Jul 3, 2014

Posted in Uncategorized

Just When I Finally Finish Reading All of Hobby Lobby, We Get New RFRA Opinion

This is the Supreme Court term that won’t end. First, it stretches to the final Monday in June. Now, we get a significant followup order to Hobby Lobby on July 3! Lyle has the report. In short, the Court acting under the All Writs Act, enjoined HHS from enforcing the mandate against Wheaton College if Wheaton College provides written notice that they do not wish to comply. The very exemption the Court deemed an alternate for Hobby Lobby, is now waived pending the appeals.

Dissenting from the order, vigorously, was Justice Sotomayor, joined by Justices Ginsburg and Kagan. Here is the key section:

Indeed, just earlier this week in Burwell v. Hobby Lobby Stores, Inc., ante, at ___, the Court described the accommodation as “a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that the em- ployees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved con- traceptives as employees of companies whose owners have no religious objections to providing such coverage.” Ante, at 3. And the Court concluded that the accommodation “constitutes an alternative that achieves all of the Gov- ernment’s aims while providing greater respect for reli- gious liberty.” Ibid. Those who are bound by our decisions usually believe they can take us at our word. Not so to- day. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contra- ceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position.

That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

Even if one accepts Wheaton’s view that the self- certification procedure violates RFRA, that would not justify the Court’s action today. The Court grants Wheaton a form of relief as rare as it is extreme: an inter- locutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where “the legal rights at issue are indisputably clear.” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted). Yet the Court today orders this extraordinary relief even though no one could credibly claim Wheaton’s right to relief is indisputably clear.

The sincerity of Wheaton’s deeply held religious beliefs is beyond refute. But as a legal matter, Wheaton’s appli- cation comes nowhere near the high bar necessary to warrant an emergency injunction from this Court. For that reason, I respectfully dissent.

The talking points should now reflect that all 6 male Justices now voted against women’s health. Happy Independence day everyone!

Update: The talking points commence on cue.

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  • Jacob Berlove

    Sotomayor’s argument in the first paragraph you quote is ridiculous. RFRA challenges are as-applied, and the Court in Hobby-Lobby relied on an accommodation that Hobby Lobby didn’t argue it couldn’t take, without regard to whether it would be good enough for other plaintiffs. The whole point of RFRA is to allow individualized religiously required exemptions.

  • Relativicus

    “The talking points should now reflect that all 6 male Justices now voted against women’s health.”

    They didn’t?

    Regardless, the administration allows that those organizations that are rightly considered religious institutions do not have to provide contraceptive coverage in their plans. Rather, and with the full agreement and cooperation from insurers, the contraception coverage would be provided in those plans free of cost. So, Wheaton has now secured an injunction against even having to have the coverage at all — even though Wheaton would not be paying for said coverage — and yet the majority says this has no effect on the ability of the staff and students to receive free contraceptive coverage in their plans, which Wheaton does not have to provide? How does that work, exactly? Does the Court envision Congress creating a Department of Contraception? Or is the Court merely saying that those at Wheaton who want and/or need contraception coverage can simply refuse Wheaton health insurance and get more expensive plans on the market?

  • John Richter

    All good Catholic employers must demand their religious exemption from immigration laws—“The more prosperous nations are obliged, to the extent they are able, to welcome the foreigner in search of the security and the means of livelihood which he cannot find in his country of origin. Public authorities should see to it that the natural right is respected that places a guest under the protection of those who receive him.” Catholic Catechism, 2241.

    In January 2003, the U.S. Catholic Bishops released a pastoral letter on migration entitled, “Strangers No Longer: Together on the Journey of Hope.” In their letter, the Bishops stressed that, “[w]hen persons cannot find employment in their country of origin to support themselves and their families, they have a right to find work elsewhere in order to survive. Sovereign nations should provide ways to accommodate this right.” No. 35. The Bishops made clear that the “[m]ore powerful economic nations…ave a stronger obligation to accommodate migration flows.” No. 36.

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