I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Justice Sotomayor: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Screen Shot 2014-07-03 at 11.38.52 PM Under the Affordable Care Act, a religious organization employer that wishes to be exempt from the requirement to provide contraceptives need only fill out a form that notifies the government and the insurer that they are not going to pay for contraceptives, so the insurer can ensure that employees get such coverage. The form is very simple. It is reproduced above. Wheaton College objected to this procedure.  It filed suit under RFRA and alleged that the requirement to fill out this form was an unfair burden on their exercise of religion, because it would implicate them in an employee obtaining contraceptives.  They sought an injunction during the litigation, which the district court and then the Seventh Circuit denied Getting an injunction against enforcement of a federal statute pending appeal requires that the right asserted be clear.  The district court and the circuit court thought not. Today, the United States Supreme Court granted a stay pending appeal.  The order and dissenting opinion is here.  Lyle Denniston wrote about it at SCOTUS Blog. Justice Sotomayor, joined by Ginsburg and Kagan, wrote a vigorous dissent, focusing, first, on the degree to which this result seems to suggest that we were all being mislead by the language in the majority opinion in Hobby Lobby asserting that the holding was a narrow one.   Justice Sotomayor writes:

Wheaton nonetheless asserts that the exemption itself impermissibly bur- dens Wheaton’s free exercise of its religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory that its filing of a self-certification form will make it com- plicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects. Wheaton has not stated a viable claim under RFRA. Its claim ignores that the provision of con- traceptive coverage is triggered not by its completion of the self-certification form, but by federal law. Even assuming that the accommodation somehow bur- dens Wheaton’s religious exercise, the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling interests in public health and women’s well-being.  And the Court concluded that the accommodation “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Ibid. Those who are bound by our decisions usually believe they can take us at our word. Not so today. 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, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position.   That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

Justice Sotomayor also notes that this form of relief is and should be extraordinarily rare:

Even if one accepts Wheaton’s view that the self- certification procedure violates RFRA, that would not justify the Court’s action today. The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where “the legal rights at issue are indisputably clear.” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted).

I was dubious about the assertions in the Hobby Lobby opinion that the holding was a narrow one, and expected at some time in the near future, the narrowing language would drop away.  But after the order list yesterday, and this order today, I’ll have to say I’m surprised that the narrowing language didn’t last a week.

27 comments to Justice Sotomayor: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

  • Citizen Alan

    I don’t believe anything any Republican says on any topic. Character is an alien concept to the Republican mind.

  • As a LGM commenter put it, SCOTUS Dei.

  • Jesse

    Whatever you think of this issue of filling out a form (and Breyer was on board with the conservatives on this one), is anyone else bummed about the smallness of the issues that consume our national thought these days?

    The big issues have been decided it seemed, so we get red-faced about filling out forms and whether you have to pay for your own condoms. Not that they are completely trivial issues, but past generations fought for the right of AAs to vote and get an education.

    It’s the same in foreign policy. Our grandparents stormed the beaches of Normandy. We kill some guy with a drone. Seems like all the interesting history is over and done with.

  • The interesting issue is the environment. Too scary to think about!

  • Ben

    I called it earlier: today’s “narrow” opinions in Hobby Lobby/Conestoga will become tomorrow’s cudgels. Tomorrow arrived quicker than I expected.

  • Dirk Dieters

    Heaven help our country if a Republican becomes president and can appoint more of these ideologues!

  • EAB

    “Whatever you think of this issue of filling out a form”

    It isn’t an issue about filling out a form per se. It’s whether performing an act that triggers a third party to perform another separate act you religiously disagree with is a violation of your religious liberty. If that precedent holds up, it gets broad very quickly.

    The objection to the contraceptive mandate has always been that the ACA-required employer contribution is “paying” for contraceptives. I think this is a big stretch, because I really don’t see the employer premium coverage as a direct payment — more like giving us a BCBS gift certificate every month which we use for a bunch of different things. However, I at least understand the argument that the involvement of the employer’s money is enough to trigger the RFRA question, even if I disagree with the specifics here.

    When there’s no money involved, filling out a form cannot possibly have the same direct impact. If we agree that even indirect action deserves religious protection, where does it stop?

    The Civil Rights Act sets up employment-discrimination protections, but those are law rather than constitutional right. A serious First Amendment claim overrides those protections, which is why Catholic schools are allowed to hire only Catholic employees or fire non-Catholic employees for violations of Catholic doctrine like using IVF or getting pregnant out of wedlock or marrying a same-sex partner. (All three of those have actually happened in well-publicized cases, and been upheld on RFRA grounds.)

    If we extend RFRA to direct and indirect actions, and allow 90% of American businesses to claim the same privileges as churches, it could easily be used to overturn the entire Civil Rights Act. “Hobby Lobby isn’t firing you because you’re Muslim, we’re firing you because you give money to your mosque, and as Christians, we can’t have our money going to support a false religion.” Logically, it parses out to exactly the same argument: if we have to do X (sign a form, hire Muslims), and it indirectly causes Y to happen (women to get contraception, mosques to get money), our religious opposition to Y should prevent the legal requirement to do X because First Amendment protections trump mere law.

    “Narrow ruling”, my great-aunt Fanny.

  • Jesse

    EAB, I agree it’s a slippery slope, but in fairness to the Supreme Court, that was the whole point of Smith v. Employment Division. The Supremes said “we don’t want to get into the question of whether a neutral statute of general applicability offends your religious beliefs.” Congress instructed them otherwise in the RFRA, and so now they HAVE to make a call one way or the other, on slippery slope issues like whether an employer has to provide IUD coverage to his employees because some federal agency says so.

    If you don’t like courts being forced to make those kind of decisions, blame Congress, not the Supreme Court, on this one. And don’t expect liberals to agree with conservatives, and vice versa, on where the line gets drawn on these issues.

  • Hootie Dasher

    Since freedom of religion is an alienable right, it stands to reason that the government should not require action on those asserting the right. The Act contains invasive requirements. Congress knew (or should have known)religious liberties would be impinged by passing it. This should not be a political party debate but a fundamental rights one.

  • Hootie dasher

    of course, I meant to say inalienable.

  • EAB

    Jesse, I absolutely do blame Congress. Sadly, the history of SB2681 demonstrates exactly why this kind of bill can be really hard to stop. Religious person introduces bill, committee chairs who aren’t paying attention don’t pocket-veto it, Baptist Convention threatens to roll-call legislators from the pews of every church in the state. Nobody wants to be on the receiving end of “Rep. X hates Jesus” campaign mailers, and it’s easy to buy into the claims that “it’s not really going to HURT anything”, or trust that the courts will bail them out if it does — which, WHOOPS.

    The only reason we came as close as we did to stopping SB2681 was because the similar Arizona bill got a lot of national-level bad publicity over gay rights, and even our legislators balked a bit at stepping into that. I thought for a bit we might actually shut it down, but they amended it just enough that legislators could convince themselves it wouldn’t be quite that bad, and it was a done deal.

    That’s precisely why it’s up to the courts to fix this kind of mess, because they’re not vulnerable to the serious political pressures.

  • Waymon Vest

    I read all these comments, i even tried to read EAB’s rambling. I used to have to turn on the T.V. to hear all the ranting and raving on MSNBC when something like Hobby Lobby happened. Now if i am at the computer all i have to do is click on these comments.

  • Waymon, if you have nothing smart to contribute, just dull insults, aren’t there lots of other places on the Internet you could be? Don’t let us waste your time.

  • Waymon, Your statement indicates you watch Fox news. Anybody that watches Fox news should watch Jon Stewart, too.
    I check in here just to see what is happening on the legal front in MS. I also like it when Anderson gets irked.

  • Irk is what I do best, apparently.

  • Ben

    Anderson: you only irk the stupid. Well … mainly the stupid. It never takes much. You bring light. I appreciate it. Keep lighting things up. The stupids … they can continue stumbling and fumbling around in their self-imposed darkness. Unfortunately, they will always insist on being amongst us.

  • EAB

    Yes, Anderson, you should totally stop that whole “making actual arguments” thing you do. Per the good example of our friend Waymon, “Fox-watching conservative!” is obviously all the rebuttal anyone ever needs.

  • P.B. Pike

    Are there any non-Fox watching conservatives? I thought if you don’t log enough hours rapt before Sean Hannity’s subtle charms you get shunned.

  • Hootie dasher

    Last year a friend, a federal judge, asked me if I agreed that Obama was being unjustifiably criticized in the media and in fact was a good leader. I deferred on the former and replied that in fact Obama is a weak leader. He immediately told me I should stop watching Fox news. I replied I did not watch Fox news and he never seem to recover, although he argued for 30 minutes Obama’s lack of leadership was due to Congress.

    Trust me, folks, there are plenty of conservatives and moderates who dislike Obama’s policies. I suspect many, like me, never watch Fox news.

  • I disagree with Obama on several issues, but unfortunately the GOP has no interest in compromising to pass legislation. Then they get primaried as WORKED WITH OBAMA. Gotta flatter the racist base.

  • Fifty years we have been trying to lessen the racism. Now since 2009 Fox news have brought out of the closet the dark skinned haters. Those who do not watch Fox news are listening to those who do.
    Some of Obama’s policies do not please me either, but I have never stop trying to rid myself of the racist attitude I was taught as a child.

  • Hootie Dasher

    Granted racism exists and serves as a basis for some Obama criticism. But those who dismiss all criticism as race based are ignorant. We have a weak president. Period.

  • I do not think I would rather have a president that started a war based on fiction to please his oil rich friends in the Middle East. If I did I would not be bitching about 3 trillion added to out Federal debt and then do not ask a single one of those rich to help pay for it.

  • “But those who dismiss all criticism as race based are ignorant.”

    Who are “those”?

    As for “weak president” … in what way? Unable to pass laws without the House? What, exactly? My own issues w Obama are where the presidency is much too strong – drone strikes, NSA spying, covering up for torturers …

  • “_______and trying, convicting & punishing whistle blowers with laws that really that do not apply to the acts that were committed.”

  • CC Allen

    Seems to me the problem with RFRA, whether at the state or federal level, is that it always creates priority problems when addressing fundamental constitutional rights; RFRA gives religion a trump card, so to speak. While addressing boundary issues between conflicting constitutional rights is always difficult, it seems to me that standard separation of powers doctrine gives this area exclusively to the judiciary, at least when actual injuries are being litigated. Can Congress set a priority list where Right A trumps B, C and D, and so on, like a bankruptcy code would.

    I think Kennedy touched on this issue (and was correct) in City of Boerne v. Flores, holding RFRA was unconstitutional applied to the states; reasoning that the Court held the sole power to define the substantive rights guaranteed by the Fourteenth Amendment—something beyond Congress’ reach.

    In Gonzales v. Vegetal, the Court affirmed RFRA’s constitutionality as to federal law. But no one recognized, noted, addressed or preserved the issue I still see sitting there from Boerne, whether Congress violates the separation of powers doctrine when instructing to Court how to decide cases of competing constitutionally guaranteed interests (as is the case in Hobby Lobby). While it wasn’t necessary to address that issue in Gonzales (possession of an herbal tea) the Court recognized the fundamental liberty interest at play here. Am I off base? Many of the troubling hypotheticals that have been posited seem to highlight the problem of conflicting rights. Why isn’t there a collateral attack being made? It seems like a stronger position than the argument that the predominant ones being made: fear of religious fraud or the Court is applying the RFRA’s statutory test improperly. NMC, if you assume my separations of powers theory has merit, would doing so distinguish my concerns from those you raise regarding RFRA’s application in the area of land use regulations?

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