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One aspect lost in the entire Hobby Lobby debate is that Congress did not specify that employers must provide certain types of contraceptives. They required that employers provide “essential care” and delegated to HHS the responsibility for defining what drugs are included. HHS then specified that certain products must be provided. Initially only churches were exempt from the mandate, but after an uproar, provided a way for religious organizations, such as the Little Sisters of the Poor, to opt out of the coverage. But this was done as a political compromise. HHS did not assert they were required to do so under RFRA, or the First Amendment.

As Justice Kennedy noted twice:

JUSTICE KENNEDY: But you gave this exemption, according to your brief, without reference to the policies of RFRA. What ­­ what were the policies that you were implementing?

JUSTICE KENNEDY: I still don’t understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

Justice Kennedy raised the non-delegation doctrine in an interesting context–can we let administrative agencies decide the scope of the First Amendment?

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.  But when we have a First Amendment issue of ­­ of this  consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

In other words, it may even be outside the ability of Congress to delegate this type of authority to an agency–or at the least, it must be given with some serious guidance.

The Chief Justice alluded to this point, with respect to whether Congress, or HHS, made various plans to exempt people from the employer mandate.

Well, the grandfathering is not a decision that Congress made, is it?

Paul Clement repeated this during his rebuttal:

If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Of course, I have to chuckle at the entire notion of limits being placed on the arbitrary and capricious nature in which this law has been rolled out. I am seriously weighing writing an amicus in Halbig chronicling all of the delays, waivers, and exemptions, coupled with the absolute disregard for the APA and rulemaking, augmented by the purely political abuse of the administrative process, to argue that Obamacare is not worthy of the usual deference. Chevron need not apply.

A few weeks ago, I considered a hypothetical  about a law that bans the Kosher slaughter of animals, due to concerns about animal cruelty. (Such laws are being enacted in Europe now). Would such a law be permissible under the Free Exercise Clause, and RFRA, if the claim was raised by an incorporated, for-profit Kosher butcher? I noted that a Church of Lukumi claim would probably fail, as the law is genuinely concerned for animal welfare, and not singling out a single faith.

What about RFRA? With this new law, they can no longer slaughter animals as their religion require. I suppose they can become a non-Kosher butcher, and kill animals in accordance with the norms of animal welfare, but they would not be able to eat it. This also ignores the fact that the business was chartered for the purpose of slaughtering animals.

Under RFRA, what would the compelling governmental interest be? Protecting animal welfare. What would the substantial burden be? Prohibiting Orthodox Jews from being able to eat the only type of meat they can eat. This would seem to be a violation of RFRA. But what happens if the plaintiff raising the claim is an incorporated Kosher butcher, under the government’s theory in Hobby Lobby, where corporations can’t state claims?

Of course, individual people who eat Kosher could raise the claim, but what if the law only criminalizes the slaughter of the animals, and not the consumption of these animals? It would seem that the only party with standing would be the butcher. Now, I’m sure there are some butchers who act as sole proprietors, but I am willing to wager every Kosher Butcher from the Schecther Brothers on up takes on some corporate form. And, putting aside the mitzvah of Kosher slaughter, these butchers exist to make a profit (kosher meat is very costly!). As Adam Smith reminded us, “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”

Could the government’s position really be that no one–not a single incorporated butcher–could bring suit? I raised this question to a lawyer who litigates in the field of religious  liberty, though in Hobby Lobby opposed allowing corporations to state a claim under RFRA and the Free Exercise. I found that he hadn’t considered this hypothetical, and would only say that individual people who eat Kosher could bring suit. But that ignores the issues of the hypothetical as posed.

I was thrilled to see Justice Alito pose just this question to General Alito during oral arguments in Hobby Lobby.

JUSTICE ALITO: What about the implications of saying that no for­profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­profit corporation can raise any sort of free exercise claim at all? Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the ­­ what would a corporation that is a kosher or halal slaughterhouse do? They would simply ­­ they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim.

And the Solicitor General’s answer confirmed my suspicion. First he hinted at a Church of Lukumi analysis, but this ignored the fact that the law was truly motivated for concerns about animal welfare (which in this case trumps religious liberty).

GENERAL VERRILLI: Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don’t think it is our position that they couldn’t make a free exercise claim in that circumstance and so

Justice Kennedy then reigned in the General who was trying to duck the hypo:

JUSTICE KENNEDY: Well, but you’re getting away from the hypothetical. Say ­­ Justice Alito’s hypothetical was that the impetus for this was humane treatment of animals. There was no animus to religion at all, which in the Church animus to the religion. So hypothetical.

JUSTICE ALITO: Exactly.

Verrilli, then said that the individual customers can raise this claim.

JUSTICE ALITO: Well, they say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered.

GENERAL VERRILLI: Well, I think in that circumstance, you would have, I think, an ability for customers to bring suit. I think you might recognize third party standing on behalf of the corporation ­­ on the corporations, on behalf of customers. So a suit like that could be brought.

The General then changed the topic and talked about burdens on third parties. But Justice Breyer, getting irate at the General’s dodging of the question, continued the slaughter (rimshot!):

JUSTICE BREYER: I mean, the point that Justice Alito was making is that ­­ take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you’d otherwise have. Now, looked at that way, I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals. I mean, I think that’s the question you’re being asked, and I need to know what your response is to it.

The General replied around the question, and basically conceded the incorporated butcher could not raise the claim:

GENERAL VERRILLI: Well, I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for ­profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere.

The government’s position is loud and clear. If you are incorporated, you have no free exercise rights under the First Amendment or RFRA. Such an absolute position didn’t pan out well in Hosannah-Tabor. I don’t think it will win the day here.

And what about churches and non-profits that are incorporated?

GENERAL VERRILLI: No. No. Religious non­profits get an accommodation in which their employees get the contraception. But we are not drawing a line between for­profit and profit.

They, again, are only given an exemption by the grace of HHS, and not by the requirements of the First Amendment or RFRA.

This reminds me of Breyer’s line of question in NFIB, where Verrilli would not answer his question about whether HHS would ever withdraw all Medicaid funding for a state. (As I discuss in Unprecedented, Verrilli did not have the authority to answer that question). And you know what? Breyer, and Kagan, voted agains the government on this position. When Breyer gets irate, he means it. So this does not bode well for the government. But for the love of John Marshall Harlan, Breyer better not write this opinion. The last thing we need is a  Breyer balancing test for RFRA.

Paul Clement alluded to this fact in his rebuttal:

They also suggested if a kosher market takes the trouble to incorporate itself, then it has no free exercise claims at all. Now, you can go back and read the Crown kosher case. I took it as common ground, that all nine justices thought that if the Massachusetts law there had forced Crown kosher to be open on Saturday, that that would be a free exercise claim notwithstanding the incorporation.

Now, I don’t suspect at all that Justice Alito, or any of his clerks read my blog post, but I am very glad that we are on the same wave-length.

The lecture notes are here. The live chat is here.

Race & Gender Discrimination

• Loving v. Virginia (1373-1379).
• Sex Discrimination (1407).
• Craig v. Boren (1407-1416).
• United States v. Virgnia (1416-1424).
• Beyond Race and Sex (1425-1428).
• “Fundamental Interests” (1441-1443).

Loving v. Virginia

Here are Mildred Delores Loving (nee Jeter)  and Richard Perry Loving. They had three children, Donald, Peggy, and Sidney.

Here is a video of a documentary about their case.

Reed v. Reed

The home of Sally Reed, the eponymous plaintiff of Reed v. Reed, in Boise, Idaho, bears this plaque.

It reads, in part:

Sally Reed lived here. Idaho and the Nation owes a lot to Sally Reed, who, though an unlikely hero, blazed a trail nationally for women’s rights with a 1971 U.S. Supreme Court victory. Sally lived in a two-story wood frame home from 1935 until 1999. After her divorce in 1958, from Cecil R. Reed, Sally made a modest living for herself and her son Richard, by caring for sick and disabled veterans in her own home. Skip’s death in 1967 led to competing petitions’ to administer his small estate. Idaho law at the time said in such cases “the male must be preferred over the female.”

Though she never sought the spotlight and didn’t realize the widespread significance of what she was doing, Sally’s basic instincts for right and wrong moved her to challenge this discriminatory law all the way to the U.S> Supreme Court, with the help of .  . . now U.S. Supreme Court Justice Ruth Bader Ginsburg, then a Rutgers University Law Professor and American Civil Liberties Union Volunteer.

The location at 1682 S Vista Ave in Boise is now an Angler shop.

Courtesy of Nick Korte.

Craig v. Boren

Here is a photograph take in 1996 on the 20th anniversary of Craig v. Boren.

 This is the Honk-N-Holler Grocery store, where the light-beer was sold.

(Courtesy of Clare Cushman)

United States v. Virginia

This is the Virginia Military Institute.

Here are some of the first cadets that graduated from VMI.

And here is Ruth Bader Ginsburg, also known as the Notorious R.B.G. (Yes, there is a tumblr)

And here is a picture of Scalia and Ginsburg riding an elephant in India.

Today, the legal gods were working against me, by placing two key Obamacare cases at the same time about a mile away. While Hobby Lobby v. Sebelius was being argued at One First Street, down the block at the D.C. Circuit, arguments were held in Halbig v. Sebelius. This is the Obamacare exchange case, which in truth, if successful would inflict a much deeper wound than Hobby Lobby.

The Legal Times has this writeup:

“If legislation is stupid, I don’t see that it’s up to the court to save it,” said Senior Judge A. Raymond Randolph, who described the federal health care law as “cobbled together and badly written.”

Randolph and Judge Thomas Griffith seemed inclined to side with foes of the law, who told the panel that lower-income people are only eligible for tax credits if they buy health insurance through an exchange established by a state—not one set up by the federal government. Senior Judge Harry Edwards, by contrast, found the argument “preposterous” and said it would effectively “gut” the health care law. A Washington federal trial judge in January ruled for the government.

But Randolph didn’t seem to find it far-fetched that Congress might have intended the subsidies as an incentive to get states to set up their own exchanges.

The judge called the Affordable Care Act “a last-minute deal filled with a lot of predictions, even the title,” and said the predictions have not been born out. “The launch was an unmitigated disaster,” and the costs of implementation “have gone sky-high,” he said. “Suppose Congress made another prediction”—that if the tax credits were conditioned on setting up exchanges “all the states would line up for this deal.” But this prediction too was not borne out, he said.

Delery had a hard time persuading the judges that legislative history supported his position.

“The legislative history is a wash,” Griffith said. “There doesn’t seem to be any clear legislative history.” Without evidence of congressional intent, Griffith said, “You have a special burden” to show that the plain language of the statute “doesn’t mean what it appears to mean.”

Randolph added, “What we’ve got here is language that doesn’t seem malleable.”

If the court knows “the clear purpose of the statute”—in this case, to provide affordable health insurance—but Congress “didn’t legislate clearly enough, is it our job to fix the problem?,” Griffith wondered.

Randolph said no. The court can overrule plain statutory language based on the “absurdity principle, but I don’t see a stupidity principle.”

The long-and-short of it is this. Judge Randolph seems fairly intent on striking down the law [Update: It’s a rule not a law. I’ve fallen into the government-by-blog post mentality], and holding that the clear text will control. Judge Edwards, who ruled in Seven-Sky v. Holder to uphold the mandate, insists that if there was any intent to deprive states of subsidies if they don’t set up exchanges. Judge Griffith seems somewhat on the fence, though he suggested that the legislative history is a wash.

This is a toss-up. Though, in fact, a dissent here is enough for a cert grant. Almost certainly the Obama Administration will go for en banc review with the post-Nuclear option D.C. Circuit (7 Democrats, 4 Republicans). But even a divided en banc court is bound for One First Street.

You know, I can see Breyer and Kagan having a problem with the government’s position here. NFIB deja vu? A compromise that allows states to receive the subsidies if they want them?

You can listen to the argument here. It was particularly enjoyable to hear Mike Carvin and Judge Harry Edwards bully each other. My favorite part was when Edwards said the only purpose of this suit was to “kill the individual mandate.”

At One First Street, “If you like your insurance, you can keep your insurance,” roughly translates to a “clear downward trajectory” for grandfathered plans. From this colloquy in Hobby Lobby between the Chief and the General:

CHIEF JUSTICE ROBERTS: Can you make a representation to us about how long the grandfathering is going to be in effect?

GENERAL VERRILLI: I ­­ I can’t give you a precise figure as to ­­ there’s a clear downward trajectory. There’s significant movement downward every year in the numbers. There’s every reason to think that’s going to continue. I can’t give you a precise time when that is going to be ­­