November 28, 2013

Why is Linda Greenhouse singling out Justice Scalia in this op-ed about the question of religious exemptions to the Affordable Care Act?

The Supreme Court granted cert. in the Hobby Lobby case, in which a business seeks to avoid the requirement to provide coverage for abortifacient-type birth control on the ground that it burdens its free exercise of religion and is not justified by a compelling government interest. This claim is based on the Religious Freedom Restoration Act, a statute that was designed to give religious believers rights that the Supreme Court had recently determined were not guaranteed by the Free Exercise Clause of the Constitution. The case that restricted the scope of the Free Exercise Clause was Employment Division v. Smith, and the majority opinion was written by Antonin Scalia.

That is, of all the Supreme Court Justices who have resisted constitutional arguments for giving special exemptions for religion, the first name on your list should be Antonin Scalia!

But Linda Greenhouse's piece ends:

If the court grants the exemption the companies seek, its decision will most likely come packaged as an exercise in statutory interpretation. Only the old culture warrior, Antonin Scalia, can be counted on to acknowledge the deeper issues in play. But those issues will be there nonetheless, and that’s what makes these cases so compelling.
Packaged as an exercise in statutory interpretation? It is an exercise in statutory interpretation.

Without the Religious Freedom Restoration Act, there would be vanishingly little hope for an exemption. Employment Division v. Smith would almost surely determine that the federal government's law binds everyone in the same way. And you'd be able to thank Justice Scalia for his crisp, hard-core rule that lets legislators do things like that and keeps the judiciary in restraint.

Greenhouse knows all that. She refers and links to Smith, though she doesn't mention that Scalia wrote it. She knows the legal claim is based on the Religious Freedom Restoration Act. It's as if there's some secret NYT rulebook that says: When writing about the Supreme Court, always attack Scalia.

The Greenhouse idea is to say this case is really about sex, because opposition to birth control and abortion is really about sex, and then Scalia is supposedly a "culture warrior" on sex issues. But even if you could accept that opposition to abortion and birth control is really about sex, what does Scalia care about sex? He's not a culture warrior! To say so is to distort the opinions of his that accuse other members of the Court of taking sides in the culture war. When he makes that accusation, he's promoting judicial restraint and deference to democratic decisionmaking. Sometimes that restraint manifests itself in cases where legislatures have done things like criminalize sodomy or restrict abortion, so he'd stand back and let social conservatives win. But that would not be because he's a "culture warrior." He's a committed pacifist, looking on, letting the victors in the legislative battle keep their spoils.

But the Hobby Lobby case isn't about narrowly interpreting the Constitution to let legislative majorities have their way. It's a conflict between 2 statutes, and it was absolutely not Antonin Scalia who encouraged giving religious exemptions. It was Congress, which was reacting to Scalia's rejection of constitutional exemptions. The RFRA bill was sponsored in the House by Congressman Chuck Schumer and in the Senate by Teddy Kennedy. (Each had a GOP co-sponsor). The Democrats controlled Congress, but the Republicans all voted for it too (with the sole exception of Jesse Helms).

From the NYT article in 1993 when President Bill Clinton signed RFRA into law:
President Clinton hailed the new law at the signing ceremony, saying that it held government "to a very high level of proof before it interferes with someone's free exercise of religion."...

President Clinton voiced wonder today at this alliance of forces that are often at odds across religious or ideological lines. "The power of God is such that even in the legislative process miracles can happen," he said. 
This is about statutes and the politicos who produce them, not the judges who stand back and let them trip all over themselves pandering to everyone. If the Congress that passed the Affordable Care Act had wanted to exempt it from the Religious Freedom Restoration Act, it could have done so explicitly. It did not. Why should the Court cut back Congress's absurdly broad RFRA to help it out with what it failed to bother to do with the ACA?

Congress deserves another kick in the ass like the one the unanimous Supreme Court gave it in O Centro Espirita Beneficiente Unio do Vegetal (letting a religious group use the psychedelic drug hoasca despite the ever-so-important federal statute, the Controlled Substances Act).

35 comments:

SGT Ted said...

The issue is framed by Greenhouse to cast Scalia as a Rightwing Catholic judicial activist, rather than the Conservative he is.

Michael K said...

Scalia, like Palin, is a bogeyman for the left. HuffPo is leading with a story about Palin from 2009. They are obsessed.

Big Mike said...

I dunno. Because Linda Greenhouse hates Justice Scalia and if she's for something, she automatically assumes he's against it?

I have to wonder, would she be quite the same hate-filled bitch if her parents had sprung for a nose job?

Paul Zrimsek said...

I've always wondered how it's even possible to have a statute like RFRA, that grants itself Constitution-like supremacy over other statutes. Isn't it the usual rule that, when two statutes conflict with each other, the more recent one controls?

Ann Althouse said...

"I've always wondered how it's even possible to have a statute like RFRA, that grants itself Constitution-like supremacy over other statutes. Isn't it the usual rule that, when two statutes conflict with each other, the more recent one controls?"

RFRA is a mechanism for giving exemptions, and unless the later statute can be understood as overcoming that system of exemptions or repealing or amending RFRA, it applies. Where is the conflict?

EDH said...

Linda Greenhouse has been sipping and serving the liberal hoasca at her NYT tea party for some time now.

Ann Althouse said...

"that grants itself Constitution-like supremacy over other statutes"

You're just saying it's weird for a statute to be written like that, but you don't have a way of calling it unconstitutional for that weirdness.

Many statutes are written badly or in a way that creates difficulties and unintended consequences with other laws. What is the court supposed to do about that? Rewrite everything into the form that's the best version of the complete code the legislature would write if it wasn't so inattentive and/or beholden to political interests? Throw the consequences in the legislature's face so that maybe it will step up now or next time and write these things better?

betamax3000 said...

When in Doubt Throw the Baby Out with the Bathwater.

Chris Lopes said...

SCOTUS is under no obligation to protect Congress from its own stupidity or laziness. The religious freedom issue was out there when the law and the regulations to enforce it were being put together. They missed it because they were more concerned about the signing ceremony than they were about the details of this crap sandwich.

MikeR said...

"RFRA is a mechanism for giving exemptions, and unless the later statute can be understood as overcoming that system of exemptions or repealing or amending RFRA, it applies." That's interesting. So you are saying that various conservatives who think that the Supreme Court now has a second chance to undo ACA are mistaken? The most they could do is grant an exemption?

Archie said...

What about that other Catholic Justice - Kennedy - the guy who stands up for anal intercourse. Is he not remarkable some way?

Archie said...

Actually I don't know if Justice Kennedy stands up or not. Sorry.

YoungHegelian said...

Professor, thank you for breaking out the distinction between the basic 1st Amendment religious rights & the protections "superadded" by the RFRA. For those of us who aren't lawyers, such discussions are quite helpful.

Why doesn't the NYT hire you to write the legal columns? Hell, you & Mead could split a box of wine & then you polish off a fifth of Scotch by yerself, and you'd still be more lucid & balanced than Greenhouse. She's really let her partisan leanings get the best of her since the early Bush years.

Left Bank of the Charles said...

The RFRA statute is not absurdly broad unless you ignore the substantial burden requirement.

Justice Scalia might be willing to overlook that if he gets to use the statute that overruled his decision against his culture war enemies.

But he could also take his revenge by declaring RFRA unconstitutional. That would be a revenge served cold, Sicilian style.

lemondog said...

I have little knowledge of the law so my sentiments may be just plain stupid, but why is it that 3/4 (?) members of Congress are lawyers or have law backgrounds and huge staffs to research and yet they produce crap legislation?

What is the court supposed to do about that? Rewrite everything into the form that's the best version of the complete code the legislature would write if it wasn't so inattentive and/or beholden to political interests?

No. The Congress should be required every 5 years to review ALL Federal statutes for efficiency, effectiveness, pertinence, appropriateness, legality, etc, etc, and whether it is just plain good law.

Throw the consequences in the legislature's face so that maybe it will step up now or next time and write these things better?

Yes!

Left Bank of the Charles said...
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Left Bank of the Charles said...

The RFRA does exhibit a ninth amendment style laziness, the Congress could just write appropriate religious freedom provisions into every law passed. But why do that when it can just lay down a review standard for the courts to do that work.

Howard said...

Scalia is singled out because he is the most visible lock-step Catholic vote on the court.

That said, I'm all for religious exemption for companies that are completely free of government contracts, etc. Of course, some muslim companies will then force employee daughters to have clitorectomies.


Christian science companies will be allowed to not have medical insurance, but will pay for praying disease away.

Jehova Witlesses will be allowed not to cover transfusions.

Wiccans can buy insurance that covers eye of newt.

Corporations in Salem Mass will be allowed to burn wiccan employees to cure them.

Morman corporations will provide magic underwear coverage.

Bob R said...

Greenhouse's singling out of Scalia is what Arnold Kling calls a "trust cue." It isn't intended to be a rational argument and isn't intended to convince anybody of anything. It's intended to signal that Greenhouse is a member in good standing of the NYT club.Nothing special about the NYT here - other than they may be a little less self-aware than most.

hombre said...
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traditionalguy said...

Scalia is a white man over 60 with traditional beliefs including acknowledging God's existence. Ergo he is an enemy of the people over at the Delusional NYT.

Culture War is a fight to the death panel.

hombre said...

I'm not sure the observation that Scalia will likely "acknowledge the deeper issues" necessarily implies that he will decide for the employers. He could do so while voting to uphold the ACA.

I found this observation by Greenhouse interesting: "As Professor Alvaré surely knows, nearly all Catholic women use birth control at some time during their reproductive lives and they have abortions at the same rate as other American women."

Greenhouse's supposition that this should be relevant to Professor Alvaré in this context implies that the Catholic tenets of faith should be decided by the same standards of moral relativism that govern secular progressivism.

Lefties just don't get it.

William Teach said...

One point Greenhouse misses is that the 1st Amendment does not mention individuals, groups, or corporations. Like most liberals, she fails to understand that the 1st Amendment restricts The Government, it doesn't actually bestow rights on the People, groups, or individuals. "Congress shall pass no law... prohibiting the free exercise (of religion) thereof" is pretty damned specific.

Bruce Hayden said...

I think that much of this is intentional misdirection. The ACA did not explicitly provide for free, zero deductible, contraceptive coverage. This rather was instituted in regulations promulgated under the ACA by Sec Sebellius and her crew. The easy solution for the Supreme Court is to say that both statutes can easily be reconciled by merely throwing out the offending rule as violative of the RFRA.

Renee said...

Fine it is about sex, the Catholic Church believes that sex is quite spiritual as reflective in it's Sacrament of Marriage. I mean the outward sign of the Sacrament when the flesh becomes one.

We don't want to be in your bedroom, the government is asking us if we own a business we have to be in your bedroom or else we can't have a business or be fined harshly if we do not comply.

Illuninati said...

The Obama administration knows the Catholic beliefs about abortion and contraception. They also know that contraception bought on the free market is not a major expense for most women especially ones who have a full time job. This is an attack on the Catholic church to seriously damage the economic standing of conscientious Catholics and to either destroy the Catholic hospitals or to force them to renounce their own Christian morality and to follow Obama's Marxist/leftist version of morality. This is just another phase in the leftist long term plan to eliminate our Judeo-Christian culture. It is a religious war declared by the left.

readering said...

Greenhouse singles out Scalia because her piece is about culture war in court and Scalia is the justice most known for decorating his opinions with culture-war observations--to the extant that justices sometimes decline to sign on to his opinions when voting his way.

The religious freedom cases dealt with individual practice of religion. The Affordable care act expressly addressed religious freedom issues in a way that differs from RFRA. I don't understand why the particular does not control over the general.

RecChief said...

because he is the favorite SCOTUS bogeyman?

Steven said...

but why is it that 3/4 (?) members of Congress are lawyers or have law backgrounds and huge staffs to research and yet they produce crap legislation?

Because there's nothing, at all, in our system of selecting and retaining legislators that selects for competence in drafting laws. Any effort or staff a legislator spends on that is actually effort taken away from the job of getting re-elected, which is what he's actually paid to do.

Kirk Parker said...

lemondog,

"why is it that 3/4 (?) members of Congress are lawyers or have law backgrounds and huge staffs to research and yet they produce crap legislation?"

Mark Twain has your answer.

Lisa Graas said...

Just FYI: The USCCB is on board with those business owners who object to the HHS mandate, so we can expect USCCB briefs to be filed. Find Archbishop Lori's statement here.

Brennan said...

Could Ms. Greenhouse write in any other way to keep her job?

She writes these screeds to stay employed. If she believes what she writes, she's crazy.

sinz52 said...

Some folks here seem to be looking for some kind of automatic tiebreaker rule: When two Federal laws (like RFRA and ACA) conflict, the most recent one should win out, or the most specific one should win out, etc.

AFAIK, no such automatic tiebreaker exists. When two such laws conflict, either Congress must act to change the law, or else the courts must rule, with each such situation being handled on a case-by-case basis.

cubanbob said...

Since the advent of reliable birth control heterosexual intercourse is no longer primarily about procreation but rather a form of recreation. I have no problem with that but what does health insurance coverage have to do with recreation and entertainment?

R. Chatt said...

What other ways can a corporation exercise its religious rights? Can a woman be fired if her employer finds out she has had an abortion?