Hobby Lobby Post-Mortem Part 10: When Is There Complicity?

by Sherry F. Colb

In my Verdict column for this week, I discuss and analyze an underdeveloped dimension of the Supreme Court's ruling in Burwell v. Hobby Lobby.  The Court held in Hobby Lobby that the Religious Freedom Restoration Act ("RFRA") protects closely held corporations with religious objections to health insurance coverage requirements under regulations passed pursuant to the Patient Protection and Affordable Care Act ("ACA").  The requirements at issue in Hobby Lobby require employers that provide health insurance coverage to their employees to include within that package coverage for two kinds of intra-uterine device and two types of morning-after pill that the corporations consider religiously objectionable abortifacients.  

The Supreme Court accepts the respondents' claim that they believe that life begins at conception.  This claim, coupled with an acknowledgment from the U.S. Department of Health and Human Services ("HHS") that the challenged methods of contraception sometimes operate after fertilization has occurred, lead the Court to conclude that these contraception methods can operate as abortifacients.  

In my column, I suggest that whether a method of contraception is or is not an abortifacient is in part a matter of semantics (revolving around whether one defines "abortion" to presuppose embryonic implantation in the uterus), rather than being a purely factual or moral question, and in part a matter of whether refusing to admit an embryo into one's uterus is truly tantamount to killing the embryo, given the well-accepted distinction between "killing" and "letting die."  I argue that even if one believes that life begins at conception and that killing an embryo pre-implantation is murder, it does not necessarily follow that taking a drug that makes the uterus inhospitable to embryonic implantation qualifies as murder.

In this post, I want to return to a moral question that the Supreme Court does address in its analysis and apply it to a distinct issue that arose in a conversation with my daughter.  The moral question is whether paying for insurance coverage for a contraception method that one considers an abortifacient implicates the payor in the killing of zygotes or embryos that occurs when one's employee uses the coverage to purchase and utilize the particular contraceptive. The Supreme Court's view is that if a litigant asserts a sincere religious belief that paying for such coverage implicates the payor in the religiously impermissible killing, then the courts must -- under RFRA -- accept that the payor is indeed so implicated.  In response to this conclusion, some have argued that if the payor is implicated in this case, then it ought to follow logically that people who object to a government spending program  on religious grounds (such as spending for drone strikes) also have the right under RFRA to withhold a portion of her income taxes that will be used to finance the objectionable program.  The Court replied to this argument that taxes are different (and could not, as a practical matter, be subject to such exemptions), although it is not obvious to me and others that this distinction between health insurance coverage and taxes has any substance.

This set of arguments came to mind when my daughter asked me a question.  She told me that she had given money to a homeless person earlier in the day.  After doing so, however, she began wondering whether he might use that money to purchase an animal-based food, such as a salad made of chicken's eggs or a cheese made of slaughtered baby calves' mothers' milk.  If he did that, she asked, would she then be responsible for the violence consequently inflicted on animals?  I immediately thought of Hobby Lobby and told her about the respondents' claim in that case.

If we assume that (a) a human embryo is morally equivalent to a newborn baby and that (b) an IUD or morning-after pill operates sometimes by killing a human embryo, then it follows that using the IUD or morning after pill is sometimes tantamount to murder. But does providing insurance to the the user of the contraceptive method, thus enabling her to purchase and use the method, implicate the employer who provides the insurance in the murder? If so, is an ethical vegan who gives money to a homeless person who uses that money to contribute to violence against animals (by purchasing animal flesh and/or secretions) similarly implicated in violence against animals?

The question is a difficult one.  Plainly, the religious claimants in Hobby Lobby would prefer that no one use IUDs or morning after pills, because they would prefer that no one commit what they believe is the murder of innocent people, whether or not they are morally implicated in that murder.  Likewise, ethical vegans like my daughter who posed the question (and myself, my husband, my other daughter, and several million other people in the United States alone) are disturbed by anyone's consuming the flesh and secretions of animals, because we want animals to be free of such violence, regardless of whether or not we are individually implicated in it.  It is therefore fair to say, I think, that my daughter was hoping that the man to whom she gave money would buy something wholesome that did not contribute to violence against animals, and it is similarly fair to say that the religious claimants in Hobby Lobby hope that no one uses IUDs or the morning-after pill. 

The question of moral complicity can be complicated because if one is committed to refusing to participate in unjust behavior, one is probably also committed to doing what one can legally, ethically, and realistically do to prevent others from engaging in unjust behavior as well.  It is not enough for me, for example, to refuse to purchase the products of animal torture and slaughter (dairy, eggs, and flesh); I hope to educate others about how they can make different choices and thus end their own contribution to unspeakable suffering and death.  My focus is accordingly not always on whether another's action morally "implicates" me or whether I am instead going beyond my own personal obligation to refrain from violence by reaching out to another person in an effort to inspire non-violence toward animals in her as well.  This blurry line between avoiding one's own complicity in wrongdoing and encouraging others to avoid wrongdoing as well is important, because it could help explain why -- if complicity is the predicate for legally protected conscientious objection -- people morally opposed to an action would be motivated to broadly construe the scope of impermissible complicity.

In my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, I have a chapter called "Mind If Order the Cheeseburger?" in which I discuss the moral dilemma that can arise when a non-vegan dines with a vegan at a restaurant and the former asks the latter whether she "minds" if the non-vegan orders animal-based food.  Confronting this question is difficult for many vegans, because we do feel that saying "Sure, go ahead" makes us complicit in the choice, while saying "Yes, I mind" might seem rude to the non-vegan diner.  I suspect that the claimants in Hobby Lobby would feel similarly uncomfortable if asked "Do you mind if I use the morning-after pill?" and would probably either say "yes" or feel morally obligated to say yes, even if they ultimately kept quiet out of social inhibition (assuming that anyone would ever be in a position to pose this question in the first place).

People who subscribe to a set of moral beliefs, whether technically "religious" or not, then, have two arguably separate objectives:  to conform their own conduct to their values, and to help inspire and motivate others to do the same. Understood in this way, an employer who believes that using an IUD or the morning-after pill is morally equivalent to murder could understandably want to prevent his employees from using these birth control methods.  One way to do so would be to provide insurance coverage that excludes IUDs and the morning-after pill from coverage. Another way might be to require employees to commit in writing to never using their wages to purchase either of these forms of contraception.  But in an interconnected world, it is difficult to imagine a set of circumstances in which an employer could fully and effectively prevent money that was once his money from being used to engage in conduct that he regards as immoral.

Our interconnectedness has many benefits, of course.  But one of the downsides is that it may be impossible to completely escape all complicity in conduct that we regard as wrongful while simultaneously participating in the marketplace.  I suggested to my daughter that I do not think that she is responsible for the non-vegan purchases that the recipient of her money decides to make.  (The alternative would be a mandate to never give poor people money directly.).  It seems to me, however, that providing employees with insurance coverage that includes IUDs and the morning-after pill is at least as attenutated a way of "supporting" the use of these methods as is a donation to a pan-handler a way of supporting his consumption of animal products.  

Attenuation of complicity is inherently a spectrum rather than an on/off proposition, but it may be useful for those attempting to deny insurance coverage to their employees to remember that many of us are routinely confronted with activities that we consider wrongful and unjust and about which we can do nothing.  To the extent that the Supreme Court just gave a limited class of corporate owners the right under RFRA to refuse to face this reality, perhaps because of the (five male Catholics on the) Court's own sympathy for the "life begins at conception" idea, it is doing more than simply respecting the religious exercise of some.  As someone who is among those who strongly object to the use of animals in the making of medicines, as Justice Ginsburg (sort of) references in her dissenting opinion, I hope that the Court will not dismiss my concerns if I am ever similarly situated.  I suspect, however, that the Court will do exactly that, as it implies it might do here, when confronted with Justice Ginsburg's slippery slope argument:

[O]ur decision in these cases is concerned solely with the contraceptive mandate. 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. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Though I would not favor the further theocraticization of the workplace, I do find it curious how ready the Court is to distinguish religious objections that the Justices share from those that are foreign to them.  It seems that things are always "different" when your values are not the ones being violated.

Inequality Studies Across Academic Discipilnes: The Piketty Effect

-- Posted by Neil H. Buchanan

Jotwell: The Journal of Things We Like (Lots), a playfully named but serious publication, is one of the few successful online writing ventures that relies upon a wide range of authors.  Usually, large-scale unpaid ventures are overwhelmed by free-rider problems, but Jotwell has managed to thrive on a model in which each author submits one post per year.  Divided into nineteen sections, from Administrative Law to Work Law, the journal asks its authors to write 1000-word essays describing the best article or book in a given field that the Jotwell author has read in the past year.  I published Dorf on Law companion posts to my previous "jots" in 2013, 2012, 2011, and 2010.

Last year's jot summarized an article in a major economics journal, written by Peter Diamond and Emmanuel Saez, which summarized a body of work on income inequality that they had published with a frequent co-author, a young French economist named Thomas Piketty.  Piketty was so unknown to the outside world at that point that I did not even bother to mention him in my column.  I did mention him in my companion Dorf on Law post, but I managed to misspell his name.  (I am not alone in this type of error.  There is a law review article, co-authored by Professor Dorf, that acknowledges the research assistance of a young law student named Barrack Obama.)

As we all know, the ensuing year has seen Piketty emerge as the global "rock star economist" who wrote the book that everyone is discussing (without having actually read a single page), Capital in the Twenty-First Century.  With the English translation of his book hitting the top of the bestseller lists, and the initial flurry of red-baiting at least in remission, people are now starting to think seriously about the implications of Piketty's book.  On Jotwell, this led to an unplanned quasi-symposium, with four authors writing jots about the book from different perspectives.  In addition to my piece (Thomas Piketty's Book is Masterful and Important, But Ultimately a Sideshow), there is a piece on the Trusts & Estates sub-site by Kurt D. Schenkel (Trusts and Estates Law and the Question of Wealth Distribution), the Tax Law sub-site by Daniel N. Shaviro (The Return of Capital), and the Work Law sub-site by Michael J. Zimmer ((Re)Booting the Dismal Science).

The central argument of my piece, which I previewed in a Verdict column and DoL post last month, is that Piketty's book is among the least persuasive arguments out there, when it comes to arguing in favor of income and wealth distribution.  In his book, Piketty says that capitalism is arithmetically hard-wired to create ever more inequality, unless we intervene actively and repeatedly to break up concentrations of wealth.  This is true, but in my jot, I essentially say that that particular argument really should be a big snore, given that there are so many other, more immediate and more compelling reasons to worry about poverty and inequality.  I still believe that to be the case, and it also seems clear that there would be no reason to change any part of the progressive/liberal political agenda going forward, even if Piketty's prediction about the next few decades were to turn out to be completely wrong.

Again, however, that does not mean that Piketty's book is unimportant.  Far from it.  Piketty brings important historical and statistical insights to bear on the question of inequality, and he takes a much broader perspective, even for all of the detail that he provides, than is typical for an economist.  That is why the Jotwell quasi-symposium was so interesting.  Professor Zimmer's piece on the Work Law sub-site takes the most direct shot at economics as a field, arguing that the book will do three good things to improve the practice of economics by economists, making the field (1) take macroeconomics more seriously again (rather than treating macro merely as applied micro), (2) more of a data-based social science, like sociology, rather than a self-satisfied preserve of abstract theorists, and (3) increasingly international in scope.

For Professor Schenkel, by contrast, the interesting question is about how a Piketty-inflected policy environment would affect trusts and estates law.  Obviously, if politicians take seriously the problem of inherited inequality, T&E law will become not just a battleground, but also a source of ideas.  He notes, for example, that "[i]t is no secret that U.S. trust law enables far more dead hand control of wealth than that of England," and he asks whether "mechanisms such as spendthrift trusts and Claflin restrictions are ill-advised," or whether "we afford to be sanguine about jurisdictions eliminating their Rules Against Perpetuities."  Given legitimate questions about whether it is even possible to tax wealth effectively, during life or at death (or after), it is clear that even if conservatives succeed in beating back Piketty's disciples, they will have to do so not just by nitpicking his data but by getting into the deep weeds of property law.

Professor Shaviro writes from the perspective of tax law, which is also my primary area of expertise.  Even so, my interest in his jot is not merely a matter of intramural commitments.  In its way, Shaviro's piece is a blistering attack on the state of the legal literature on taxation, as it has developed over the last generation.  Shaviro describes a "sizeable, but as yet little discussed, disjuncture between the frameworks used by Piketty on the one hand, and in much of the last three decades’ tax policy literature on the other hand."  Although he tries to be even-handed about it, saying that "the disjuncture is on both sides," I could not read the second half of the piece without thinking how deeply the critique cuts into the existing conventional wisdom among tax law scholars.

Shaviro writes: "'Capital,' to which Piketty assigns such a central role, has in a sense been banished from much recent tax policy literature," and he then notes that the passage of time is also all but absent from standard "optimal tax" analysis.  Without taking time into account, one cannot even conceive of the questions that Piketty asks, much less address them.  Finally, Shaviro notes that the standard model takes virtually no account of the "externalities" of wealth concentrations, such as inequality's "effects on the functioning of various social and political institutions."

Shaviro does not put it as starkly as he might, but I read his arguments as supporting an extremely devastating view of the state of legal tax policy literature.  This is hardly surprising, because the legal tax policy literature to which Shaviro refers is (as I have argued many times) merely a faithful application of the standard "neoclassical" economic theory to questions of tax.  Although Piketty actually leaves much of the neoclassical framework intact, even the small amount of heresy that he commits exposes the incredibly narrow worldview of modern economics, as practiced within economics departments as well as in its wannabe precincts like tax law.

In any event, Piketty's book could ultimately change the entire academic approach to studying real-world policy problems.  Even if he were to turn out to be inaccurate in predicting the path of future inequality, therefore, it could help the world much more profoundly if he were to dislodge the unhelpful approaches that have dominated economics and its colonized fields for far too long.

The (ir)relevance of firepower

by Michael Dorf

Let me begin with a disclaimer. This is a post about one aspect of the current military confrontation between Hamas and Israel, not about the larger conflict over Palestine and Israel. I will just say, with considerable dismay, that over the last two decades I have come to think that an observation once made by Abba Eban about the Palestinians has now become a fair characterization of the Israelis (especially under Likud-led governments): "They never miss an opportunity to miss an opportunity." In any event, in a perhaps-futile effort to focus on just one issue, I won't respond to questions, comments, or accusations regarding my views about the larger conflict.

Here I want to inquire into the relevance--or irrelevance--of an obvious fact about the current conflict: Israel has much more sophisticated weaponry and troops, and has been using them to much greater effect, as reflected in the very different death tolls. Before Israel crossed the border into Gaza, when the current round of conflict was essentially an exchange of rocket fire from Gaza and bombing raids by Israel, comparable numbers of rockets and bombs were sent in each direction; but despite the fact that Hamas fires rockets indiscriminately and Israel takes measures to avoid civilian casualties, the Israeli bombs killed hundreds of people, whereas the Hamas rockets kill very few (two people, as of yesterday).

Rocket fire and bombing raise important questions under the international law of war. Targeting civilians is illegal, but so is incidentally killing (or injuring) civilians when attacking military targets if the harm to civilians is disproportionate to the military objective. Hamas thus violates the law of war by targeting civilians and by embedding itself within the civilian population. Israel appears to violate the law of war by bombing military targets with the incidental effect of killing more civilians (including children) than combatants. I say "appears" because the law of war does not fix an exact ratio of permissible incidental civilian deaths, nor is there consensus on whether a force is permitted to incidentally kill civilians in greater proportions (and if so, how much greater) where the enemy bears substantial responsibility for the attacker's difficulty in distinguishing combatants from civilians.

Note that in the previous paragraph I am using the notion of proportionality in its technical sense within the jus in bello branch of the law of war: As a limit on foreseeable but unintended harm to civilians. There are two other senses in which proportionality may be relevant.

First, proportionality plays a role in jus ad bellum--the legal principles governing when the use of force is justified in the first place. In the current conflict, some people have said that because of the combination of the Hamas rockets' inaccuracy and the effectiveness of Israel's "Iron Dome" missile defense, the rocket fire from Hamas did not justify Israel's forceful military response at all, but there seems to be broader recognition that however one apportions responsibility for various aspects of the conflict, Israel is entitled to use force, so that if Israel were only (or chiefly) hitting Hamas fighters, there would be no legal question of proportionality--either for jus ad bellum or jus in bello purposes.

But that brings us to the second alternative sense in which I have seen concerns about proportionality--namely, concerns about proportionality in the more colloquial sense of "sporting" or a "fair fight." Although this is not a legal concern, it might nonetheless be a moral concern. The precise question is this: Is there anything distinctively problematic about using a much more powerful military against a much weaker military, assuming that the much more powerful side otherwise complies with both the jus ad bellum and jus in bello branches of the law of war?

I had a view on this question as a seven-year old. My father tape-recorded my answers to various questions, one of which was "what are some of the things you would do if you were God?".  My answer was that "if there were two armies fighting and one of them had 20 men and the other had a billion, I would give a little help to the army with 20."

I suspect a great many people feel the same way. Absent some attachment to one team or another, they root for the underdog in a sporting event, and so they may do the same with respect to warfare. But apart from the obvious point that military conflict is not sports, there are additional considerations that may be relevant in thinking about whom to support in a military conflict, whether you are an ordinary citizen, the leader of a third-party government, or God. The side with the more powerful military might not be the aggressor and might, in other respects, be the underdog. (Note that both Israelis and Palestinians tend to see themselves as underdogs and to see the other side as aggressors, each with some justification.)

But suppose that everything else were equal. Would a sensible policy or a just God try to help the military underdog (assuming, for whatever reason, that a just God can't just end the conflict)? I think the answer is no. Wars between relatively evenly matched militaries tend to be the bloodiest, most protracted wars. Think of World War I or the Iran-Iraq War. As John Witt observes in Lincoln's Code, Francis Lieber, the father of the modern law of war, believed that warfare between combatants should be brutal and decisive, because that would keep wars short and thus ulitmately more humane. My colleague Jens Ohlin also makes the point in an important recent paper on the (non)duty to capture.

Again, there are various legitimate grounds on which to criticize Israel for its conduct in Gaza (and elsewhere). But having and using a superior military is not one of them.

New Verdict Column: Businesses and Religion

-- Posted by Neil H. Buchanan

In my new Verdict column, I summarize many of the arguments in the "Hobby Lobby Post Mortem" series of 9 posts that Professor Dorf and I have written since June 30, adding some thoughts on why even reluctant businesses might feel pressured, post-Hobby Lobby, to "find religion."

Normally, a new Verdict column is accompanied by a Dorf on Law post, exploring in more detail one or more questions raised in the column.  Today is an exception to that rule, because I have nothing further to add here on Dorf on Law.  Interested readers can find the column here.  My Dorf on Law post for the day, addressing the politics of budgets and debt ceilings, is available immediately below (if you are viewing the main page of the blog) or here.

How Long Can the Craziness Be (Somewhat) Controlled?

-- Posted by Neil H. Buchanan

In anticipation of the upcoming academic year, the media affairs people at my law school asked me what to expect with regard to budget-related news.  They were, of course, especially interested to know when the debt ceiling would become a big issue again, because that is when they will surely be most active in helping reporters and producers arrange interviews with me.  (My tiny amount of fame is, as I've said before, an oft-ignored social and personal harm caused by the Republicans' debt ceiling madness.)  What can we expect going forward?

It is important to start by noting that this is an especially odd moment in American politics, when the Tea Party-fueled craziness of the last few years is viewed as being somewhat in remission.  That description is broadly accurate, I suppose, but it is all a matter of comparison.  On last night's "Daily Show," for example, Jon Stewart noted that there is still a lot of chatter on the far extremes of the right (which is to say, among large numbers of Republicans in Congress) about the need to impeach President Obama.  Some of the darlings on the right say that it must happen NOW, but they have thus far been disappointed.  In part, of course, this is because Obama has not actually done anything impeachable, but that is hardly a barrier to bringing it to a vote in the House.

With impeachment currently off the table, what are Republican leaders doing to mollify their base?  Well, the "moderate" alternative, endorsed by Speaker Boehner (and thus, presumably, the rest of the Republican leadership) is to sue the President in a court of law, claiming that he has overstepped his executive authority.  Although Boehner embarrassed himself earlier in the summer, when he brought up the subject but did not know on what grounds he might sue, the idea has apparently now come to fruition.  The plan is to use the lawsuit to amplify the Republicans' "Obama the dictator" theme, with the specific issue in the nascent lawsuit being that Obama violated the Affordable Care Act by giving businesses additional time to comply with the law.  (Ironies abound, none worth expanding upon here.)

If this is moderation from the Republicans, then the Democrats must be the luckiest party on Earth.  When I first heard about the lawsuit, I could only think, "They just can't stop themselves!"  Heading into winnable midterm elections, the idea should be for Republicans to look as responsible as possible.  In fact, being deliberately boring would be a great plan.  All of the structural pieces are in place for serious gains by Republicans (a second-term President, continuing weakness in the economy, Democrats forced to defend a large number of Senate seats), so why would Republicans want to remind people that they can barely control the craziness?  "Hey, at least we didn't impeach him!" is hardly a reassuring message to swing voters, when the idea of the House suing the President is so easy to mock.  The President's amused demeanor on this issue says it all.  He is loving every minute of the farce, because it is one of those rare cases where it cannot possibly hurt him to make fun of the other side's strategy, and to do so loudly.

The broader context, then, is a Republican Party that is barely maintaining the ability to project seriousness.  Even when they are handed issues that could work for them, like the mess in Iraq or the immigration crisis, they find themselves undermined by their own excesses.  Dick and Liz Cheney's recent anti-Obama op-ed was an early Christmas present to the White House, and nothing makes Obama look more presidential than being able to contrast himself with the anti-immigrant nastiness that oozes from the right.

How will this affect the budget situation?  We know that the Republicans could not even stop themselves from making a big issue out of funding highway maintenance this summer, so it is not as if they have put the budget silliness on hold.  Even so, the consensus seems to be that the end of the fiscal year on September 30 will not lead to another government shutdown.  The timing is just too close to the election for Republicans to repeat that disaster.  Admittedly, the consensus a year ago was that there would be no shutdown in the Fall of 2013.  Especially because that prediction was wrong, however, and the Republicans learned some hard lessons, this Fall seems likely to be quieter on that front.

That is not to say, however, that a full set of appropriations bills for 2014-2015 will pass by October 1.  More likely, there will be some kind of continuing resolution, locking everything in place for some number of months, before we face another possible shutdown in late 2014 or early 2015.

How will the results of the midterms affect what happens next?  Short of a completely surprising sweep in one direction or the other, it would seem that very little would change.  The House will probably have a few more Republicans, and the Senate will be close to 50-50.  It matters who controls the Senate, of course, but not so much for budgetary matters.  The more intersting question is how the Republicans will handle post-election budget matters, when the next election is as far away as possible, and the people who were thought vulnerable are safely back in office.

Earlier this year, people thought that Senate Minority Leader Mitch McConnell might lose his primary to a Tea Party fire-breather.  McConnell won easily, which could suggest that he will not feel the need to go along with shutdowns and other brinksmanship next year.  Of course, people thought that John McCain's lurch to the far right in his last reelection campaign was merely tactical, but he has shown no signs of maverickiness (or even sanity) since then.  There is no reason to be confident that McConnell will suddenly decide that budget issues should be handled quietly from now on.

Lying in the background, of course, is the debt ceiling, which Congress put back to sleep from February of this year through March 15, 2015.  If, as seems likely, the continuing resolution that avoids a government shutdown before the midterms is only a few months long, that could put the shutdown and possible debt-ceiling-induced default -- which are, again, completely different matters, both legally and economically -- back on the same time line.  There are complications, of course, including the unknown amount of time that "extraordinary measures" will buy, pushing default past the March 15 wake-up date.  But we could easily find ourselves facing a series of fiscal deadlines in 2015 that will be eerily similar to the crises in 2011 and 2013.

How will it play out next Spring?  It is worth noting that the dearly departed House Majority Leader, Eric Cantor, was one of a small number of Republicans who voted for the debt ceiling extension earlier this year.  There were only 28 Republicans voting yes, on a 221-201 vote.  Even with every member voting, it would only take 17 more "no" votes to kill such a bill.  It is possible, of course, that the Republican leadership allowed the other 199 Republicans to vote "no" only because they had the votes in hand to pass the bill.  What we do know, however, is that any new Republicans who join the House are likely to be at the far edges of the party's extremist wing.

Even if enough votes finally are brought together on a vote to avoid a default (and a shutdown is similarly avoided, although that is far less important), what seems certain is that the post-midterm political atmosphere will all but require a return to the full-on craziness of budget brinksmanship that we have seen too often in recent years.  The White House is fully committed to reprising its stare-down strategy, and Republicans are likely to think that whatever they do in Spring 2015 can be overcome or forgotten by November 2016's elections.

Or, to put it differently, the Republicans who want to impeach Obama will never have a better time, or a better opportunity, to induce a constitutional crisis.  This seemed clear earlier this year, when both Professor Dorf and I wrote separate posts about this question (here and here).  Even with the Tea Party now supposedly having been brought to heel (the Cantor surprise aside), nothing has really changed in a way that would alter the post-election dynamic.  The craziness is barely under control now.  It can only get worse after November 4.

The Fifth Circuit Tries To Rescue UT Even While Governor Perry Tries To Destroy It

by Michael Dorf

On Tuesday, the U.S. Court of Appeals upheld the University of Texas' use of race in undergraduate admissions in Fisher v. University of Texas, on remand from last year's SCOTUS ruling in the same case. Judge Higginbotham's majority opinion is thorough and, in my view, persuasive. The new ruling raises a number of very interesting issues, but in the interest of brevity, after a brief overview, here I'll focus on just two: 1) the nature of the disagreement between the majority and the dissent by Judge Garza; and 2) Fisher's relation to efforts by some conservatives to gut higher education.

Before coming to those points, here is a very brief refresher. For many years, UT followed the practice of other elite universities of granting admissions to excellent applicants based on a "holistic" evaluation of their high school grades, test scores, and other special factors. That last category included a great many things, such as: athletic prowess; other extracurricular excellence; public service; alumni legacy status; and racial diversity. Then, in 1996, a Fifth Circuit ruling in the Hopwood case read Supreme Court precedents as essentially forbidding all uses of race in admissions.  That decision was effectively reversed by the SCOTUS seven years later in Grutter v. Bollinger, but in the meantime, Texas had adopted the "ten percent plan"--under which students graduating in the top ten percent of their Texas high school classes were guaranteed admission to a UT campus.

As various Supreme Court justices have recognized, and as Judge Higginbotham recognizes in this week's ruling, the ten percent plan achieves substantial diversity in large measure because of the de facto segregation of Texas schools. Most African American and Latino high schoolers in Texas attend schools that are overwhelmingly non-white. Accordingly, the top ten percent of those schools are mostly minority students. Thus, even though minority students, on average, have lower test scores and other academic qualifications, the ten percent plan enables the UT system to enroll substantial numbers of minority students without expressly classifying applicants by race.

Roughly 80% of UT students are admitted under the ten percent plan. At issue in Fisher is the use of race in the "holistic" process for the remaining 20% of the seats in each entering class. Fisher--a white applicant who fell outside of the top ten percent and was then denied admission under the holistic process--complained that race played an impermissible role in the holistic process. Because UT already achieved substantial racial diversity using the (nominally) race-neutral top ten percent process, she argued, it did not need to include race as a factor in the holistic process. And because the SCOTUS precedents require that race-based admissions program be narrowly tailored, she argued further, using race in the holistic process was invalid.

Although the SCOTUS case in Fisher was hyped as a potential game-changer with respect to race-based affirmative action in higher education, the actual decision was quite narrow. In a 7-1 ruling (with Justice Kagan recused and only Justice Ginsburg dissenting), Justice Kennedy's majority opinion vacated and remanded the initial Fifth Circuit decision. That earlier decision had rejected Fisher's challenge, but the SCOTUS said that the Fifth Circuit had applied the wrong legal standard in part of its analysis. Colleges and universities are entitled to deference in their decision to pursue the compelling interest of racial diversity as part of their academic mission, Justice Kennedy explained, but courts should not defer to state educational officials in the application of the narrow tailoring test.

For readers interested in deeper background, here is a Verdict column I wrote when the SCOTUS granted cert in Fisher, here is a blog post of mine describing the amicus brief I worked on for the Association of American Law Schools, and here is my reaction to the SCOTUS ruling in Fisher on the day it was decided. In that last piece, I said that the action would shift to the lower courts to hash out, in practice, just how strictly to apply narrow tailoring in affirmative action cases. And this week's Fifth Circuit ruling appears to vindicate that prediction.

1) The disagreement

Judge Higginbotham explained that the use of race in the holistic process for the non-top-ten percent seats was narrowly tailored, even without giving the university any deference on that score. As I noted above, his reasoning is careful and thorough. But buried within it is a crucial--and controversial--statement. Quoting the majority opinion in Grutter, Judge Higginbotham stated that "strict scrutiny must not be strict in theory, but fatal in fact." That language has a long history, which is worth unpacking.

The late Gerald Gunther first described the strict scrutiny test applicable to race-based classifications as "strict in theory, but fatal in fact." And so it was with respect to race-based classifications that disadvantaged minorities. But beginning in the 1970s, the liberal and moderate justices on the Supreme Court argued that a more deferential approach should be applied to race as used to advantage minorities. They lost the battle when, in a series of cases from the late 1970s through the mid-1990s, the Court ruled that strict, rather than intermediate, scrutiny applies to all race-based classifications, but the liberal/moderate wing of the Court appeared to win the war: Even as the Court extended strict scrutiny to federal race-based affirmative action in Adarand v. Pena, Justice O'Connor's lead opinion explained that in this context strict scrutiny is not fatal in fact. Justice O'Connor repeated the line in Grutter, now speaking for a clear majority of the Court, and this time putting her money where her mouth was: the Court upheld the University of Michigan Law School's use of race in its holistic process.

Since Justice Alito replaced Justice O'Connor, Court watchers have been waiting to see whether Grutter would be overruled, as hers was the decisive vote in that case. It hasn't--yet. But even as the Court accepts the holding of Grutter, it has seemed to back away from Justice O'Connor's view that strict scrutiny is not quite as strict in affirmative action cases.

The disagreement between the majority and dissent in this week's Fifth Circuit decision in Fisher reflects this same tension. Although not deferring to the university, the majority's version of strict scrutiny allows the university some wiggle room to pursue racial diversity. Meanwhile, the dissent does perfunctorily say that strict scrutiny is not necessarily fatal scrutiny, but it also says that "there is no special form of strict scrutiny unique to higher education admissions decisions."

If the Fisher case goes back to the SCOTUS--and to be clear, I think it should not--one can well imagine that the Court might divide on this same question.

2) Excellence in higher education

Meanwhile, it is easy to overlook what the holistic process is really about. As Judge Higginbotham notes, minorities make up a smaller percentage of students admitted under the holistic process than those admitted under the ten percent process. The holistic process is an attempt to ameliorate the harmful effect of the ten percent process on the quality of the UT student body. After all, a student who graduates number 12 out of 100 from an excellent high school will likely be better prepared for university study than a student who graduates number 9 out of 100 from a troubled high school. The holistic process is not a means to enhance the racial diversity of UT; it is an effort to enhance the overall quality of the student body, with race playing a relatively small role in that process.

Judge Higginbotham clearly approves of UT's efforts to maintain its status as an elite university without sacrificing diversity. That attitude stands in marked contrast to Texas Governor Rick Perry, whose board of regents appointees have finally succeeded in easing out UT President Bill Powers because of his opposition to Perry's apparent plan to convert a great research university into a business training program taught mostly by non-scholars.

Part of the power struggle between Perry and UT is Texas-specific (e.g., Aggie versus Longhorn) but much of it resonates with broader trends on the right. Think of Rick Santorum's reaction to President Obama's proposal to make college accessible to all Americans: "what a snob!" As Professor Buchanan noted, that is of a piece with a long-running strategy by the right of attacking universities and their disproportionately liberal faculty as out-of-touch elitists. But in the past, one had the sense that this approach was strategically hypocritical--and thus paid the tribute that vice pays to virtue. Think, for example, of the absurdity of George H.W. Bush, a phi beta kappa graduate of Yale, running a successful Presidential campaign against Michael Dukakis as an out-of-touch elitist Harvard man. If Bush pere played the anti-intellectual card, at least, one had the feeling, that he had the good sense not to mean it.

Much has been made lately of the divide between "establishment" Republicans and Tea Party Republicans. The cleavage runs mostly along the line of economic policy, but to some extent there is a deeper division: Tea Partiers are populists, whereas establishment Republicans often try to harness populist ressentiment for their own ends but they do not ultimately want to bring down the institutions that serve their interests. Elite research universities are among those institutions: they help drive long-term prosperity and they actually do much to preserve the status of the well-to-do from one generation to the next, because low socioeconomic status correlates with weaker credentials and less ability to afford higher education.

One way of understanding Judge Higginbotham's opinion in Fisher is as the credo of an establishment Republican defending an elite research university. He is not a liberal but a Reagan appointee who is, overall, a moderate conservative. Contrast his approach with the position taken by Justice Thomas in Grutter that the University of Michigan Law School lacked a compelling interest in its affirmative action program because Michigan lacked a compelling interest in running an elite law school in the first place. Justice Thomas is not, of course, formally affiliated with the Tea Party, just as Judge Higginbotham is not formally affiliated with the "establishment"; indeed, there is no such thing. But still, one can understand their different views in this light.

For those of us who think research universities serve a valuable social function (even as we would like to see more efforts to improve education for everyone at every level and to reduce barriers to higher education), there is a dangerous development looming. Just as the Tea Party has dragged even those establishment Republicans who remain outside the Tea Party to the right on economic and other issues, so too here, the populists who really do despise universities can influence the policies pursued by establishment types.

The danger is already materializing in Texas (and elsewhere).  Due to his nuanced views on immigration, Rick Perry is no hero to the Tea Party, but his attack on UT does seem to be of a piece with Tea Party sentiments. What's more, it appears to be genuine. Unlike George H.W. Bush--whose anti-intellectualism was simply disingenuous cynicism--Perry and the next wave of Republican leaders, whether of the establishment or Tea Party variety, are sincerely uniting behind their efforts to gut higher education.

Hobby Lobby Post-Mortem Part 9: General Versus Specific Exceptions Regimes

by Michael Dorf

My latest Verdict column asks how Congress might amend RFRA if it is unhappy with the ruling in Burwell v. Hobby Lobby. I offer a menu of eight options, some of which could be deployed in combination with others. As the column acknowledges, the most likely outcome is that Congress will do nothing, given the Republican majority in the House and the possibility that Democrats lose the Senate in the midterms. Still, thinking about how to fix RFRA is a useful exercise while the Hobby Lobby ruling is fresh in the public imagination, partly because the politics might some day change, and partly because thinking about how to fix RFRA helps clarify what, if anything, is wrong with Hobby Lobby.

In this post, I want to call attention to a feature of our statutory regime of conscience exceptions that comes up briefly in the column: In addition to general provisions for religious exceptions like RFRA, Congress and state legislatures sometimes enact provisions authorizing exceptions from specific legal requirements deemed especially burdensome to those people with conscientious objections. Consider five examples:

1) When the U.S. had the military draft, conscientious objectors were exempted so long as the objection stemmed from "religious training or belief" rather than "essentially political, sociological, or philosophical views, or a merely personal moral code." (The provision remains on the books in the event that the draft is reinstated.)

2) Recipients of federal funds for population research and family planning are obligated to excuse anyone from participating in a sterilization or abortion if doing so "would be contrary to his religious beliefs or moral convictions."

3) As noted in Employment Division v. Smith, the SCOTUS case that inspired RFRA in the first place, some states with peyote prohibitions excepted ritual use, and during Prohibition, exceptions were made for sacramental use of wine.

4) New York's law recognizing marriage equality (enacted in 2011) immunizes religious organizations and other non-profits from liability under New York's anti-discrimination law for refusal to participate in same-sex marriages. Other states have similar provisions.

5) The HHS regulations that implement the Affordable Care Act exempt employers organized as religious non-profts from the obligation to provide health insurance plans that cover contraception. These were at issue, of course, in Hobby Lobby and in Wheaton College v. Burwell.

Other examples could be adduced, but these five suffice to raise the question that now concerns me: Under what circumstances would a legislature think it appropriate to authorize religious exceptions or religious plus moral exceptions to a particular legal obligation rather than, or in addition to, enacting a general law authorizing exceptions to laws that are subjectively experienced as especially burdensome on religious (or other) conscience?

The argument for specific exceptions rather than a general RFRA-like provision is articulated in Smith. There, Justice Scalia explained for the majority that judges are poorly situated to weigh claims of religious conscience against public policy aims, but that legislatures are permitted to fashion exceptions because balancing competing values and policies is a familiar legislative task. (For my suggestion that Justice Scalia has inadequately explained his shift from critic of judge-fashioned exceptions under the First Amendment to champion of such exceptions under RFRA, see my SCOTUSblog entry.)

Beyond the question of who grants the particular exceptions, there is another difference between a general provision like RFRA and specific statutory exceptions: Unlike RFRA exceptions, specific exceptions are automatic, once the claimant establishes a qualifying sincere objection. Thus, in each of the examples listed above the government is denied the opportunity to demonstrate on a case-by-case basis that universal compliance is required by the compelling interest test.

What is the argument for specific exceptions in addition to a general RFRA-like provision? I can think of three sorts of justifications. (Readers may be able to identify others.) First, the legislature could make a judgment that certain sorts of legal obligations are especially likely to provoke conscientious objections, although that is a double-edged sword, because the large number of objectors could undermine the obligation in general.

Second, the legislature might think that some legal obligations are especially burdensome to people who have conscientious objections. This seems like a good explanation for the specific exception to military service: obligating someone to kill in violation of his conscience is about as serious a violation of conscience as can be imagined. Likewise with respect to abortion, because people who oppose abortion regard abortion as killing innocent human life. And thus contraception could fall within this justification insofar as some methods of contraception kill zygotes rather than preventing fertilization. (I put to one side my argument last week that the claimant's false scientific beliefs may be a predicate for such a claim under RFRA; we might require more under a specific regime that goes beyond RFRA.)

Third, the legislature might make a judgment that some legislative objective either isn't very important or can tolerate a relatively small number of opt-outs. Something like this is probably at work in the peyote and Prohibition exceptions. Whether the judgment is accurate is an empirical question. Note that in the federalism context, the Supreme Court said that allowing a medical exception could undermine a general prohibition on marijuana. If that's true, the same could be true for a religious exception to a ban on some substance.

None of the foregoing justifications quite works for  specific legislative exceptions to anti-discrimination law with respect to same-sex marriage; a narrow provision exempting clergy and perhaps some others from performing marriages could be justified on free exercise grounds, but the New York exceptions are substantially broader. We do not see anything like this with respect to religious objections to interracial marrage, by contrast. Likewise, it's hard to see why there is a need for special legislative exceptions for contraception that no one thinks amounts to abortion.

So what explains these two special exceptions? In a word, politics.

In New York, the anti-discrimination exception was simply the political price of marriage equality. The law would not have passed without it. Likewise, the Obama Administration fashioned the exception to the ACA contraception mandate in response to political pressure, especially from the Catholic bishops.

Politics can change, however. The defeat of the proposed expansion of Arizona's RFRA earlier this year shows that the public mood probably has shifted subsantially against (all but narrow) exceptions to the implications of LGBT equality. Meanwhile, the breadth of the Obama Administration's accommodation--allowing an opt-out from all contraceptive coverage, not just contraceptives that are arbuably abortifacients--was never really justified politically. The bishops' stance agains contraception is rejected in practice by a very clear majority of American Catholics.

Speaking of politics, we are already seeing Democratic candidates trying to use Hobby Lobby to their advantage. I don't know how effective the tactic will be in the midterms, but I suspect that over the long run the issue will break the Democrats' way. Just ask Rick Santorum.

Hobby Lobby Post-Mortem Part 8: Will There Now Be a Gold Rush of Corporate Religious Claims?

-- Posted by Neil H. Buchanan

In the final paragraph of my Dorf on Law post this past Friday, referring to the opportunities that the Hobby Lobby decision has created for businesses to challenge minimum wage laws on religious grounds, I wrote: "The gold rush mentality of for-profit firms suddenly seeing a way out of paying the minimum wage would be awesome to behold."  The minimum wage, of course, is merely one category of possible claims that businesses might now litigate, because the Court's decision to impute religious views to corporations allows those "persons" to pursue claims that were never before available, in any area of law that might affect the business (and its sincerely held religious beliefs).  In last Thursday's post, I argued that, "[f]or a variety of obvious reasons, this new group of plaintiffs is especially likely to make insincere religious claims in order to avoid a variety of laws."

Pushing in the opposite direction, as Professor Dorf noted again in yesterday's post, is the possibility that corporations will worry about public relations in ways that prevent them from pushing religious claims.  Here, I want to tease out a few of the factors that might affect corporate boards' decisions about whether to pursue litigation in the aftermath of Hobby Lobby.  Will there be a "gold rush," as I put it, or will this end up being a small, self-limiting phenomenon?

To be clear, the question that I am asking is whether corporate persons are, as a group, more likely than natural persons to pursue religious claims because of Hobby Lobby.  That is, it would be relatively trivial if my point were merely that a larger group of potential litigants (natural persons plus corporate persons) would lead to more litigation than we have seen with a smaller group.  Even that claim would not be entirely meaningless, of course.  If one could claim the opposite, that is, that corporations simply will not pursue religious claims, then that would be worth noting.  And even if the increased litigation is merely proportional to the size of the population, it bears at least passing mention that the five conservative justices have again invited a new category of lawsuits into our supposedly over-litigious society.

Again, however, my point is more aggressive than that.  I am arguing that there will be, on net, more factors pushing corporations to pursue religion-based litigation to invalidate laws, now that Hobby Lobby is on the books, resulting in a large amount of new claims.  (For purposes of my arguments here, I will assume that the "closely held" aspect of corporate religious personhood will be tossed aside before long, or at least that it cannot be justified under the logic of the ruling.)  Before considering the reasons why, it is important first to consider the public relations point that Professor Dorf noted, which undeniably pushes in the opposite direction.

The basic idea is obviously that businesses need to worry about how their decisions are perceived by the public, such that a lawsuit based on a religious claim -- especially one that might seem insincere -- has potential downsides for the bottom line.  (This factor, in turn, is apparently thought to be more potent than individuals' concerns about reputation.  I am not convinced of this, but I will not pursue the point here.)  And surely this will be true of many corporations, maybe even the majority of them.  For example, it would be difficult to imagine that Apple would challenge environmental laws on the basis of a religious objection.  Yes, Apple's profit would rise if it were completely excused from having to clean up its messes, but the company is already in a gray area in the public's mind regarding its environmental practices.  I cannot imagine a discussion at corporate headquarters in Cupertino that would end with a decision to find a religious reason to disobey environmental laws.

Even corporations with clearly right-wing boards (as well as more right-wing clienteles) can be limited by such concerns.  Wal-Mart, for all of its awfulness, spends a lot of time and money trying to walk the line between aggressively fighting unionization, living wage laws, and so on, and convincing the public that it is not a super-predator.  If Wal-Mart were to announce tomorrow that it is not going to pay even the minimum wage, as a matter of religious conviction, it would be risking serious consequences.  (Consider also the small eruption when it was reported that McDonald's advises its employees to supplement their paltry wages by signing up for food stamps and other public assistance.)

Obviously, therefore, there will be companies that would never even consider pursuing religious claims.  Other companies, while willing to contemplate doing so, might be likely to consider but reject the idea.  This, however, is hardly the end of the story.

The most obvious factor weighing on the side of increased business litigation in this area is that the laws of business can generally be challenged by businesses, not individuals.  For example, in my post last Friday, I noted the Supreme Court case (cited in Justice Ginsburg's Hobby Lobby dissent) that challenged the minimum wage on religious grounds (Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985)).  The plaintiffs in that case were a religious foundation that had been ordered to pay its employees the minimum wage.  The "employees," however, were religious converts who were providing work to the foundation as part of being rehabilitated for drug and alcohol abuse.  The plaintiffs claimed that the recipients' religious beliefs were burdened because they did not want to be paid for their work, which they provided as repayment to God for giving them their lives back.

The Court there noted that there was nothing stopping those religious adherents from turning around and simply giving their wages back to the foundation, which meant that they could adhere to their religious principles by not profiting from their work, as a bottom line proposition.  This logic, however, is obviously inapplicable to potential corporate litigants who might wish to challenge the minimum wage.  (I cannot help but note that the Court's logic there might be inconsistent with any forthcoming ruling that would favor Wheaton College or the Little Sisters of the Poor.  If the adherents claim that even accepting money in the first place violates their religion, would that be enough to uphold a claim for substantial burden?)  The new class of potentially-religious corporate persons, therefore, is positioned to argue against having to comply with laws in ways that non-business plaintiffs are not.

Moreover, the hurdles for natural persons, acting as individuals, can be especially imposing.  Consider a comparison to the Americans with Disabilities Act (ADA).  When it was passed, some conservatives predicted that the ADA would all but invite people to invent faux disabilities in order to shirk on the job.  (The lamentable "King of the Hill" animated sitcom ran an episode using that plotline, with one character saying something like, "I've got obsessive-compulsive disorder.  If I get out of this chair, my mama will die.")

One of the factors that prevented that supposed onslaught from happening was that individuals face the possibility of losing their jobs right away, with a chance much below 100% that they will be reinstated after pursuing the claim legally.  (This, I would argue, is almost certainly more of a realistic possibility for most people than an equally devastating PR disaster would be, for most corporate clients.)  Moreover, as a matter of predicting whether individuals or corporations will pursue claims opportunistically, it is easy to imagine that the corporate legal department will be told to spend some time looking for new religious claims, which would increase the corporation's legal costs only marginally, whereas individuals typically will face much more daunting legal bills (relative to their resources) if they decide to push a legal claim.

So, will there be a "gold rush"?  I am reminded of a job interview that I once had for a staff position with the Joint Committee on Taxation.  I was a newly minted economist, and the staff director asked me, "You're not too much of an economist, are you?"  Asked to elaborate, he told me that he had worked with economists who believed that theory trumped reality; and there is a theory that says that no business will pay corporate taxes, because it is easy to recharacterize income, and so on, in a way that will reduce the corporate tax bill to zero.  The staff director, in response to one such staff economist, pulled out the official revenue figures for the federal government, noting that hundreds of billions of dollars in corporate tax revenues are collected every year.  The economist was not impressed: "Those numbers must be wrong.  No rational corporation would pay the corporate tax, because they don't have to."

Is my argument similarly extreme?  After all, legal slippery slope or "open the floodgates" arguments are close cousins of this kind of economic logic.  The difference here is that one need not believe that every profit-seeking corporation will pursue every imaginable legal claim to become exempt from every law that affects businesses.  Especially taking into account Professor Dorf's discussion in yesterday's post, in which he pointed out that even the "sincerity" analysis is less demanding than it might seem (and is yet less demanding for corporate litigants), one need not argue that this case will bring about the end of all regulatory law.  One need only argue that a significant new opportunity has been created, and that many of the affected potential litigants will have good reasons to pursue it.

Occasionally, Supreme Court cases really do open the floodgates.  (See, e.g., Windsor and same-sex marriage, where Justice Scalia's dissent seems to have been the real floodgate opener.)  But even if it is unlikely that business challenges will completely swamp labor law, or environmental law, or consumer protection law, it is hard to imagine that Hobby Lobby will not lead to a rush of corporate challenges to all of those laws, and more.