Thursday, September 25, 2014

Hobby Lobby Post-Mortem Part 11: How RFRA Connects Social Conservatism to Libertarianism

by Michael Dorf

Regular readers of this blog will recall that in June and July, Professors Buchanan, Colb, and I wrote a series of ten posts on the Hobby Lobby case (found at 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10) as well as two Verdict columns (here and here). Having thus devoted a great deal of thought to all of the issues surrounding Hobby Lobby, I was happy to agree to participate in a "debate" on the merits of the case sponsored by the Cornell Law School chapter of the Federalist Society. Thus, on Monday of this week, I debated John Malcolm of the Heritage Foundation.

I put "debate" in quotation marks because the event was not, strictly speaking, a debate. I spoke for about 20 minutes, most of which was devoted to explaining to the audience (a majority of whom were 1Ls) exactly what was at stake in Hobby Lobby, and only in my last five minutes did I lay out some concerns, based mostly on my Verdict column. Mr. Malcolm then spoke for about 25 minutes, occasionally referring to my remarks to agree with my descriptive account of the issues. I used my 5-minute rebuttal to call attention to a few points of disagreement, simply so the audience would not go away feeling cheated. Q&A followed. Having said as much as I have already about Hobby Lobby, I did not expect Monday's debate to lead me to blog about the case yet again, but Mr. Malcolm's answers to a couple of audience questions has drawn me back in.

Unlike some of the past Fed Soc debates in which I have participated, this one was not recorded, so I'll have to paraphrase based on what I recall. I'll undoubtedly get some details wrong but I'm pretty confident that I have the big picture right.

Both in his affirmative presentaiton and partly in response to an audience member's question, Mr. Malcolm drew a distinction between the religious freedom of owners of businesses like Hobby Lobby and Conestoga Wood, on the one hand, and, on the other hand, the objection by employees and prospective employees who do not share the religious views of their employers. Such employees are not forbidden by their employers from obtaining the forms of contraception to which the business owners object, he said, because: a) they could pay for it out of pocket or pay out of pocket for a supplemental insurance plan that covers it; and b) most employers (I believe the figure he gave was 85%) do not have religious objections to providing health insurance that covers these forms of contraception, so the workers could go to work for one of those other firms.

In response to a), I noted that for low-wage employees, the out-of-pocket expenses could be prohibitive. In a follow-up, Professor Nelson Tebbe raised an objection to part b) of the foregoing response, explaining that ordinarily if the government provides some protection for employees, an employer cannot avoid its obligations simply because there may be other employers who satisfy them. He gave an example of an employer who invokes RFRA to defend against a charge of religious discrimination by saying that his (or in the case of a corporation, its) religion requires that only co-religionists be hired.

Before coming to Mr. Malcolm's reply, here's a little background regarding Prof. Tebbe's question. Title VII exempts religious non-profits from the prohibition on religious discrimination, and that exemption was upheld against an Establishment Clause challenge in Corp. of Presiding Bishop v. Amos. Meanwhile, in the Hosanna-Tabor case, the Supreme Court held that the Free Exercise Clause requires a "ministerial exemption" from other kinds of antidiscrimination law. But I think it is clear that--absent a valid RFRA claim--neither Title VII itself nor the Constitution would entitle the religious owners of a for-profit business to escape Title VII liability for discrimination on the basis of religion.

So, how did Mr. Malcolm answer Prof. Tebbe's question? He did not directly address it. Like Justice Alito in his Hobby Lobby majority opinion, Mr. Malcolm said that there is a compelling interest in combating race discrimination, and he seemed to admit that Title VII's prohibition on such race discrimination was narrowly tailored. Why he admitted the latter is not entirely clear. My guess is that many fewer than 15% of businesses would seek a religious exemption from Title VII's prohibition on race discrimination, so if it is a sufficient answer to the women denied contraception that they can find other employment, I don't know why it's not a sufficient answer to the people denied jobs based on race that they can find other employment. I suspect that both Justice Alito and Mr. Malcolm sought to distinguish race cases because they felt some need to do so on political grounds. In any event, by not directly addressing the religion example posed by Prof. Tebbe, and by waxing poetic about how, in a free society, we must sometimes accept some burdens when other people exercise their freedoms, Mr. Malcolm pretty clearly indicated that he thought the race case was exceptional. Whatever he would have said if pressed to answer Prof. Tebbe's question directly, he did not back down from his general view that employees and prospective employees should have to bear the burden of the exercise of freedom by their employers.

Now, as a description of positive law, I think there is probably something to be said for Mr. Malcolm's view. To return to the facts of Hobby Lobby, the female employees are not asserting that they have a religious obligation to use the particular forms of birth control, and even if they were, that would not make out a RFRA claim, because it is their private employer, rather than the government, that is denying them the coverage they seek. So the issue of the employees' need/desire for the particular forms of birth control enters into the equation by way of the compelling interest test. We ask whether there is a compelling government interest in providing them with the birth control, and if so, whether having it come via health insurance provided by their religiously scrupled employer is narrowly tailored to that interest; we do not ask whether the employees themselves have a religious or other right to the contraception, because they do not.

But Mr. Malcolm did not simply give the foregoing answer (although I think what he said included the foregoing, at least implicitly). He didn't just say that the combination of RFRA and the state action doctrine means that the employers have a claim but the employees don't. He thought that this was the normatively right answer, on libertarian grounds. Why? I think the answer is pretty clear from libertarian thought generally, which goes like this:

In an unregulated market, some employers would offer health insurance; others would not. Some of the employers that offered health insurance would include coverage of all forms of contraception; others, including those with religious scruples against what they consider abortifacients, would not. Employees would be free to accept or reject employment based on the package of salary, conditions, and benefits--including health insurance--offered. Thus, in an unregulated market, religious freedom for employers would simply be a result of economic freedom. Ideally, the government would not interfere with the market at all, but if the government does interfere--as by enacting the Affordable Care Act (ACA)--then it at least should grant exceptions to those who are most burdened by the interference, namely those for whom compliance with government regulation conflicts with religious conscience.

The main problem with this story is its initial premise that absent laws like the ACA, the employment market would be unregulated. As legal realists have been pointing out for over a century, law plays an essential role in creating the conditions for market exchange, by protecting property rights, enforcing contracts, etc. So the notion that the ACA or antidiscrimination law interferes with a domain of pre-political freedom is highly problematic. It only makes sense in the Lochnerian world in which the common law is taken for granted as a neutral baseline. If, instead, one begins with the much more realistic notion that the law will inevitably play an essential role in the marketplace, then one needs to offer a normative justification for preferring the freedom of the employers over the often-fictive freedom of the employees to choose where, when, and how to sell their labor.

My goal here is not to rehash the legal realist critique of libertarianism. Instead, I simply want to make an observation (for which Prof. Colb deserves credit, having made the suggestion to me in conversation a while ago): A case like Hobby Lobby is wonderful for the right because it brings together two strands of conservative thought that often pull in opposite directions--social conservatism and libertarianism. Social conservatives like the result and reasoning of Hobby Lobby because it is anti-abortion in the particulars and more generally it provides religious traditionalists with grounds for opting out of progressive regulation; libertarians like the result and reasoning of Hobby Lobby because it recognizes market freedom as a core liberty.

Meanwhile, religious exceptions cases are more ambiguous for liberals (like me). Even while rejecting the libertarian view of the market as neutral, many liberals still support RFRA or its state-level equivalent because we recognize that religious liberty is important, and because we worry that facially neutral laws will sometimes impose serious burdens on members of minority religious groups (like the Native American plaintiffs in the Smith case).

Given these considerations, it is not really surprising that my debate with Mr. Malcolm was not a debate in the sense of two people offering opposite positions. My view is that religious exceptions cases pose hard questions about how to trade off important goals on both sides. His view (and the view of conservatives more generally) is that the issue is just about wholly one-sided.

20 comments:

Joe said...

I appreciate the complex discussion but this stood out:

anti-abortion in the particulars

It isn't arguably that -- contraceptives can cut down on abortions. Some who are fairly strongly against abortion particularly feel it is important partially for this reason.

The whole thing is somewhat depressing to me.

jim green said...

Everyone supports "religious liberty" in the abstract but the extent and constraint on that liberty interest that is disputed. I just wish the liberals who rushed through RFRA would have crafted a much narrower statute aimed specifically at minority religions and carve outs for third parties as well as civil rights, rather than the unprecedented attempt to reverse a constitutional opinion by imposing an untested equal protection procedural rule on the Court.

Joe said...

RFRA was a very popular bipartisan piece of legislation though in hindsight many liberals have had second thoughts.

In hindsight, also the judicial activism (not saying this is wrong by definition here) of Oregon v. Smith was unfortunate. O'Connor pointed out a narrow way to uphold the law.

And, given the narrow question (wasn't a criminal prosecution, drug use by drug counselors is a special case, state court ruling involved), there was little need to rule so broadly.

Once a legislative rule was put in place, one arguably broader than the pre-existing law (though the word "restoration" is pretty misleading then), it made things worse. To give some credit to the legislators, many think they were basically returning things to the status quo ante, not bringing forth a totally unprecedented new rule.

But, they still have the responsibility here though Hobby Lobby made things worse.

darrowret said...

It is puzzling that this analysis (and apparently the debate) proceeded wothout so much as mention of the solution provided b Justice Alito's Majority Opinion:

"HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2). 38

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. 39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well. 40

The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none. 41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). "

On294e may debate whether Alito's solution has practical problems, but to ignore it altogether seems, well, puzzling.

darrowret said...

It is puzzling that this analysis (and apparently the debate) proceeded wothout so much as mention of the solution provided b Justice Alito's Majority Opinion:

"HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1); 26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.” 45 CFR §147.131(c)(2); 26 CFR §54.9815–2713A(c)(2). 38

We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims. 39 At a minimum, however, it does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well. 40

The principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none. 41 Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” post, at 28 (internal quotation marks omitted), because their employers’ insurers would be responsible for providing information and coverage, see, e.g., 45 CFR §§147.131(c)–(d); cf. 26 CFR §§54.9815–2713A(b), (d). "

One may debate whether Alito's solution has practical problems, but to ignore it altogether seems, well, puzzling.

Michael C. Dorf said...

darrowet: Puzzle no more. This post does not recount everything that occurred. During my introductory discussion, I explained how Justice Alito's majority opinion assumed that it would be possible to accommodate the religious claims w/o burdening the employees. Mr. Malcolm argued that even if that were not possible, he would still favor accommodating the religious claim. Here I have described the pushback to that claim.

jim green said...
This comment has been removed by the author.
jim green said...

Was the approach Congress took in attempting to "overturn" Smith by prescribing a mandatory specific rule/formula (heightened scrutiny) for the Court to apply when RFRA is invoked considered novel or sui generis at the time RFRA was drafted? I can't think of another statute that attempted to micromanage how the court analyzed constitutional claims. Obviously the Court resented such meddling as evidenced by its striking down RFRA when applied to the States by some creative interpretation but left it intact against the federal government. Any idea as to why the court didn't attempt to invalidate RFRA completely under some sort of separation of powers theory rather than the convoluted 14th amendment incorporation theory that just applied to the states?

meads said...

the whole history of the RFRA is fraught with overreaching by the Court and Congress. The Oregon vs Smith decision by Scalia was wrong from inception. The facts were clear that Oregon's legislature had targeted the Indian tribe in passing the law and the Court failed to protect the religious rights of the minority. The decision was widely criticized by both the Public and the Legal establishment. In response, Congress passed the RFRA which is vague and over broad . In response the Ct in Flores, overreached and held that Congress did not have the authority under Section 5 of the 14th Amendment to apply against the States. The Hobby Lobby decision is wrong in many respects. For- profit businesses do not have 1st amendment religious rights. I defy an originalist to find it there. It is clear that the ACA , a subsequent law to RFRA, did not give Hobby Lobby free exercise rights under the Statute since there is no evidence Congress intended to provide it under the Statute. Bottom line, is that the Ct should have ruled that Hobby Lobby had no standing under RFRA and dismissed the case. Alternatively, it should have ruled that forcing a corporation not make a payment is NOT a substantial burden on religious freedom.

meads said...

sorry, last sentence should say… forcing a corporation to pay a small dollar amount per employee is not a substantial burden on religious freedom.

Emma O'Connell said...

Both in his affirmative presentaiton and partly in response to an audience member's question, Mr. Malcolm drew a distinction between the religious freedom of owners of businesses like Hobby Lobby and Conestoga WoodCheap FIFA 15 Coins
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Joe said...

"The facts were clear that Oregon's legislature had targeted the Indian tribe in passing the law and the Court failed to protect the religious rights of the minority."

Oregon barred various things that interfered with a religious group in some fashion. It is unclear how it "targeted" Indian tribes specifically when it -- along with let's say marijuana which some religious groups say is also needed for a sacrament -- banned peyote, which has potential to be quite dangerous. The Court argued that the law was an evenhanded one and that it was not the sort of thing the Free Exercise Clause guarded against. A few years later, it struck down a law that targeted a specific unpopular minority faith. The dissent in Oregon v. Smith did argue the majority was wrong, but still, not sure if you show your work.

"In response, Congress passed the RFRA which is vague and over broad . In response the Ct in Flores, overreached and held that Congress did not have the authority under Section 5 of the 14th Amendment to apply against the States."

It seems to me it being "vague and overboard" helps the cause to show how it is not an "appropriate" way for Congress to protect religious liberty under Sec. 5.


"The Hobby Lobby decision is wrong in many respects. For- profit businesses do not have 1st amendment religious rights. I defy an originalist to find it there."

I'm not sure it is necessary to argue that this case rests on 1A religious rights turning on making a profit or not. The "public accomodation" nature of the business with employees not members of the religion etc. seems more important than if it makes $1 in profit or something.


"Alternatively, it should have ruled that forcing a corporation not make a payment is NOT a substantial burden on religious freedom."

I think this a possible way or a compelling state interest can be shown or concern about harm to third parties. As to Alito's suggestion, the dissent actually does address it (see, pp 29-31 of dissent) & ultimately it will be burdensome to the women (even if it satisfies the employer, which doesn't seem to be the case in certain lawsuits). As Ginsburg notes, the situation is different in the non-profit world, especially when the covered people are much more likely to be of the same faith of the employer. Using the same rule for both non-profit and profit is problematic for various reasons, as she suggests.

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