So I’m coming out of blogging retirement for one big score. I spent the better part of this fall obsessing over the legal issues at stake in the “Contraception Mandate” case just about to be decided at the Supreme Court – better known to the world as Hobby Lobby v. Sebelius. With the decision coming any day now, I thought it would be fun (or embarrassing, depending on how it goes) to try and predict how the Court is going to rule. If I have time, I might try and make some other posts about what to expect in terms of popular reaction, and why many of those reactions are likely wrong or blown out of proportion.
As a preliminary, there are essentially four big questions at stake in the case, unless the Court decides to do something odd and dispose of it on some unexpected axis. Those questions are:
- Can a for-profit corporation “exercise religion” within the meaning of the Religious Freedom Restoration Act?
- Is the contraception mandate a “substantial burden” on a “person’s” religion exercise?
- Is the contraception mandate in service of a “compelling government interest”?
- Is the contraception mandate implemented using the “least restrictive means”?
Of course, the framing of the questions at stake is itself a loaded question. This article, for instance, essentially poses the question “Do corporations have a soul?” in place of my Question #1 – framed that way, the answer is obviously no. But I tried to frame the questions as neutrally as possible, hewing fairly closely to the language in the actual statute at issue.
And yes, it’s a STATUTE at issue. While the plaintiffs in these cases have raised 1st Amendment claims, the Religious Freedom Restoration Act, or “RFRA” (pronounced riff-ruh) is where all the action is – if they win RFRA, the Court won’t even reach the First Amendment issues, and if they lose on RFRA, they almost certainly lose on First Amendment as well. So no matter what happens, Congress has at least the notional power to change it afterwards.
So let me make my predictions, and then explain them.
- 7-2 for a qualified “yes.” (But the “qualifications” on those 7 votes might vary)
- 5-4 for a “yes”
- 5-4 for “no”
- 5-4 for “no”
1. This is the one I know the most about since I wrote a brief on this issue specifically. Based on the history of the statute and where the Justices were at oral argument, I think there won’t be much support for the idea that a for-profit corporation cannot, as a categorical matter, never exercise religion.
This issue will also receive the most belly-aching in the sphere of liberal thought – “Corporations don’t have souls.” But I don’t think anyone would suggest that incorporated churches can’t have their religious exercise burdened by a law, just because the Church doesn’t have a soul. And once you’ve said that one corporation can exercise religion, you need a pretty good reason to say that this other corporation can’t exercise religion.
Of course, “one is a church, the other is a business” seems like a perfectly reasonable dividing line (albeit one that still doesn’t turn on the question of corporations having souls). But I think that falls down if you push too hard on it. First, as I alluded to earlier, there are clearly for-profit corporations that nevertheless have a religious component - obvious cases like kosher delis and Christian book stores, but less obvious cases as well, like Shariah-compliant banks that lend money in accordance with Islamic principles. Lots of people combine their religious lives with their business lives, and I don’t think RFRA was intended to exclude them from its protections.
That said, there remains the question whether these particular plaintiffs have shown that, notwithstanding their for-profit nature, they are a “religious” corporation. My 7-2 prediction is premised on the idea that some of the court’s more liberal justices will write a concurrence, recognizing that some for-profit corporations exercise religion, but arguing that these particular plaintiffs either don’t count, or that the case should be remanded to fact find if they do. In the end, though, I think Kennedy and the conservative bloc will easily vote for the plaintiffs to assert standing in their corporate capacity.
No matter what happens, the standing will be limited to corporations like Hobby Lobby and Conestoga Wood - closely held, family owned, with a fairly well established record of religious activity. The Chief Justice strongly signaled at oral argument that the standing of these plaintiffs could be resolved without deciding whether or not Microsoft or GM can exercise religion.
If I’m wrong, it will be because they decide that the individual owners have standing in their own right, and they will decline to reach the issue of corporate standing. That said, I don’t think I’m wrong on this - that holding would be extremely messy, and doesn’t really match with the way the conservative Justices have treated corporate standing in the past, or how they treated the issue at oral argument.
2. This is where I’m most likely to be wrong, and where I think the press is most likely to get a surprise next week. I’ll explain my prediction a bit first, and then say why.
So “substantial burden” has a tortured legal history, but the basic question is this: does the law either a) force a person to do something that is against their religion or b) ban them from doing something demanded by their religion. Here, we’re pretty clearly dealing with an (a) situation – the Mandate arguably “forces” the plaintiff corporations to provide a product that causes the termination of a fertilized embryo.
The key exchange here was Justice Kennedy’s worry at oral argument that a ruling which says the Mandate is not a substantial burden on religion would almost certainly mean that a similar Mandate for other kinds of abortion would not be a substantial burden as well – and he didn’t seem ready to go there. The Mandate imposes stiff penalties on an employer that refuses to fund contraceptives, including those that the plaintiffs believe cause the termination of a life. And the plaintiffs beliefs control the substantial burden inquiry, though the Little Sisters case might put pressure on that down the road.
If’ I’m wrong, it will be because of an issue that did not receive much attention until oral argument. The issue is this: as an alternative to providing the contraception or paying the fine, the companies have the option of foregoing insurance altogether. In that event, they pay a fine, but the cost of that fine is arguably offset by the savings in insurance premiums – in that light, then, the plaintiffs religion has not been burdened, because they have a financially-neutral alternative to the action that they protest religiously.
The problem is that this argument doesn’t have nearly the factual record it would require to resolve this issue dispositively – no one really knows if this option is in fact financially neutral. It would probably take a trial with financial experts, etc. to determine the impact, and it would vary widely across companies. More to the point, at least one of the plaintiffs, Conestoga Wood, alleged that providing insurance was itself a religious imperative. At the very least, this allegation would need to be developed at trial below. So if the Court takes this option, expect a lot of upset court-watchers – it means that the cases would go back down to the District Court, almost certain to rise back up the high Court in a year or two.
I don’t think the Court wants that, so I think they will find that there is a substantial burden. The “no insurance” option will be dismissed as a non-starter. The cleanest way to do that is probably to argue that because of the uncertainty associated with providing no-insurance (how much will it save? will you lose employees? etc.), that option is as coercive/financially destructive as paying the fine.
3. and 4. There’s not much to say about the compelling interest and least restrictive means tests. The caselaw behind these tests is notoriously inconsistent, and these kinds of policy concerns are where ideological preferences are most likely to show their stripes. I think you’ll see a tight split on both of these issues, no matter which way it goes.
If the Obama administration wins, it will be a 5-vote majority, finding that there is a compelling interest, and that the interest is pursued with the least restrictive means. If the Mandate passes this test, the Court can even refrain from answering #1 and #2 definitively – it doesn’t matter if there’s RFRA standing and a substantial burden if the “strict scrutiny” test is passed.
That said, I don’t think the liberal bloc has the votes for this option – particularly on least restrictive means, I think it’s a stretch. As a result, I think you get 5 votes, maybe even 6 (Breyer was a possible) for “no” on 3 and 4, and I think the Mandate goes down.
Now, the purpose of this blog has always been to explore predictions, and try not to practice the type of empty-headed punditry that seems to dominate the news. So I’ll lay out my “Main Prediction,” that I think is the smartest money, but outline two alternative scenarios as well.
Main prediction: There’s strong support for corporate standing, but a fractured standard for determining who is eligible for that standing. There are at least 5 votes for holding that Conestoga and Hobby Lobby can exercise religion. Similarly, there are at least 5 (but probably no more than 6) for holding that the plaintiffs’ religion has been burdened, and a similar number of votes for holding that the contraception mandate is not a compelling government interest or the least restrictive means.
“Punt” prediction: If the Court is really worried about the no-insurance option, they might remand for further fact finding on this issue. In this scenario, they resolve the corporate standing question, but decline to answer the substantial burden question on the existing facts – instead, they’ll articulate a test for determining whether or not the no-insurance option is a viable alternative. The test will probably be fairly fact-intensive, and will probably be fatal for the Mandate in practice – it’s unlikely the Obama administration really wants to litigate this one for every business that claims it is burdened, so they’ll open up the exception process that has already been extended to religious non-profit groups.
Liberal surprise prediction: If the Obama administration wins, it will be narrow – 5 votes, probably only answering “Yes” to 3 and 4, and leaving 1 and 2 as “assumed without deciding.” This is possible – it gives the Court a lot of freedom in the future to recognize corporate standing or a substantial burden on different facts.
That said, I think the nature of RFRA and its history at the Court will mean the death of the Mandate. RFRA was always a bit of a finger in the eye of the Court after Employment Division v. Smith, and a case like this is a perfect opportunity for the Court to turn to Congress and say – “You made this mess, now deal with it.” For that reason, I think it will break against the Obama administration, though the “punt” scenario I outlined above is certainly possible as well. Either way, we’ll see what happens in the next two weeks, and I’ll be back to see how I did.