Dorf on Law

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 pro...

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 ...

-- 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...

By Michael Dorf In recent posts, both Professor Buchanan and I have suggested that the inquiry into sincerity is likely to become more rigourous in the evaluation of future RFRA claims, given the Hobby Lobby majority's (in my view appropriate) willingness to defer to a claimant's account of what his--or in the case of a corporation, its--beliefs require. Here I want to problematize the sincerity question, and to some extent, a core assumption of religious freedom litigation, by noting the different ways in which belief itself may or may not figure in religious exercise. The standard account of the relation of religious belief to religious practice is causal. Jane feels a religious obligation to attend church on Sundays because she believes in the teachings of her religion, which commands her to attend church on Sundays; Bill feels an obligation to refrain from participating in abortions because he believes in the teachings of his religion, which say that participating in ab...

by Michael Dorf When Lebron James, Dwyane Wade, and Chris Bosh all opted out of the last year of their Miami Heat contracts at the end of the 2013-14 season, many people, including me, believed that their intention was to renegotiate as a trio, in order to give the Heat maximum flexibility to upgrade the roster under the salary cap. The key to that conclusion was Wade, who stood to earn nearly $42 million in the next two years if he had opted into the remaining two years of the contract he signed in 2010. James and Bosh were also relinquishing their rights under their 2010 contracts, but James remains the best basketball player on planet Earth and Bosh is, if not quite a superstar, still a reliable All-Star, as reflected in the maximum salary offers James and Bosh received from the Cleveland Cavaliers and Houston Rockets, respectively. James took the Cleveland deal but Bosh turned down the Houston deal for an even better offer from the Heat. By contrast, Wade's on-court value h...

-- Posted by Neil H. Buchanan In yesterday's post , I predicted that the Hobby Lobby decision will intensify future disputes regarding the "sincerity" of plaintiffs who make claims under the Religious Freedom Restoration Act (RFRA).  After summarizing that argument briefly here, I will describe how the sincerity inquiry might proceed, focusing on one of the examples mentioned in the Hobby Lobby dissent: religious objections to the minimum wage. Claims under a RFRA analysis must be brought by a "person."  The Hobby Lobby majority held that this requirement is met for (at least) closely held for-profit corporations, using logic that could easily extend to all corporations.  Even if the definition is not ultimately pushed that far, however, the range of plaintiffs now includes some large limited-liability corporations that are engaged in profit-making activities.  To win a RFRA challenge, such a "person" must hold a sincere religious belief that i...

-- Posted by Neil H. Buchanan Professor Dorf's string of posts this week ( here , here , and here ) about the Hobby Lobby decision examined some of the most important issues and implications of this term's most prominent Supreme Court case.  The posts on Monday and Tuesday drew an unusually high number of readers to our comment board, demonstrating the intense interest in the decision.  Here, I want to explore a further implication of Tuesday's post, in which Professor Dorf confronted what I originally thought was an extremely strong argument against the Hobby Lobby majority, which he called the "truthiness argument."  After explaining the argument and Professor Dorf's counter-argument, I will describe below why I think the Hobby Lobby majority's opinion is actually going to be bad for religion in America. The plaintiffs in Hobby Lobby asserted that their fundamentalist Christian religious beliefs prevent them from being complicit in providing abor...

By Michael Dorf 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...

by Michael Dorf As promised yesterday , this is the third post in my series on Hobby Lobby . Today, I want to focus on what may strike many as a peculiar aspect of the Hobby Lobby case: the idea that religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions. I too found this peculiar at first, but after giving it some thought, I have concluded that it makes sense, as I shall now try to explain. Both before and since the Hobby Lobby decision, I have sometimes seen (e.g., here ) the following criticism of one aspect of the plaintiffs' claims: Some of the methods of contraception to which the plaintiffs object do indeed work by destroying a zygote or embryo and so they can be understood as a form of abortion to which they have a serious religious objection; but other methods (such as the IUD and the "morning after pill") that the plaintiffs claim  work as abortifacients do not in fact  work that way, and so the ...

By Michael Dorf Perhaps because of the title (". . . a Not Very Important Case"), the aspect of my  initial post  on  Hobby Lobby   that drew the most critical attention from readers was my claim that it was not that important. I think some readers  misread  me to say the case was  un important, whereas I made clear that  Hobby Lobby  may well have been the most important case of the past Term, but that I thought it was not important relative to blockbuster end-of-Term decisions from recent past years, like  DC v. Heller  in 2008,  NFIB v. Sebelius , or  U.S. v. Windsor  last year. I continue to think that comparative assessment is correct because of three factors: In light of  City of Boerne v. Flores ,  Hobby Lobby  will have no direct impact on state and local laws; Justice Kennedy's concurrence gives some assurance that there will not be a fifth vote to grant religious exceptions that would...