RFRA and the Right-Wing Two-Step

 by Michael C. Dorf

My latest Verdict column discusses an execrable ruling by Federal District Judge Reed O'Connor. He construes the Religious Freedom Restoration Act (RFRA) to exempt a for-profit corporation with 70 employees from the requirement--which implements a provision of the Patient Protection and Affordable Care Act--that employee health insurance cover PrEP, a medication that greatly reduces the risk of infection with HIV/AIDS. Why? Because the owner of the corporation believes on religious grounds that covering PrEP would make him complicit in same-sex sex acts, all sex acts outside of (opposite-sex) marriage (the only kind of marriage he recognizes), and illicit drug use. How? Well, because people who take PrEP will be less deterred by the risk of HIV/AIDS and will thus be more likely to engage in such activity. 

As I explain in the column, the decision is outrageous--so much so that I found that I couldn't really come up with any hypothetical examples of similar logic to illustrate the outrageousness. Nothing was quite as bad as the actual case.

In today's accompanying essay, I want to focus on a particularly egregious move the Judge O'Connor makes. After finding that the application of the employee health insurance mandate to this particular plaintiff corporation would substantially burden its owner's religious exercise and thus trigger RFRA, Judge O'Connor acknowledges that the government has a compelling interest in combating HIV/AIDS. Nonetheless, he rules for the plaintiff because he says that the requirement of covering PrEP through employer-provided health insurance is not the least restrictive means of pursuing that compelling interest. That conclusion in turn rests in part on the observation that rather than compelling employers to provide the coverage, the government could simply provide the insurance or the PrEP itself directly.

As I explain in the column, that move is supported by precedent. Justice Alito, in his opinion for the Supreme Court in the Hobby Lobby case, made the same assertion with respect to contraception coverage. And in both cases, that's true--in theory. But in practice this contention constitutes what I'll call the right-wing two-step. It's disingenuous in the extreme. And it's ubiquitous.

Here's how the two-step works.

Step 1: Declare that an existing method of achieving some goal is unconstitutional or otherwise unlawful or unacceptable but add that the goal can be met by other means.

Step 2: If you are a political actor, ensure that those other means are not available as a practical matter, whereas if you're a judge, know that those other means are unavailable but disingenuously take step 1 anyway.

Now for some examples:

Step 1: Congress cannot impose a health coverage mandate on individuals because . . . reasons. That's okay, though, because Congress can simply create government-provided health insurance such as Medicare for All.

Step 2: Republicans in Congress demagogue day and night about how government-provided health insurance is "socialized medicine." If you're a judge or Justice, know, but pretend not to know, that this is how the politics will play out.

B) Religious exceptions as in Hobby Lobby or Judge O'Connor's PrEP ruling:

Step 1: Religiously scrupled individuals cannot be required, even as a condition of operating a profitable enterprise, to make any expenditures that result in their feeling complicit in what they regard as the immoral activities of persons in their employ or even in the employ of a corporation they own, because . . . again, reasons. That's okay, though, because the government can provide the money directly.

Step 2: Push for measures like the Hyde Amendment, defund Planned Parenthood, and generally do your darnedest to prevent any public money from being spent on those same activities. If you're a judge or Justice, know, but pretend not to know, that this is how the politics will play out.

C) Race-based affirmative action (coming soon in the Harvard and UNC cases):

Step 1: Forbid on constitutional and statutory grounds all race-conscious measures that aim to ameliorate centuries of slavery, Jim Crow, redlining, and ongoing instances of white supremacy because "the Constitution [and the rest of our law] is color-blind." That's okay, though, because race-based affirmative action is an end-of-the-pipe fix for structural inequality that develops much earlier and is better addressed through much better funding of public elementary and secondary schools.

Step 2: Oppose those earlier interventions as too costly. If you're a judge or Justice, know, but pretend not to know, that this is how the politics will play out.

D) Habeas corpus

Step 1: Impose, via statutes and judicial rulings, nearly insuperable obstacles to anyone ever getting relief via federal habeas corpus even if they had a demonstrably flawed trial or sentencing and even if there's a decent chance (but not incontrovertible proof) that they're actually innocent of the underlying offense. That's okay, though, because the real problem with our criminal justice system is inadequate funding for defense attorneys for trial and (especially in capital cases) sentencing, which is where the effort should be directed.

Step 2: Continue to fail to provide anything like adequate funding for trial-level defense. If you're a judge or Justice, know, but pretend not to know, that this is how the politics will play out.

So yeah, Judge O'Connor's logic is deeply cynical, but it's hardly unprecedented.