Wednesday, July 16, 2014

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. Smiththe 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.


Justin said...

This is peripheral, but I am tired of people calling the RFRA test a balancing test. It is not. It is a multipart test, but balancing is simply not part of the test. First, the plaintiff must establish a (1) sincere religious belief that (2) is substantially burdened by a government action. Then, the burden shifts to the government to prove that the regulation is (1) narrowly tailored to (2) meet a compelling government interest. While I think the law SHOULD require, at minimum, a balance between the government's interest and the burden to the plaintiff's religious beliefs, it does not. It is no more a balancing test than the burden-shifting tests in discrimination cases.

Unknown said...

I agree with Justin. Additionally, I'm not sure it's accurate to describe changes to RFRA as "fixing" it; "fix" suggests RFRA is broken and We haven't seen a case which says the law is broken. Did the ruling come out differently than Some would like? Sure, just like every other case in history. Such a disconnect from ruling and preference, however, does not mean the applied laws in question need to be "fixed".

As far as J. Scalia's apparent change goes, I think this perceived change comes from the fact, in Smith, the case deals with authority not explicitly delegated even though One might say such authority is implicitly delegated while, in Hobby Lobby et al., the case deals with explicit instruction given by the legislature to the Executive, a practice long considered legally valid.

Michael C. Dorf said...

1) Justin: There is a very large academic literature on whether strict scrutiny is a balancing test. Jed Rubenfeld takes your view. Most commentators do not. Even people who think that strict scrutiny is not a balancing test generally regard intermediate scrutiny as a balancing test. I read Justice Ginsburg's Hobby Lobby dissent to say that even though the pre-Smith case law used the general language of strict scrutiny, in practice it applied something more like intermediate scrutiny, i.e., a balancing test (and that RFRA incorporated that). You can disagree on any number of grounds, but the people with whom you disagree are not simply making a sloppy error.

2) Unknown. Option 8 in my column anticipates this objection: "This approach of not fixing RFRA would rest on the premise that it ain’t broke."

David Ricardo said...

The way to fix RFRA is to repeal it. Three points here.

1. One requirement for a statute to be effective is that it must be sufficiently unambiguous so that reasonable persons who make a sincere effort to adhere to the statute can do so. In the case of RFRA this is impossible. How does one determine “sincerity” of belief or “substantial” burden or “least burdensome” method?

In areas of the law where a statute cannot be interpreted definitions are usually required. So Driving While Impaired is determined in part by the alcohol percentage in the bloodstream; who is and who is not a related party in tax law is designated code and regulations. Even when there is no specific definition the law must have a sufficiently objective nature so that it can be administered. RFRA fails this basic test.

2. Because it cannot be interpreted RFRA places courts in exactly the position that, ironically, conservatives say they should not be in, namely acting as a legislative body. The Alito opinion does exactly that. And notice what it leaves out, for example, what comprises a ‘closely held corporation’. Soon the Court will have to define that term for RFRA purposes, and then it will be functioning as the legislative and/or executive branches.

3. No one has explained the contradiction in allowing a corporation to have standing under RFRA. If the corporation is a ‘person’ it can file, but as an intangible person it cannot have religion and thus cannot be burdened. If the corporation is not a person than it has no RFRA claim. What the Court has done is combine the corporation with its owners into a single entity with respect to religion, that is the corporation gets ‘religion’ because its owners have religion. This is a radical change in law. What is the supporting legal doctrine?

Repealing RFRA would not end accommodation for religion, and indeed the practice of religion should be accommodated. But it needs to be done on a situational basis, otherwise the process descends into chaos and endless litigation, which is a very accurate forecast of the future in this area.

Joe said...

New York has sort of rational basis plus rule for general laws and some sort of rule like that might work.

Listening again to the oral argument of the first Oregon v. Smith case, the pre-RFRA era (and states have different forms of RFRA too) was helped along by some degree of care and balancing.

U.S. v. Lee, e.g., should have been used to uphold the contraception rule but the opinion here figured RFRA did more than "restore" the old law (however unclear it might have been to some extent).

Also, the Oregon Supreme Court noted that the state should not deny employment benefits unless the practice burdened the employment system itself. The state showed no real concern for criminal use of peyote. A narrow ruling on that ground very well might have went against them given the facts of the case.

RFRA is overkill which as Marci Hamilton notes many are repenting for supporting in the first place.

Paul Scott said...

If I were interested in fixing RFRA (I'm not, I'd like it repealed and the Constitution amended to remove respect for religious freedom and make explicit law Jefferson's "wall of separation" - but none of those things are reasonable and once they become reasonable they will no longer matter) it seems the best way to amend it is not to amend it but instead to amend the corporations act (or dictionary act) to define religious belief out of corporate person-hood. While they were at it they should add some language that makes a corporation a "person" only where person-hood was essential to the on-going operation of the corporation.

Unknown said...

@David: The three terms which You ask how to determine, have long been handled by the courts. For example, a "substantial burden" is defined in Thomas if I recall correctly.

More accurately, RFRA itself makes no mention of "sincere", which means the courts essentially ask, "Okay, You want to raise a religious claim? Present evidence You're not just jerking the court's metaphorical chain." If Anyone is able to present evidence of such "chain jerking", it would raise doubts about whether or not the Objector is being honest.

Additionally, RFRA does not use the phrase "least burdensome" but "least restrictive". By its very terms, a method is the "least restrictive means of advancing" a compelling government interest if there is no way of advancing said interest while burdening, in this case, religious exercise any less than the proposed method.

Additionally, the phrase "closely held corporation" is defined by the IRS as "a corporation that has more than 50% of the value of its outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year and which is not a personal service corporation."

As such, RFRA can be interpreted quite easily, addressing both points #1 and #2.

Regarding point #3, the opinion of the court, which I strongly advise You read, explains quite clearly how (1) corporations are "persons" for RFRA purposes, (2) how corporations can exercise religion, and (3) how it is not the courts having made this decision but the congress.

Unknown said...

@Paul Scott: Your proposal to alter the Dictionary Act ignores the fact J. Alito made clear, even if the legal ability of a corporation to exercise religion were not at issue, the rights of the Owners to do so would clearly be implicated. Additionally, Mssr. Jefferson's "wall of separation idea" is one in which, effectively, the church (however big or small in number) may not explicitly interfere with the state and the state may not explicitly interfere with the church (however big or small in number). The former is the purpose of the Establishment Clause and the latter is the purpose of the Free Exercise clause. So, it sounds as if You already have the wall of separation You seek.

Unknown said...

@Joe: As far as I know, New York has no state level equivalent of RFRA, which would make the proposed change "repeal", if I am correct.

Lee and Smith could have been used to uphold the mandate but the congress, in passing RFRA, and later strengthening it, stated it wanted the more stringent tests of Sherbert and Yoder.

Speaking from a purely observation perspective, I would be leery about Anyone claiming to have "repent" over RFRA's intent or claiming the court's decision was not what was intended because a sizable number of Members of the congress now running around and making such claims were also Members of the congress when the carve outs from RFRA They now seek were first proposed and rejected. For example, Rep. Nadler of New York is been claiming RFRA was never intended to provide this sort of protection to businesses when, in reality, He proposed just such an amendment to RFRA in 1999 when the congress considered strengthening the law, the amendment was shot down, and the bill strengthening the law was then passed unanimously. The same can be said about Senator Murray, Who either knew or should have known of the proposed Nadler amendment. What this discrepancy says about Their claims along the lines of "RFRA wasn't meant for this sort of protection" are left up to Others to decide. In short, just make sure the claims of "RFRA wasn't meant for this" are not coming from Someone Who probably knows otherwise.

Unknown said...

@Profess Dorf: I did see option 8, thanks.

Joe said...

Sorry if I missed it being mentioned elsewhere, but I notice a familiar name among the signatures of this letter:

Joe said...

The reference to a "later" piece of legislation was addressed by Ginsburg and others, but as to RFRA, the "purposes" are cited as:

governmental interests.
(b) Purposes

The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened; and

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

We can debate all day just what this means, but just how more "stringent" they wanted to make the pre-Smith approach is unclear. And, given broad legislation, it is fair to me for people decades in to reflect and determine more care needed to be applied given how the language was applied in action. I am not "leery" about saying this.

I don't think the NY approach "restores" the old test, to be clear, but overall (as a person sympathetic to the dissenters in Smith) I think it might be the best approach for a truly general law. Though per Dorf's column, many so-called general laws are not really so.

David Ricardo said...

@ Unknown

I think your post, perhaps inadvertently illustrates the points I was making about RFRA.

1. As you correctly point out, with respect to sincerity the plaintiff ought to present evidence of sincerity, but commentators seems to want to take sincerity for granted, certainly the Court does. And how exactly does one measure sincerity, what are the standards?

2. RFRA may not use the term “least burdensome” but as your quote points out, that is the objective (“while burdening, in this case, religious exercise any less than the proposed method.”). So we are left with a court determining metaphysical burdening, or a legislator or executive trying to figure it out. How do they do that? Well we know how the Court does that, they do it in rulings that reflect their own personal biases.

3. A closely held corporation may be defined by the IRS code and regs, but where does it say those apply to RFRA? And if you are familiar with the code and regs you know that related parties are defined in different ways in different parts of the code and regs.

4. Yes the opinion does explain how a corporation is a person with religion, or at least how the court thinks that works. That doesn’t mean it is correct, that doesn’t mean it is logical, it doesn’t even mean it is the truth. Exactly how many corporations attend church, how many espouse religious beliefs, how many call themselves Protestant, or Jewish or Muslim? What is clear to one person is totally contradictory, false, confusing and a denial of reality to another (i.e., me). Look at the Circuit opinion that was reversed for a much more rational and intelligent and realistic opinion.

The Supreme Court could rule that 2 + 2 is 5. That don’t make it so.

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Shak Olreal said...

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