coming out next week, and the Yale Law Journal will be celebrating its publication with a two-day Symposium on The Meaning of the Civil Rights Revolution.

Here's the line-up:

Friday, February 28:

1:10-1:30: Introduction by Dean Robert Post

1:30 – 3:50 Constitutional Change and the Role of Courts (chaired by Jack Balkin)

Randy Barnett, We the People: Each and Every One

Justin Driver, Reactionary Rhetoric, Judicial Skepticism, and Liberal Legal Academia

Sanford Levinson, Popular Sovereignty and the United States Constitution: Tensions in the Ackermanian Program

David Strauss, The Neo-Hamiltonian Temptation

4:00 – 6:00 Constitutional Change and the Role of Social Movements (chaired by Owen Fiss)

Tomiko Brown-Nagin, The Civil Rights Canon: From Above and Below

Lani Guinier & Gerald Torres, Changing the Wind: Notes Toward a Demosprudence of Law and Social Movements

David Super, Protecting Civil Rights in the Shadows

6:00 – 6:30 Comments by Bruce Ackerman

Saturday, March 1:

9:30 – 11:30 Spheres and Strategies for Civil Rights (chaired by Reva Siegel)

Samuel Bagenstos, Universalism and Civil Rights

Cary Franklin, Separate Spheres

Rogers Smith, Ackerman’s Civil Rights Revolution and Modern American Racial Politics

12:15 – 2:15 The Anti-Humiliation Principle and the Legacy of Brown (chaired by Akhil Amar)

Deborah Hellman, Equal Protection in the Key of Respect

Randall Kennedy, Ackerman’s Brown

Kenji Yoshino, The Anti-Humiliation Principle and Same-Sex Marriage

2:30 – 4:30 The Civil Rights Revolution in Employment (chaired by Christine Jolls)

Richard Thompson Ford, Rethinking Rights After the Second Reconstruction

Sophia Lee, A Revolution at War with Itself? Preserving Employment Preferences from Weber to Ricci

John Skrentny, Have We Moved Beyond the Civil Rights Revolution?

4:30 – 5:00 Closing Remarks by Bruce Ackerman

Posted 6:26 PM by Bruce Ackerman [link]

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

Marty Lederman

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 7:52 AM by Marty Lederman [link]

Monday, February 17, 2014

Hobby Lobby Part VII: Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb"

Marty Lederman

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 demise of 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 control are at stake in the Conestoga Wood case—even by the plaintiffs’ own lights. Perhaps it’s the four methods identified by Hobby Lobby . . . or fewer; or perhaps even more: For example, although the FDA website doesn’t mention 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 I -- Framing the issues

Hobby Lobby Part II -- What's it all about? (contraception? abortifacients? other religious objections?)

Hobby Lobby Part III -- There is no "employer mandate"

Hobby Lobby Part III-A -- Does federal law substantially pressure employers to offer health insurance coverage in violation of religious obligations, even though there is no “Employer Mandate”?

Hobby Lobby Part III-B -- Is it necessary that the government-imposed pressure to violate a religious obligation be substantial?

Hobby Lobby Part IV -- The myth of underinclusiveness

Hobby Lobby Part V -- Whose Religious Exercise? Of corporations, for-profit employers, and individual plaintiffs acting in their various corporate capacities

Hobby Lobby Part VI -- The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Hobby Lobby Part VII -- Hobby Lobby's arguments on compelling interest and the alleged exemption "honeycomb"

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

* * * *

Not Quite Hobby Lobby: The Nonprofit Cases (including Little Sisters and Notre Dame), and Opting Out as Complicity [with UPDATE on Little Sisters "church plan" situation]

Government brief in Little Sisters

Little Sisters State of Play

Not With a Bang . . . (The Supreme Court wisely preserves the status quo in Little Sisters)

Posted 3:34 PM by Marty Lederman [link]

A Thought for President's Day

Bruce Ackerman

As part of its coverage of President’s Day, the NPR affiliate in San Francisco has broadcast an interview with me on the uses and abuses of presidential power. It’s an hour long, so a bit much for most tastes, but some may find it worthwhile: http://kalw.org/post/today-your-call-how-president-using-his-executive-power.

Posted 2:42 PM by Bruce Ackerman [link]

Sunday, February 16, 2014

Hobby Lobby Part VI: The parties' common ground . . . and a fundamental divide about religious exemptions for for-profit employers

Marty Lederman

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-profit individual employer (as were the free exercise claims in Braunfeld and 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-profit employers 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 died 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 8:38 AM by Marty Lederman [link]

Saturday, February 15, 2014

Federalism as a Way Station in Windsor

Neil Siegel

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.

Posted 4:49 PM by Neil Siegel [link]

Bottlenecks: A New Theory of Equal Opportunity

Joseph Fishkin

Updated Links to Posts about Bottlenecks (here and elsewhere):

Introductory post: What is equal opportunity? (Feb. 24, 2014)

- - -

A review of the book by Hebrew University philosopher Avner De Shalit in the Journal of Social Policy can be found here (October 22, 2014).

A brief online review of the book in Notre Dame Philosophical Reviews by the feminist philosopher Ann Cudd can be found here (June 25, 2014).

There's an interview with me in the UT Law alumni magazine about the book here (April 24, 2014).

UT held a bookfest about the book—a discussion with Cindy Estlund, Lani Guinier, and Gerald Torres, with comments from me, on April 25, 2014. You can watch this event on video -- click this link if the player below does not play:

The Brookings Institution publishes a very interesting blog called "Social Mobility Memos," which spent about two and a half weeks running a 12-part series of posts about the book, with responses from a number of very smart and interesting policy folks:

An introductory post by me about how bottlenecks are a better way to think about equal opportunity (April 28, 2014) & a response from Yuval Levin of National Affairs (April 29, 2014)
A follow-up post by me (April 30, 2014), two responses from Bill Galston of Brookings (May 1 & 2, 2014), and my reply to Galston (May 5, 2014)
Richard Reeves & Quentin Karpilow have a post about early child development as a bottleneck (May 6, 2014), with a response from Isabel Sawhill of Brookings (May 7, 2014),
a post about college as a bottleneck (May 8, 2014), with a response from Andrew Kelly of AEI (May 9, 2014)
and finally, a post about money as a bottleneck (May 13, 2014), with a response from Miles Corak (May 14, 2014).

The blog Concurring Opinions ran an online symposium about the book in spring 2014 with posts by:

Brishen Rogers, on class and distributive justice (Feb. 24, 2014) and on unions as bottlenecks (March 1, 2014)
Lea Shaver, on the wide range of applications of the argument (Feb. 24, 2014), on legal education (Feb. 28, 2014), and on copyright (March 11, 2014)
Jessica Roberts, on health as a bottleneck (Feb. 28, 2014),
Wendy Greene, on identity performance as a bottleneck (March 10, 2014)
Liz Emens, whose Notes from Abbrevia raise a number of interesting questions about Bottlenecks (April 5, 2014)
and I wrote a response to some of the earlier posts in the series (March 6, 2014)

Original Post:

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.

Posted 4:00 PM by Joseph Fishkin [link]

Friday, February 14, 2014

The re-emergence of an important political convention and why it matters

Guest Blogger

Miguel Schor

Our written 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.

The British 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.

The story of the debt ceiling illustrates the importance of 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.

The 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 miguel.schor@drake.edu

Posted 8:19 AM by Guest Blogger [link]

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