Yesterday I explained why the "truthiness critique" of Hobby Lobby--that the plaintiffs' claims were based in the empirically false view that certain contraceptives are abortifacients--misses the mark. Here I want to explore what I regard as another potentially problematic argument against the result in Hobby Lobby.
Before doing so, however, I want to reiterate that in criticizing various criticisms of Hobby Lobby, I am not endorsing the reasoning or result in that case. I reluctantly supported RFRA when it was proposed in the early 1990s: I supported it because I think that government ought, if reasonably possible, to accommodate sincere religious beliefs; but I was reluctant because I thought the law was flawed in not also providing for accommodations of non-religious obligations of conscience. As I explained on Monday, I think that the Hobby Lobby opinion compounds the error of Congress in passing a law that was underinclusive with respect to non-religious obligations of conscience by construing RFRA to provide substantially greater protection for religious conscience than was provided by the pre-1990 case law.
Nonetheless, it is my job as a legal scholar to scrutinize arguments, even by those with whom I ultimately agree. So today I will zero in on an argument made by Justice Ginsburg in dissent. It's not the only argument she made, and one can find her dissent persuasive even without this argument, but the argument itself is worth examining. I'll criticize Justice Ginsburg's argument in the form that she made it, but I'll end up concluding that her point is powerful for a reason that she does not articulate.
Okay, so much for the disclaimers. Let's move on to the main event.
In criticizing the majority for reading RFRA expansively, Justice Ginsburg cited (among other things) the legislative history of the Affordable Care Act (ACA). She wrote:
The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.” That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” [R]ejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.This is a pretty straightforward argument, with the following implicit steps: (1) Congress had before it a proposed provision that would have given Hobby Lobby and every other employer or insurance provider the exception it now seeks under RFRA; (2) Congress rejected that proposal; and (3) therefore, the ACA as enacted does not entitle every employer or insurance provider to the exception it now seeks.
The problems are at step (3). It's possible that Congress (or just the Senate) rejected the conscience amendment because it disapproved of religious exceptions to the ACA, but there are other possibilities as well. Perhaps Congress rejected the conscience amendment because the amendment was thought unnecessary, given RFRA. Or perhaps Congress rejected it because the members who supported religious exceptions did not also support non-religious "moral convictions" as the basis for exceptions from the ACA. (Justice Alito made these points in footnote 30 of the majority opinion.) One need not be a hardcore textualist (and I don't even consider myself a softcore textualist) to recognize that drawing inferences about legislative intent from legislative history is always tricky, and especially so when one is trying to figure out the meaning of the legislature's failure to enact some particular proposal.
In addition, Justice Ginsburg's argument appears to prove too much. If Congress's rejection of the conscience amendment means that the ACA contains no conscience amendment, then it would seem that the accommodation the Obama Administration gave to religious non-profits--the ability to use Form 700 to shift the obligation to provide contraceptive coverage to the insurer--was itself invalid: not because, as Wheaton College and other religious non-profits argue, it doesn't go far enough, but because it goes too far. If the rejection of the conscience amendment means that the ACA is inconsistent with a conscience amendment, then the Administration cannot provide one by regulation without violating the statute. To be sure, there may be some wiggle room for an agency entitled to deference in gap-filling, but only if the law is unclear. Justice Ginsburg seems to rely on the rejection of the conscience amendment to say that the law clearly rejects religious exceptions. In administrative law jargon, her argument would appear to foreclose the accommodation at "Chevron step one."
Most fundamentally, the problem with the whole three-step argument is that it aims to uncover the intent of Congress when it enacted the ACA. But at issue in Hobby Lobby was not just the meaning of the ACA. The question was the interaction between the ACA and RFRA. In a post shortly after cert was granted in Hobby Lobby, I explained that, prima facie, RFRA appears to violate the basic rule of democracy whereby (absent some higher-law rule to the contrary), in cases of conflict, a later-in-time enactment prevails over an earlier-in-time enactment. Interested readers can go to that post for the full argument -- some of which focuses on the further complication introduced by the fact that the contraception mandate and its exceptions are both the product of administrative action rather than legislation itself -- but here I'll repeat the core of the argument:
Because the T1 Congress cannot bind the T2 Congress--indeed, because the T1 Congress cannot even enact laws that make it more difficult for the T2 Congress to repeal those laws--we should not understand RFRA as imposing limits on subsequent acts of Congress. Instead, we should understand RFRA as helping later Congresses to express their will: Rather than having to write "subject to religious exemptions" in every statute, RFRA establishes a rule of construction. However, if a later act of Congress is incompatible with the RFRA exemptions regime--even if it does not expressly disavow RFRA--then RFRA doesn't apply to it.In the earlier post on the last-in-time rule, I concluded that the ACA is compatible with RFRA and that, therefore the ACA did not partially repeal or otherwise modfiy RFRA. (I also concluded that Congress had not delegated power to the executive to partially repeal or otherwise modify RFRA.) I continue to think that conclusion was correct, but that doesn't mean that Justice Ginsburg's invocation of the conscience amendment was ineffective. Her argument appeared in the part of her dissent that discussed what Congress evidently intended when it enacted the ACA but it is better read to shed light on the meaning of RFRA.
In particular, I think that a better version of the argument Justice Ginsburg made would go like this: The legislative history of the conscience amendment reveals that the Congress that enacted the ACA did not think that RFRA already provided an exception because (as the dissent goes on to argue in Part III.C.1) commercial enterprises have hitherto never been entitled to religious exceptions.
I don't want to get into the question about whether Justice Ginsburg is right or wrong in her characterization of the prior law regarding religious exceptions. Let's assume for the sake of argument that she's right. There remains an apparent problem with the argument, however: How does the understanding of the Congress that enacted the ACA in 2010 shed light on the meaning of RFRA, which was enacted in 1993? Even if the 2010 Congress assumed that RFRA would not supply exceptions for for-profit enterprises, the key question is what the 1993 Congress meant when it enacted RFRA, no?
The answer depends in part on how one views statutory interpretation. Following Bill Eskridge's concept of "dynamic statutory interpretation," one might think that the meaning of statutes evolves over time, just as non-originalists think that the meaning of the Constitution evolves over time. For what it's worth, I find dynamic statutory interpretation to be highly persuasive, but even if one generally takes a more static view of statutory meaning, it would seem that the case for dynamic statutory interpretation is especially strong with respect to RFRA, a statute that only operates in combination with other statutes, including other statutes like the ACA, that are enacted after RFRA. If, as I argued earlier, RFRA operates to help later Congresses express their intent, rather than to bind later Congresses, then there are especially good reasons for taking a dynamic approach to RFRA, focusing on how it is perceived by the later Congress that enacted the ACA.
It's still possible to resist the dynamic argument, even in a case like Hobby Lobby. I suspect that Justice Alito, if directly confronted with the foregoing contentions, would say something like the following: In addition to the principle that the T1 legislature can't bind the T2 legislature, courts apply a presumption against repeal by implication. Thus, if the words of the T2 statute at T2 are consistent with the words of the T1 statute as they were understood at T1, then the two statutes should be harmonized by giving each its original, static meaning.
To be clear, I am not saying that differences over dynamic versus static statutory interpretation provide a causal account of the divide in Hobby Lobby. The best account is simply ideological.
The liberals favored contraception access and the conservatives favored opt-outs for religious opposition to abortion.
Moreover, Justice Ginsburg's construction of RFRA relies chiefly on static arguments. She says that the 1993 Congress that enacted RFRA did not intend to give exceptions to for-profit enterprises.
Nonetheless, unpacking the disagreement over the relevance of the failed conscience amendment shows that, properly understood, it also could have divided the Court on jurisprudential lines, because the ideological divisions on the Court happen to correspond to jurisprudential divisions: the liberals are more favorably inclined to dynamic interpretation (of both statutes and the Constitution), while the conservatives are more favorably inclined to static interpretation (in both realms as well).