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Date: Wednesday, 30 Jul 2014 04:25
by Michael Dorf

As I post these thoughts, there is no ceasefire in place to stop the immediate bloodshed in Gaza and Israel, much less any apparent progress towards resolving the larger conflict. But, as with my most recent post inspired by the latest outbreak of violence, I am going to address a general issue it raises, rather than assess the current situation or the broader conflict. I realize that in treating a very real tragedy as merely the insipiration for an intellectual discourse, I risk coming across as detached or unfeeling, so let me assure readers that I take very seriously both Israel's security concerns and the devastation in Gaza. As with my last post on the current Israel/Hamas conflict, I want to discourage comments on topics other than the one I address here, and to announce in advance that I won't respond to any such off-topic comments.

With that warning/disclaimer out of the way, I come to the question that concerns me: Can we learn anything about the human shields question in international humanitarian law (IHL) by looking at domestic criminal law?

The issue is inspired by a question that I bracketed in my last post on civilian casualties: If Force A uses human shields, does that affect the determination of whether Force B's use of force against A is proportionate (and thus legal)? Israel says that Hamas deliberately embeds itself in the civilian population, storing and launching rockets from, and digging tunnels under schools, hospitals, and mosques, as well as preventing some Gaza civilians from heeding Israeli warnings to evacuate targeted buildings--and that therefore, the proportion of civilian casualties from Israel's attacks on Hamas should be permissible even if that proportion is higher than the threshold that would lead to the conclusion that Israel would be violating the proportionality norm absent the deliberate use of human shields.

One could contest various premises here. For one thing, Hamas is not exactly the government of a country, and so the application of IHL to it is open to question. Nor is it entirely clear that IHL, as opposed to the stricter norms applicable to occupying forces, applies to Israel with respect to Gaza. Although Israel dismantled all of its Gaza settlements in 2005, Gaza remains subject to considerable Israeli (and also Egyptian) control. In addition, Hamas and others argue that the population density of Gaza, rather than its deliberate policies, are mostly responsible for the high civilian casualty rates.

These and other issues would need to be addressed in any assessment of war crimes liability for Hamas and/or Israel, but I'm going to put them aside here to focus on a general issue that arises in many asymmetrical conflicts: Does the measure of proportionality in determining the lawfulness of attacks that foreseeably lead to collateral civilian casualties change when the enemy uses civilians as human shields? (There is some disagreement about what exactly it means for a force to use human shields, but I use the term loosely to refer to any actions deliberately undertaken to ensure that attacks by the enemy on military targets will likely result in substantial civilian casualties.)

Since writing my last post, I did a bit of research and came to the conclusion that IHL is not fully determinate on the question, but is probably best read as not changing its definition of proportionality based on the use of human shields by the enemy. The basic idea appears to be that war crimes by one side don't justify war crimes by the other.

That logic has been questioned. For example, a Student Note in the 2012 Vanderbilt Journal of Transnational Law argues that IHL should give the attacking side the right to disregard human shields entirely, on the ground that this approach, if followed consistently, would reduce the incentive for the enemy to use human shields in the first place. For what it's worth, I think that's probably wrong even on its own terms. Even if foreseeably killing unlimited numbers of human shields were lawful under IHL, many countries would refrain from doing so out of moral and/or public relations considersations, and so there would remain an incentive for the other side in a conflict to use human shields.

A less extreme reform proposal comes from Amnon Rubinstein and Yaniv Roznai in the 2011 Stanford Law and Policy Review. They argue first that IHL ought to be clearer that forces deploying human shields commit grievous war crimes. Next, they urge distinguishing between voluntary human shields and involuntary ones; people who volunteer to serve as human shields should not count as civilians for purposes of calculating proportionality (as civilians participating in hostilities ordinarily do not so count during the period of their participation); but given the difficulty of determining whether particular individuals are voluntary or involuntary shields, uncertainty should be resolved with a presumption in favor of treating human shields as involuntary, and thus protected. Finally, Rubinstein and Roznai would retain the proportionality requirement as against an enemy employing involuntary human shields, but they would relax it somewhat. Thus (and this is my account of their proposal), if for some military operation, the proportionality limit on the number and severity of civilian casualties would be X in the absence of human shields, it would be X+Y if the enemy is using involuntary human shields.

I think there is much to be said for the Rubinstein/Roznai proposal but also much to be said for the two-wrongs-don't-make-a-right logic of the current IHL norm (as I perceive it). I do not start out with a strong view about which approach is to be preferred in IHL, but perhaps we can get some guidance from the parallel question in domestic criminal law.

Hostage-taking is a close cousin of the use of human shields in domestic criminal law, but its usual logic is importantly different. If bank robbers hold customers and bank employees hostage in order to facilitate their own escape, they are using the hostages as shields, but the robbers usually aren't threatening violence to anyone else, so it is difficult to imagine a scenario in which one might think that intentionally killing the bank robbers while foreseeably but regrettably killing the hostages makes any sense.

It is difficult to come up with a realistic scenario in domestic crime that closely parallels the IHL case. (For an unrealistic scenario, I recommend the boat scene from the Batman film The Dark Knight). But realistic or not, here is what I have in mind: Bad Guy, with the intent to kill Good Guy, has a gun pointed at Good Guy, who also has a gun, but Bad Guy is holding Innocent Shield in front of him, so that the only way that Good Guy can shoot Bad Guy before Bad Guy shoots Good Guy (who cannot safely retreat) is by shooting in a way that will foreseeably (albeit regrettably) harm or kill not just Bad Guy but also Innocent Shield. Is Good Guy permitted to shoot?

Notice that in my hypothetical example, Good Guy wants to use deadly force to protect himself. I am not asking whether a police officer would be justified in shooting. I think the answer to that question would generally be no, even if Good Guy would be permitted to shoot: A police officer would have no reason to prefer the life of Good Guy to Innocent Shield--although a police officer might have reason to think that there's at least a chance that he could hit Bad Guy without harming Innocent Shield, and so conclude that there will be a lower chance of the loss of innocent life if he shoots than if he doesn't. But let's put that issue aside. Although one could analogize the use of force by countries in war to the use of force by police, more commonly national self-defense is analogized to individual self-defense.

So, can Good Guy use deadly force against Bad Guy, knowing that there is a substantial probability that in doing so he will also kill Innocent Shield? Put differently, suppose Good Guy does use deadly force in this way, resulting in the death of both Bad Guy and Innocent Shield. Will he face criminal liability?

Let's look at the answer under the New York Penal Law (which pretty closely follows the Model Penal Code; the answer may differ in other states, but not that much, I suspect). Prima facie, Good Guy has committed two second-degree murders because he acted intentionally with respect to Bad Guy and at least extremely recklessly with respect to Innocent Shield. (Alternatively, Good Guy might be on the hook for Innocent Shield under a "transferred intent" theory.) Under NY Penal Code Sec. 35.15, Good Guy can make out a successful defense of justification (i.e., self-defense) with respect to Bad Guy, but not with respect to Innocent Victim, because self-defense only applies against the attacker himself. Is there some other defense available?

Duress is arguably a possibility. In the standard duress scenario, X uses duress to induce Y to commit an offense against Z. (E.g., "mug that old lady or I'll break your knees"), but we can imagine that the threat that Bad Guy poses to Good Guy would be the duress that leads Good Guy to kill Innocent Shield. (Joshua Dressler proposes that Model Penal Code duress would be an appropriate defense in the related case where a battered woman kills her batterer while he is sleeping.) Maybe this fits the literal language of the duress defense: "the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which  force  or  threatened force  a  person of reasonable firmness in his situation would have been unable to resist." The answer would depend on what "coerced to do so" means. Certainly Bad Guy is not trying to get Good Guy to kill Innocent Shield; Bad Guy is using Innocent Shield to prevent Good Guy from shooting at Bad Guy; so a duress defense only works if we imagine that it includes unintended coercion.

Another possibility would be the defense of necessity. NY statutory law does not expressly recognize the defense of necessity, but it is encompassed within the general provision recognizing justification defenses. However, that provision by its terms excludes those defenses relating to the use of physical force, so, in New York, at least, necessity is unavailable. This reasoning also suggests that a duress defense would be unavailable. The legislature specifically considered the use of force in self-defense and concluded in Sec. 35.15 that it should only be permitted against the attacker, not against innocent third parties. Given the canon that the specific supersedes the general, it would be incongruous to say that nonetheless Good Guy can make out a defense of duress.

Thus, while recognizing that I'm not an expert in criminal law, I conclude that NY law--and the law of other states to the extent that it is similar--would not provide for a valid defense for Good Guy's foreseeable killing of Innocent Shield in my hypothetical example. Is that result normatively justified?

I think the answer is probably yes, for two reasons. First, on utilitarian grounds, it's worse to kill two people than one (even if one of the two is a criminal).

Second (and more importantly for me), on deontological grounds, it could be thought impermissible to deliberately act (as opposed to failing to act) in a way that causes severe harm to another, even if doing so avoids an equally severe harm. That is why many deontologists think it impermissible to switch the trolley from one track to another, even if they thereby avert a greater harm. Whether one agrees with that conclusion, even as a deontologist, depends on how seriously one takes the doctrine of double effect. Here, the killing of Innocent Shield is not the intended consequence of the act, just the regrettable side effect. Good Guy, in this view, is not using Innocent Shield in the way that the "fat man" is used in a variant on the trolley problem that nearly all deontologists find objectionable. Therefore, under the double effect doctrine, Good Guy acts permissibly if the incidental harm to Innocent Shield is proportionate to the harm averted. Double effect, in moral theory, as in IHL, requires both that the harm to innocents be collateral and proportionate. If you find this brief discussion of "trolleyology" too brief to get a handle on it, you might want to check out my earlier post on the subject.

What's notable here is that New York's criminal law does not appear to permit the foreseeable but unintended killing of innocents even when that killing is proportional. So if instead of threatening one person, Bad Guy were threatening two, or five, or a hundred, so long as the only way for one of those two, or five, or a hundred to disable Bad Guy is to shoot through Innocent Shield, as I read the criminal law, that would still be impermissible, even though it would be permissible for some deontologists under the double effect doctrine and permissible for utilitarians on the ground that it would save more lives. Yet domestic criminal law appears to categorically forbid the collateral killing of human shields. With respect to collateral harm to innocents, domestic criminal law is much more demanding of those who would use force in personal self-defense than IHL is of nations using force in war.

To be sure, in the domestic case Good Guy (or the two, five, or a hundred good guys in the variants) could still go ahead and shoot, hoping that a prosecutor will exercise her discretion not to bring charges (or to reduce the charges), that a grand jury will refuse to indict, or that a jury will nullify. But then, there are also mechanisms by which IHL is under-enforced. For many people who have committed war crimes, the de facto punishment amounts to no more than a foreign travel ban, because they remain powerful in their home countries.

If one thinks that the domestic law treatment of human shields is appropriate, then one will be tempted to say that the reform proposals to loosen the proportionality requirement in the face of human shields should be rejected. IHL already licenses more force against innocents than domestic criminal law, after all. But even if one thinks that the domestic law treatment of human shields (as I have described it) is too tough on the person placed in the difficult situation of needing to (regrettably and collaterally) take an innocent life to save his own, then at most one will end up concluding that the existing IHL norm allowing proportionate collateral harm to innocents is appropriate, but one will need a further argument for loosening that norm based on the enemy's use of involuntary human shields. Such a further argument would have to explain how and why nations should be given greater leeway to inflict collateral harm against human shields than individuals should be given. I suppose such an argument could be made, but I haven't seen it.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Tuesday, 29 Jul 2014 14:58
-- Posted by Neil H. Buchanan

Earlier this year, I wrote a series of Dorf on Law posts in which I commented on a testy exchange between "orthodox left" economists and "heterodox left" economists.  (The last of my posts, which contains links to the previous posts in the series, can be found here.)  The orthodox team's most prominent member is Paul Krugman, while the heterodox left is ably represented by James K. Galbraith and Tom Palley.  Lately, there has been another go-round between Krugman and Palley, which sheds some further light on the orthodox/heterodox divide, and which provides additional evidence in support of my analysis back in May.  Specifically, Krugman is showing once again that he prefers "the jerks to the right of him," as I once described it, and he continues to dismiss and marginalize his potential allies on the left.

To review the basics, both the orthodox left and the heterodox left are in broad agreement on what would constitute a good policy response to the ongoing economic crisis: significant increases in deficit spending, a more expansionary monetary policy, aggressive regulation of the financial sector.  They further generally agree on issues concerning income and wealth inequality, favoring increases in the minimum wage, redistributive taxation, and so on.  Indeed, Professor Hockett's Dorf on Law post from May 3 points out that, in some ways, it is difficult to figure out the differences, which is why his post is titled, "When is it Orthodox, and When is it Heterodox?"  That post demonstrates, moreover, that the similarities extend to matters of theory, and not just to the bottom line of policy.

So, if the two sides agree on key theoretical points, and they agree on real-world policies, what is left to divide them?  Plenty, as my series of posts explained.  Perhaps the most important among their many differences is that the heterodox reject the idea that "capital and labor are paid as much as they deserve, based on their productivity," whereas the orthodox either accept that idea or only reject it in a haphazard or ad hoc fashion.  This is an enormously important difference, because it means that the heterodox are actually equipped to explain important economic phenomena without finding themselves relying on the assumptions and methods favored by conservative economists, whereas Krugman et al. are left inventing and defending on-the-spot arguments to deviate from the conservative baseline.  That those arguments are almost always better than the arguments from conservative economists is important, but it does not change the deeper fact that orthodox left economists clearly feel more comfortable playing on the conservatives' turf, and that the orthodox left displays a palpable antipathy to the heterodox left.

The latest dispute between Palley and Krugman is, on the surface, about theories of price inflation (the Phillips Curve, for those of you who remember your Econ 102 classes).  What it is really about, however, is respect.  Krugman has been writing recently about how his group of orthodox left economists have been using an important insight from 1971 by the late, great James Tobin to explain inflation.  Palley has pointed out that heterodox lefties (and Palley in particular) have been all over this for decades, whereas the Krugman people are acting as if the heterodox literature does not exist, with the orthodox people once again supposedly proving that they are intellectually adept and willing to innovate.

The latest volleys from Palley and Krugman can be found here and here, respectively.  (These are two very short blog posts from the two combatants, written in non-technical terms, so non-economist readers should feel comfortable reading both posts.)  Palley explains in clear terms what he and his colleagues have written on this subject, and then chastises Krugman for ignoring their work.  Krugman's response is remarkable, and not in a good way.  He begins by saying "I plead innocent" to the charge of giving Palley et al. "short shrift," but then Krugman basically tries to explain why it is really OK that he is guilty.

Essentially, Krugman's defense boils down to something like this: "Well, it's impossible to read everything, so any sensible person ends up deciding who is worth reading, and who is not."  This is obviously true, but it does not at all explain why the orthodox lefties spend so much time reading and listening to their conservative colleagues, who really have a horrible track record, yet find it so easy to act as if the heterodox do not even exist.  Krugman admits that "modern academic economics is very much an interlocking set of old-boy networks," but he never even tries to explain why the heterodox (most of whom attended top Ph.D. programs, but who did not sign onto the orthodox bottom line) are non-networked.

To his credit, Krugman says that "one ought to lean against" this insider/outsider tendency.  But the remarkable aspect of Krugman's post is that he essentially tells Palley and the other heterodox economists to be more polite, admonishing them and suggesting that "if you want the mainstream guys to listen to you, you probably shouldn’t accuse them of being denser and more rigid than they really are.  So how about some more open-mindedness all around?"

I recall a time when I was in college, and there were some students protesting peacefully on campus about the college's investments in South Africa's apartheid regime.  One of my classmates, who came from very old money, complained that "they're just so ill-mannered!"  Similarly, European elites over the last few centuries would often explain their anti-Semitic views by complaining that Jews were unseemly in their focus on money -- as if the elites themselves had not passed laws restricting what kinds of trades Jewish citizens were permitted to enter.  In both of these examples, you have comfortable elites not only enjoying the fruits of excluding outsiders, but in many cases actively excluding outsiders, and then saying that the real problem is that those outsiders are just so shrill.

As I noted in my series of posts two months ago, the heterodox have been marginalized to the extreme by orthodox economists.  It is not that there are heterodox left, orthodox left, and various brands of conservative economists in each top department, with the orthodox left choosing to have lunch with the conservatives rather than the heterodox.  The heterodox are missing from the top departments entirely, and very much because the orthodox left participated in that purge.  If anyone other than Robert Solow among the orthodox left has done anything to try to fight that purge of heterodox economists, I am not aware of it.

Notably, Palley's current job is at the AFL-CIO, and Galbraith's is in a public policy school.  No elite economics departments find their type of work -- even though it is as math-techie as anything in the mainstream, and even though Krugman himself admits that it is reaching conclusions on important questions at which he and his colleagues arrived much later -- worth supporting.  When hiring decisions are made, the right unites with the orthodox left to say, "Well, that's outside the pale," and then they return to running the top journals, drawing the best salaries from the best universities, and fielding calls from presidents and prime ministers.  That there are any remaining active heterodox economists at all is actually a bit of a miracle, attributable both to intellectual honesty and academic idealism.

For Krugman to say (after admitting, somewhat ironically, that it is important to "Listen to the Gentiles“) that the heterodox guys will get further by striking a less critical pose thus strikes me as completely tone deaf, at best.  He acts as if the heterodox are a bunch of unwashed loud-mouths who are being impertinent, failing to understand that one simply does not do such things here.  Readers can judge for themselves, but I find Palley's criticisms of Krugman to be quite within the range of polite society.  But even if that were not true, it is a bit galling for Krugman to try to reprimand the outsiders for not acting like insiders.

Krugman has often argued, in response to those on the right who claim that he is shrill and nasty, that the stakes in policy debates are too high to worry about rules of civility.  It is depressing indeed to see him show such a thin skin when it comes to people with whom he generally agrees, especially when those people have ample reason to be so much more hostile to him than they actually are.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Monday, 28 Jul 2014 11:00
by Michael Dorf

My latest Verdict column discusses last week's dueling D.C. Circuit and 4th Circuit opinions respectively invalidating and affirming the authority of the IRS to extend refundable tax credits to people purchasing health insurance on federally-established, as opposed to state-established, exchanges. I note that the DC Circuit relies on textualist arguments, which leads me to explain what textualism is and its virtues, such as they are. I note that moderate textualism has been largely accepted but argue that the DC Circuit applies an extreme version of textualism. I contend in the column that what makes the DC Circuit version of textualism extreme is, among other things, the fact that it arrogates to the court the power to decide when language is sufficiently clear to foreclose the IRS interpretation of the statute.

Here I want to suggest that my column is perhaps too generous to Justice Scalia in accusing the DC Circuit of implementing a more extreme version of textualism than the version he has championed over the years. I won't go through his statutory construction opinions one by one in order to try to show that he too is really a textualist extremist. Instead, I want to focus on one particular oddity of Justice Scalia's constitutional jurisprudence. It is, I think, inadvertently revealing of how he thinks about text--and perhaps also says something more generally about textualism (in both statutory and constitutional cases).

Not long ago, I was very honored to accept an invitation to join the editorial team of one of the leading constitutional law casebooks, currently edited by Jesse Choper, Dick Fallon, Yale Kamisar, and Steve Shiffrin. For the next version (available for academic year 2015-16), Fred Schauer will take over Professor Shiffrin's parts of the book and I'll take over Professor Kamisar's, which include the materials on abortion. I have thus been going through various cases and I came across a tidbit to which I had not previously paid sufficiently close attention. It's a remarkable footnote that appears in Justice Scalia's dissent in Planned Parenthood v. Casey.

The majority opinion (which was a majority on this point, although a plurality in some other respects) explained why the Court thought that the Fourteenth Amendment's Due Process Clause could be understood to protect a right to abortion notwithstanding the argument that in 1868 (and for years later), there was no well-established tradition recognizing a right to abortion. The majority said that such a tradition is not a necessary condition for recognition of a constitutional right. If it were, the majority said, then decisions like Loving v. Virginia--which recognized a right to interracial marriage even though there was no traditional protection for interracial marriage--would be wrong. Justice Scalia responded (in his footnote 1) as follows:
The Court's suggestion . . . that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text--an Equal Protection Clause that explicitly establishes racial equality as a constitutional value.
Whatever one thinks about the broader disagreement over abortion rights, that is a mind-blowing whopper of an error. Justice Scalia said in that footnote--as I have heard him say on other occasions--that the "text" of the Equal Protection Clause "explicitly establishes racial equality as a constitutional value."

Here is the text of Section 1 of the Fourteenth Amendment, including its Equal Protection Clause:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
One can say that the original purpose or intention or expectation of the people who drafted and ratified the Equal Protection Clause was that it would establish racial equality--although even then one would need a fairly elaborate account of why one should look to their general purposes, intentions, or expectations regarding "racial equality" rather than their largely contrary specific purposes, intentions, or expectations regarding interracial marriage in particular. But at least we can make sense of the so-called "semantic originalist" or "new originalist" argument that the general understanding prevails as against the concrete but unenacted intentions or expecations.

By contrast, the claim that the text of the Equal Protection Clause explicitly establishes racial equality is, as Justice Scalia himself would say, entirely wrong. The Equal Protection Clause says nothing whatsoever explicitly about race.

So why did Justice Scalia think and say otherwise--and not just in a casual conversation but in a published dissent in the U.S. Reports that was presumably vetted by law clerks with the capacity to read the Constitution and joined by three other Supreme Court Justices with that same capacity?

I honestly don't know the answer to that question but I'd bet that if his blatant error were pointed out to him, Justice Scalia would at first deny the obvious. If faced with a persistent objector, then perhaps Justice Scalia would grudgingly admit that the text does not explicitly say anything about race but that given the overall historical context, it should be construed to imply a principle of racial equality. And then, in a few days he would forget all about the conversation and go back to holding the false belief that the text of the Equal Protection Clause explicitly establishes racial equality.

If that is right--and the psychological literature on motivated cognition says that something like this probably would happen--then we have a pretty damning criticism of textualism more broadly. After all, here we have a Supreme Court Justice writing for himself and three others in a momentous case but making an obvious mistake about the content of an extremely well-known constitutional provision--finding clear text where there is no text. That suggests that the outcomes judges are inclined to reach on normative grounds routinely influence whether they find that the authoritative text they are construing is clear.

I am not saying that it's impossible to make a judgment about whether a text is clear without resort to normative considerations. But I do think that where the stakes are ideological and/or high--as in Halbig and Casey--a judge's normative druthers are likely to play a substantial role in whether he finds the controlling text to be clear.
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Friday, 25 Jul 2014 11:30
by Michael Dorf

Next week, I'll once again be speaking at the annual Practicing Law Institute Supreme Court Review session (in-person in NYC, group-cast in Atlanta and Cleveland, and also available via webcast). I'll be participating in all of the panels but I have primary responsibility for presenting Bond v. United States (about which I wrote a column and a blog post), Schuette v. BAMN (about which I wrote a column and a blog post), ABC v. Aereo (about which I wrote a post-argument blog post and another post-opinion blog post), and Northwest v. Ginsberg My presentations on these cases will be based in substantial part on my earlier writing but because I haven't yet written anything about Northwest, I thought I'd preview my remarks on that case here. I apologize for reporting on a case almost four months after it was handed down and I realize that I may end up making points that others have already made elsewhere. But the case struck me as sufficiently interesting to warrant a few words on DoL.

The dispute is straightforward enough. Ginsberg was a "Platinum Elite" member of Northwest's frequent flyer program (think George Clooney in Up in the Air) but Northwest terminated his miles for "abuse" under a contractual provision under which "abuse of the . . . program (including . . . improper conduct as determined by [Northwest] in its sole judgment . . . may result in cancellation of the member's account." Northwest provided evidence that Ginsberg was a first-class whiner but Ginsberg claimed that he was actually terminated as part of a cost-cutting program by Northwest. Ginsberg brought a number of claims against Northwest but by the time the case reached the SCOTUS, only one was at issue: a claim under Minnesota law (conceded by all parties to apply) for breach of the covenant of good faith and fair dealing. The question presented was whether the federal Airline Deregulation Act (ADA) pre-empted that claim.

The Court, in a unanimous opinion by Justice Alito, said that the ADA claim was pre-empted. The ADA by its terms says that a state "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service . . . ." The Court first rejected the argument that a common law rule is not a "law, regulation, or other provision." It next said that because the Minnesota covenant of good faith and fair dealing is an "other provision" that affects both prices and services, it is pre-empted.

To reach that result, the Court had to distinguish its 1995 ruling in American Airlines v. Wolens. In that case, the Court held that the ADA does not pre-empt contract claims against an airline regarding frequent-flyer miles because a contractual obligation is not a regulation or provision of state law; rather, it is a voluntarily undertaken obligation. By contrast, the Court said in Northwest, at least in Minnesota, the covenant of good faith and fair dealing is imposed by law--because it cannot be waived by the parties. In addition, the Court said, Minnesota's covenant of good faith and fair dealing is based on "policy reasons," and "when the application of the implied covenant depends on state policy, a breach of implied covenant claim cannot be viewed as simply an attempt to vindicate the parties' implicit understanding of the contract."

With due respect, let me suggest that the Court's reasoning is 19th century formalism of the sort that legal realism undermined over a century ago. All contracts are formed against the backdrop of law, including some waivable rules and some non-waivable rules. And a state law rule based on a state policy--even if non-waivable--can readily be understood as an effort to facilitate the best expression of the parties' voluntary undertakings or to establish the framework within which those voluntary undertakings occur.

Let's consider an example the Court itself gives. After holding that the good faith and fair dealing claim is pre-empted, the Court explains that its "holding does not leave participants in frequent flyer programs without protection," citing three such protections: 1) the free market, in which, as every traveler knows, competition among airlines ensures the highest quality of service (sarcasm added); 2) the possibility of Dep't of Transportation regulation and investigation; and 3) a breach of contract claim. But Ginsberg did not appeal the lower courts' rejection of his breach of contract claim so he relinquished any chance to push that.

Suppose Ginsberg had not relinquished his contract claim. If not, the Court indicates that he might have won because the contract itself might best be understood as "not actually giv[ing] Northwest unfettered discretion to terminate his membership in the program." Well, why not? I can think of three possibilities, all of which undermine the Court's core holding in the case.

First, we could imagine that under Minnesota law, an adhesion contract is construed against the party that wrote it, here Northwest. But if so, that rule is itself a "policy" which may not actually reflect the parties' intentions--and the Court gives no indication that it has inquired into whether parties can waive the rule of construction regarding adhesion contracts.

Second, perhaps the Minnesota courts would construe the contract as limiting the discretion of Northwest because, if Northwest has complete discretion to call anything abuse and cancel a contract, then Northwest hasn't actually promised anything; if not, then there is no consideration and thus no contract. But now we have the same problem. The doctrine of consideration is itself a policy that comes from the state, rather than a purely voluntary undertaking of the parties. What's more, it's non-waivable. If X and Y enter into what they call a "contract" whereby X promises to do something for Y but Y doesn't promise to do anything for X, the "contract" is unenforceable, even if it specifies that "this contract shall be enforceable notwithstanding the absence of consideration by Y."

Third, we might imagine that the Minnesota courts would construe the term "sole judgment" as meaning something like "sole judgment, exercised in good faith" on the theory that this is what any reasonable party would understand it to mean. But if so, that is literally indistinguishable from the duty of good faith and fair dealing.

Thus, the only way to make sense of the Court's distinction between contracts claims (not pre-empted because voluntary) and good faith/fair dealing claims (pre-empted because state-imposed) is that the Court believes that certain classical features of contract law (such as the requirement of consideration) are not really imposed by the state at all but simply part of the furniture of the universe, discovered (not made) by judges who find them in what O.W. Holmes Jr. derisively (but aptly) called "a brooding omnipresence in the sky."

To sum up: The unanimous opinion in Northwest rests on the premise that state court enforcement of contracts means merely giving effect to the voluntary undertakings of the parties, independent of any "policy" judgments. That view of contract law would have been widely recognized as laughably formalistic even in 1914. In 2014 it's astounding.  Langdellian formalism lives!
Author: "noreply@blogger.com (Michael C. Dorf)"
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Date: Thursday, 24 Jul 2014 15:00
-- Posted by Neil H. Buchanan

On July 24, 2008, I posted "Meat, Dairy, Psychology, Law, Economics," here on Dorf on Law, in which I described how I had decided to become an ethical vegan, after several years of having been a vegetarian.  Every year since then, on or near the 24th of July, I have posted various thoughts that have been inspired by the anniversary of having made the decision to become a vegan.  Those posts are available here: 2009, 2010, 2011, 2012, and 2013 (part I and part II).  Very occasionally, I will also write a vegan-related post at some other time of year.

In these posts, I tend not to adopt the academic style of my other writing, which would in this case involve discussing the deep moral questions raised by veganism.  I have done so, in part, because my co-bloggers cover that territory so very, very well.  For example, any readers who did not happen to read Professor Colb's post yesterday, in which she capped off our Hobby Lobby post mortem series, should do so immediately.  There, Professor Colb discusses the moral implications of being complicit in someone else's decision, comparing the moral claim asserted by the plaintiffs in Hobby Lobby -- that they will have participated in an abortion if they provide the health care coverage that allows one of their employees to buy a morning-after pill that might prevent a fertilized egg from implanting in the employee's uterine wall -- to the question of whether a vegan "participates" in animal cruelty by giving money to a non-vegan who might buy cruelty-infused foods.

Professor Colb's blog post is a tour de force of nuanced inquiry into subtle and important questions.  That it ends by further strengthening the points that Professor Dorf and I have been making about the heavy (and perhaps ultimately unbearable) pressure that Hobby Lobby will put on the "sincerity" inquiry in future claims of religious burdens, is even better.  Add in Professor Colb's book Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, as well as a new book addressing questions regarding abortion and animal rights, which Professors Colb and Dorf have recently written (to be published, most likely, next year), and it is fair to say that the Dorf on Law team has (at the very least) the academic/philosophical side of veganism completely covered.

With no need to add to that academic side of the argument, I have typically used my "veganniversary" posts to discuss questions about veganism from a more personal perspective.  My experience has been that even the most morally thoughtful non-vegans find (as I did) that there is a strange disconnect between the mental process of finally figuring out that the moral case for veganism is compelling and the ability to make the personal decision to become a vegan.  I have had both students and colleagues say things like this: "I completely respect anyone who can become a vegan.  I wish I could, because I know that I shouldn't do what I'm doing.  But I just can't take the leap."  My approach, therefore, has been to write posts addressing the questions of what it means to live life as a vegan, in terms of how it affects one's daily choices, interactions with non-vegan loved ones (as well as strangers), and so on.

This year, the "lived experience" question that has begun to fascinate me is how non-vegans conceive of the different diets involved in typical non-vegan eating versus vegan eating.  In particular, I have come to realize that there is really a two-part claim that goes into rejecting veganism -- coming both from those who, like my colleagues and students noted above, "get it" on the moral questions, as well as from the many more people who think that "man has dominion over all animals," incorrectly thinking that mindlessly reciting such a phrase (as Stephen Colbert's nit-witted conservative alter ego does) somehow excuses animal cruelty.

The two parts boil down to "defending the familiar" and "rejecting the unfamiliar."  As I will explain, I find both parts unconvincing, but I find the latter claim especially bizarre.  By "defending the familiar," I am referring to people's statements that they simply enjoy the cruelty-based diet that they have come to regard as normal.  For example, my last gasp was, "I just couldn't live without pizza."  People similarly object that virtually every family gathering for holidays involves dead and/or tortured animals (Thanksgiving turkey and giblets, for one disgusting example).  The familiar is familiar, and thinking about never eating those favorite dishes again -- no matter how fully one has accepted the moral logic of veganism -- can be daunting.

My reaction to such claims has always been that, yes, one will no longer eat those familiar things, but that what made those things seem delicious is generally not the animal-based part of the meal.  How could that be?  Consider what is possibly the easiest case: eating hot dogs while watching a baseball game.  Even the most insistent meat-eaters joke about hot dogs not really having any meat in them, or only having animal parts that people consider disgusting.  (Homer Simpson once commented on the "pigs' snouts and chickens' rectums" that go into his hot dogs.)  When any "tube steak" is actually tasty, it is not because of the meat, but because of the various spices that go into brats, italian sausages, and so on.  This is easily demonstrated by tasting any of the vegan alternatives to these standard items.

In response to "But I like my familiar stuff," in other words, we can note that a surprisingly large number of people's favorites taste good because they are "non-animal item delivery devices."  Even those that arguably are not, such as steaks or sushi, are still generally treated with heavy dousings of salt and other spices.  It is true that some things might never be quite the same (although advances in vegan foods might soon change that), but if one is really thinking about rejecting a moral choice because it is "just too hard," then it is at least important to know that it is a lot less difficult than one might imagine.

This past year, however, I have become more interested in the "rejecting the unfamiliar" half of the non-vegans' lament.  Last Fall, writing a Dorf on Law post on a different subject, I noted that the ESPN sports talk show "Mike & Mike In the Morning" had bizarrely gone on an anti-vegan rampage, with the second Mike (Golic) ranting and raving about how terrible vegan food is.  The first Mike (Greenberg) egged him on (pun intended), threatening to force Golic (via a "gentleman's bet") to eat nothing but vegan food for a full week.  Greenberg then spent time on the show, over several days, playing straight man to Golic's ranting, at one point reading the ingredients to a vegan dish, allowing Golic to make sarcastic comments after each item.  The level of humor was so ridiculously low that when Greenberg named the first item, "water," Golic bellowed, "YUMMMM!!" and rolled his eyes.  I changed the channel and have never turned back.

OK, so it is easy to make fun of sports talk shows and the intellectual Lilliputians who populate them.  And it is not worth thinking for more than a second about what an item-by-item list of non-vegan ingredients would entail.  What I found fascinating, however, was that it was not enough merely for Golic to say, "But I like what I usually eat," but that it was also essential to say, "And what you freaks eat tastes TERRIBLE."

This, I think, more clearly than anything else exposes the unthinking, clenched-fist emotion of the anti-vegan reaction.  This is an assertion as fact of something that is not only false, but about which the person has no knowledge.  "Vegan food tastes terrible" -- or is not filling, or is lacking in nutrients, or any other demonstrably false assertion -- is an essential part of the rationalizing that allows some people to sleep at night.

Of course, people like Golic will never come around.  For those who might, however, the "rejecting the unfamiliar" half of the discussion is even easier to deal with than the "defending the familiar" half.  "You'll never eat another steak, but you'll probably not miss it as much as you think you will, and it's worth it in any case," is a harder sell than "What you will eat is great."  (That is not to say that it is impossible to produce tasteless vegan foods.  But honestly, the non-vegan foods that people eat are often pretty awful.  Arby's, anyone?)

If one wants to eat delicious, filling, and nutritious foods, one can do so as a vegan.  One can even be a "junk food vegan," but speaking from personal experience, I do not recommend it.  The point, however, is that half of the "can't make the leap" visceral rejection of veganism is based on nothing more than fear of the unknown.  The more common it becomes for people to learn that vegan food tastes good, the less resistance people might have to making that leap.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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Date: Wednesday, 23 Jul 2014 13:00
by Sherry F. Colb

In my Verdict column for this week, I discuss and analyze an underdeveloped dimension of the Supreme Court's ruling in Burwell v. Hobby Lobby.  The Court held in Hobby Lobby that the Religious Freedom Restoration Act ("RFRA") protects closely held corporations with religious objections to health insurance coverage requirements under regulations passed pursuant to the Patient Protection and Affordable Care Act ("ACA").  The requirements at issue in Hobby Lobby require employers that provide health insurance coverage to their employees to include within that package coverage for two kinds of intra-uterine device and two types of morning-after pill that the corporations consider religiously objectionable abortifacients.  

The Supreme Court accepts the respondents' claim that they believe that life begins at conception.  This claim, coupled with an acknowledgment from the U.S. Department of Health and Human Services ("HHS") that the challenged methods of contraception sometimes operate after fertilization has occurred, lead the Court to conclude that these contraception methods can operate as abortifacients.  

In my column, I suggest that whether a method of contraception is or is not an abortifacient is in part a matter of semantics (revolving around whether one defines "abortion" to presuppose embryonic implantation in the uterus), rather than being a purely factual or moral question, and in part a matter of whether refusing to admit an embryo into one's uterus is truly tantamount to killing the embryo, given the well-accepted distinction between "killing" and "letting die."  I argue that even if one believes that life begins at conception and that killing an embryo pre-implantation is murder, it does not necessarily follow that taking a drug that makes the uterus inhospitable to embryonic implantation qualifies as murder.

In this post, I want to return to a moral question that the Supreme Court does address in its analysis and apply it to a distinct issue that arose in a conversation with my daughter.  The moral question is whether paying for insurance coverage for a contraception method that one considers an abortifacient implicates the payor in the killing of zygotes or embryos that occurs when one's employee uses the coverage to purchase and utilize the particular contraceptive. The Supreme Court's view is that if a litigant asserts a sincere religious belief that paying for such coverage implicates the payor in the religiously impermissible killing, then the courts must -- under RFRA -- accept that the payor is indeed so implicated.  In response to this conclusion, some have argued that if the payor is implicated in this case, then it ought to follow logically that people who object to a government spending program  on religious grounds (such as spending for drone strikes) also have the right under RFRA to withhold a portion of her income taxes that will be used to finance the objectionable program.  The Court replied to this argument that taxes are different (and could not, as a practical matter, be subject to such exemptions), although it is not obvious to me and others that this distinction between health insurance coverage and taxes has any substance.

This set of arguments came to mind when my daughter asked me a question.  She told me that she had given money to a homeless person earlier in the day.  After doing so, however, she began wondering whether he might use that money to purchase an animal-based food, such as a salad made of chicken's eggs or a cheese made of slaughtered baby calves' mothers' milk.  If he did that, she asked, would she then be responsible for the violence consequently inflicted on animals?  I immediately thought of Hobby Lobby and told her about the respondents' claim in that case.

If we assume that (a) a human embryo is morally equivalent to a newborn baby and that (b) an IUD or morning-after pill operates sometimes by killing a human embryo, then it follows that using the IUD or morning after pill is sometimes tantamount to murder. But does providing insurance to the the user of the contraceptive method, thus enabling her to purchase and use the method, implicate the employer who provides the insurance in the murder? If so, is an ethical vegan who gives money to a homeless person who uses that money to contribute to violence against animals (by purchasing animal flesh and/or secretions) similarly implicated in violence against animals?

The question is a difficult one.  Plainly, the religious claimants in Hobby Lobby would prefer that no one use IUDs or morning after pills, because they would prefer that no one commit what they believe is the murder of innocent people, whether or not they are morally implicated in that murder.  Likewise, ethical vegans like my daughter who posed the question (and myself, my husband, my other daughter, and several million other people in the United States alone) are disturbed by anyone's consuming the flesh and secretions of animals, because we want animals to be free of such violence, regardless of whether or not we are individually implicated in it.  It is therefore fair to say, I think, that my daughter was hoping that the man to whom she gave money would buy something wholesome that did not contribute to violence against animals, and it is similarly fair to say that the religious claimants in Hobby Lobby hope that no one uses IUDs or the morning-after pill. 

The question of moral complicity can be complicated because if one is committed to refusing to participate in unjust behavior, one is probably also committed to doing what one can legally, ethically, and realistically do to prevent others from engaging in unjust behavior as well.  It is not enough for me, for example, to refuse to purchase the products of animal torture and slaughter (dairy, eggs, and flesh); I hope to educate others about how they can make different choices and thus end their own contribution to unspeakable suffering and death.  My focus is accordingly not always on whether another's action morally "implicates" me or whether I am instead going beyond my own personal obligation to refrain from violence by reaching out to another person in an effort to inspire non-violence toward animals in her as well.  This blurry line between avoiding one's own complicity in wrongdoing and encouraging others to avoid wrongdoing as well is important, because it could help explain why -- if complicity is the predicate for legally protected conscientious objection -- people morally opposed to an action would be motivated to broadly construe the scope of impermissible complicity.

In my book, Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans, I have a chapter called "Mind If Order the Cheeseburger?" in which I discuss the moral dilemma that can arise when a non-vegan dines with a vegan at a restaurant and the former asks the latter whether she "minds" if the non-vegan orders animal-based food.  Confronting this question is difficult for many vegans, because we do feel that saying "Sure, go ahead" makes us complicit in the choice, while saying "Yes, I mind" might seem rude to the non-vegan diner.  I suspect that the claimants in Hobby Lobby would feel similarly uncomfortable if asked "Do you mind if I use the morning-after pill?" and would probably either say "yes" or feel morally obligated to say yes, even if they ultimately kept quiet out of social inhibition (assuming that anyone would ever be in a position to pose this question in the first place).

People who subscribe to a set of moral beliefs, whether technically "religious" or not, then, have two arguably separate objectives:  to conform their own conduct to their values, and to help inspire and motivate others to do the same. Understood in this way, an employer who believes that using an IUD or the morning-after pill is morally equivalent to murder could understandably want to prevent his employees from using these birth control methods.  One way to do so would be to provide insurance coverage that excludes IUDs and the morning-after pill from coverage. Another way might be to require employees to commit in writing to never using their wages to purchase either of these forms of contraception.  But in an interconnected world, it is difficult to imagine a set of circumstances in which an employer could fully and effectively prevent money that was once his money from being used to engage in conduct that he regards as immoral.

Our interconnectedness has many benefits, of course.  But one of the downsides is that it may be impossible to completely escape all complicity in conduct that we regard as wrongful while simultaneously participating in the marketplace.  I suggested to my daughter that I do not think that she is responsible for the non-vegan purchases that the recipient of her money decides to make.  (The alternative would be a mandate to never give poor people money directly.).  It seems to me, however, that providing employees with insurance coverage that includes IUDs and the morning-after pill is at least as attenutated a way of "supporting" the use of these methods as is a donation to a pan-handler a way of supporting his consumption of animal products.  

Attenuation of complicity is inherently a spectrum rather than an on/off proposition, but it may be useful for those attempting to deny insurance coverage to their employees to remember that many of us are routinely confronted with activities that we consider wrongful and unjust and about which we can do nothing.  To the extent that the Supreme Court just gave a limited class of corporate owners the right under RFRA to refuse to face this reality, perhaps because of the (five male Catholics on the) Court's own sympathy for the "life begins at conception" idea, it is doing more than simply respecting the religious exercise of some.  As someone who is among those who strongly object to the use of animals in the making of medicines, as Justice Ginsburg (sort of) references in her dissenting opinion, I hope that the Court will not dismiss my concerns if I am ever similarly situated.  I suspect, however, that the Court will do exactly that, as it implies it might do here, when confronted with Justice Ginsburg's slippery slope argument:

[O]ur decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Though I would not favor the further theocraticization of the workplace, I do find it curious how ready the Court is to distinguish religious objections that the Justices share from those that are foreign to them.  It seems that things are always "different" when your values are not the ones being violated.
Author: "noreply@blogger.com (Sherry F. Colb)"
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Date: Tuesday, 22 Jul 2014 16:58
-- Posted by Neil H. Buchanan

Jotwell: The Journal of Things We Like (Lots), a playfully named but serious publication, is one of the few successful online writing ventures that relies upon a wide range of authors.  Usually, large-scale unpaid ventures are overwhelmed by free-rider problems, but Jotwell has managed to thrive on a model in which each author submits one post per year.  Divided into nineteen sections, from Administrative Law to Work Law, the journal asks its authors to write 1000-word essays describing the best article or book in a given field that the Jotwell author has read in the past year.  I published Dorf on Law companion posts to my previous "jots" in 2013, 2012, 2011, and 2010.

Last year's jot summarized an article in a major economics journal, written by Peter Diamond and Emmanuel Saez, which summarized a body of work on income inequality that they had published with a frequent co-author, a young French economist named Thomas Piketty.  Piketty was so unknown to the outside world at that point that I did not even bother to mention him in my column.  I did mention him in my companion Dorf on Law post, but I managed to misspell his name.  (I am not alone in this type of error.  There is a law review article, co-authored by Professor Dorf, that acknowledges the research assistance of a young law student named Barrack Obama.)

As we all know, the ensuing year has seen Piketty emerge as the global "rock star economist" who wrote the book that everyone is discussing (without having actually read even a single page), Capital in the Twenty-First Century.  With the English translation of his book hitting the top of the bestseller lists, and the initial flurry of red-baiting at least in remission, people are now starting to think seriously about the implications of Piketty's book.  On Jotwell, this led to an unplanned quasi-symposium, with four authors writing jots about the book from different perspectives.  In addition to my piece (Thomas Piketty's Book is Masterful and Important, But Ultimately a Sideshow), there is a piece on the Trusts & Estates sub-site by Kurt D. Schenkel (Trusts and Estates Law and the Question of Wealth Distribution), the Tax Law sub-site by Daniel N. Shaviro (The Return of Capital), and the Work Law sub-site by Michael J. Zimmer ((Re)Booting the Dismal Science).

The central argument of my piece, which I previewed in a Verdict column and DoL post last month, is that Piketty's book is among the least persuasive arguments out there, when it comes to arguing in favor of income and wealth distribution.  In his book, Piketty says that capitalism is arithmetically hard-wired to create ever more inequality, unless we intervene actively and repeatedly to break up concentrations of wealth.  This is true, but in my jot, I essentially say that that particular argument really should be a big snore, given that there are so many other, more immediate and more compelling reasons to worry about poverty and inequality.  I still believe that to be the case, and it also seems clear that there would be no reason to change any part of the progressive/liberal political agenda going forward, even if Piketty's prediction about the next few decades were to turn out to be completely wrong.

Again, however, that does not mean that Piketty's book is unimportant.  Far from it.  Piketty brings important historical and statistical insights to bear on the question of inequality, and he takes a much broader perspective, even for all of the detail that he provides, than is typical for an economist.  That is why the Jotwell quasi-symposium was so interesting.  Professor Zimmer's piece on the Work Law sub-site takes the most direct shot at economics as a field, arguing that the book will do three good things to improve the practice of economics by economists, making the field (1) take macroeconomics more seriously again (rather than treating macro merely as applied micro), (2) more of a data-based social science, like sociology, rather than a self-satisfied preserve of abstract theorists, and (3) increasingly international in scope.

For Professor Schenkel, by contrast, the interesting question is about how a Piketty-inflected policy environment would affect trusts and estates law.  Obviously, if politicians take seriously the problem of inherited inequality, T&E law will become not just a battleground, but also a source of ideas.  He notes, for example, that "[i]t is no secret that U.S. trust law enables far more dead hand control of wealth than that of England," and he asks whether "mechanisms such as spendthrift trusts and Claflin restrictions are ill-advised," or whether "we [can] afford to be sanguine about jurisdictions eliminating their Rules Against Perpetuities."  Given legitimate questions about whether it is even possible to tax wealth effectively, during life or at death (or after), it is clear that even if conservatives succeed in beating back Piketty's disciples, they will have to do so not just by nitpicking his data but by getting into the deep weeds of property law.

Professor Shaviro writes from the perspective of tax law, which is also my primary area of expertise.  Even so, my interest in his jot is not merely a matter of intramural commitments.  In its way, Shaviro's piece is a blistering attack on the state of the legal literature on taxation, as it has developed over the last generation.  Shaviro describes a "sizeable, but as yet little discussed, disjuncture between the frameworks used by Piketty on the one hand, and in much of the last three decades’ tax policy literature on the other hand."  Although he tries to be even-handed about it, saying that "the disjuncture is on both sides," I could not read the second half of the piece without thinking how deeply the critique cuts into the existing conventional wisdom among tax law scholars.

Shaviro writes: "'Capital,' to which Piketty assigns such a central role, has in a sense been banished from much recent tax policy literature," and he then notes that the passage of time is also all but absent from standard "optimal tax" analysis.  Without taking time into account, one cannot even conceive of the questions that Piketty asks, much less address them.  Finally, Shaviro notes that the standard model takes virtually no account of the "externalities" of wealth concentrations, such as inequality's "effects on the functioning of various social and political institutions."

Shaviro does not put it as starkly as he might, but I read his arguments as supporting a devastatingly negative view of the state of legal tax policy literature.  This is hardly surprising, because the legal tax policy literature to which Shaviro refers is (as I have argued many times) merely a faithful application of the standard "neoclassical" economic theory to questions of tax.  Although Piketty actually leaves much of the neoclassical framework intact, even the small amount of heresy that he commits exposes the incredibly narrow worldview of modern economics, as practiced within economics departments as well as in its wannabe precincts like tax law.

In any event, Piketty's book could ultimately change the entire academic approach to studying real-world policy problems.  Even if he were to turn out to be inaccurate in predicting the path of future inequality, therefore, it could help the world much more profoundly if he were to dislodge the unhelpful approaches that have dominated economics and its colonized fields for far too long.
Author: "noreply@blogger.com (Neil H. Buchanan)"
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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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