Earlier this week, I attended a Supreme Court Review at the National Constitution Center. I enjoy the National Constitution Center's events; they bring in esteemed academics and litigators for thought-provoking seminars. When I saw that Erwin Chemerinsky and Frederick Lawrence would discuss the most recent Supreme Court term, I had to go. This event was co-sponsored by the Anti-Defamation League, and no speaker presented a conservative analysis of the cases.
While both Chemerinsky and Lawrence were impressive speakers who had a clear grasp of the holdings in this term's cases, several comments irked me. On several occasions, both speakers noted that the "five-Catholic-male majority" was unreceptive to the rights of the minority. As evidence of this hypothesis, they cited the outcomes in Burwell v. Hobby Lobby and McCullen v. Coakley. According to the speakers, both of these cases involved female reproductive rights that were disregarded by the Supreme Court majority.
This line of thinking bothers me for several reasons. First, I find it intellectually lazy to assume that a justice's religious affiliation and gender dictated his ruling in those two cases. How has it become acceptable to denigrate a Supreme Court opinion simply because the majority involved Catholic men? The Pope's recent exhortation, The Joy of the Gospel, decries the evils that can arise in capitalistic societies. But the Catholic justices aren't criticized as being particularly anti-capitalist. It seems that this anti-Catholic criticism only applies to cases involving reproductive rights, however tangentially.
Second, the tangential relationship to reproductive rights is often blown out of proportion. The Hobby Lobby case involved the Religious Freedom Restoration Act and a for-profit corporation's ability to operate according to the religious beliefs of its shareholders. It did not involve a ban on contraception. Women working for Hobby Lobby or Conestoga Wood could still obtain several forms of contraception under their employer-sponsored health plans, just not the abortifacients that their employers found to be morally objectionable. Those women could still exercise their reproductive rights by using one of the other contraceptive methods, paying for their method of choice, or working for a different employer who covered every conceivable contraceptive method. So female reproductive rights were never really in jeopardy in this case. What was in jeopardy was Hobby Lobby's ability to run a business in accordance with the religious conscience of the owners. That is the right protected by RFRA. And that is the case that the Supreme Court decided. To say otherwise is disingenuous.
Likewise, in McCullen, female reproductive rights were not the main issue. That case involved a Massachusetts law that criminalized standing on a public road or sidewalk within thirty-five feet of a reproductive health-care facility. Here, the rights in jeopardy were not those of the women accessing the health-care facility. Rather, they were the First Amendment rights of those people that want to counsel patrons of those facilities. The Supreme Court analyzed this case under free-speech principles, not privacy-rights principles. And correctly so. Chemerinsky noted that the five-Catholic-male majority disregarded the "gauntlet of harassment" that women must walk through to get to these clinics. But the First Amendment means that we cannot just silence people who bear messages that we do not necessarily want to hear. I don't get to enjoin the ACLU and Planned Parenthood volunteers that (politely but firmly) stop me on the streets of Philadelphia.
It's time that liberal academics stopped criticizing rulings due to the gender and religion of the deciders.
UPDATE: For excellent commentary on Justice Ginsburg's comment that male justices "have a blind spot" when it comes to women, see Brian Murray's post on his blog, Modest Commentary.
Well said, Kaitlin. I find the response to Hobby Lobby particularly irksome. It is not so much the emotional response from the general public that bothers me (which is understandable—how many people can we realistically expect to read the actual Opinion? I only perused it myself.), but rather, the response from certain left-leaning academics and politicians. They should (and likely do) know better.
ReplyDeleteIn my estimation, one can object to Hobby Lobby on any one of the following grounds:
1. The RFRA is unconstitutional.
2. A for-profit corporation is not a person and cannot engage in religious exercise.
3. The mandate does not impact a deeply held religious belief of Hobby/Conestoga.
4. Mandating a wide array of employer-paid contraception options (including "abortificants") is a compelling governmental interest for which the contraceptive mandate is the least restrictive means of furthering.
I haven’t heard anyone argue against Hobby on unconstitutional grounds, so I will skip #1.
#2 is the best argument, IMHO. Regardless of what any available precedent on the corporate/person relationship might suggest (mostly because I haven’t read any of it), I do think that it is at least reasonable to believe that a corporation is not entitled to religious beliefs. They are a legal fiction, and a strong argument could be made that by deciding to avail themselves of the benefits of incorporation, a corporation’s shareholders waive their ability to assert their religious beliefs through the corporation. This argument is akin to the piercing the corporate veil doctrine.
That said, I think a strong argument can be made that if a corporation cannot have religious opinions, incorporation laws would run afoul of our centuries-old common law right (incorporated into the constitution through privileges and immunities) to be free from government created monopolies and castes. If the government can pass incorporation laws that, although neutral and generally applicable, would create a scenario in which only certain religious sects could (or at least, would) avail themselves of the privileges of incorporation, this would provide fertile grounds for abuse (for example, a law that mandated that all corporations be open for business seven days a week would further a compelling governmental interest (the economy), is neutral and generally applicable, but would surely burden all those religious sects that keep the Sabbath). This desire to avoid government-sanctioned monopolies was one of the driving factors behind the creation of general incorporation laws, which essentially make the act of incorporation a ministerial act. The legislature cannot pick winners and losers. A law that would force shareholders to forego their religious rights by incorporating their business would create winners out of some (those who would incorporate regardless), and losers out of others (those who will not incorporate as a result). Such a waiver of rights is antithetical to the Bill of Rights.
Although I think this is a close call, I believe in a presumption of rights on close calls. I do admit, however, that this issue is one upon which reasonable minds can differ, and more importantly, was actually MATERIAL to the Court’s holding.
ReplyDelete#3. Some people have pointed to the fact that Hobby has invested in certain mutual funds or private equity funds that invest in companies that produce abortificants. While I find this highly unpersuasive (funds can contain hundreds of issues and how many people keep track of every issue held in the funds in which they invest?), I do think that it is a fair attack on an issue that was material to the Court’s decision.
#4. The Court appears to have assumed a compelling governmental interest, so any complaint must focus on the Court’s least restrictive means analysis. I think it is important to remember here that Hobby Lobby and Conestoga only object to 4 out of all of the FDA approved contraceptive methods. I’m no expert in this area of law, but I imagine that SCOTUS has articulated some sort of proximate relationship between the governmental interest and the means. Here, the governmental interest is providing employer-sponsored contraceptive access to women. Is there really a compelling governmental interest in providing ALL forms of contraception? If the compelling governmental interest is merely providing some choice in contraceptive devices, the least restrictive means of meeting that interest surely can’t be requiring that employers provide access to ALL methods of contraception?
From what I’ve seen the vast majority of the outrage from Hobby surrounds the fact that the ruling will “limit” some women’s access to health care. While this may be a valid concern, this is only one element of the RFRA, and was immaterial to the Court’s ultimate ruling. The Court had already assumed that providing employer-paid contraceptives is a compelling governmental interest. It seems that some objectors to Hobby would have liked the court’s analysis to have stopped right there. I.e., that the Court only ask “do we think this law is good”? Thankfully, our Constitution requires more analysis than that.
Regardless of how you come down on these issues, we should all be bothered when we hear the leaders of our country make, as Kate appropriately phrased, “disingenuous” attacks on SCOTUS’s opinions. This is politicking to the lowest common denominator, and is an embarrassing attempt to rile up the public.
*On a side note, I think that Hobby should have been protected under the Free Exercise clause regardless of RFRA.
Well-delineated arguments, Rich. I agree that most of the objections I have heard seem to reside in #4--the law seems good, so the Court should uphold it.
ReplyDeleteConsider this variation on #2: corporations are entitled to some lesser degree of protection for religious exercise than individuals are. That seems to be what Elliot Mincberg is getting at in this article: http://www.huffingtonpost.com/elliot-mincberg/what-hobby-lobby-shows-us_b_5618415.html. Granted, I wholeheartedly disagree with his contention that the key factor for the "conservative majority" in deciding civil-rights cases is the identities of the parties. (Again, that's disingenuous and intellectually lazy.)
That aside, Mincberg essentially argues that corporations are entitled to less protection under the Bill of Rights than individuals are, and that's where the Court erred. "Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations." You said that you believe in a presumption of rights on close calls. Does that apply equally to corporations and individuals? Is there any reason to treat them differently under the First Amendment (and after Citizens United)?