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

July 3rd, 2014

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.