The ripeness issue has become more complicated in light of the Justice
Department's July 3 filing in the Liberty University case-- see
http://religionclause.blogspot.com/2013/07/justice-department-invokes-employer.html
Howard Friedman
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of James Oleske [jole...@lclark.edu]
Sent: Monday, July 08, 2013 4:00 PM
To: religionlaw@lists.ucla.edu
Subject: The Hobby Lobby Case: Four Thoughts
In light of recent developments, including the Tenth Circuit's en banc decision
holding that Hobby Lobby is likely to prevail on the merits of its RFRA
exemption claim and the Administration's decision to delay enforcement of the
employer mandate, this issue-rich case has suddenly become even more
interesting. So with apologies in advance for the long post, here are four
preliminary thoughts about the current landscape. Reactions and corrections
would be very welcome -- I'm working on an exemptions piece this summer (albeit
it in another context) and will be teaching a Religion and the Law seminar in
the fall in which I'm inclined to spend considerable time on the
contraceptive-coverage cases. Thanks. - Jim
I. THE TENTH CIRCUIT'S INCOMPLETE DISCUSSION OF UNITED STATES v. LEE
Given its conclusion that "the purpose of RFRA was restoration of pre-Smith
free exercise jurisprudence, not expansion of the scope of the Free Exercise
Clause," Slip Op. at 9, the en banc majority in Hobby Lobby understandably
focuses heavily on United States v. Lee, the pre-Smith case that is most
directly on point. See Slip Op. at 55 ("Hobby Lobby and Mardel stand in
essentially the same position as the Amish carpenter in Lee, who objected to
being forced to pay into a system that enables someone else to behave in a
manner he considered immoral. That is precisely the objection of Hobby Lobby
and Mardel.").
Yet, the majority opinion never addresses what is arguably the most relevant
language from Lee:
"When followers of a particular sect enter into commercial activity as a matter
of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes which
are binding on others in that activity. Granting an exemption from social
security taxes to an employer operates to impose the employer's religious faith
on the employees." 455 U.S. 252, 261.
If Lee did not have a pre-Smith free exercise right to an exemption that would
affect the relatively few employees in his carpentry shop, it's not clear why
Hobby Lobby is likely to have a RFRA right to an exemption that will affect
thousands of employees in its stores around the country. Cf. Cutter v.
Wilkinson, 544 U.S. 709, 720 ("Properly applying RLUIPA, courts must take
adequate account of the burdens a requested accommodation may impose on
nonbeneficiaries."). At the very least, some effort by the en banc majority to
engage the relevant language from Lee would seem to have been warranted, no?
II. NEW RIPENESS ISSUE MORE COMPLICATED THAN PORTRAYED
Following last week's announcement that the overall employer mandate would be
delayed, Professor Friedman raised the question whether any of the pending
business challenges to the contraception-coverage mandate might be dismissed on
ripeness grounds. Since then, the Becket Fund and several commentators have
offered a simple and straightforward argument for why the delay should have
absolutely no effect on ripeness: The overall mandate and the contraception
mandate are contained in different legal provisions; only those provisions
relating to the overall mandate are covered by the delay; thus, while a large
employer might not have to provide health coverage at all before 2015 due to
the delay, if such an employer does provide coverage, as Hobby Lobby does, the
burden of the contraception-coverage mandate "remains fully in force." Becket
Fund Statement, July 3.
This reasoning, however, is in tension with Hobby Lobby's brief to the Tenth
Circuit, which ties the burden of the contraception-coverage mandate to the
overall requirement that large employers provide health coverage. Br. at 7-8
("The government has allowed numerous employers and plans to avoid the
Mandate.... 'Small employers,' employing over 34 million people, need not offer
health insurance at all and can therefore avoid the Mandate.... But Hobby Lobby
does not qualify for any of these measures.... As a 'large employer' with 50 or
more employees, Hobby Lobby must offer insurance covering all mandated
services.").
Nonetheless, there would appear to be at least two alternative (and
overlapping) arguments that Hobby Lobby's challenge is still ripe: (1) the
temporary delay of the large employer mandate makes it no less certain that
that mandate ultimately will be imposed and (2) it would be unreasonable to
expect Hobby Lobby to drop health coverage to avoid the contraception-coverage
mandate temporarily when it will be required to provide health coverage again
in a year. I defer to others as to the strength of those arguments, but
initially, they strike me as more persuasive than the "different provisions"
argument that treats the overall employer mandate as wholly irrelevant to the
ripeness issue (if, for example, the overall mandate were repealed instead of
just delayed, the ripeness of the burden described in Hobby Lobby's brief to
the Tenth Circuit would almost certainly be affected).
One final ripeness note: even if a court were to conclude that Hobby Lobby's
RFRA claims were not ripe in light of the delay, its free exercise claim, which
relies on selective treatment and not substantial burdens, might still be ripe.
III. THE SELECTIVE-EXEMPTION CATCH-22
As many here know, for several years, a group of religious liberty scholars
have been sending letters to state legislatures urging them to include broad
religious exemptions in any laws recognizing same-sex marriage. Among other
things, these letters urge legislatures to exempt from public accommodations
laws non-profit religious organizations and small businesses whose owners have
religious objections to providing services for same-sex weddings. By doing so,
legislatures are told, they can help avoid "unnecessary legal conflicts" that
will arise if such exemptions are not included.
But here's the rub: when the government does provide such selective exemptions,
as Congress it did in the Affordable Care Act (small-business exception) and as
HHS did in its regulations implementing the preventative care mandate
(non-profit-religious-organization exemption), the argument is then made that
the granting of these very exemptions creates a constitutional problem under
the Free Exercise Clause. See Hobby Lobby Br. at 49-51 (arguing that the small
business exemption renders the mandate not generally applicable and subject to
strict scrutiny) and 53 (arguing that the non-profit religious organization
exemption renders the mandate not neutral and subject to strict scrutiny).
IV. THE UNCERTAIN BREADTH OF THE SELECTIVE-EXEMPTION RULE
Because the Tenth Circuit found that Hobby Lobby was likely to prevail on its
RFRA claim, the court did not address the merits of Hobby Lobby's
constitutional claim. But there are several other pending cases involving
for-profit employers, and courts that reject employers' RFRA arguments on
substantial-burden grounds may well address the alternative constitutional
claims. Those claims rest on the "selective-exemption rule" -- the idea
expressed in both Smith and Lukumi that although the Free Exercise Clause does
not require religious exemptions to be made from uniform legal obligations,
religious exemptions may be required when the government makes available other
exemptions to a law (thus rendering it not generally applicable and/or not
neutral).
The breadth of the selective-exemption rule post-Lukumi remains the subject of
considerable confusion. Several of the district courts that have reached the
issue in the contraceptive-coverage mandate context have taken a very narrow
view of the selective-exemption rule, finding that it is not triggered unless
the existing exemptions are so prevalent that the objecting religious entities
are virtually the only entities burdened by the law. Other courts and
commentators narrowly interpret the rule by concluding that it is only
triggered when a law allows for individualized exemptions, and not when
categorical exemptions are written into a law. By contrast, a group of 24
constitutional law professors filed an amicus brief last year in the Ninth
Circuit arguing for a very broad view of the selective-exemption rule under
which strict scrutiny would be triggered whenever a law contains a single
categorical secular exemption that undermines the state's interest in the law,
even if that single secular exemption is adopted under circumstances that do
not suggest discriminatory intent toward religion. Con Law Prof Brief in
Stormans v. Selecky, available at
http://www.becketfund.org/wp-content/uploads/2011/02/Constitutional-Law-Scholars-Brief.pdf.
I've got a new piece out arguing that neither the very narrow view nor the very
broad view of the selective-exemption rule is the best reading of the Supreme
Court's post-Smith free exercise jurisprudence. "Lukumi at Twenty,"
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216207. I discuss the
Stormans case and the constitutional law professors' amicus brief at length
(Part II.D.), and the ACA cases more briefly (notes 106-110 & accompanying text
and note 193), and I propose a middle-ground version of the selective-exemption
rule that -- consistent with the Court's "equal protection" approach to free
exercise in Smith -- is designed to guard against the risk of intentional
discrimination. Under this version of the rule, heightened scrutiny could be
triggered when laws contain categorical secular exemptions, but only when those
secular exemptions were adopted under circumstances that suggest discriminatory
intent (e.g., when similarly situated secular and religious exemptions were
both considered by a legislature, but only the former were written into a law).
In the end, the variety of different interpretations of the selective-exemption
rule reflect the fact that the Court's post-Smith jurisprudence remains far
from clear on the topic. As I say in my piece, "while Lukumi contained its fair
share of tea leaves, it ultimately provided no definitive guidance as to how
courts should approach laws that do no operate as invidious gerrymanders, but
do contain some selective categorical exemptions."
It will be interesting to see how the Ninth Circuit reads those tea leaves in
Stormans and how other circuits eventually read them in the ACA
contraceptive-coverage cases. In one context or another, it seems inevitable
that the issue will ultimately make its way to the Supreme Court.
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