We’d like to welcome Professor Perry Dane (Rutgers-Camden), who will be posting with us as a guest here at CLR Forum. Perry has written landmark articles on choice of law, religion and law, the jurisprudence of Jewish law, legal pluralism, and jurisdiction. In fact, his recent piece on the contraception mandate appears at #1 on this week’s Top Five List. He’s also a member of religiousleftlaw blog. Perry will be joining us later in the fall, but will get a head start with one or two posts this month. Welcome, Perry!
Walsh on the Third Circuit’s Contraception Mandate Decision
Center for Law and Religion friend Kevin Walsh has a thoughtful and informative post about the Third Circuit’s recent decision in Conestoga Wood Specialties Corp. v. US Department of Health and Human Services, which I noted and discussed here. One thing that Kevin’s post makes me think is that given the nature of the legislative purpose for enacting RFRA, it is probable that the meaning of “exercise” was intended to be close to the constitutional meaning (pre-Smith). It would have been useful to have more statutory analysis of this type from the Third Circuit. From Kevin’s post:
Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).
A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.
The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.
The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.
Baude on the Third Circuit’s Contraceptive Mandate Opinion
Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot “exercise” religion and that they therefore can have no constitutional free exercise or RFRA claims.
Will asks some very good questions about the court’s analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions–the distinction between “for profit” and “nonprofit,” and the distinction between “religious” and “secular.” There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can “exercise” religion. But they do not appear in the majority’s opinion.
There is another odd portion of the majority’s opinion that Will does not discuss. Will’s post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority’s argument was surprisingly short:
Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).
Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a “person” under the RFRA.
With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That’s not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority’s own preferred approach to divining the meaning of “exercise” under the Free Exercise Clause is to engage in what it calls a “historical” analysis. But presumably to divine the meaning of the statutory language, one would begin with the “plain meaning” of the words in the statute as used today. The court uses the words “plain meaning” in the first paragraph, but it does not discuss the plain meaning of the words as used in the RFRA. Perhaps the usage is the same in the RFRA as in the Free Exercise; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be in error.
ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term “tax” as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that “tax” in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term “exercise.” See 42 USC s. 2000bb-2(4) (exercise of religion “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief”) (emphasis added).
Hobby Lobby Obtains Preliminary Injunction
The Becket Fund is reporting that the United States District Court for the Western District of Oklahoma has issued a preliminary injunction in the Hobby Lobby litigation against the enforcement of the federal government’s contraceptive mandate. The preliminary injunction follows after the Tenth Circuit’s recent decision in the litigation.
What Does Delay of the Big Mandate Suggest for the Little Mandate?
As has been widely reported, the Obama Administration has decided to delay by one year implementation of the mandate that all employers with more than 50 employees must provide insurance for their employees (I’ll call this the “big” mandate). The reason for the delay seems to be largely economic and administrative: the White House has been persuaded to delay in order to ease the transition for employers.
Over at Religion Clause blog, Professor Friedman suggests that delay in enforcement of the big mandate may also mean that courts will now find greater attraction in dismissing suits against the contraception mandate (which is one small piece of the larger requirement to provide insurance–I’ll call it the “little” mandate) on grounds of ripeness. I confess that this was my first reaction as well; delay in enforcement means that there is more time for the Administration to change its mind, tweak the rule, etc.
But some friends with whom I batted the idea around have persuaded me that such dismissals are not probable. The reason is that as recently as June 25 (exactly 1 week before the announcement about delay), the Administration announced the “final rule” involving the little mandate. That means that the injury (assuming that there is an injury) is no longer speculative. It is certain. Ripeness doctrine aims to ensure than an issue is sufficiently final that it is ready for judicial review. “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). But the little mandate is now final. So unless, as part of its delay on the big mandate, the Administration also indicates that it is now reconsidering the finality of the little mandate, dismissal of a lawsuit against the little mandate on ripeness grounds seems unlikely.
There is another way that delay of the big mandate might affect arguments about the little mandate. The RFRA test demands that once the plaintiffs show that the particular law or rule represents a substantial burden on their religious exercise, the government is required to show that the burden is justified by a compelling interest and that it is pursuing that compelling interest by the least restrictive means. Most of the attention thus far has focused on the means element; many arguments have been advanced that there are many less restrictive means for the government to achieve its interest, assuming that interest to be compelling.
But delay of the big mandate might go to the question of whether the government’s interest actually is compelling at all. It has always been difficult to know precisely what it is that makes a government interest compelling. It may be somewhat easier to identify those characteristics that make an interest not compelling. In his article, “A RFRA Runs Through It: Religious Freedom and the US Code,” Professor Michael Stokes Paulsen wrote that an interest is not compelling if it involves only issues of expense or administration: “Government–except in perhaps the most exceptional situations–does not have a compelling interest in bureaucratic convenience or ease of administration.”
The situation here, however, is a little bit different. The government can say that its interest in, say, “public health” continues to be compelling and continues to be the ground of the contraception mandate. But another even more compelling interest–the economic and administrative expenses that employers will suffer as a result of (what the Administration now believes is) premature enforcement of the big mandate–is more important than whatever interest it has in enforcement of the little mandate right now. The idea is: yes, the contraceptives mandate is important. But it’s even more important that we make it easy for businesses to implement the employee coverage mandate in an economically and administratively feasible manner. We are willing to delay implementation of the mandate to cover employees generally (for economic/administrative reasons), at the expense of getting immediate coverage for contraceptives for those selfsame employees.
In order for that argument to work, however, one would have to be persuaded that the easing of economic and administrative expenses for employers faced with implementing the big mandate is itself a compelling government interest. Up until yesterday, one might have thought that the pursuit of the “public health” represented by the big mandate was more compelling than such economic and/or administrative interests. But now the issue is less clear. And if it is less clear for the sort of public health to be achieved by the big mandate, it may be less clear for the more particular sort of public health to be achieved by the little mandate. It does not seem very persuasive to claim that the government’s interest in the little mandate becomes compelling only at such time when it is more palatable or economically feasible for employers to comply with the big mandate.
It’ll be interesting to see how this shakes out.
New York Times Editorial on the Contraception Mandate
Here is the New York Times offering an opinion about the Obama Administration’s decision to press on ahead with the contraception mandate and about the Tenth Circuit’s decision in the Hobby Lobby case (the case was handed down when Mark and I were at a conference last week, and it is quite long, so I haven’t quite yet had a chance to review it). The Times quotes Professor Marci Hamilton as saying that the Tenth Circuit decision is a “fantasy.” The opposition in the Times editorial has almost nothing to do with the specific issue decided in Hobby Lobby–whether for-profit corporations may exercise religious liberty rights. The Times’s position is that the mandate is “an important advance in public health” and that the Obama Administration “has gone further than fairness or the First Amendment require to reach a compromise that respects the concerns of some religious entities without sacrificing an employee’s right to make her own decisions regarding contraceptives and not to conform to the religious beliefs of her employer.” It then says this:
Contrary to the majority opinion, a corporation like Hobby Lobby is plainly not a “person” covered by the Restoration Act. In any case, the contraceptive rule still leaves the company’s owners free to rail about the different forms of birth control to which they object and to try to convince employees not to use them. As the Justice Department cogently argued, the burden imposed on any religion is trivial in allowing employees to make their own independent decisions to obtain free contraceptives.
Note that unless one is putting a whole lot of emphasis on the phrase “like Hobby Lobby,” this opinion really has nothing to do with the issue in Hobby Lobby itself. And the points thereafter about freedom of owners to object (is it a great concession that the Obama Administration did not curtail the freedom of individuals to object?) and the triviality of the burden on religion do not depend on the status–for-profit or non-profit–of a particular corporation. All of these points would apply with equal force to a non-profit, like a church. If the burden imposed on religion is “trivial,” then it would be important to understand why it is so in the case of for-profits and not in the case of non-profits. Otherwise, it’s trivial as to both (to be clear, some people take this view. But that’s not a particular claim about the issue in Hobby Lobby, so much as skepticism that “fairness” requires any accommodation at all).
Willis on the Contraception Mandate and Corporations
Steven J. Willis (University of Florida, Fredric G. Levin College of Law) has posted Taxes and Religion: The Hobby Lobby Contraceptive Cases. The abstract follows.
Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.
So far, courts have been reluctant to hold corporations have religious rights
of their own; as a result, standing of a corporation to assert the religious
beliefs and rights of owners has become the primary issue in the twenty-six
separate cases moving through the courts. Courts are split on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.
This article discusses the relationship of morality and religion to general
business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.
Vischer on Religious Liberty and For-Profit Businesses
You should make the time to read Rob Vischer’s new piece, Do For-Profit Businesses Have Free Exercise Rights? One interesting feature of the paper is Rob’s engagement with the First Amendment institutionalism literature. He makes the case for some line drawing, in his usual careful and thoughtful way. Here is the abstract:
Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise.
Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.
Morse on Navigating the Penalties in the Affordable Care Act
Edward A. Morse (Creighton U. School of Law) has posted Lifting the Fog: Navigating the Penalties in the Affordable Care Act. The abstract follows.
This article provides an analysis and critique of tax penalties affecting employers and individuals in the Affordable Care Act. After an overview of the Act and its intended role in addressing problems in the health insurance system, the article turns to examine the employer and individual mandates, along with the requirement of minimum essential coverage. It argues that behavioral effects of these provisions are unlikely to achieve the desired policy outcomes. Moreover, the failure to accommodate conscience exemptions for employers and citizens with objections to contraceptive coverage likewise erects a barrier to achieving the desired policy goal of expanded coverage. Finally, the article briefly touches on the problems associated with state exchanges and their implications for employers and citizens seeking health insurance coverage. An appendix shows hypothetical computations affecting an employer decision to shift employees to exchanges rather than to continue employer-provided coverage.
And from the Introduction: Read more
Nelson on the Free Exercise Rights of Institutions
James David Nelson (Columbia University Law School) has posted Conscience, Incorporated. Nelson’s essay evaluates the ability of corporations and other institutions to claim exemptions from the Affordable Care Act’s contraception mandate under the Free Exercise Clause. The abstract follows.
Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question.
This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how individual moral identity is formed within associations and, consequently, how the social structure of those associations can support institutional claims for legal exemptions.
The social theory of conscience has direct implications for free exercise doctrine. For an institution to assert a valid claim, it must be a constitutive community, such that individual members regard the collective as intimately tied to their sense of self. Some institutions, like churches and other religious organizations, fit comfortably in this category. But the legal, social, and economic norms that govern modern business practice pervasively undermine the formation of tight personal connections to for-profit corporations and thereby erode the normative basis for institutional legal exemptions. Free exercise doctrine should therefore resist corporate claims to exemptions from the law.