One thing became clear in yesterday’s complex oral argument in Hobby Lobby and Conestoga Wood, as former Solicitor General Paul Clement argued that his clients were entitled to a statutory and constitutional exemption from the contraceptive mandate of the Affordable Care Act. The Marijuana Churches always lose. Clement’s concession that those churches do not deserve protection highlights the irreparable problems with the statutory and constitutional regime of religious exemptions defended by Clement and his clients. The exemptions chosen by the Court under a constitutional regime or the Congress under the RFRA regime will always be arbitrary and extensive, favoring traditional believers over members of non-traditional religions and undermining, under Clement’s reasoning, every federal law.
A brief oral argument has the advantage of highlighting and clarifying everything that may be lost while slogging through the parties’ briefs and the 84 amicus briefs filed in the contraception cases. According to Clement, here’s how the exemption regime should work:
First, a religious employer who opposes employees’ use of contraceptives—or blood transfusions, vaccines, products made of pork, or any medical treatment—may file a claim in court. Any other religious individual who sincerely believes his religion is substantially burdened may also file a lawsuit. The sincerity of that belief is the only issue that the courts can question. Apparently no one believes that the Marijuana Churches’ members are sincere—they want only an excuse to use marijuana—but everyone assumes that members of traditional religions—in this case, evangelical Christians and Mennonites—are sincere. Sincerity analysis works to screen out the untraditional.
Second, once sincere religious believers get into court, Clement argued for the plaintiffs, with help from Justice Samuel Alito, they may not be questioned about their sincere belief that their religion is substantially burdened by the government’s conduct. Some lower courts had decided, for example, that Hobby Lobby’s owners’ religion was not substantially burdened by its employees’ decisions to use contraceptives, or that the contraceptives were not scientifically abortifacients as the plaintiffs religiously believed. For Clement, such review was unacceptable. Although Solicitor General Donald Verrilli valiantly argued that the courts’ review of the substantial burden prong of RFRA must be “strenuous” and “incorporate principles of attenuation and proximate cause,” Justice Alito pushed back that substantial burden “is really a question of theology or moral philosophy” that courts can’t review. The substantial burden prong of RFRA, therefore, must be accepted as a matter of theology and not argued as a matter of law. This lowers the threshold for the “sincere” plaintiffs to get into court as they can claim any burden they want.
Third, those (almost) unquestionably sincere believers with (absolutely) unquestionable substantial burdens have the right to challenge every federal law under the most demanding form of scrutiny. When Justice Elena Kagan asked Clement if the entire U.S. code, including sex discrimination laws, minimum wage laws, family leave laws, child labor laws, was subjected to the strictest scrutiny, Clement answered yes. That rule is dangerous. As Professor Hamilton has explained, RFRA’s least restrictive means test is unprecedented in free exercise law and holds the government to a standard nearly impossible to meet. Under this interpretation of RFRA, all federal laws are under attack.
Fourth, for Clement all the legal analysis of these numerous claims takes place in an unspecified, case-by-case balancing test that arbitrarily chooses one religious belief over another. Clement’s only response to the “parade of horribles” made possible by his regime and accentuated by the questions of the three women Justices on the Court—namely that every health and antidiscrimination law would be subjected to the strictest form of scrutiny—was the lame answer that the courts can screen the good claims from the bad by considering every case on its own merits. To Justice Sotomayor’s question about blood transfusion, vaccines and products made of pork, Clement responded that his case is “easier” than those because his is “so religiously sensitive.” To Justice Kagan’s follow-up about employers who refuse to fund vaccinations, Clement responded that the government has a stronger compelling interest in vaccinations than it does in contraception, a conclusion that seems at odds with the Constitution’s different protections of public health and women’s equality. To Justice Kagan’s next question about blood transfusions, Clement responded that it would have to be “evaluated on its own.”
Finally, at the compelling interest stage of the litigation, Clement added, courts could consider that a burden coming from an employer is not as serious as one coming from the government and so have additional reasons to uphold employers’ decisions…..in the right case-by-case circumstances.
Justice Kagan: “So one religious group could opt of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.”
No Justice Kagan. Things would be even worse than that. The really untraditional religious group would never get into court to opt out in the first place. One (traditional) religious group could opt of contraception while another (less traditional) religion could not opt out of vaccination. Presumably (we think) no religious employer could opt out of the race discrimination laws, and, perhaps, the child labor laws, but gender and sexual orientation laws are a different matter. After all, Justice Kagan, employer burdens on gay and lesbian employees are not nearly as serious as similar government burdens.
Don’t worry. You can trust the courts to balance Congress’ test in the right way.
To Clement’s credit, when Kagan pushed him on these implications of his argument, he responded, “Well I don’t say that. I think Congress said that.” In this case, the oral argument crystallized what RFRA has set in place, namely a system of religious winners and losers determined at the whim of Congress and the courts.