Hoisted on its Own Petard

As Adam Liptak reported in the NY Times today, the Supreme Court is poised to grant cert Tuesday in a case challenging the Affordable Care Act’s contraception mandate as a violation of religious liberty.  The case raises important questions about the free exercise rights of for-profit corporations and is, in that sense, a sequel to Citizens United, albeit involving religion instead of speech.  But it is also interesting for what it reveals about the ongoing power struggle between the Supreme Court and Congress.  In particular, the case shows how Congress’ efforts to counteract an unpopular Supreme Court decision may come back to haunt it.

Consider the following chronology of events:

1990 – A (mostly) conservative majority of the Supreme Court holds that neutral, generally applicable laws that incidentally burden religious practice are subject only to rational basis review under the Free Exercise Clause, instead of the strict scrutiny that had been applied for nearly three decades.

1993 – Spurred by public outrage over that decision, Congress, in a rare show of bipartisan unity, responds by passing the Religious Freedom Restoration Act, which attempts to restore the standard of strict scrutiny for any state or federal action that substantially burdens religious exercise.

1997 – Annoyed by this challenge to its authority, the Supreme Court strikes down RFRA’s application to the states, holding that it exceeds Congress’ power under section 5 of the 14th Amendment.  But the Court leaves intact RFRA’s application to the federal government, which is not dependent on the reach of section 5.

Now fast forward to the present and the contraception mandate.  Although the mandate includes an exemption for religious organizations, it does not exempt for-profit secular corporations.  That has prompted lawsuits by corporations with religious owners who believe the law violates their right to religious freedom.

As a result of the Supreme Court’s 1990 decision, those corporations are not likely to succeed under the Free Exercise Clause since the Affordable Care Act is a neutral, generally applicable law that was not targeted at religious practice.  So they are also invoking RFRA, and having at least some success.  This summer, the Tenth Circuit held that for-profit corporations are covered by RFRA, and that the contraception mandate cannot survive strict scrutiny.  The Supreme Court is likely to grant cert, and if does so, the odds seem high that the conservative majority that nearly struck down Obamacare two years ago will rule against the government.

In other words, a law that Congress passed twenty years ago in a response to a deeply unpopular Supreme Court decision – a law that was mostly gutted by the Supreme Court in 1997 — will likely be used by the Court’s conservatives to strike down an important element of another federal statute.  And Congress, having tried to do battle with the Supreme Court, will find itself hoisted on its own petard.

The qualification to this account is that only the liberals in Congress will be troubled by this turn of events.  The conservatives will no doubt be pleased that a law they supported in 1993 is now being used to undermine one they opposed in 2010.  And the Supreme Court, as usual, will have the last word.

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21 Responses

  1. Brett Bellmore says:

    In fact, the conservatives will be pleased that the law they supported in ’93 is doing exactly what it’s supposed to do.

  2. Shag from Brookline says:

    Brett seems to be suggesting that the right of a for-propit business owner to religious freedom permits imposition of the effect of such views on his/her employees in matters of healthcare. Is this the anarcho-libertarian view as well?

  3. Oh yeah for sure I agree

  4. Joe says:

    Can someone clarify if a ruling against the government would mean some workers would not be able to get blood transfusions if they work for companies run by a Jehovah’s Witness’? Could companies owned by Scientologists deny health insurance to employees covering psychiatric issues?

  5. Shag from Brookline says:

    To expand on comment #4, take a peek at “Bible Health Laws” by Douglas S. Winnail at:


    that addresses the Old and New Testaments taboos some for-profit employers may believe in.

  6. R. Andrew Smith says:

    Is this really a matter of religious freedom, or a matter of defining the limits of corporate personhood? It seems that if Corporations are going to be provided significant benefits based on the nature of their legal organization, specifically for a business purpose and subject to considerable regulation at their outset, a restriction on any Constitutionally protected right would be permissible as the Constitution wasn’t meant to protect business forms but individuals. If my corporation has the right to speak and adopt a specific religious world view, then my mortgage and my food budget should be tax deductible business expenses for living.

  7. Jimbino says:

    Could companies run by Amish refuse any and all participation in Obamacare on behalf of their non-Amish employees?

  8. Joe says:

    As to Brett’s comment, Judge Janice Rogers-Brown, who is rather libertarian, wrote an opinion recently rejecting that corporations as such have rights here. She left open the case that closely-held corporations can result in successful individual human beings making religious liberty claims.

    There is a split in the circuits overall — that is what the law was “supposed to do” is not necessarily apply rights to corporations. It is unclear if a law in place to protect human beings was meant to apply to corporations. Likewise, here, employees are being blocked from using their own money to make health decisions, including motivated by religious concerns.

    What the law is “supposed to do” might be to protect such people. This would be done in a way that return things pre-Smith where an employer could not interfere with a national welfare policy when involved in a for-profit business in this fashion — see, e.g, the 1980s case of U.S. v. Lee where a religious liberty claim of an Amish employer was rejected.

    BTW, the Boerne decision did not quite “mostly gut” RFRA. It still applies to the federal government. This is pretty significant. Also, as noted by some, various judges applied the Oregon v. Smith in such a way that all exemptions to a law have to be strictly general. (see recent comment at Mirror of Justice). Finally, later legislation dealt with certain religious claims in states involving prisons and land disputes.

  9. Joe says:

    ETA: I should note that the specific argument is that RFRA, at least not in this fashion, does not give rights to for profit businesses to make such a religious claim.

    To be clear, ‘corporations’ in some ways would probably have the ability to make free exercise claims, such as a church corporation or a non-profit religious led educational institution having the right to choose how to select its ministerial employees.

  10. Brett Bellmore says:

    I don’t think corporations, as such, have “rights”. I think that treating them as though they did is a convenient way of respecting the rights of those actual people who own and make up them. IOW, this isn’t about Hobby Lobby’s rights, it’s about the rights of David Green and his family, who own Hobby Lobby, and who don’t want to be forced to violate their consciences just because American law makes it essentially impossible to do anything big without forming a corporation.

  11. Joe says:

    Corporations have various legal rights — no need to confuse the issue about talking about how they are “treated” — we aren’t talking natural law here. The law in place, rightly so, give corporations certain rights. A major right is a protection against a certain amount of liability.

    Corporations in return have certain obligations which are not present for purely private parties. This includes certain obligations to their employees. Here, the corporations want to deny employees the right to use their compensation in a way the employees feel meets their needs, including their conscience. The corporate employer cannot inhibit the liberty of employees in this fashion.

    The actual burden on corporations by being required to give employees health coverage with a span of options provided by a third party is pretty low in this case. Regardless, any trivial burden is overwhelmed by countervailing interests. Similarly, the general employer cannot deny the employee from using their salary in ways the employer feels is immoral.

    This was stated in U.S. v. Lee & RFRA was passed to return the law in place then. That is “exactly what it was supposed to do.”

  12. Joe says:

    Well, the USSC did grant cert. I will end here with a link to this discussion that I think makes the case well:


  13. JT says:

    How does the fact that the employee have an alternative — access to plans that provide birth control through healthcare.gov — affect the analysis? (setting aside issues about current problems with healthcare.gov)

  14. Henry Levine says:

    RE: RFRA
    If the argument is that the reasoning in RFRA will be adopted by the court, that is straight-forward, but as I understood it, you/others are suggesting that the Court would be bound by RFRA.
    How can the court be bound by RFRA? The court’s interpretation of the constitution (ie, appropriate analysis of alleged violation of the free exercise clause) supersedes Congressional legislation (ie, RFRA), and acts of prior legislatures (ie RFRA) can’t bind the acts of future legislatures (ie, PPACA). So what has the RFRA to do with anything?

  15. Shag from Brookline says:

    Ann Telnaes’ animated political cartoon in today’s WaPo shows Lady Justice showing on the Court’s taking of these cases. What’s especially “cute” is Lady Justice is shown barefoot; only the kitchen is missing to complete that old adage.

  16. Brett Bellmore says:

    “So what has the RFRA to do with anything?”

    Well, clearly Congress can over-ride the RFRA with a later statute. But it has to be remembered that the contraceptive mandate isn’t to be found anywhere in the ACA, meaning it’s not statutory, it’s regulatory. You can argue it was within the discretion granted the administration by the ACA, but it flat out was not required.

    I don’t think it’s at all implausible that an earlier statute can restrict the application of regulatory discretion under a later statute, where the later statute doesn’t actually directly oppose the earlier.

  17. Shag from Brookline says:

    Perhaps Brett hasn’t read Joey Fishkin’s recent post at Balkinization. Brett’s concluding sentence is a doozy, even for an anarcho-libertarian who has looked to the 13th Amendment for liberty protection from involuntary servitude on the earlier photographers’ post at this Blog.

  18. Brett Bellmore says:

    No, I hadn’t read it. I now have. I’m not impressed with the notion that the government can make a private business an ‘arm of the government’ so as to deprive the owners of their constitutional rights.

  19. Shag from Brookline says:

    And what are those constitutional rights? What about the rights of employees of the two firms who are not represented in the cases to assert their constitutional rights? Federal and state statutes make private businesses do many things that could be considered making them an arm of the government. So I guess you are falling back on your anarcho-libertarian principles, even though you may personally benefit from the operation of such statutes.

  20. Brett Bellmore says:

    What about their rights? The ACA isn’t about their rights, it deprives them of choices just as much as it does their employer. The ACA isn’t about anything but forcing both employer AND employee into the exact relationship a transient majority in Congress wanted.

  21. Shag from Brookline says:


    ” … into the exact relationship a transient majority in Congress wanted.”

    applies to all legislation, since a new transient majority in Congress can change what the old wanted and achieved.

    As to choices, the ACA doesn’t deprive one of the choice not to be insured, which if exercised would result in a modest tax. And making that choice still gives that person so choosing the choice to be treated in an emergency room and pass the costs on to others, or that person may make the choice to pass on any medical treatment and opt to die.

    I can understand an anarcho-libertarian like Brett choosing to leave the social contract as he is self sustaining without any needs from society: LIVE FREE OR DIE!”