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Date: Monday, 21 Jul 2014 11:00
by Michael Dorf

Let me begin with a disclaimer. This is a post about one aspect of the current military confrontation between Hamas and Israel, not about the larger conflict over Palestine and Israel. I will just say, with considerable dismay, that over the last two decades I have come to think that an observation once made by Abba Eban about the Palestinians has now become a fair characterization of the Israelis (especially under Likud-led governments): "They never miss an opportunity to miss an opportunity." In any event, in a perhaps-futile effort to focus on just one issue, I won't respond to questions, comments, or accusations regarding my views about the larger conflict.

Here I want to inquire into the relevance--or irrelevance--of an obvious fact about the current conflict: Israel has much more sophisticated weaponry and troops, and has been using them to much greater effect, as reflected in the very different death tolls. Before Israel crossed the border into Gaza, when the current round of conflict was essentially an exchange of rocket fire from Gaza and bombing raids by Israel, comparable numbers of rockets and bombs were sent in each direction; but despite the fact that Hamas fires rockets indiscriminately and Israel takes measures to avoid civilian casualties, the Israeli bombs killed hundreds of people, whereas the Hamas rockets kill very few (two people, as of yesterday).

Rocket fire and bombing raise important questions under the international law of war. Targeting civilians is illegal, but so is incidentally killing (or injuring) civilians when attacking military targets if the harm to civilians is disproportionate to the military objective. Hamas thus violates the law of war by targeting civilians and by embedding itself within the civilian population. Israel appears to violate the law of war by bombing military targets with the incidental effect of killing more civilians (including children) than combatants. I say "appears" because the law of war does not fix an exact ratio of permissible incidental civilian deaths, nor is there consensus on whether a force is permitted to incidentally kill civilians in greater proportions (and if so, how much greater) where the enemy bears substantial responsibility for the attacker's difficulty in distinguishing combatants from civilians.

Note that in the previous paragraph I am using the notion of proportionality in its technical sense within the jus in bello branch of the law of war: As a limit on foreseeable but unintended harm to civilians. There are two other senses in which proportionality may be relevant.

First, proportionality plays a role in jus ad bellum--the legal principles governing when the use of force is justified in the first place. In the current conflict, some people have said that because of the combination of the Hamas rockets' inaccuracy and the effectiveness of Israel's "Iron Dome" missile defense, the rocket fire from Hamas did not justify Israel's forceful military response at all, but there seems to be broader recognition that however one apportions responsibility for various aspects of the conflict, Israel is entitled to use force, so that if Israel were only (or chiefly) hitting Hamas fighters, there would be no legal question of proportionality--either for jus ad bellum or jus in bello purposes.

But that brings us to the second alternative sense in which I have seen concerns about proportionality--namely, concerns about proportionality in the more colloquial sense of "sporting" or a "fair fight." Although this is not a legal concern, it might nonetheless be a moral concern. The precise question is this: Is there anything distinctively problematic about using a much more powerful military against a much weaker military, assuming that the much more powerful side otherwise complies with both the jus ad bellum and jus in bello branches of the law of war?

I had a view on this question as a seven-year old. My father tape-recorded my answers to various questions, one of which was "what are some of the things you would do if you were God?".  My answer was that "if there were two armies fighting and one of them had 20 men and the other had a billion, I would give a little help to the army with 20."

I suspect a great many people feel the same way. Absent some attachment to one team or another, they root for the underdog in a sporting event, and so they may do the same with respect to warfare. But apart from the obvious point that military conflict is not sports, there are additional considerations that may be relevant in thinking about whom to support in a military conflict, whether you are an ordinary citizen, the leader of a third-party government, or God. The side with the more powerful military might not be the aggressor and might, in other respects, be the underdog. (Note that both Israelis and Palestinians tend to see themselves as underdogs and to see the other side as aggressors, each with some justification.)

But suppose that everything else were equal. Would a sensible policy or a just God try to help the military underdog (assuming, for whatever reason, that a just God can't just end the conflict)? I think the answer is no. Wars between relatively evenly matched militaries tend to be the bloodiest, most protracted wars. Think of World War I or the Iran-Iraq War. As John Witt observes in Lincoln's Code, Francis Lieber, the father of the modern law of war, believed that warfare between combatants should be brutal and decisive, because that would keep wars short and thus ulitmately more humane. My colleague Jens Ohlin also makes the point in an important recent paper on the (non)duty to capture.

Again, there are various legitimate grounds on which to criticize Israel for its conduct in Gaza (and elsewhere). But having and using a superior military is not one of them.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 18 Jul 2014 15:07
-- Posted by Neil H. Buchanan

In my new Verdict column, I summarize many of the arguments in the "Hobby Lobby Post Mortem" series of 9 posts that Professor Dorf and I have written since June 30, adding some thoughts on why even reluctant businesses might feel pressured, post-Hobby Lobby, to "find religion."

Normally, a new Verdict column is accompanied by a Dorf on Law post, exploring in more detail one or more questions raised in the column.  Today is an exception to that rule, because I have nothing further to add here on Dorf on Law.  Interested readers can find the column here.  My Dorf on Law post for the day, addressing the politics of budgets and debt ceilings, is available immediately below (if you are viewing the main page of the blog) or here.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Friday, 18 Jul 2014 14:52
-- Posted by Neil H. Buchanan

In anticipation of the upcoming academic year, the media affairs people at my law school asked me what to expect with regard to budget-related news.  They were, of course, especially interested to know when the debt ceiling would become a big issue again, because that is when they will surely be most active in helping reporters and producers arrange interviews with me.  (My tiny amount of fame is, as I've said before, an oft-ignored social and personal harm caused by the Republicans' debt ceiling madness.)  What can we expect going forward?

It is important to start by noting that this is an especially odd moment in American politics, when the Tea Party-fueled craziness of the last few years is viewed as being somewhat in remission.  That description is broadly accurate, I suppose, but it is all a matter of comparison.  On last night's "Daily Show," for example, Jon Stewart noted that there is still a lot of chatter on the far extremes of the right (which is to say, among large numbers of Republicans in Congress) about the need to impeach President Obama.  Some of the darlings on the right say that it must happen NOW, but they have thus far been disappointed.  In part, of course, this is because Obama has not actually done anything impeachable, but that is hardly a barrier to bringing it to a vote in the House.

With impeachment currently off the table, what are Republican leaders doing to mollify their base?  Well, the "moderate" alternative, endorsed by Speaker Boehner (and thus, presumably, the rest of the Republican leadership) is to sue the President in a court of law, claiming that he has overstepped his executive authority.  Although Boehner embarrassed himself earlier in the summer, when he brought up the subject but did not know on what grounds he might sue, the idea has apparently now come to fruition.  The plan is to use the lawsuit to amplify the Republicans' "Obama the dictator" theme, with the specific issue in the nascent lawsuit being that Obama violated the Affordable Care Act by giving businesses additional time to comply with the law.  (Ironies abound, none worth expanding upon here.)

If this is moderation from the Republicans, then the Democrats must be the luckiest party on Earth.  When I first heard about the lawsuit, I could only think, "They just can't stop themselves!"  Heading into winnable midterm elections, the idea should be for Republicans to look as responsible as possible.  In fact, being deliberately boring would be a great plan.  All of the structural pieces are in place for serious gains by Republicans (a second-term President, continuing weakness in the economy, Democrats forced to defend a large number of Senate seats), so why would Republicans want to remind people that they can barely control the craziness?  "Hey, at least we didn't impeach him!" is hardly a reassuring message to swing voters, when the idea of the House suing the President is so easy to mock.  The President's amused demeanor on this issue says it all.  He is loving every minute of the farce, because it is one of those rare cases where it cannot possibly hurt him to make fun of the other side's strategy, and to do so loudly.

The broader context, then, is a Republican Party that is barely maintaining the ability to project seriousness.  Even when they are handed issues that could work for them, like the mess in Iraq or the immigration crisis, they find themselves undermined by their own excesses.  Dick and Liz Cheney's recent anti-Obama op-ed was an early Christmas present to the White House, and nothing makes Obama look more presidential than being able to contrast himself with the anti-immigrant nastiness that oozes from the right.

How will this affect the budget situation?  We know that the Republicans could not even stop themselves from making a big issue out of funding highway maintenance this summer, so it is not as if they have put the budget silliness on hold.  Even so, the consensus seems to be that the end of the fiscal year on September 30 will not lead to another government shutdown.  The timing is just too close to the election for Republicans to repeat that disaster.  Admittedly, the consensus a year ago was that there would be no shutdown in the Fall of 2013.  Especially because that prediction was wrong, however, and the Republicans learned some hard lessons, this Fall seems likely to be quieter on that front.

That is not to say, however, that a full set of appropriations bills for 2014-2015 will pass by October 1.  More likely, there will be some kind of continuing resolution, locking everything in place for some number of months, before we face another possible shutdown in late 2014 or early 2015.

How will the results of the midterms affect what happens next?  Short of a completely surprising sweep in one direction or the other, it would seem that very little would change.  The House will probably have a few more Republicans, and the Senate will be close to 50-50.  It matters who controls the Senate, of course, but not so much for budgetary matters.  The more intersting question is how the Republicans will handle post-election budget matters, when the next election is as far away as possible, and the people who were thought vulnerable are safely back in office.

Earlier this year, people thought that Senate Minority Leader Mitch McConnell might lose his primary to a Tea Party fire-breather.  McConnell won easily, which could suggest that he will not feel the need to go along with shutdowns and other brinksmanship next year.  Of course, people thought that John McCain's lurch to the far right in his last reelection campaign was merely tactical, but he has shown no signs of maverickiness (or even sanity) since then.  There is no reason to be confident that McConnell will suddenly decide that budget issues should be handled quietly from now on.

Lying in the background, of course, is the debt ceiling, which Congress put back to sleep from February of this year through March 15, 2015.  If, as seems likely, the continuing resolution that avoids a government shutdown before the midterms is only a few months long, that could put the shutdown and possible debt-ceiling-induced default -- which are, again, completely different matters, both legally and economically -- back on the same time line.  There are complications, of course, including the unknown amount of time that "extraordinary measures" will buy, pushing default past the March 15 wake-up date.  But we could easily find ourselves facing a series of fiscal deadlines in 2015 that will be eerily similar to the crises in 2011 and 2013.

How will it play out next Spring?  It is worth noting that the dearly departed House Majority Leader, Eric Cantor, was one of a small number of Republicans who voted for the debt ceiling extension earlier this year.  There were only 28 Republicans voting yes, on a 221-201 vote.  Even with every member voting, it would only take 17 more "no" votes to kill such a bill.  It is possible, of course, that the Republican leadership allowed the other 199 Republicans to vote "no" only because they had the votes in hand to pass the bill.  What we do know, however, is that any new Republicans who join the House are likely to be at the far edges of the party's extremist wing.

Even if enough votes finally are brought together on a vote to avoid a default (and a shutdown is similarly avoided, although that is far less important), what seems certain is that the post-midterm political atmosphere will all but require a return to the full-on craziness of budget brinksmanship that we have seen too often in recent years.  The White House is fully committed to reprising its stare-down strategy, and Republicans are likely to think that whatever they do in Spring 2015 can be overcome or forgotten by November 2016's elections.

Or, to put it differently, the Republicans who want to impeach Obama will never have a better time, or a better opportunity, to induce a constitutional crisis.  This seemed clear earlier this year, when both Professor Dorf and I wrote separate posts about this question (here and here).  Even with the Tea Party now supposedly having been brought to heel (the Cantor surprise aside), nothing has really changed in a way that would alter the post-election dynamic.  The craziness is barely under control now.  It can only get worse after November 4.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 17 Jul 2014 14:45
by Michael Dorf

On Tuesday, the U.S. Court of Appeals upheld the University of Texas' use of race in undergraduate admissions in Fisher v. University of Texas, on remand from last year's SCOTUS ruling in the same case. Judge Higginbotham's majority opinion is thorough and, in my view, persuasive. The new ruling raises a number of very interesting issues, but in the interest of brevity, after a brief overview, here I'll focus on just two: 1) the nature of the disagreement between the majority and the dissent by Judge Garza; and 2) Fisher's relation to efforts by some conservatives to gut higher education.

Before coming to those points, here is a very brief refresher. For many years, UT followed the practice of other elite universities of granting admissions to excellent applicants based on a "holistic" evaluation of their high school grades, test scores, and other special factors. That last category included a great many things, such as: athletic prowess; other extracurricular excellence; public service; alumni legacy status; and racial diversity. Then, in 1996, a Fifth Circuit ruling in the Hopwood case read Supreme Court precedents as essentially forbidding all uses of race in admissions.  That decision was effectively reversed by the SCOTUS seven years later in Grutter v. Bollinger, but in the meantime, Texas had adopted the "ten percent plan"--under which students graduating in the top ten percent of their Texas high school classes were guaranteed admission to a UT campus.

As various Supreme Court justices have recognized, and as Judge Higginbotham recognizes in this week's ruling, the ten percent plan achieves substantial diversity in large measure because of the de facto segregation of Texas schools. Most African American and Latino high schoolers in Texas attend schools that are overwhelmingly non-white. Accordingly, the top ten percent of those schools are mostly minority students. Thus, even though minority students, on average, have lower test scores and other academic qualifications, the ten percent plan enables the UT system to enroll substantial numbers of minority students without expressly classifying applicants by race.

Roughly 80% of UT students are admitted under the ten percent plan. At issue in Fisher is the use of race in the "holistic" process for the remaining 20% of the seats in each entering class. Fisher--a white applicant who fell outside of the top ten percent and was then denied admission under the holistic process--complained that race played an impermissible role in the holistic process. Because UT already achieved substantial racial diversity using the (nominally) race-neutral top ten percent process, she argued, it did not need to include race as a factor in the holistic process. And because the SCOTUS precedents require that race-based admissions program be narrowly tailored, she argued further, using race in the holistic process was invalid.

Although the SCOTUS case in Fisher was hyped as a potential game-changer with respect to race-based affirmative action in higher education, the actual decision was quite narrow. In a 7-1 ruling (with Justice Kagan recused and only Justice Ginsburg dissenting), Justice Kennedy's majority opinion vacated and remanded the initial Fifth Circuit decision. That earlier decision had rejected Fisher's challenge, but the SCOTUS said that the Fifth Circuit had applied the wrong legal standard in part of its analysis. Colleges and universities are entitled to deference in their decision to pursue the compelling interest of racial diversity as part of their academic mission, Justice Kennedy explained, but courts should not defer to state educational officials in the application of the narrow tailoring test.

For readers interested in deeper background, here is a Verdict column I wrote when the SCOTUS granted cert in Fisher, here is a blog post of mine describing the amicus brief I worked on for the Association of American Law Schools, and here is my reaction to the SCOTUS ruling in Fisher on the day it was decided. In that last piece, I said that the action would shift to the lower courts to hash out, in practice, just how strictly to apply narrow tailoring in affirmative action cases. And this week's Fifth Circuit ruling appears to vindicate that prediction.

1) The disagreement

Judge Higginbotham explained that the use of race in the holistic process for the non-top-ten percent seats was narrowly tailored, even without giving the university any deference on that score. As I noted above, his reasoning is careful and thorough. But buried within it is a crucial--and controversial--statement. Quoting the majority opinion in Grutter, Judge Higginbotham stated that "strict scrutiny must not be strict in theory, but fatal in fact." That language has a long history, which is worth unpacking.

The late Gerald Gunther first described the strict scrutiny test applicable to race-based classifications as "strict in theory, but fatal in fact." And so it was with respect to race-based classifications that disadvantaged minorities. But beginning in the 1970s, the liberal and moderate justices on the Supreme Court argued that a more deferential approach should be applied to race as used to advantage minorities. They lost the battle when, in a series of cases from the late 1970s through the mid-1990s, the Court ruled that strict, rather than intermediate, scrutiny applies to all race-based classifications, but the liberal/moderate wing of the Court appeared to win the war: Even as the Court extended strict scrutiny to federal race-based affirmative action in Adarand v. Pena, Justice O'Connor's lead opinion explained that in this context strict scrutiny is not fatal in fact. Justice O'Connor repeated the line in Grutter, now speaking for a clear majority of the Court, and this time putting her money where her mouth was: the Court upheld the University of Michigan Law School's use of race in its holistic process.

Since Justice Alito replaced Justice O'Connor, Court watchers have been waiting to see whether Grutter would be overruled, as hers was the decisive vote in that case. It hasn't--yet. But even as the Court accepts the holding of Grutter, it has seemed to back away from Justice O'Connor's view that strict scrutiny is not quite as strict in affirmative action cases.

The disagreement between the majority and dissent in this week's Fifth Circuit decision in Fisher reflects this same tension. Although not deferring to the university, the majority's version of strict scrutiny allows the university some wiggle room to pursue racial diversity. Meanwhile, the dissent does perfunctorily say that strict scrutiny is not necessarily fatal scrutiny, but it also says that "there is no special form of strict scrutiny unique to higher education admissions decisions."

If the Fisher case goes back to the SCOTUS--and to be clear, I think it should not--one can well imagine that the Court might divide on this same question.

2) Excellence in higher education

Meanwhile, it is easy to overlook what the holistic process is really about. As Judge Higginbotham notes, minorities make up a smaller percentage of students admitted under the holistic process than those admitted under the ten percent process. The holistic process is an attempt to ameliorate the harmful effect of the ten percent process on the quality of the UT student body. After all, a student who graduates number 12 out of 100 from an excellent high school will likely be better prepared for university study than a student who graduates number 9 out of 100 from a troubled high school. The holistic process is not a means to enhance the racial diversity of UT; it is an effort to enhance the overall quality of the student body, with race playing a relatively small role in that process.

Judge Higginbotham clearly approves of UT's efforts to maintain its status as an elite university without sacrificing diversity. That attitude stands in marked contrast to Texas Governor Rick Perry, whose board of regents appointees have finally succeeded in easing out UT President Bill Powers because of his opposition to Perry's apparent plan to convert a great research university into a business training program taught mostly by non-scholars.

Part of the power struggle between Perry and UT is Texas-specific (e.g., Aggie versus Longhorn) but much of it resonates with broader trends on the right. Think of Rick Santorum's reaction to President Obama's proposal to make college accessible to all Americans: "what a snob!" As Professor Buchanan noted, that is of a piece with a long-running strategy by the right of attacking universities and their disproportionately liberal faculty as out-of-touch elitists. But in the past, one had the sense that this approach was strategically hypocritical--and thus paid the tribute that vice pays to virtue. Think, for example, of the absurdity of George H.W. Bush, a phi beta kappa graduate of Yale, running a successful Presidential campaign against Michael Dukakis as an out-of-touch elitist Harvard man. If Bush pere played the anti-intellectual card, at least, one had the feeling, that he had the good sense not to mean it.

Much has been made lately of the divide between "establishment" Republicans and Tea Party Republicans. The cleavage runs mostly along the line of economic policy, but to some extent there is a deeper division: Tea Partiers are populists, whereas establishment Republicans often try to harness populist ressentiment for their own ends but they do not ultimately want to bring down the institutions that serve their interests. Elite research universities are among those institutions: they help drive long-term prosperity and they actually do much to preserve the status of the well-to-do from one generation to the next, because low socioeconomic status correlates with weaker credentials and less ability to afford higher education.

One way of understanding Judge Higginbotham's opinion in Fisher is as the credo of an establishment Republican defending an elite research university. He is not a liberal but a Reagan appointee who is, overall, a moderate conservative. Contrast his approach with the position taken by Justice Thomas in Grutter that the University of Michigan Law School lacked a compelling interest in its affirmative action program because Michigan lacked a compelling interest in running an elite law school in the first place. Justice Thomas is not, of course, formally affiliated with the Tea Party, just as Judge Higginbotham is not formally affiliated with the "establishment"; indeed, there is no such thing. But still, one can understand their different views in this light.

For those of us who think research universities serve a valuable social function (even as we would like to see more efforts to improve education for everyone at every level and to reduce barriers to higher education), there is a dangerous development looming. Just as the Tea Party has dragged even those establishment Republicans who remain outside the Tea Party to the right on economic and other issues, so too here, the populists who really do despise universities can influence the policies pursued by establishment types.

The danger is already materializing in Texas (and elsewhere).  Due to his nuanced views on immigration, Rick Perry is no hero to the Tea Party, but his attack on UT does seem to be of a piece with Tea Party sentiments. What's more, it appears to be genuine. Unlike George H.W. Bush--whose anti-intellectualism was simply disingenuous cynicism--Perry and the next wave of Republican leaders, whether of the establishment or Tea Party variety, are sincerely uniting behind their efforts to gut higher education.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Wednesday, 16 Jul 2014 10:07
by Michael Dorf

My latest Verdict column asks how Congress might amend RFRA if it is unhappy with the ruling in Burwell v. Hobby Lobby. I offer a menu of eight options, some of which could be deployed in combination with others. As the column acknowledges, the most likely outcome is that Congress will do nothing, given the Republican majority in the House and the possibility that Democrats lose the Senate in the midterms. Still, thinking about how to fix RFRA is a useful exercise while the Hobby Lobby ruling is fresh in the public imagination, partly because the politics might some day change, and partly because thinking about how to fix RFRA helps clarify what, if anything, is wrong with Hobby Lobby.

In this post, I want to call attention to a feature of our statutory regime of conscience exceptions that comes up briefly in the column: In addition to general provisions for religious exceptions like RFRA, Congress and state legislatures sometimes enact provisions authorizing exceptions from specific legal requirements deemed especially burdensome to those people with conscientious objections. Consider five examples:

1) When the U.S. had the military draft, conscientious objectors were exempted so long as the objection stemmed from "religious training or belief" rather than "essentially political, sociological, or philosophical views, or a merely personal moral code." (The provision remains on the books in the event that the draft is reinstated.)

2) Recipients of federal funds for population research and family planning are obligated to excuse anyone from participating in a sterilization or abortion if doing so "would be contrary to his religious beliefs or moral convictions."

3) As noted in Employment Division v. Smiththe SCOTUS case that inspired RFRA in the first place, some states with peyote prohibitions excepted ritual use, and during Prohibition, exceptions were made for sacramental use of wine.

4) New York's law recognizing marriage equality (enacted in 2011) immunizes religious organizations and other non-profits from liability under New York's anti-discrimination law for refusal to participate in same-sex marriages. Other states have similar provisions.

5) The HHS regulations that implement the Affordable Care Act exempt employers organized as religious non-profts from the obligation to provide health insurance plans that cover contraception. These were at issue, of course, in Hobby Lobby and in Wheaton College v. Burwell.

Other examples could be adduced, but these five suffice to raise the question that now concerns me: Under what circumstances would a legislature think it appropriate to authorize religious exceptions or religious plus moral exceptions to a particular legal obligation rather than, or in addition to, enacting a general law authorizing exceptions to laws that are subjectively experienced as especially burdensome on religious (or other) conscience?

The argument for specific exceptions rather than a general RFRA-like provision is articulated in Smith. There, Justice Scalia explained for the majority that judges are poorly situated to weigh claims of religious conscience against public policy aims, but that legislatures are permitted to fashion exceptions because balancing competing values and policies is a familiar legislative task. (For my suggestion that Justice Scalia has inadequately explained his shift from critic of judge-fashioned exceptions under the First Amendment to champion of such exceptions under RFRA, see my SCOTUSblog entry.)

Beyond the question of who grants the particular exceptions, there is another difference between a general provision like RFRA and specific statutory exceptions: Unlike RFRA exceptions, specific exceptions are automatic, once the claimant establishes a qualifying sincere objection. Thus, in each of the examples listed above the government is denied the opportunity to demonstrate on a case-by-case basis that universal compliance is required by the compelling interest test.

What is the argument for specific exceptions in addition to a general RFRA-like provision? I can think of three sorts of justifications. (Readers may be able to identify others.) First, the legislature could make a judgment that certain sorts of legal obligations are especially likely to provoke conscientious objections, although that is a double-edged sword, because the large number of objectors could undermine the obligation in general.

Second, the legislature might think that some legal obligations are especially burdensome to people who have conscientious objections. This seems like a good explanation for the specific exception to military service: obligating someone to kill in violation of his conscience is about as serious a violation of conscience as can be imagined. Likewise with respect to abortion, because people who oppose abortion regard abortion as killing innocent human life. And thus contraception could fall within this justification insofar as some methods of contraception kill zygotes rather than preventing fertilization. (I put to one side my argument last week that the claimant's false scientific beliefs may be a predicate for such a claim under RFRA; we might require more under a specific regime that goes beyond RFRA.)

Third, the legislature might make a judgment that some legislative objective either isn't very important or can tolerate a relatively small number of opt-outs. Something like this is probably at work in the peyote and Prohibition exceptions. Whether the judgment is accurate is an empirical question. Note that in the federalism context, the Supreme Court said that allowing a medical exception could undermine a general prohibition on marijuana. If that's true, the same could be true for a religious exception to a ban on some substance.

None of the foregoing justifications quite works for  specific legislative exceptions to anti-discrimination law with respect to same-sex marriage; a narrow provision exempting clergy and perhaps some others from performing marriages could be justified on free exercise grounds, but the New York exceptions are substantially broader. We do not see anything like this with respect to religious objections to interracial marrage, by contrast. Likewise, it's hard to see why there is a need for special legislative exceptions for contraception that no one thinks amounts to abortion.

So what explains these two special exceptions? In a word, politics.

In New York, the anti-discrimination exception was simply the political price of marriage equality. The law would not have passed without it. Likewise, the Obama Administration fashioned the exception to the ACA contraception mandate in response to political pressure, especially from the Catholic bishops.

Politics can change, however. The defeat of the proposed expansion of Arizona's RFRA earlier this year shows that the public mood probably has shifted subsantially against (all but narrow) exceptions to the implications of LGBT equality. Meanwhile, the breadth of the Obama Administration's accommodation--allowing an opt-out from all contraceptive coverage, not just contraceptives that are arbuably abortifacients--was never really justified politically. The bishops' stance agains contraception is rejected in practice by a very clear majority of American Catholics.

Speaking of politics, we are already seeing Democratic candidates trying to use Hobby Lobby to their advantage. I don't know how effective the tactic will be in the midterms, but I suspect that over the long run the issue will break the Democrats' way. Just ask Rick Santorum.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 15 Jul 2014 15:07
-- Posted by Neil H. Buchanan

In the final paragraph of my Dorf on Law post this past Friday, referring to the opportunities that the Hobby Lobby decision has created for businesses to challenge minimum wage laws on religious grounds, I wrote: "The gold rush mentality of for-profit firms suddenly seeing a way out of paying the minimum wage would be awesome to behold."  The minimum wage, of course, is merely one category of possible claims that businesses might now litigate, because the Court's decision to impute religious views to corporations allows those "persons" to pursue claims that were never before available, in any area of law that might affect the business (and its sincerely held religious beliefs).  In last Thursday's post, I argued that, "[f]or a variety of obvious reasons, this new group of plaintiffs is especially likely to make insincere religious claims in order to avoid a variety of laws."

Pushing in the opposite direction, as Professor Dorf noted again in yesterday's post, is the possibility that corporations will worry about public relations in ways that prevent them from pushing religious claims.  Here, I want to tease out a few of the factors that might affect corporate boards' decisions about whether to pursue litigation in the aftermath of Hobby Lobby.  Will there be a "gold rush," as I put it, or will this end up being a small, self-limiting phenomenon?

To be clear, the question that I am asking is whether corporate persons are, as a group, more likely than natural persons to pursue religious claims because of Hobby Lobby.  That is, it would be relatively trivial if my point were merely that a larger group of potential litigants (natural persons plus corporate persons) would lead to more litigation than we have seen with a smaller group.  Even that claim would not be entirely meaningless, of course.  If one could claim the opposite, that is, that corporations simply will not pursue religious claims, then that would be worth noting.  And even if the increased litigation is merely proportional to the size of the population, it bears at least passing mention that the five conservative justices have again invited a new category of lawsuits into our supposedly over-litigious society.

Again, however, my point is more aggressive than that.  I am arguing that there will be, on net, more factors pushing corporations to pursue religion-based litigation to invalidate laws, now that Hobby Lobby is on the books, resulting in a large amount of new claims.  (For purposes of my arguments here, I will assume that the "closely held" aspect of corporate religious personhood will be tossed aside before long, or at least that it cannot be justified under the logic of the ruling.)  Before considering the reasons why, it is important first to consider the public relations point that Professor Dorf noted, which undeniably pushes in the opposite direction.

The basic idea is obviously that businesses need to worry about how their decisions are perceived by the public, such that a lawsuit based on a religious claim -- especially one that might seem insincere -- has potential downsides for the bottom line.  (This factor, in turn, is apparently thought to be more potent than individuals' concerns about reputation.  I am not convinced of this, but I will not pursue the point here.)  And surely this will be true of many corporations, maybe even the majority of them.  For example, it would be difficult to imagine that Apple would challenge environmental laws on the basis of a religious objection.  Yes, Apple's profit would rise if it were completely excused from having to clean up its messes, but the company is already in a gray area in the public's mind regarding its environmental practices.  I cannot imagine a discussion at corporate headquarters in Cupertino that would end with a decision to find a religious reason to disobey environmental laws.

Even corporations with clearly right-wing boards (as well as more right-wing clienteles) can be limited by such concerns.  Wal-Mart, for all of its awfulness, spends a lot of time and money trying to walk the line between aggressively fighting unionization, living wage laws, and so on, and convincing the public that it is not a super-predator.  If Wal-Mart were to announce tomorrow that it is not going to pay even the minimum wage, as a matter of religious conviction, it would be risking serious consequences.  (Consider also the small eruption when it was reported that McDonald's advises its employees to supplement their paltry wages by signing up for food stamps and other public assistance.)

Obviously, therefore, there will be companies that would never even consider pursuing religious claims.  Other companies, while willing to contemplate doing so, might be likely to consider but reject the idea.  This, however, is hardly the end of the story.

The most obvious factor weighing on the side of increased business litigation in this area is that the laws of business can generally be challenged by businesses, not individuals.  For example, in my post last Friday, I noted the Supreme Court case (cited in Justice Ginsburg's Hobby Lobby dissent) that challenged the minimum wage on religious grounds (Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U. S. 290, 303 (1985)).  The plaintiffs in that case were a religious foundation that had been ordered to pay its employees the minimum wage.  The "employees," however, were religious converts who were providing work to the foundation as part of being rehabilitated for drug and alcohol abuse.  The plaintiffs claimed that the recipients' religious beliefs were burdened because they did not want to be paid for their work, which they provided as repayment to God for giving them their lives back.

The Court there noted that there was nothing stopping those religious adherents from turning around and simply giving their wages back to the foundation, which meant that they could adhere to their religious principles by not profiting from their work, as a bottom line proposition.  This logic, however, is obviously inapplicable to potential corporate litigants who might wish to challenge the minimum wage.  (I cannot help but note that the Court's logic there might be inconsistent with any forthcoming ruling that would favor Wheaton College or the Little Sisters of the Poor.  If the adherents claim that even accepting money in the first place violates their religion, would that be enough to uphold a claim for substantial burden?)  The new class of potentially-religious corporate persons, therefore, is positioned to argue against having to comply with laws in ways that non-business plaintiffs are not.

Moreover, the hurdles for natural persons, acting as individuals, can be especially imposing.  Consider a comparison to the Americans with Disabilities Act (ADA).  When it was passed, some conservatives predicted that the ADA would all but invite people to invent faux disabilities in order to shirk on the job.  (The lamentable "King of the Hill" animated sitcom ran an episode using that plotline, with one character saying something like, "I've got obsessive-compulsive disorder.  If I get out of this chair, my mama will die.")

One of the factors that prevented that supposed onslaught from happening was that individuals face the possibility of losing their jobs right away, with a chance much below 100% that they will be reinstated after pursuing the claim legally.  (This, I would argue, is almost certainly more of a realistic possibility for most people than an equally devastating PR disaster would be, for most corporate clients.)  Moreover, as a matter of predicting whether individuals or corporations will pursue claims opportunistically, it is easy to imagine that the corporate legal department will be told to spend some time looking for new religious claims, which would increase the corporation's legal costs only marginally, whereas individuals typically will face much more daunting legal bills (relative to their resources) if they decide to push a legal claim.

So, will there be a "gold rush"?  I am reminded of a job interview that I once had for a staff position with the Joint Committee on Taxation.  I was a newly minted economist, and the staff director asked me, "You're not too much of an economist, are you?"  Asked to elaborate, he told me that he had worked with economists who believed that theory trumped reality; and there is a theory that says that no business will pay corporate taxes, because it is easy to recharacterize income, and so on, in a way that will reduce the corporate tax bill to zero.  The staff director, in response to one such staff economist, pulled out the official revenue figures for the federal government, noting that hundreds of billions of dollars in corporate tax revenues are collected every year.  The economist was not impressed: "Those numbers must be wrong.  No rational corporation would pay the corporate tax, because they don't have to."

Is my argument similarly extreme?  After all, legal slippery slope or "open the floodgates" arguments are close cousins of this kind of economic logic.  The difference here is that one need not believe that every profit-seeking corporation will pursue every imaginable legal claim to become exempt from every law that affects businesses.  Especially taking into account Professor Dorf's discussion in yesterday's post, in which he pointed out that even the "sincerity" analysis is less demanding than it might seem (and is yet less demanding for corporate litigants), one need not argue that this case will bring about the end of all regulatory law.  One need only argue that a significant new opportunity has been created, and that many of the affected potential litigants will have good reasons to pursue it.

Occasionally, Supreme Court cases really do open the floodgates.  (See, e.g., Windsor and same-sex marriage, where Justice Scalia's dissent seems to have been the real floodgate opener.)  But even if it is unlikely that business challenges will completely swamp labor law, or environmental law, or consumer protection law, it is hard to imagine that Hobby Lobby will not lead to a rush of corporate challenges to all of those laws, and more.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 14 Jul 2014 13:31
By Michael Dorf

In recent posts, both Professor Buchanan and I have suggested that the inquiry into sincerity is likely to become more rigourous in the evaluation of future RFRA claims, given the Hobby Lobby majority's (in my view appropriate) willingness to defer to a claimant's account of what his--or in the case of a corporation, its--beliefs require. Here I want to problematize the sincerity question, and to some extent, a core assumption of religious freedom litigation, by noting the different ways in which belief itself may or may not figure in religious exercise.

The standard account of the relation of religious belief to religious practice is causal. Jane feels a religious obligation to attend church on Sundays because she believes in the teachings of her religion, which commands her to attend church on Sundays; Bill feels an obligation to refrain from participating in abortions because he believes in the teachings of his religion, which say that participating in abortions is sinful; etc.

But not all religious obligations work this way. Many people who consider themselves religious do not simply accept the authority of religious leaders or books; they pick and choose. For example, the Catholic Church condemns all forms of artificial birth control, but most practicing Catholics reject this view. Suppose Gail is a Catholic who rejects the Church's teaching on contraception but is morally opposed to abortion. Even though the Church's teaching is not a sufficient reason for Gail's opposition to abortion, we would nonetheless say that her objection to abortion counts as a religious objection, so long as Gail herself regards her opposition to abortion as rooted in Catholicism.

Moreover, religious belief may not play any role in the sense of religious obligation. I have relatives who do not believe in God but who keep kosher as an expression of Judaism. (The role of belief in God in Judaism has varied over time, as summarized here.) Indeed, I myself do something like this. Throughout the year, with the exception of wine, I follow a kosher diet, but only accidentally, because vegan food is kosher (except that vegan wine isn't necessarily kosher). However, during Passover, I refrain from eating leavened bread. Why?

To be honest, I have a difficult time explaining why. I don't think that eating leavened bread during Passover is wrong. I don't think that I will burn in hell if I eat leavened bread during Passover. I don't even refrain from eating leavened bread during Passover because I would feel guilty if I ate it. The best account I can give is it's just something I do. It is not rooted in any belief of any sort. Yet I would characterize my observance of the dietary rules of Passover as a religious practice. And I'm nearly certain that the courts should do so as well.

Recognizing that religious practice need not be rooted in religious belief could raise particularly hard questions where the religious claimant is a corporation. In Professor Buchanan's post on Friday, he raised the possibility of a corporation claiming to have a religious objection to paying the minimum wage. If the hallmark of a religious practice is religious belief, we can at least imagine a court trying to probe the sincerity of the underlying religious belief: Does the corporation (or the people designated by state corporate law to make ultimate decisions for the corporation) really think that God disdains the minimum wage? But once we recognize that belief is not necessary to making an objection a religious objection, it is difficult to see what the sincerity inquiry would look to determine.

Part of the problem here is figuring out what counts as a "religious" objection. The case law and the best legal scholarship on the question (including by my former colleague Kent Greenawalt and my future colleague Nelson Tebbe) make clear that belief in God is not strictly necessary for a system of action and belief to count as religion. What does make such a system religious--except in the case of paradigm religions--is much harder to say. In my own example, my observance of Passover is connected to a paradigm religion, and so I probably benefit by association.

Supposing that a corporation could find or invent a religion that condemns the minimum wage or environmental regulation or whatever. At least in principle, it would be possible for the corporation to practice that religion without believing any particular propositions about God or anything else. And if so, demonstrating insincerity about propositional beliefs would be beside the point.

Do I think these issues are likely to arise in practice? Probably not. As I have said before, I think the PR hit for most businesses would be too great. But I raise the far-fetched hypotheticals simply to problematize what seems to be a common assumption: that religion, as protected by law, is exclusively rooted in belief. It goes beyond belief.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Sunday, 13 Jul 2014 02:56
by Michael Dorf

When Lebron James, Dwyane Wade, and Chris Bosh all opted out of the last year of their Miami Heat contracts at the end of the 2013-14 season, many people, including me, believed that their intention was to renegotiate as a trio, in order to give the Heat maximum flexibility to upgrade the roster under the salary cap. The key to that conclusion was Wade, who stood to earn nearly $42 million in the next two years if he had opted into the remaining two years of the contract he signed in 2010. James and Bosh were also relinquishing their rights under their 2010 contracts, but James remains the best basketball player on planet Earth and Bosh is, if not quite a superstar, still a reliable All-Star, as reflected in the maximum salary offers James and Bosh received from the Cleveland Cavaliers and Houston Rockets, respectively.

James took the Cleveland deal but Bosh turned down the Houston deal for an even better offer from the Heat. By contrast, Wade's on-court value has diminished as his knees have deteriorated. Although still a dangerous mid-range shooter, Wade is often a defensive liability and cannot provide enough minutes to justify anything close to a maximum salary, which explains why he did not receive highly competitive offers from other teams, in the way that James and Bosh did. And because that was predictable at the time that Bosh, James, and Wade all opted out of their prior Heat contracts, I assumed that they were acting in concert. Otherwise, it would not have made sense for Wade to opt out. So what kind of deal will Wade now receive?

I'm hardly an NBA salary expert, but if I had to guess what Wade could get on the open market, I'd put it in the range of $10 million/year for two years, or less than half of what he would have gotten if he had opted into the last two years of his Miami contract. I seriously doubt that any team other than the Heat would sign him for more than two years, given his durability concerns.

But the Heat are different for two reasons. First, it's possible that the Heat secretly assured Wade that if he opted out, he would still get a very favorable deal. Let's put that possibility aside to focus on what I find the more interesting possibility: Wade was given no advance commitment but the Heat nonetheless will pay him a very substantial premium above his market value. Why would they do that?

Part of the answer is that Wade is more valuable to the Heat than to any other team, given his championship history with them. The obvious recent comparators are Derek Jeter with the New York Yankees and Kobe Bryant with the Los Angeles Lakers. Each of Wade, Jeter, and Bryant only ever played for his current team, each won multiple championships, and each is generally beloved by fans (although in Bryant's case it's a bit more complicated because of the feuding with Shaquille O'Neal and the ultimately-dismissed 2003 rape charge). In their most recent contracts (which is Jeter's final one and may end up being Bryant's final as well), Jeter received a "Yankee premium" and Bryant received a "Laker premium." By the same logic, Wade would be entitled to a "Heat premium."

The game theory here is relatively simple. Suppose that Wade would be worth $10 million/year for two years to a random team; he could then be worth $15 million/year for the Heat, because Heat fans get value out of seeing Wade play for the Heat beyond what he does for their chances to win. Thus, depending on how the negotiations go, the Heat and Wade would split the $5 million Heat premium. Again, the particular numbers here are made up, but the principle holds.

I nonetheless suspect that the Heat will pay Wade more than he's worth, even accounting for the Heat premium. I suspect that Wade will end up with close to a max contract, in much the way that the Lakers are paying Bryant $23.5 million next season (Bryant's 19th in the NBA) and $25 million the season after that (his 20th). It looks to me like Bryant is being rewarded for his past value to the Lakers, substantially beyond the Laker premium. And I think the same will be true for Wade.

Does it make business sense to pay an employee more than he is worth to the company as a reward for his past service to the company? It might seem not, but I want to defend the rationality of such behavior. Paying an athlete (or other employee) more than management thinks he is worth as a reward for past contributions is a bit like honoring promises made to the dead.

Why do our laws and social norms enforce promises made to the dead? If one believes in an afterlife, then the answer is straightforward: The dead look down on us from Heaven and are disappointed if we break our promises.

But even many atheists believe it is appropriate to honor promises to the dead. Why?

The standard answer is that honoring promises to the dead provides reassurance to the currently living that their wishes will be carried out when they are dead.

Likewise with fading star athletes. By paying Derek Jeter, Kobe Bryant, and Dwyane Wade more than they are worth today, the Yankees, Lakers, and Heat respectively send a signal to other players--including potential future players who may be recruited through free agency--that these sports franchises will treat them very well.

There may also be another benefit of overpaying: It makes the fans feel better (even beyond the home team premium). The Lakers were terrible this past season, but fans could at least tell themselves that they still have a superstar on their team because Bryant is being paid like a superstar. Ditto for Wade and the Heat next year. Keeping him and Bosh will enable some Heat fans to delude themselves into thinking that the loss of James was a loss of only 1/3 of what made the Heat formidable.

Obviously, there are apparent counter-examples to this phenomenon: fading stars whose oversized contracts are regarded as a sign of management's ineptitude. As a Yankees fan, I think of ARod. As a Knicks fan, I think of Amar'e Stoudemire. But they are in a different category; they signed their current contracts at a time when management thought they would perform in a way that justified their high salaries. In order for overpaying to count as a positive, the team needs to overpay a beloved longtime winner at a time when it's obvious that the team is overpaying--or at least obvious to an objective observer.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 11 Jul 2014 14:21
-- Posted by Neil H. Buchanan

In yesterday's post, I predicted that the Hobby Lobby decision will intensify future disputes regarding the "sincerity" of plaintiffs who make claims under the Religious Freedom Restoration Act (RFRA).  After summarizing that argument briefly here, I will describe how the sincerity inquiry might proceed, focusing on one of the examples mentioned in the Hobby Lobby dissent: religious objections to the minimum wage.

Claims under a RFRA analysis must be brought by a "person."  The Hobby Lobby majority held that this requirement is met for (at least) closely held for-profit corporations, using logic that could easily extend to all corporations.  Even if the definition is not ultimately pushed that far, however, the range of plaintiffs now includes some large limited-liability corporations that are engaged in profit-making activities.  To win a RFRA challenge, such a "person" must hold a sincere religious belief that it is being "substantially burdened" by a law.   Only if that law is designed to achieve a "compelling governmental interest" by the "least restrictive means" possible will such a religiously burdensome law be allowed to stand.

I argued yesterday that, with the Court now having essentially erased the requirement that burdens be "substantial," this will put greater pressure on the other elements of the claim.  In addition, now that the pool of possible plaintiffs includes for-profit corporations, and because those companies can often increase their profits by becoming exempt from various laws, they will be tempted (indeed, they might even feel that they have a fiduciary duty) to claim that those laws violate the companies' sincerely held religious beliefs.  And if that happens, then the courts will find themselves doing something that they have understandably avoided doing: judging whether people really believe what they claim to believe regarding religious matters.

As I noted yesterday, it should be possible under RFRA (actually, it would seem to be required by the text of the law) for a court first to inquire into whether a religious burden is legally "substantial," but the Hobby Lobby majority seems to have erased that requirement.  The majority first describes the burden imposed on Hobby Lobby as being substantial because it is involves a choice between either violating their religious beliefs or paying a large fine.  This raises a question, debated on the comments board for my post yesterday, regarding whether the substantiality requirement applies to the seriousness of the religious belief being burdened, or the seriousness of the consequences of not obeying the law.

The majority clarifies their analysis (at 36-37 of the slip op.) by saying that Hobby Lobby's relevant religious "belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another."  Removing all doubt about their meaning, the majority then writes that "it is not for us to say that their religious beliefs are mistaken or insubstantial.  Instead, our 'narrow function . . . in this context is to determine' whether the line drawn reflects 'an honest conviction,' id., at 716, and there is no dispute that it does" (emphasis added).

In plain words, therefore, the majority says that the substantiality requirement applies to the nature of religious beliefs, and that the nature of religious beliefs cannot be second-guessed by the courts.  If a "person" says that the law implicates a question that is "difficult and important" to them, then the inquiry is apparently over.  Religious burdens are perforce substantial, because each religion has its own set of difficult and important matters.  What the majority did not rule out, however, is inquiries into whether such convictions are "honest."

To read Justice Kennedy's opinion, none of this should worry anyone.  Sure, he says, we might be expanding the apparent scope of RFRA claims in various ways, but that is not a problem, because the "least restrictive means" prong is still there.  Since it was (in Kennedy's view) quite easy for the ACA to accommodate the religious convictions of Hobby Lobby's owners, by extending the reporting option that is now being challenged by Wheaton College and the Little Sisters of the Poor, who cares whether the other prongs have been broadened?  For example, worrywarts who fret that religiously-based racist beliefs could undermine anti-discrimination laws can calm down, because those laws are the least restrictive means to accomplish the compelling governmental interest in guaranteeing unbiased employment decisions.

Setting aside the dissent's accurate criticism that the majority decision in Hobby Lobby only grudgingly accepted the "compelling governmental interest" prong of the case, the question is where the battlegrounds will be in future cases.  Which brings us to a possible religious challenge to the minimum wage.  Although it might seem, at first blush, silly to imagine that there could be a religious objection to the minimum wage, in fact such a challenge was already adjudicated in the 1980's.  (The dissent cites that case, as well as a case challenging equal-pay-for-equal-work gender equity laws on religious freedom grounds, from 1990.)  Such a challenge would almost certainly put the spotlight on the sincerity inquiry.

There are a number of different ways in which such a claim could be articulated.  One could, for example, imagine a company saying that its owners' religious precepts include a sincere interpretation of the Bible that rules out paying people anything other than what the market will bear.  Sound far-fetched?  In Bob Jones University, a famous tax law case from the early 1980's, the university in question had interpreted part of the Old Testament to mean that interracial dating is a sin, and that arguing against a ban on interracial dating is also a sin, both punishable by expulsion from the university.  The Supreme Court there was eager to avoid inquiries into the sincerity or accuracy of such a scriptural interpretation, for obvious reasons.

Would it matter that a company's owners had never articulated such a religious conviction prior to the issuance of the Hobby Lobby case?  Would it matter that a company's owners had converted to an anti-minimum wage religion the day before they announced their refusal to pay the minimum wage?  Or that they had invented a new religion on their own?  Until now, courts would have been eager to say that it is inappropriate to second-guess whether recently acquired religiosity was sincere, because even death-row conversions are accorded respect.  Yet it would be all but impossible for courts now to avoid wading into such inquiries, precisely because the circumstances would raise such a strong whiff of opportunism.

What about Justice Kennedy's reassurances?  Could a court uphold the minimum wage without inquiring into sincerity, simply by saying that the government's interest in rewarding work with minimally adequate compensation can be least restrictively achieved by enacting and enforcing minimum wage laws?  Again, let us set aside the likelihood that the compelling governmental interest itself could be challenged here.  Even so, there is an arguably less restrictive means: the Earned Income Tax Credit (EITC) is already available as a wage supplement for the working poor, and it could be increased to make up for the loss of wages to workers whose employers have a presumptively-sincere religious objection to the minimum wage.

Indeed, the labor economics literature includes some very interesting work (in particular by Theresa Ghilarducci) regarding the complementarity and substitutability of the minimum wage and the EITC.  The major point of that analysis is that using both policies allows us to achieve anti-poverty outcomes without pushing either policy lever too far, thus minimizing potential negative side effects of each policy choice.  But that very analysis can, under Hobby Lobby, now be turned back on itself.  If the compelling interest is making work pay for the poor, then the least restrictive means analysis must ignore policy concerns about whether other, non-religious harms might be caused by over-relying on the EITC and under-relying on the minimum wage.  If there is a sincere religious objection to the minimum wage, and there is an easy substitute -- indeed, a substitute that most minimum wage workers already receive -- then the minimum wage must go.

Which then brings us back to the sincerity problem.  The gold rush mentality of for-profit firms suddenly seeing a way out of paying the minimum wage would be awesome to behold.  Having been reminded by the Hobby Lobby majority that they cannot inquire into whether religious beliefs are "mistaken" or "substantial," courts will have no choice but to inquire into whether such beliefs are sincere.  And that could become very ugly, for believers and nonbelievers alike.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Thursday, 10 Jul 2014 13:20
-- Posted by Neil H. Buchanan

Professor Dorf's string of posts this week (here, here, and here) about the Hobby Lobby decision examined some of the most important issues and implications of this term's most prominent Supreme Court case.  The posts on Monday and Tuesday drew an unusually high number of readers to our comment board, demonstrating the intense interest in the decision.  Here, I want to explore a further implication of Tuesday's post, in which Professor Dorf confronted what I originally thought was an extremely strong argument against the Hobby Lobby majority, which he called the "truthiness argument."  After explaining the argument and Professor Dorf's counter-argument, I will describe below why I think the Hobby Lobby majority's opinion is actually going to be bad for religion in America.

The plaintiffs in Hobby Lobby asserted that their fundamentalist Christian religious beliefs prevent them from being complicit in providing abortions.  They then argued that the Affordable Care Act requires companies like theirs to provide health care coverage to employees that enables some employees to obtain abortions with no co-pay.  The "abortions" that the plaintiffs describe, however, are not recognized by medical science as abortions at all.  In particular, while the plaintiffs think that two forms of contraception -- IUD's and so-called morning-after pills -- can cause the deaths of living human beings, the accepted medical reality is that those contraceptive methods work before a pregnancy has begun.  Thus, the science says that these are not abortions, but the plaintiffs feel that that is not true.  Opponents of the plaintiffs' argument thus invoked Stephen Colbert's famous neologism of "truthiness," which can be defined as "the quality of seeming or being felt to be true, even if not necessarily true."

In his Tuesday post, Professor Dorf does not question the scientific consensus, but rather asks what is so unusual about people making religious claims in court that are not backed up by science.  Religion is all about accepting matters of faith, so it should hardly surprise us when a person asserts that their religion requires them to believe things that those outside the faith do not believe, and which cannot be true as a matter of secular knowledge.  (Perhaps his best example of this was sacramental wine being thought by believers to be the blood of Christ.)  The point, therefore, is that a claim cannot simply be waived off for being based on truthiness rather than truth, because the whole inquiry under these cases is about what people believe.

Like Professor Dorf (and many of his readers), I initially resisted this logic rather strongly.  Ultimately, however, he is right.  In the course of a spirited (if occasionally exasperating) exchange of comments, he boiled his argument down to this: "I am making exactly one point: that a religious claim doesn't lose simply because it is predicated on a false factual belief."  The interesting questions arise from what he said next in that comment: "I am not saying anything else. The plaintiff still must show a substantial burden from a law or policy. Etc."  In other words, it is still possible to consider the scientific validity of beliefs at other stages of litigation, but it is not acceptable to say that the beliefs themselves cannot be considered simply because they include factual assertions that can be disproved.

Where does one go from there?  To succeed under the Religious Freedom Restoration Act (RFRA), plaintiffs must show that a law creates a "substantial burden" on their religious exercise.  If they do so, the law will still be allowed to stand if it furthers a "compelling governmental interest" by the "least restrictive means" possible.  As Tuesday's post points out, the plaintiffs do not automatically lose merely because their assertion of religious belief is based on factually false beliefs, but this merely relocates the battleground.  It does so, moreover, in a way that religious believers are likely to find rather uncomfortable.

Justice Ginsburg's dissent points out that the majority opinion blithely reads the word "substantial" out of RFRA.  That is, even though the legislative history shows that the word "burden" was initially unmodified in earlier drafts of the law, the adjective "substantial" was added in order to make sure that laws would not be negated under RFRA on the basis of insubstantial concerns.  Although the majority simply ignores this distinction in Hobby Lobby, it is certainly possible to imagine future litigation over this question.  With respect to "truthy" arguments, therefore, we could imagine extremely uncomfortable judicial inquiries into just how outlandish a religious belief might be, with conclusions like this: "We do not doubt that your religious exercise is burdened by having to pay for vaccines that -- according to your religious beliefs -- destroy the ultimate reproductive capacity of young girls, but you're wrong about that.  And that means that your religious concerns are not burdened in a substantial way, because you really are wrong.  Your religious concerns are insubstantial.  Case dismissed."

Let us imagine, however, that future courts take the majority's hint and read the substantiality requirement out of RFRA.  Or, assume that religious claimants are willing to risk losing a substantiality argument, because they will also win some.  As the dissent points out, religious believers and nonbelievers alike should be troubled by the logical implication of allowing people to rely on truthy false claims, because the most likely point of contention will become whether the substantially burdened religious beliefs are "sincerely held."

The discussion about Professor Dorf's Tuesday post contained hints to how Hobby Lobby will turn religious sincerity into a major battleground.  Consider two plaintiffs.  One says, "I oppose abortion, which has a medical meaning to which I have no objection.  And I oppose IUD's, because they cause abortions."  The other says, "I believe, based on my religion, that what IUD's do is abortion, which I find sinful."  Because RFRA requires us to honor sincerely held religious beliefs, we are apparently allowed to say to the first person, "Your objection is not based on a sincerely held religious belief, so you lose," whereas we are required to say to the second person, "Your objection, although factually wrong, can go forward."  (And certainly, if a third person says, "I oppose contraception in general as matter of religious belief," then there is no truthiness objection at all.)

Anyone who wants to win his case, therefore, knows what the magic words are.  Some people, of course, will be unwilling to testify falsely under oath about the content of their religious beliefs.  Others, however, will be able to convince themselves that they are doing the Lord's work by characterizing their beliefs in a way that accomplishes their ultimate goal.  Thus, in order to win, a plaintiff will know what to say.  But of course, the government will know that people will have this incentive to misrepresent (or at least fudge) their sincere religious beliefs, and it will thus become ever more important to challenge people's sincerity regarding their assertions of religious belief.

This, I think, is what Justice Ginsburg had in mind at the end of her dissent, when she wrote: "There is an overriding interest, I believe, in keeping the courts 'out of the business of evaluating the relative merits of differing religious claims,' Lee, 455 U. S., at 263, n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the Establishment Clause was designed to preclude.'  The Court, I fear, has ventured into a minefield ...”

The Hobby Lobby majority has essentially invited a larger range of plaintiffs (corporate "persons") to make religious claims under RFRA.  For a variety of obvious reasons, this new group of plaintiffs is especially likely to make insincere religious claims in order to avoid a variety of laws.  Religious people should not look fondly upon the prospect that secular courts will be called upon to pass judgment upon religious sincerity, especially when inquiring into sincerity will surely result in courts' assessing the factual validity of religious claims.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 09 Jul 2014 10:04
By Michael Dorf

Yesterday I explained why the "truthiness critique" of Hobby Lobby--that the plaintiffs' claims were based in the empirically false view that certain contraceptives are abortifacients--misses the mark. Here I want to explore what I regard as another potentially problematic argument against the result in Hobby Lobby.

Before doing so, however, I want to reiterate that in criticizing various criticisms of Hobby Lobby, I am not endorsing the reasoning or result in that case. I reluctantly supported RFRA when it was proposed in the early 1990s: I supported it because I think that government ought, if reasonably possible, to accommodate sincere religious beliefs; but I was reluctant because I thought the law was flawed in not also providing for accommodations of non-religious obligations of conscience. As I explained on Monday, I think that the Hobby Lobby opinion compounds the error of Congress in passing a law that was underinclusive with respect to non-religious obligations of conscience by construing RFRA to provide substantially greater protection for religious conscience than was provided by the pre-1990 case law.

Nonetheless, it is my job as a legal scholar to scrutinize arguments, even by those with whom I ultimately agree. So today I will zero in on an argument made by Justice Ginsburg in dissent. It's not the only argument she made, and one can find her dissent persuasive even without this argument, but the argument itself is worth examining. I'll criticize Justice Ginsburg's argument in the form that she made it, but I'll end up concluding that her point is powerful for a reason that she does not articulate.

Okay, so much for the disclaimers. Let's move on to the main event.

In criticizing the majority for reading RFRA expansively, Justice Ginsburg cited (among other things) the legislative history of the Affordable Care Act (ACA). She wrote:
The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny coverage based on its asserted “religious beliefs or moral convictions.”  That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.”  [R]ejecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers.
This is a pretty straightforward argument, with the following implicit steps: (1) Congress had before it a proposed provision that would have given Hobby Lobby and every other employer or insurance provider the exception it now seeks under RFRA; (2) Congress rejected that proposal; and (3) therefore, the ACA as enacted does not entitle every employer or insurance provider to the exception it now seeks.

The problems are at step (3). It's possible that Congress (or just the Senate) rejected the conscience amendment because it disapproved of religious exceptions to the ACA, but there are other possibilities as well. Perhaps Congress rejected the conscience amendment because the amendment was thought unnecessary, given RFRA. Or perhaps Congress rejected it because the members who supported religious exceptions did not also support non-religious "moral convictions" as the basis for exceptions from the ACA. (Justice Alito made these points in footnote 30 of the majority opinion.) One need not be a hardcore textualist (and I don't even consider myself a softcore textualist) to recognize that drawing inferences about legislative intent from legislative history is always tricky, and especially so when one is trying to figure out the meaning of the legislature's failure to enact some particular proposal.

In addition, Justice Ginsburg's argument appears to prove too much. If Congress's rejection of the conscience amendment means that the ACA contains no conscience amendment, then it would seem that the accommodation the Obama Administration gave to religious non-profits--the ability to use Form 700 to shift the obligation to provide contraceptive coverage to the insurer--was itself invalid: not because, as Wheaton College and other religious non-profits argue, it doesn't go far enough, but because it goes too far. If the rejection of the conscience amendment means that the ACA is inconsistent with a conscience amendment, then the Administration cannot provide one by regulation without violating the statute. To be sure, there may be some wiggle room for an agency entitled to deference in gap-filling, but only if the law is unclear. Justice Ginsburg seems to rely on the rejection of the conscience amendment to say that the law clearly rejects religious exceptions. In administrative law jargon, her argument would appear to foreclose the accommodation at "Chevron step one."

Most fundamentally, the problem with the whole three-step argument is that it aims to uncover the intent of Congress when it enacted the ACA. But at issue in Hobby Lobby was not just the meaning of the ACA. The question was the interaction between the ACA and RFRA. In a post shortly after cert was granted in Hobby Lobby, I explained that, prima facie, RFRA appears to violate the basic rule of democracy whereby (absent some higher-law rule to the contrary), in cases of conflict, a later-in-time enactment prevails over an earlier-in-time enactment. Interested readers can go to that post for the full argument -- some of which focuses on the further complication introduced by the fact that the contraception mandate and its exceptions are both the product of administrative action rather than legislation itself -- but here I'll repeat the core of the argument:
Because the T1 Congress cannot bind the T2 Congress--indeed, because the T1 Congress cannot even enact laws that make it more difficult for the T2 Congress to repeal those laws--we should not understand RFRA as imposing limits on subsequent acts of Congress. Instead, we should understand RFRA as helping later Congresses to express their will: Rather than having to write "subject to religious exemptions" in every statute, RFRA establishes a rule of construction. However, if a later act of Congress is incompatible with the RFRA exemptions regime--even if it does not expressly disavow RFRA--then RFRA doesn't apply to it.
In the earlier post on the last-in-time rule, I concluded that the ACA is compatible with RFRA and that, therefore the ACA did not partially repeal or otherwise modfiy RFRA. (I also concluded that Congress had not delegated power to the executive to partially repeal or otherwise modify RFRA.) I continue to think that conclusion was correct, but that doesn't mean that Justice Ginsburg's invocation of the conscience amendment was ineffective. Her argument appeared in the part of her dissent that discussed what Congress evidently intended when it enacted the ACA but it is better read to shed light on the meaning of RFRA.

In particular, I think that a better version of the argument Justice Ginsburg made would go like this: The legislative history of the conscience amendment reveals that the Congress that enacted the ACA did not think that RFRA already provided an exception because (as the dissent goes on to argue in Part III.C.1) commercial enterprises have hitherto never been entitled to religious exceptions.

I don't want to get into the question about whether Justice Ginsburg is right or wrong in her characterization of the prior law regarding religious exceptions. Let's assume for the sake of argument that she's right. There remains an apparent problem with the argument, however: How does the understanding of the Congress that enacted the ACA in 2010 shed light on the meaning of RFRA, which was enacted in 1993? Even if the 2010 Congress assumed that RFRA would not supply exceptions for for-profit enterprises, the key question is what the 1993 Congress meant when it enacted RFRA, no?

The answer depends in part on how one views statutory interpretation. Following Bill Eskridge's concept of "dynamic statutory interpretation," one might think that the meaning of statutes evolves over time, just as non-originalists think that the meaning of the Constitution evolves over time. For what it's worth, I find dynamic statutory interpretation to be highly persuasive, but even if one generally takes a more static view of statutory meaning, it would seem that the case for dynamic statutory interpretation is especially strong with respect to RFRA, a statute that only operates in combination with other statutes, including other statutes like the ACA, that are enacted after RFRA. If, as I argued earlier, RFRA operates to help later Congresses express their intent, rather than to bind later Congresses, then there are especially good reasons for taking a dynamic approach to RFRA, focusing on how it is perceived by the later Congress that enacted the ACA.

It's still possible to resist the dynamic argument, even in a case like Hobby Lobby. I suspect that Justice Alito, if directly confronted with the foregoing contentions, would say something like the following: In addition to the principle that the T1 legislature can't bind the T2 legislature, courts apply a presumption against repeal by implication. Thus, if the words of the T2 statute at T2 are consistent with the words of the T1 statute as they were understood at T1, then the two statutes should be harmonized by giving each its original, static meaning.

To be clear, I am not saying that differences over dynamic versus static statutory interpretation provide a causal account of the divide in Hobby Lobby. The best account is simply ideological.
The liberals favored contraception access and the conservatives favored opt-outs for religious opposition to abortion.

Moreover, Justice Ginsburg's construction of RFRA relies chiefly on static arguments. She says that the 1993 Congress that enacted RFRA did not intend to give exceptions to for-profit enterprises.

Nonetheless, unpacking the disagreement over the relevance of the failed conscience amendment shows that, properly understood, it also could have divided the Court on jurisprudential lines, because the ideological divisions on the Court happen to correspond to jurisprudential divisions: the liberals are more favorably inclined to dynamic interpretation (of both statutes and the Constitution), while the conservatives are more favorably inclined to static interpretation (in both realms as well).
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 08 Jul 2014 09:54
by Michael Dorf

As promised yesterday, this is the third post in my series on Hobby Lobby. Today, I want to focus on what may strike many as a peculiar aspect of the Hobby Lobby case: the idea that religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions. I too found this peculiar at first, but after giving it some thought, I have concluded that it makes sense, as I shall now try to explain.

Both before and since the Hobby Lobby decision, I have sometimes seen (e.g., here) the following criticism of one aspect of the plaintiffs' claims: Some of the methods of contraception to which the plaintiffs object do indeed work by destroying a zygote or embryo and so they can be understood as a form of abortion to which they have a serious religious objection; but other methods (such as the IUD and the "morning after pill") that the plaintiffs claim work as abortifacients do not in fact work that way, and so the plaintiffs' religious objection to abortion should not count as even a prima facie objection to these other methods.

Before analyzing this line of argument--which I'll call the "truthiness critique" to denote the idea that people are entitled to their own opinions but not their own facts--I should explain that the move it criticizes probably didn't play a role in the Hobby Lobby decision itself, although one cannot be sure. Justice Alito says for the majority at one point: "The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients." That language suggests that whether the contraceptive methods are abortifacients is a matter of "religious belief." Assuming that there is an agreed-upon definition of abortifacient, Justice Alito appears to be saying that the crucial question is not whether the contraception methods really are abortifacients, but whether they plaintiffs believe that they are.

Nevertheless, the dissent does not challenge the majority using the truthiness critique and it's also possible to read Justice Alito more narrowly. He may just mean that there is a dispute over the meaning of "abortifacient." Is a contraceptive method an abortifacient if it destroys a zygote before implantation? A devout pro-life believer may say yes, even if scientists use the terms "abortion" and "abortifacient" only to refer to methods that operate after implantation.

In any event, I'm interested in the truthiness critique more generally, regardless of the role, if any, it played in Hobby Lobby. My bottom line is now this: I think that the truthiness critique is ultimately mistaken because it assumes that religion only makes spiritual and normative claims, not empirical claims. The fancy way to put this idea is, as the late evolutionary biologist Stephen Jay Gould put it, that science and religion are "non-overlapping magisteria", each with a legitimate claim to its own authority. Science tells us "how the heavens go," whereas religion tells us "how to go to heaven."

Gould was not naive, and so he recognized that many (perhaps most) religious people do not actually regard science and religion as non-overlapping. He offered the concept of non-overlapping magisteria as a means by which to supress the conflict between science and religion. But the very existence of such conflict showed that the magisteria do overlap in many people's minds.

Indeed, Gould's proposal could only even be offered in relatively modern times. In earlier periods, religion made all sorts of empirical claims: That God created the universe in six days, about six thousand years ago; that God made the Sun stand still in response to Joshua's prayer; that Jesus turned water into wine; that Mohammed ascended to Heaven to meet God, and then returned; that Krishna came to Earth in human form; etc. Each of these claims contradicts what science tells us is possible, and so many people who consider themselves somewhat religious but also accept science, tend to interpret such claims as mere metaphors. Yet millions of people still believe in the literal truth of the unscientific empirical claims of religion, and any minimally robust protection for freedom of religion protects them in their beliefs.

What does the law require when a religious objection to some legal proscription or requirement rests on a religious belief that is based on an empirical proposition that contradicts the best understanding of what science tells us? Notwithstanding the appeal of Gould's non-overlapping magisteria, I now think that RFRA properly applies in these circumstances.

Consider an example. Suppose that a new state law in a state with a state RFRA identical to the federal RFRA requires the teaching of evolution in high school biology class. Now suppose that a high school biology teacher in some public school in that state says she does not want to teach evolution because she is a devout Biblical literalist, and she regards it as sinful to teach that evolution is true. She is told by the principal that she must teach some other subject if she can't follow the state-mandated curriculum, or she will lose her job. She says that she is not qualified to teach any other subject and so the principal is effectively firing her for her religious belief. Imagine the following colloquy:

Principal: I understand that you believe that evolution is false, but the law doesn't require you to believe in evolution; it only requires you to teach it.

Religious teacher: But it would still be sinful for me to say that evolution is true.

Principal: Why?

Religious teacher: Because the Bible also says that lying is a sin.

Principal: But you wouldn't be lying, because evolution is true, notwithstanding the empirical inferences you draw from your religious beliefs.

I think it clear in this example that the religious teacher gets to be the judge of whether teaching evolution violates her religious beliefs, even though what makes it a violation is her religiously-driven, non-scientific view about an empirical fact. If she sues under the state RFRA, she will have shown a substantial burden. She still might ultimately lose her state-RFRA claim because the government has a compelling interest in teaching science in a science class, and there may be no less restrictive means than the one offered by the principal. The answer would depend on whether it would be feasible, say, to have a substitute teacher teach evolution, which in turn would depend on how pervasively state law requires that evolution be taught as part of biology. If it is just a few days out of a year-long curriculum, then having the substitute fill in would be a practical, less restrictive alternative. But evolutionary theory pervades (serious) biology, and so that might not be possible. The school can't be expected to bring in a substitute for half of the year or more. Nonetheless, even if the religious teacher ultimately loses under the compelling interest test, her claim gets off the ground, even though it is based on a false empirical view.

What about plaintiffs who mistakenly believe that certain non-abortifacient methods of contraception prevent implantation of a zygote (when the best scientific evidence indicates that they prevent fertilization)? Such plaintiffs present a somewhat harder case because their scientifically false belief about how IUDs and the morning-after pill function might be thought to be rooted in a simple scientific error, rather than a decision to follow religion rather than science. But I think that even that distinction probably doesn't hold up, and that therefore a court ought to defer to the plaintiffs' beliefs about how contraception functions.

The rejection of the authority of the scientific community is itself often rooted in religious beliefs. Biblical literalists and other religious conservatives may use a different epistemology. Moreover, sometimes it will be difficult to distinguish an empirical claim from a more purely religious claim, precisely because many religious claimants believe that these magisteria overlap. Suppose that in my high school biology example the teacher fervently (but mistakenly) believes that there is sound scientific evidence for "intelligent design." Can she no longer launch her state RFRA claim? Is the claim that the sacrament of the Eucharist transforms wine and bread into the blood and body of Christ a (mistaken) empirical claim?  If so, does that mean that Catholics could not assert a RFRA-type claim for an exception to a prohibition on the consumption of wine?

The best reason for providing religious accommodations (if one thinks that religious accommodations ought to be provided) is the recognition that people who are told by the government to violate what they believe to be their religious obligations suffer psychic harm as a result. The harm is not mitigated if they are also told that they are not really being asked to violate their religion because they are mistaken about some facts. So long as they adhere to their mistaken factual beliefs, they will experience the burden on their religious exercise in the same way as people whose factual views are not called into question when they assert religious claims for exceptions.

Nevertheless, the fact that a claimant's religious claim rests on a false empirical assertion can nonetheless undermine the claim in a number of ways. First, it is possible that upon learning the scientific facts, the claimant will change his mind and give up the claim.

Second, the empirical falseness of some claims that are not pervasively religious could be used to undermine the sincerity of the claimant's belief. For example, suppose that Koch Industries seeks a religious exception from the application of the Clean Air Act to one of its facilities because its controlling shareholders say that they believe that complying with the law--let's say by installing scrubbers in a power plant--would cause abortions, and that they have a religious obligation to avoid participating in abortions. The fact that there is no scientific basis whatsoever for the causal claim, in combination with its economically self-serving nature, would count in favor of a finding that the Koch Industries did not actually have a sincere belief.

Third, in assessing whether the challenged regulation is narrowly tailored to a compelling government interest, courts should be guided by the best science available, rather than the claimant's factually false beliefs. In these examples, the harm to be avoided--so far as the state is concerned--is the psychic harm of pressuring people to violate their religious obligations. The harm is not causing abortions or compelling a lie, so long as science says that no abortions are caused and evolution is real, even if the claimants think otherwise.

Accordingly, I think that for purposes of determining whether a law substantially burdens religion, plaintiffs are entitled to rely on sincerely held but false beliefs about empirical facts. The truthiness critique is truthy but wrong.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Monday, 07 Jul 2014 04:01
By Michael Dorf

Perhaps because of the title (". . . a Not Very Important Case"), the aspect of my initial post on Hobby Lobby that drew the most critical attention from readers was my claim that it was not that important. I think some readers misread me to say the case was unimportant, whereas I made clear that Hobby Lobby may well have been the most important case of the past Term, but that I thought it was not important relative to blockbuster end-of-Term decisions from recent past years, like DC v. Heller in 2008, NFIB v. Sebelius, or U.S. v. Windsor last year.

I continue to think that comparative assessment is correct because of three factors: In light of City of Boerne v. FloresHobby Lobby will have no direct impact on state and local laws; Justice Kennedy's concurrence gives some assurance that there will not be a fifth vote to grant religious exceptions that would hobble government; and Hobby Lobby is only a case of statutory construction, so that Congress could, at least in principle, amend RFRA if the granting of religious exceptions becomes onerous.

Nonetheless, I recognize that the prospects for congressional repeal or modification of RFRA are bleak, given the current composition of Congress. Moreover, I agree with the commentators (both in the comments on my last post and in the broader world) who say that the principles underlying the Hobby Lobby majority opinion are dangerously broad. In saying that RFRA goes (well) beyond the pre-1990 Free Exercise case law, Justice Alito has potentially opened the floodgates to religious exception claims that could hobble government. In the balance of this post, I want to focus on last Thursday's SCOTUS order in Wheaton College v. Burwell, which makes me more than a little nervous about where the Court will  go next.

I'm calling today's post "Hobby Lobby Post-Mortem Part 2" on the assumption that my same-day post last week counts as Part 1. Part 3 will run tomorrow, with Part 4 coming on Wednesday. (Thus, this week will continue on the "old" DoL schedule, not the new one I announced on Friday.)

Arguably, the projected length of this mini-series on Hobby Lobby proves my critics right, as a case that prompts me to write four post-decision posts probably qualifies as quite important, or at least interesting. Further evidence that I initially underestimated the importance of the Hobby Lobby ruling came in the Wheaton College case, when the SCOTUS issued an order temporarily permitting Wheaton--an exempt religious organization--to notify the government of its objection to providing contraceptive health insurance in its own way, rather than using the government's Form 700, on the ground that filling out the form would substantially burden Wheaton College's religious beliefs by (the College believes) requiring it to facilitate third-party provision of contraception insurance. 

The order prompted a spirited dissent by Justice Sotomayor, joined by Justices Ginsburg and Kagan, thereby putting the Court in the very awkward position of apparently having broken on strict gender lines over the provision of contraceptive services to women. (I say "apparently" because it's possible that Justice Breyer voted against the order but chose not to register his dissent publicly.) The dissent and the order are each somewhat odd in their own way.

The dissent accuses the majority of disregarding Hobby Lobby just three days after that ruling was handed down. In Hobby Lobby, the Court said that imposing the contraception mandate on for-profit corporations was not the least restrictive means of achieving contraception coverage, pointing to the very procedure utilizing Form 700 that the Court in Wheaton College says (at least sufficiently for a stay) subtantially burdens the plaintiff's religious exercise. Justice Sotomayor writes:
After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, . . . retreats from that position. 
But that looks like a misreading of Hobby Lobby. As I noted in my post last week:
Justice Alito's footnotes 9 and 39, together with the following statement, make clear that he is not foreclosing [a] challenge [like Wheaton College's]: "We do not decide today whether an approach of this type", i.e., the opt-out combined with insurance coverage being directly supplied by the insurer, "complies with RFRA for purposes of all religious claims."
So the dissenters' accusation that the Wheaton College stay is inconsistent with the narrow-tailoring analysis of Hobby Lobby is peculiar. Meanwhile, the order itself is also peculiar, or worse.

The majority assumes that the notice to the government on a different piece of paper is equally effective as notice on Form 700, and that's almost certainly right so far as notifying the government is concerned. If someone has a sincere religious objection to using off-white paper but no such objection to using white paper, the government can readily accommodate by accepting the white paper, and learn the same information.

But Form 700 does not just serve notice to the government. It also gives notice to the insurance provider because a religious non-profit using Form 700 is required to copy the provider. Justice Sotomayor says in dissent that absent that notice, the government will not know what insurer the exempt organization uses. And thus, the government will not know what entity is obligated to provide substitute coverage. Justice Sotomayor writes:
Of course, HHS is aware of Wheaton’s third-party administrator in this case. But what about other cases? Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third-party administrator nationwide?
This does seem like a vitally important question that goes to the issue of narrow tailoring. Yet the majority says nothing in response. Perhaps there is some other government regulation that requires organizations like Wheaton to inform the government of what insurance administrators they use; after all, the regulatory regime in this area is complex. But one can only assume from the majority's silence in response to this objection that: a) there is no such other regulation; or b) none of the Justices really understands the regime sufficiently to know the answer to this basic question. Perhaps if and when the issue returns to the Court in a non-emergency posture, they will be better informed about what the government knows or does not know without Form 700. 

Meanwhile, there is a further problem. Justice Sotomayor goes on to ask how the majority's order solves Wheaton's problem. She asks: "why wouldn’t Wheaton’s claim be exactly the same under the Court’s newly-fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage."

Put differently, Wheaton's objection is not like the objection to off-white paper. The objection is not to the form of Form 700 but to its effect, which is to designate the company that was administering its self-insurance plan as a "plan administrator," i.e., as an entity that provides contraceptive coverage directly. As Marty Lederman explains on Balkinization, Wheaton and similarly situated religious non-profits object to the role--under the existing regs--that Form 700 plays in authorizing a plan administrator to provide contraceptive coverage. And as Marty goes on to explain, it's not clear under existing law that the government can treat the non-Form 700 notice as doing that, without leading to further religious objections in just the way that Justice Sotomayor notes. Marty also offers a potential solution by which RFRA as construed in Hobby Lobby can be construed as tacitly amending the law, but it remains to be seen whether that will succeed.

My own suspicion is that if Wheaton continues to object to whatever backup to the backup the government tries in order to accommodate it, then Wheaton will lose. I base that assessement on Justice Kennedy's Hobby Lobby concurrence, which indicates that the creation of a whole new program--here, direct provision of contraceptive insurance or contraception itself by the government--is not a "less restrictive alternative" that the government must use as an accommodation to a religious objection. But even that is uncertain. Justice Kennedy did join Justice Alito's Hobby Lobby opinion in full, and that opinion indicates (but ultimately does not rely on the conclusion that) the possibility of direct government provision of insurance or services counts as a less restrictive alternative under RFRA.

Perhaps the least bad news about Wheaton College is that the majority didn't say anything in response to the dissent, so that the majority Justices did not commit themselves to an untenable legal position on the ultimate merits. That's only least bad news, however, rather than good news, because there is a tendency of interim rulings to foreshadow and/or influence ultimate rulings. See, e.g., the stay order halting the Florida recount in Bush v. Gore.

And on that ominous note, I'll sign off until tomorrow, when I'll return with: Hobby Lobby Post-Mortem Part 3: Overlapping Magisteria and the Truthiness Critique.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 04 Jul 2014 14:00
By Michael Dorf

There will be nothing of substance from me today. Instead, let me wish a happy Independence Day to our U.S.-based readers, and for the rest of you, enjoy Brazil v. Colombia and France v. Germany.

Astute readers will note that for the last several years, our schedule has usually had me blogging Mondays, Tuesdays, and every other Wednesday, with Professor Colb blogging on the alternate Wednesday, and Professor Buchanan blogging on Thursdays and Fridays--subject to occasional additions or substitutions from Professor Hockett, Professor McElroy, and more rarely, others. We will continue with the same rough distribution of writing, but Professor Buchanan will now have Tuesdays and Thursdays rather than Thursdays and Fridays. In other words, he and I have swapped Tuesday and Friday. Needless to say, we will occasionally depart from this new schedule in light of breaking news or our irrational whims.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 03 Jul 2014 14:58
-- Posted by Neil H. Buchanan

Last Tuesday, Professor Dorf noted an odd and gratuitous passage in a recent opinion by Justice Scalia, who wrote that the Environmental Protection Agency "recently set standards for emissions of 'greenhouse gases' (substances it believes contribute to 'global climate change') from new motor vehicles."  Professor Dorf then imagined a Scalia opinion about the powers of the federal Zombie Violence Protection Agency: "The ZVPA recently set standards for the containment of 'zombies' (animate corpses that it believes constitute an 'undead menace' to the living)."

The point was that Scalia had, through a few deliberately chosen words and some carefully placed scare quotes, aligned himself with the climate change deniers within his conservative movement.  It was a truly surprising move, because nothing that Scalia has written about environmental law requires him to believe that climate change is a massive hoax, as nutcases like Oklahoma Senator James Inhofe loudly proclaim.  Even so, it is true that climate change denial has gone mainstream in Scalia's political party, as Florida Senator Marco Rubio's recent panderings demonstrate.  Maybe Scalia is just getting with the program.

Scalia, however, is not running for office.  Given that he (and Justice Thomas) are in the strange position of being "the reasonable not-at-all crazy moderates among the people who think the Second Amendment protects an individual right," it never occurred to me that Scalia would actually buy into the anti-science nonsense that has run amok in Republican circles.  He does not always say crazy things, but here he was, mocking the idea of "greenhouse gases" contributing to "global climate change."

This, however, is merely one example of people on the right who adopt untenable and uninformed positions on issues far outside of their area of expertise.  A bit over a year ago, I wrote here on Dorf on Law about Chief Justice Roberts' ignorant comments about federal budgeting, in which he not only adopted the standard deficits-are-always-bad mantra, but then managed to become completely confused about how government spending is determined by law.

The broader issue is, therefore, the notion of "affinity," which essentially means "being a good team player."  Scalia and Roberts hang out with a certain group of people, and they hear the same things being said over and over again.  Notwithstanding Scalia's image of himself as the smartest man on Earth, no one can know everything, so one starts to adopt the positions of the people with whom one spends time.  (Mitt Romney's fateful comments about "the 47%," spoken to a closed room of rich donors, are another example of this.)

In my Verdict column today, I confront another "zombie," i.e., the claim that "tax cuts pay for themselves by encouraging people to work hard and thus pay more taxes."  When it comes to dead ideas, the Laffer Curve is "all dead."  (Fans of "The Princess Bride," unite!)  Yet it simply will not go away, and it is still frequently invoked in current policy debates.  Moreover, as I discuss in the column, Laffer-esque reasoning has fueled state-level tax cut drives that are doing serious damage.

My central point in the column is to offer a relatively innocent explanation for why some people might still buy into the Laffer nonsense, notwithstanding its all-deadness.  I am generally in favor of cynical explanations, and Paul Krugman's view on this gets it right: Republicans are committed to tax cuts, and big money is keeping the zombie moving forward, eating brains.  Even though that explains a lot, I wanted to try to understand what a non-cynical person could be thinking when he or she endorses the idea that tax cuts increase tax revenues.

That innocent explanation boils down to two elements: (1) Wishful thinking (because, after all, wouldn't it be great if it were true?!), and (2) Intellectual preening (because the Laffer curve, by virtue of offering a counter-intuitive take on tax cuts, allows a person to pretend to be uniquely "in the know").  I admit that the innocent explanations are not exactly flattering, but if a person does not want to be embarrassed, then one should not take embarrassing positions on subjects that one knows nothing about.

As my discussion at the beginning of this post suggests, I think that the extra element here is something that we might call "affinity bone-headedness."  Imagine that you know a lot about, say, corporate finance.  The people who surround you tell you that "the science on evolution turns out to be wrong."  That sounds weird and unlikely, but how would you know, given that you last took a science class as an undergraduate?  Your friends and associates who claim to know something tell you that the world is flat, or that the moon landing was a hoax, or that Barack Obama sent coded signals to his minions to have the IRS go after Tea Party groups.  Who are you to claim to know better?

One might object that what we "know" about economic issues is far less settled than what we know about climate science or evolutionary biology.  And we certainly know more about the shape of the earth or the reality of space travel than we do about the effects of tax cuts.  In addition, much of my writing (e.g., here) is based on debunking and ridiculing the silly claims that economics is a science.  But that does not mean that we know nothing at all, or that some things have not been very well established.  As I note in my column, the debunking of Laffer-esque claims has even been bipartisan, which, as I note below, means that it has overcome a great deal of pressure for Republican economists to take one for the team.

Although I cannot find the link, I am sure that I have previously noted on this blog that, when I began to write my law review article on "capital budgeting," I had no plans to include any discussion of the use of deficits as a short-term response to economic downturns.  That was such a settled matter that it seemed to be a waste of time even to mention it in the article.  Yet, as 2009 unfolded, I found myself astonished to be witnessing the affinity bone-headedness of people who suddenly decided that, because Obama was in favor of stimulus in the face of the worst economic downturn in over seventy years, they were against it.  Much to my amazement, it became necessary to include in the article a section on short-term effects of fiscal policy.

Were it not for the factors that Krugman notes, believing in the magical powers of tax cut snake oil would not be a required blood oath to show one's affinity to the group.  After all, Republicans conveniently forget about deficits when they feel like it.  (Remember Dick Cheney's immortal line: "Reagan proved that deficits don't matter"?)

In other words, although the scientific consensus on climate change and evolution is more lopsided than the "economic science" consensus on the Laffer curve (and, for that matter, deficit spending), that has a lot less to do with the relative hardness of the science than one might imagine.  There are a lot of economists who are simply willing to say embarrassing things on behalf of Team R.  There is a sub-group that is willing to continue to push Laffer's nonsense, grabbing onto misleading examples in the same way that Fox News anchors excitedly announce that a cold weather snap proves global warming is wrong.

And the people who do not really know anything, but who like the team for other reasons, say that they believe, too.  Why not?  It sounds good, it makes one seem clever and contrarian on an obscure issue like taxes, and it makes one's friends happy.  When reality is optional, anything goes.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 02 Jul 2014 11:00
by Michael Dorf

With the rush of opinions at the end of the Term, there isn't quite time for us here at DoL to squeeze in our usual blog post accompanying each Verdict column, so this will be a twofer.

1) Professor Colb's latest Verdict column looks at Riley v. California and concludes that it is a very big deal. She is especially impressed with the Court's view that the search of data on a cellphone is in some important ways more intrusive than a home search, given how much information the former can reveal. She thus views Riley as a potential turning point in how the Court conceptualizes the interests the Fourth Amendment protects.

Thinking more broadly about the electronic-versus-home point, one might wonder whether the move has other consequences. E.g., Stanley v. Georgia protected the right to possess obscene--and thus otherwise proscribable--materials in the home; might there come a day when "possession" of obscenity on dedicated use electronic machinery (picture the Apple iBrain, which implants directly into a person's brain) is entitled to as much solicitude as home possession of obscenity? Etc.  (NB: My fictional Apple iBrain is more like a smartphone than the monitoring device that currently goes by the name iBrain.)

2) Meanwhile, my latest Verdict column explores NLRB v. Noel Canning, the recess appointments case. After discussing the ways in which the majority (by Justice Breyer) and the concurrence in the judgment (by Justice Scalia) differ, I call attention to an issue on which they agree: All nine Justices think that: (a) the original purpose of the Recess Appointments Clause was to fill vacancies that happen to go unfilled while the Senate was in session, rather than to circumvent political opposition to Presidential nominees; and (b) therefore, use of the Clause cannot now be justified as a means of overcoming Senate obstructionism.

I argue in the column that (b) does not follow from (a). As a general matter, constitutional provisions are often construed to extend beyond their original purposes. And w/r/t the Appointments Clause in particular, the Senate's transformation of the confirmation power into a tool to hamstring government means that the process has already been politicized, so denying the President the power to respond in kind tilts the playing field.

Here I want to ask whether that last point is consistent with the holding of INS v. Chadha, in which the SCOTUS invalidated the legislative veto. Before getting to my question, I need to distinguish it from a question Justice Scalia poses in his Noel Canning opinion. He says there that the Breyer majority opinion is inconsistent with Chadha because the Canning majority relies on the tradition of intra-session recess appointments and of Presidents making recess appointments to fill vacancies that arose before the Senate went into recess; yet, Justice Scalia says, there was also a tradition of legislative vetoes, and the Court nonetheless found the legislative veto unconstitutional in Chadha; so, he asks, how is the majority's approach consistent with Chadha?.

Somewhat surprisingly, the majority doesn't directly answer Justice Scalia's question, although it's not difficult to imagine what Justice Breyer might say. He could say that the text of Art. I, Sec. 7 is clear about the procedure for a bill becoming a law, whereas the meaning of the Recess Appointments Clause is relevantly unclear. Justice Breyer can admit that longstanding practice cannot override clear constitutional text (as in Chadha) but that it can provide a definitive gloss on unclear text as in (Noel Canning). (He could also say that the traditions in Noel Canning were more longstanding than the tradition in Chadha.)

As I said above, however, there's a different way in which Chadha might be problematic for my view that the President ought to be permitted greater leeway to use the recess appointment power for political purposes in order to counteract the political uses of the confirmation power by the Senate. The problem is this: A similar argument was made and rejected in Chadha. There it was said on behalf of the legislative veto that the complexity of governing in the 20th Century required Congress to delegate enormous power to the executive branch, so that the legislative veto was a means of retaining some policy control; by delegating subject to a legislative veto, it was argued, Congress was giving the executive more power than the executive would have absent the delegation, and so on net there was no aggrandizement of congressional power and thus no violation of the Constitution. Justice White found this argument persuasive, but he wrote a solo dissent. The rest of the Chadha Court flat out rejected the idea that the legislative veto could be justified as compensation for delegation.

Accordingly, one might think that likewise here, the Senate's use of its confirmation power for the purpose of political obstruction does not justify expanding the President's power to make recess appointments by declaring the Senate to be in recess when the Senate, via pro forma sessions, considers itself to be in session.

Yet the answer I would give to this Chadha-based objection is broadly similar to the one I proposed on behalf of Justice Breyer in response to Justice Scalia's Chadha-based objection: Political balancing may be an insufficient basis for overcoming clear constitutional text (as in Art. I, Sec. 7), but it can be sufficient to make the difference in a case where the constitutional text is unclear (as with the Recess Appointments Clause). And once one accepts the majority's argument that the Clause includes intra-session recesses, it is not clear from the text what counts as a recess. So here, by contrast with Chadha, there is room for political balancing to enter into the analysis.

By one account, the Court does this sort of thing quite frequently. In a series of articles on "translation" in the mid-1990s, Larry Lessig argued that the best way to understand some of the federalism doctrines of the Rehnquist Court--including the anti-commandeering rule, the expansion of state sovereign immunity, and the formalist outer limits on the Commerce Clause--was as a kind of compensation: The original understanding of the Constitution's federalism provisions could not be enforced given changed circumstances, and so the Court made up a number of constitutional rules that pushed back somewhat against the nationalizing tendencies. Making up new rules in this way, Lessig offered, kept faith with the original meaning of the Constitution by reading it differently in light of changed circumstances.

Just as Lessig wasn't endorsing any of the particular federalism doctrines fashioned by the Rehnquist Court, so too, I'm not saying that the Court was wrong in Noel Canning to reject the claimed Presidential authority to disregard pro forma sessions. What I am saying (in keeping with what Lessig said about federalism) is that it may be legitimate (even if not necessarily correct in particular circumstances) to fashion doctrine that technically departs from the original design in order to restore the overall original balance. That was Justice White's point in dissent in Chadha, and even if one thinks that he was wrong about the particulars, I think he was right about the big picture.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 01 Jul 2014 14:59
-- Posted by Neil H. Buchanan

When I was in graduate school, I coached the undergraduate parliamentary debate team.  As a matter of self-selection, such an activity inevitably finds itself heavy with just-out-of-high-school kids (almost all male) who have recently discovered the joys of arguing about slippery slopes.  Many of them have read some poorly-written novels that tend to excite adolescent boys in particular (as well as some vice presidential candidates), and they come to the debate team filled with certainty that the way to win an argument is to prove that the other side's argument is on one of those slippery slopes.

Part of the job of any debate coach is to help those students grow up.  The realities of life require all kinds of line-drawing exercises, and adults learn that not all slopes are all that steep or all that slippery.  This horrifies the purists, who are sure that any "unprincipled" distinction (or, just as often, one that is based on principles that the purists do not understand or accept) must be rejected, because it is the first step on the road to, well, something really, really bad.  That there are adults out there who never outgrew this fascination only makes it easier for the truly committed to dig in their heels.

In my post last Monday, Living Like Kings and Not Loving It (The Inequality List, Part 2), I discussed an argument that comes up frequently during discussions about inequality.  The definition of "poverty," we are told, is unprincipled because it is all relative.  The people we call poor today would be rich in another place and time (medieval kings are a favorite example), so people who purport to care about poor people are being mindlessly relativist, by this way of thinking.

The point of last Monday's post was to say simply that this obvious point -- that poverty and wealth (and everything in between) are only meaningful in a relative sense -- is indeed obvious.  We have known forever that attempts to define poverty, or to establish cutoffs for "middle class" and other designations, are inherently relative.  Those who then argue that advocates of redistributive policies are somehow on weak ground, because they are merely arguing about a relative rather than an absolute problem, seriously misunderstand what is going on.  Everyone is arguing about relative concepts.  As I said in that post, a person who wants to argue against redistributive policies on this basis is defending the current distribution of wealth and income.  But if the argument is, "Hey, you liberals have to understand that the people you're defending are doing quite well, relatively, so you shouldn't do anything," then the reply is, "Yes, and the people you're defending will still be doing quite well, relatively, even after I've had my way."

And if that is not the argument from the right, then they are merely back to choosing an arbitrary baseline to defend.  That is, once they have lost the claim that relativism in defining rich vs. poor cuts in favor of either side of the debate, then they end up having to defend the status quo by saying that the current relative distributions are non-arbitrary.  But of course, all distributions are based on arbitrary collections laws of property, contract, and so on.

This is not to say that liberal redistributionists automatically win by pointing out that their opponents are arguing arbitrary and relative positions.  The point, instead, is that because everyone is arguing about relative positions, everyone should move on to the next stage in the debate.  The idea that "there is no such thing as poverty," after all, is merely the first argument on the "taxonomy" of arguments that anti-redistributionists run through.  Yes, there is such thing as poverty, and there is such thing as "being rich."  And yes, the lines will be arguable.  Medical doctors know that there is inherent arbitrariness in calling a child autistic or not, or in calling a mole pre-cancerous, but they do it.  And doing so allows seroiusly good interventions to happen.  (Or, as a judge in a tax case once put it, we need not be taken in by "old scholastic questions" about where a horse's tail ends and the horse begins.)

The further point, therefore, is that it is not only acceptable but necessary to have honest discussions about what counts as being poor, being rich, and so on.  "What counts," of course, is determined by considering what it takes to be a functioning person in society.  Most people, for example, agree that it is a marker of poverty when a parent has to choose between feeding her child or buying her child's medication.  That is still, of course, an entirely arbitrary criterion, especially considering how many people never have access to certain medications (including medieval kings, but also including many current poor people in the U.S. and around the world).

The discussion about "what counts" is also driven by what we are trying to accomplish.  "But so-called poor people have cellphones!" is a relatively stronger argument if the discussion is limited to whether "creature comforts" are a meaningful criterion for defining poverty, whereas the argument is utterly mockable if part of our concern is with giving people an opportunity for upward mobility.  If "a job is the best anti-poverty program," then we need to worry about making it possible for employers to communicate with potential employees.  Refusing to call someone poor because they possess the means of possible escape from poverty is perverse.

Of course, if we are really simply having a relativistic discussion about what counts as poverty, we will not only be unable to achieve the kind of certainty that my former late-adolescent students craved, but we are also left to deal with how our own definitions of poverty and wealth change over time.  The evidence is clear, for example, that what people think of as being "rich" is essentially a moving target.  None of this means, however, that we can simply dismiss the entire exercise as being meaningless.  It merely means that it will not be satisfying to a particular mindset.

In short, I am not merely acknowledging that defining and measuring income and wealth are relativistic and imprecise exercises.  I am embracing it.  This is why, for the purposes of the writing that I have done so far on this blog and on Verdict, there is no relevant distinction between "inequality" and "poverty" at the low end.  That is, if we are talking about relatively less-well-off people, then calling them poor is no different from decrying inequality.  In that context, therefore, the terms are essentially interchangeable.  Where inequality's meaning broadens, of course, is in its embrace of the entire spectrum, rather than only the low end.

For future reference, therefore, when I use the term "poverty," it is safe to assume that I am talking about a relative concept, looking at the low end of the income distribution.  "But how low?" my former students moan.  When we need to draw those lines, we will.  At this point, it is only necessary to say that it is possible for reasonable people to decide democratically that there is a limit below which people should not fall.

When I launched this series, the idea was first to lay out the arguments that have been made against redistributionist policies, and then to go through them relatively systematically to determine the weaker versus the stronger arguments.  The argument that "there is no such thing as poverty, because you cannot define it cleanly" is a threshold argument that surprisingly returns again and again in discussions about inequality/poverty.  We can, however, have meaningful discussions about relative concepts that are hard to define and measure.

So far, I have treated poverty as entirely a matter of economics, that is, as a condition that would most meaningfully be defined by access to goods and services.  In a post next week, I plan to broaden the discussion to include matters that are not purely economic.  Those issues, by the way, lend themselves to definitions poverty that have cleaner demarcations -- although certainly not the bright lines that would make life so much easier.  For now, however, the important point is that we are all living in a world where concepts like rich, poor, wealthy, and destitute can only be relative concepts.  No matter where one comes out on the specifics, a healthy conversation can only begin once we sweep away that idea that this will be easy.


Previous Entries on "The Inequality List":

-- A Taxonomy of Excuses for Poverty and Inequality (The Inequality List, Part 1)

-- Living Like Kings and Not Loving It (The Inequality List, Part 2)
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 30 Jun 2014 16:43
By Michael Dorf

Today's Hobby Lobby ruling raises all sorts of fascinating questions. Here I'll just record three thoughts.

1) The case just is not that important.  We tend to focus on Supreme Court cases one Term at a time, but some Terms have more important cases than others. Even if one regards Hobby Lobby as the most important case of this Term, this is a relatively sleepy Term.

To be sure, a ruling that publicly traded for-profit corporations are entitled to religious exceptions under RFRA would have been potentially important. Indeed, it's even possible to read the decision as having that implication. Justice Alito writes: "No known understanding of the term 'person' includes some but not all corporations." So even though the case only formally addresses closely-held corporations, it is possible to read it as implying RFRA rights for publicly traded corporations too, as Justice Ginsburg says in dissent. But even if a later case extends Hobby Lobby to publicly traded corporations, there will be little practical effect. As Justice Alito's majority opinion notes, major corporations are highly unlikely to avail themselves of exceptions because it would be so difficult to justify doing so under the business judgment rule (even if the corporate board were to want to do so). Moreover, the bad public relations would affect the bottom line and thus anger shareholders.

Meanwhile, the federal government now likely will move to extend the exemption regime that applies to religious organizations to firms like Hobby Lobby: with the government and/or the private insurers picking up the tab. The main potential of the case was always that it could be a symbolic victory for exemptions, and that this could then give momentum to the campaign against antidiscrimination law. But the Court goes out of its way to warn against that sort of generalization. Perhaps that distinction is unprincipled, but it nonetheless undermines any symbolic lift the case could have given to religiously-inspired bigots.

My one caveat here concerns the way that the Court distinguished anti-discrimination law. It said: 
"The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." What about sex discrimination, age discrimination, and most importantly, sexual orientation discrimination? My view is that anti-discrimination law is also compelling and narrowly tailored to these evils, but it's not obvious that (all members of) the Hobby Lobby majority agree. 

2) Some, but not enough, clarity on RFRA.  In my contribution to the SCOTUSblog Symposium on Hobby Lobby, I noted that the Court had paid inadequate attention to how it is that RFRA remains valid against the federal government. I explained that there is no good affirmative power argument against RFRA, and Justice Alito's opinion makes the same point. That is an advance. But I also raised the question of how it is that the Court is competent to apply the RFRA test--which is in most relevant respects the pre-Smith test--when in the Smith case it said that it was not competent to apply that test. The question is most acute for Justices Scalia and Kennedy, the two members of the Smith majority still on the Court and in the Hobby Lobby majority. The Hobby Lobby opinion doesn't answer that question. At the very end of the opinion, the Court says that Congress reached a contrary judgment in RFRA, but Justice Scalia's Smith opinion had implied that the test imposed a judicially impermissible task, as to which the Constitution should trump a statute. As I explained in my earlier essay, I think there are ways to get around this point, but the Hobby Lobby Court simply ignores the issue. (Let me add that the best way to get around the issue may be one I neglected in my original SCOTUSblog piece: As amended by RLUIPA, RFRA does not require inquiry into the "centrality" of religious belief, and Justice Scalia's judicial competence point in Smith can be read to be restricted to the centrality determination.)

3) Implications for the Little Sisters Case

A casual reading of the opinion might lead one to think that it is bad news for the plaintiffs in the Little Sisters case and the other cases in which people argue that the government's required procedure for obtaining an exemption is itself a violation of RFRA. After all, the Court rules in Hobby Lobby that the challenged rule violates RFRA because it is more restrictive than the opt-out procedure by which the insurers themselves pay for contraception (and ultimately recoup its cost because it's cheaper than paying for the health impacts of pregnancy). If that is the less restrictive alternative, then surely that alternative satisfies RFRA, and so the Little Sisters and like plaintiffs are out of luck, right?

Wrong. Justice Alito's footnotes 9 and 39, together with the following statement, make clear that he is not foreclosing the Little Sisters challenge: "We do not decide today whether an approach of this type", i.e., the opt-out combined with insurance coverage being directly supplied by the insurer, "complies with RFRA for purposes of all religious claims."

Meanwhile, elsewhere in the opinion, Justice Alito makes crystal clear that the question of whether the connection between a compelled act and its consequences is too attenuated to implicate RFRA is one as to which the religious claimant's own views are determinative (except perhaps in tax cases). Accordingly, I read Hobby Lobby as quite favorable to the Little Sisters and similar plaintiffs. And I think that explains why Justice Alito offered reasons for thinking (although did not ultimately rely on the conclusion) that RFRA was not narrowly tailored for a second reason: the government could just pay for contraception insurance directly. If that's also a less restrictive alternative, then that will greatly help the Little Sisters in their case.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Sunday, 29 Jun 2014 16:41
by Sherry F. Colb

Over the last few months, I have repeatedly heard  a peculiar claim articulated by a variety of vegan advocates on different vegan outlets.  The claim is this:  Even though it might seem that people consuming so-called "humane" animal products poses an obstacle to the movement for veganism, "research" shows that the opposite is true.  "Research" shows that when people decide to purchase "humane" animal products, this choice increases the odds that those same people will eventually decide to become vegan.  When I first heard this claim, I was intrigued.  Could it be that animal farmers encouraging people to purchase their "local, sustainable, and [allegedly] humane" animal products were actually helping the vegan cause?

The answer is that the research on which people have based this conclusion gives us no reason to imagine that "humane" animal products bring people closer to veganism.  My own conclusion, based on a combination of logic, experience, and my own anecdotal observations, leads me to believe that in fact, the opposite is true, that encouraging people to consume so-called "humane" animal products poses a major obstacle to the continuing spread of veganism.  But quite apart from what I think, the research that supposedly supports the utility of encouraging the consumption of "humane" animal products in moving people closer to veganism does no such thing.

How can I say this?  Well, let us consider what the research actually shows and why the conclusions people have drawn from that research do not at all follow from it.  Here's the supposedly revolutionary finding:  It turns out that people who purchase animal products labeled "humane" (or "compassionate" or some other equally misleading adjective) may be more likely eventually to become vegetarian or vegan than are people who do not purchase these products.  That is, there is a correlation between people buying animal-derived products labeled "humane" at point 1 in time, and people reducing or ending their consumption of animal-derived products at point 2 in time.

As everyone knows, a correlation does not necessarily indicate causation.  But the problem with drawing the inference that vegan advocates have been drawing from the above finding goes well beyond the "post hoc ergo propter hoc" fallacy.  Enter "selection bias."  Selection bias is the reality that people will often self-select to engage in an activity at time 1 and whatever motivated that self-selection can also fully account for the same people's choice to engage in another activity at time 2.

Consider the following observational study.  I observe that one group of people spends a lot more money at the grocery store on luxury items such as truffle oil and saffron than other people do.  I decide to keep an eye on these people, because I want to know what the impact of all of this supermarket-spending might be.  Eight months later, I observe that this same group of people is embarking on much more exotic and expensive vacations in places much farther away from home than other people who did not spend as much money at the supermarket as this group did.  I conclude from these observations that buying expensive food at the supermarket helps enable people to be able to go on exotic and expensive vacations eight months later.  Wanting to go on such a vacation myself, I immediately begin to spend a lot more money on groceries.

This hypothetical example helps illustrate selection bias.  The act of spending a lot of money at the supermarket did not help to make an expensive vacation possible.  If anything, this act would appear to hinder one's ability to take an expensive vacation, all things being equal, by depleting one's bank account.  However, the people who choose to spend a lot of money at the supermarket are often doing so because they have a lot of money.  Their having a lot of money has caused them to feel free to spend a lot on groceries.  Then, eight months later, because they started with a lot of money, more than other people have, they also had enough money to pay for an expensive vacation that the rest of the population cannot afford.  If I were to take my observations as evidence that spending a lot on groceries enables one to take an expensive vacation, however, then I would probably end up undermining my own goal, and I would be doing so because I ignored selection bias.

A very similar dynamic seems likely to be in play when we observe that the people who purchase "humane" animal products at Time 1 are more likely than people generally to be purchasing only vegan products at Time 2.  Buying supposedly "humane" animal flesh and secretions is something that many people do when they are driven to try to act more mercifully and ethically toward their fellow sentient beings.  Years ago, before I became vegan, I tried to buy containers of cows' milk (or what would more accruately be called the "lacteal secretions produced by a mother for her baby calf") that said "grass fed" and "organic" on them, because I thought (erroneously, as it turned out) that this meant that the cows from whom the milk was taken (a) did not encounter human violence and cruelty during their lives and/or (b) were allowed to live out their lives in peace, eating grass, never having to be slaughtered.  Eventually, I learned that my beliefs were nonsense (nonsense amply cultivated by those who sell animal products), and I made the decision to become vegan.  It is hardly the case, however, that consuming (mis)-labeled animal products helped move me closer to veganism; if anything, it slowed me down by falsely assuring me that I was already "doing right by the animals" by avoiding "factory-farmed" products.

If you think about it, it is not at all surprising that people who feel moved to act ethically and mercifully toward animals will make up a disproportionate share of the people buying supposedly "ethical" animal products and a disproportionate share of the people becoming vegan.  A third variable -- consciousness about one's obligation to refrain from inflicting unnecessary suffering on other beings -- can fully account
for people's desire to do both things.  Similarly, if you observe someone buying a vegan frozen pizza, such as Tofurky, at Time 1, you may be more likely than otherwise to observe that same person adopting a dog from a shelter (rather than purchasing a dog from a breeder) at Time 2.  Yet no one would claim that eating a slice of vegan pizza causes a person to adopt a dog from a shelter.

Ordinarily, it might seem harmless when people assume that performing act 1 causes a person to perform act 2, just because we observe that the same people who perform act 1 later perform act 2.  But if the goal of citing this research about "humane" animal products is to alter the way that people conduct their advocacy, then it is anything but harmless.  If someone tells me that he buys all of his flesh from a "humane" butcher and all of his lacteal secretions from a "humane" dairy farmer, this tells me that he is the sort of person who cares about animal suffering and wants to do what he can to reduce it.  He has, howeve, been misled into thinking that what he is purchasing is the product of merciful treatment towards animals, when it in fact involves tremendous cruelty and harm to animals, and he is also (from a logical standpiont) less likely to become vegan than he was before, because he has managed to mollify his conscience by purchasing the "humane" product.  Indeed, that is presumably why suppliers create the "humane" product in the first place -- to keep animal consumers consuming animal products and to distract them from the actual humane alternative, vegan products.  The purveyors of "humane" products could hardly be expected to label their products "humane" if they believed that such labeling would lead people closer to veganism.

I know that there are many people who are far more interested in the phenomenon of selection bias than I am and who have much more to say on the subject.  I have nonetheless decided to write this post about selection bias, because I have felt an increasing amount of frustration upon hearing this claim about the counterintuitive results of "research" that should be altering the way animal advocates engage with the public. The research may tell us that the people who consume humane animal products are, all things being equal, more likely to become vegan than the general population.  But this plainly does not mean that consuming "humane" animal products moves people closer to veganism.  And if you are hoping to take an expensive, exotic vacation, I would strongly recommend against spending large amounts of cash at the supermarket between now and your vacation time.  You're welcome.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Thursday, 26 Jun 2014 18:17
by Michael Dorf

The Supreme Court "unanimously" decided two cases today. In NLRB v. Noel Canning, the Court invalidated President Obama's use of the recess appointment power while the Senate was in pro forma session. In McCullen v. Coakley, the Court invalidated the Massachusetts 35-foot buffer zone around entrances to facilities (other than hospitals) where abortions are performed.

I put "unanimously" in quotation marks above because each case produced a 5-4 split with a heated concurrence in the judgment that read more like a dissent. Thus, in both cases, the majority consisted of the four liberals plus one of the two slightly less conservative conservatives. In Noel Canning, Justice Kennedy joined the majority opinion of Justice Breyer and in McCullen, CJ Roberts reprised his role from the 2012 Health Care Case, writing a majority opinion joined by the liberals. (In McCullen, Justice Alito wrote his own concurrence in the judgment rather than joining Justice Scalia's. Although Justice Alito's tone was less incendiary than Justice Scalia's, his grounds for disagreeing with the majority were largely the same.)

I'll have more to say about Noel Canning in my Verdict column next week. Here I want to make a brief observation about the lineups in these cases and then add two thoughts about the possible implications of McCullen.

1) Lineup:  There was much speculation in 2012 about whether CJ Roberts voted as he did in the Health Care Case for political/pragmatic reasons. That speculation tended to overshadow what should have been at least as much of a puzzle: Why did two of the liberals (Justices Breyer and Kagan) join the conservatives in striking down the Medicaid expansion as a coercive use of the Spending Power? The obvious answer for conspiracy theorists was this: Breyer and Kagan made a deal with Roberts; they would vote to invalidate the Medicaid expansion in exchange for his vote to sustain the individual mandate under the Taxing Power, which would give him something valuable while also preserving the Court's institutional legitimacy as non-political.

I don't think much of the conspiracy theory. My observations both as a law clerk a long time ago and as a Court watcher ever since lead me to think that Justices do not explicitly trade votes, nor do they even permit themselves to believe that they are implicitly trading votes. Having said that, however, I do think that there is strategic voting on the Supreme Court, which is perhaps best explained by subconscious mechanisms.

In any event, for the moment let's run with a political model. The idea would be that one or more of the liberals would have preferred to uphold the Massachusetts law in McCullen, but realizing that they didn't have the votes for that, they made a deal with CJ Roberts: He would get a unanimous decision invalidating the buffer zone and they would get a ruling that left states and localities with some flexibility to erect buffer zones in future cases. Likewise, in Noel Canning, we might assume that one or more of the liberals would have liked to uphold the President's use of the recess appointment power, but realizing that they lacked the votes for that, they made a deal with Justice Kennedy: He would get a unanimous decision invalidating these particular recess appointments and they would save the recess appointment power for future cases.

Even putting aside my enormous skepticism about the possibility of such deals, I find the argument for a deal in Noel Canning even less plausible than the argument for one in McCullen. While the Chief Justice has some interest in unanimity, it's hard to see that Justice Kennedy does. And even in McCullen, the unanimity that the Chief got was pretty hollow, with Justice Scalia going after him hammer and tongs. So I'm left thinking--in both cases--that the lineups simply reflect the Justices' respective views.

2) Implications of McCullen

a) The fundamental disagreement between the majority and the concurrences in the judgment concerned the question of whether the Massachusetts law was "content-neutral." Because it regulates speech on sidewalks--a "traditional public forum"--the precedents require that it must be content-neutral to be valid. The majority says the law is content-neutral because on its face it is not directed at speech and it addresses speech-neutral concerns--namely, "public safety, patient access to healthcare, and the unob­structed use of public sidewalks and roadways." The concurences in the judgment say that the law is both content-based (because it singles out facilities that perform abortions and thus abortion-related speech) and viewpoint-based (because various exceptions for facility employees, including "escorts", mean that within the buffer zone patients can be told to enter the facility and have the abortion but not to change their minds and forgo the abortion).

Despite finding that the law is content-neutral, the majority nonetheless invalidates it on the ground that it is not "narrowly tailored," a further requirement for a law that regulates speech in a public forum. Although the concurrence pooh-poohs this portion of the majority opinion as easily evaded, to my mind, this is a potentially far-reaching doctrinal development. Prior to McCullen, the narrow tailoring prong of the test for evaluating content-neutral time, place and manner restrictions of speech in a public forum used the language of narrow tailoring but applied that test in a very deferential way. The McCullen majority notes that distinction as follows:
Such a [content-neutral] regulation, unlike a content-based restriction of speech, need not be the least restrictive or least intrusive means of serving the government’s interests. But the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. [Internal quotation marks and citations omitted].
Thus, the version of "narrow tailoring" applicable to content-neutral time, place and manner regulations of speech has traditionally looked a lot like what is sometimes called "intermediate scrutiny." But as I noted quite a few years ago, even that is an overstatement. Although lower courts have sometimes applied this version of narrow tailoring to invalidate content-neutral laws, the Supreme Court itself rarely does so. To the extent that McCullen signals a more robust version of the narrow tailoring requirement for content-neutral time, place and manner restrictions, that may be a significant development in the Court's free speech jurisprudence.

b) Meanwhile, I confess that I am of two minds regarding the majority's conclusion that the law should be regarded as content-neutral, for reasons that track the arguments set forth by Justice Scalia in his concurrence in the judgment. In our forthcoming book, tentatively titled Beating Hearts: Abortion and Animal Rights, Professor Colb and I explain that we do not think that people generally have a right to remain ignorant of the consequences of their actions. We make the point with respect to both abortion and animal rights in a chapter that considers the use of visual imagery in the pro-life and animal rights movements. Of course, there is a point where attempts to inform people who clearly do not want to be informed become harassment, and so there must be limits, but one should not assume that every effort to shield people from information is an effort to protect their safety.

I do not read either the majority or the concurrence in the judgment in McCullen as disagreeing that the right line distinguishes between shielding people from information (impermissible) and shielding them from harassment, assault, etc. (permissible). The disagreement on the Court appears to be over the question of how closely to scrutinize the state's assertion of a speech-neutral reason. The majority accepts that the Massachusetts legislature was motivated by concerns about congestion, ingress and egress, and safety, whereas the concurrence in the judgment contends that these were not the real motives of the legislature; shielding women seeking abortions from anti-abortion messages was the real motive, Justice Scalia claims.

In addition to wondering whether the majority too readily accepted the state's assertion of content-neutral grounds for the particular Massachusetts law, I worry a bit about the application of a too-deferential approach in other contexts. In particular, various state legislatures have enacted or proposed "ag-gag" laws that forbid various forms of documenting what happens to animals on farms. The actual purpose of these laws is to prevent animal rights and animal welfare activists from exposing how animals are treated but the laws could potentially be justified by generic references to safety, privacy, and property. Under the majority approach in McCullen it is possible that such laws would be deemed content-neutral because of these generic invocations, despite their implausibility as an actual account of the legislators' purpose.

Ultimately, however, it may not much matter (in the context of abortion, animal exploitation, and other areas) that McCullen affords substantial deference to state assertions of content-neutral interests if, as suggested by the narrow tailoring analysis in McCullen, the Court follows through by demanding a reasonably tight fit between those asserted interests and the actual operation of the law. Honestly applied, that analysis would invalidate ag-gag laws.


Okay, that's all for now.  As this is my second post today, there will be no new post tomorrow. Next week, there will be a new post early Monday morning, probably followed by a mid-day post on Hobby Lobby.
Author: "noreply@blogger.com (Michael C. Dorf)"
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