"Obama Administration Suffers A Drubbing In Hobby Lobby Arguments."

That's the headline at Forbes, reminding me to get back to the transcript, which I half read yesterday. Here's my post, which covers the argument for Hobby Lobby by Paul Clement and ends without getting to Solicitor General Donald Verrilli's argument against the religious exemption the company seeks.

Verrilli begins ponderously and the Chief Justice scampers right in to trip him up:

GENERAL VERRILLI: The touchstone for resolving this case is the principle Justice Jackson articulated in Prince v. Massachusetts. As he said, "Limitations which of necessity bound religious freedom begin to operate whenever activities begin to affect or collide with the liberties of others or of the public. Adherence to that principle is what makes possible the harmonious functioning of a society like ours, in which people of every faith live and work side by side."*

CHIEF JUSTICE ROBERTS: That's a statement that is inconsistent with RFRA, isn't it? The whole point of RFRA is that Congress wanted to provide exceptions for the religious views of particular ­­ including proprietors, individuals.

GENERAL VERRILLI: No, Mr. Chief Justice, I don't think so at all. In fact, the ­­ although I was ­­ of course, I was referring to Justice Jackson's words for their wisdom because it wasn't the opinion of the Court. But see, Jackson ­­

CHIEF JUSTICE ROBERTS: Yeah. But the wisdom you cited is the idea that you don't have imposed, on the basis of religious beliefs, exemptions or ­­ or limitations. And it seems to me that was the whole point of RFRA, to tell the courts that that is exactly what you should do unless the exception satisfies the strict scrutiny test.

Verrilli is resting heavily on a presumed reverence for Justice Jackson, but obviously the point is what was Congress doing with the Religious Freedom Restoration Act? The Prince case upheld a statutory ban on child labor, where the child's parent argued that she had a constitutional right to use her child to sell religious literature. But in the Hobby Lobby case, the statutory law in question is RFRA, and the legislative policy is to give religious exemptions.

Anyway, why begin with dredging up an old Jackson quote?! Roberts is right to drag Verrilli into the present conflict, which is about a federal statute — RFRA — and some HHS regulations under another federal statute, the ACA.

Verrilli rebalances, stressing the importance of understanding RFRA in terms of the problem of the effect of exemptions on third parties. In other words, the statutory entitlement to exemptions should be seen as having a limiting principle excluding exemptions that come at the cost of burdening other people, like the women who work for Hobby Lobby.

Scalia asks where you get that limiting principle in the text of RFRA: "Is — ­­is that part of the compelling State interest requirement or ­­ or substantial burden requirement? Where — where is it in RFRA?"

Verrilli says he'd like to think his limiting principles "could inform every operative provision in RFRA," which is to say he wants the Court to read the principle into the text. But why?

No one asks that question, and Justice Alito jumps in with a whole new topic, the question whether RFRA applies to for-profit corporations. RFRA says nothing about excluding for-profit corporations, and Verrilli must deny that it excludes corporations (because "obviously, churches can bring claims").

Alito observes that individuals have been able to raise claims for exemptions when they're engaged in for-profit activities, so if it's not the corporate form per se and it's not the profit-seeking per se, why is the combination of the two a reason to see the for-profit corporation as excluded from the coverage of a statute (a statute that has nothing in its text about this exclusion)?

Scalia pressures Verrilli to admit that "There is not a single case which says that a for­-profit enterprise cannot make a freedom of religion claim, is there?" (Scalia is referring to all the constitutional Free Exercise cases as well as the RFRA cases, because RFRA expressed the legislative intent to restore the kind of religious exemptions analysis that the Supreme Court seemed to be using before a case — Smith — that said the Free Exercise clause doesn't require exemptions from neutral, generally applicable laws.)

Verrilli must concede that there are no cases that say that a for­-profit enterprise cannot even make a claim. There are cases where the interest in making more of a profit is seen as insubstantial as the court reaches the question on the merits, and Kagan disciplines Verrilli for attempting to fudge here. She says: "I totally understand that argument as a ­­— as an argument about the merits. I'm not sure I understand it as a threshold claim that — this ­­ that the claim is not recognizable at all."

Verrilli says "Right" and almost drops the argument, saying he wants to move to another issue, but then he turns back and tries to salvage it, this time stressing how it will be hard to draw distinctions when "a large corporation comes in or a public company comes in" and "you will have more grounds to question the sincerity" of the claim of religion. That is, why not take the opportunity to draw a line in this clear place and say that for-profit corporations never have the kind of religious beliefs that RFRA protects? Roberts says it would also be easy to draw a line at closely held corporations, so he's not buying the notion that this is the Court's last chance to draw a clear line, even assuming the Court is inclined to put a gloss on RFRA that would enable the courts to avoid difficult case-by-case decisionmaking about religious sincerity.

Verrilli turns to the subject of whether the government has a compelling interest in requiring these companies to include contraceptive coverage if they provide health insurance to their employees. Justice Kennedy focuses him this way: "Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?" And daringly: "Does that mean the constitutionality of the whole Act has to be examined before we accept your view?" Whoa!

Verrilli jokes — "Well, I think it has been examined, Your Honor, is my recollection" — and gets a laugh. But this is no joke, and Kennedy has a lot in mind. He continues:

Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of —­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

This is extremely important. The topic finally becomes the role of HHS, which is making the decisions here, not Congress, and Kennedy is disturbed by the agency making some but not other exemptions. This is a problem quite apart from the RFRA claim for an exemption. There is something structurally awry about this lawmaking.

Kennedy observes that the agency's exemptions were given "without reference to the policies of RFRA." So "what were the policies that you were implementing?" Churches got exemptions, and businesses with less than 50 employees got exemptions, and then there were the grandfathered plans. How do you argue a compelling interest in no exemptions when the government has made all those exemptions? Roberts badgers Verrilli about how long the grandfathered plans are going to stay grandfathered.

Justice Breyer brings up the idea that if the government really does have a compelling interest in covering contraceptive care, it could just pay for that care directly when the exemption is needed. That is, RFRA requires the government, when it is substantially burdening religion and when it does have a compelling interest, to use the least restrictive means of serving that interest. Breyer wants Verrilli's "precise answer to that kind of argument," and when Verrilli starts off saying that opposing counsel brought up that idea "for the first time at the podium this morning," Breyer slaps him down: "I'm not interested in whether they made the argument sooner or later." He wants what he said he wants. Don't waste his time!

Verrilli says the government only has the burden to show that a less restrictive alternative is not equally effective if the alternative has been proposed. Maybe this shouldn't count as having been proposed. Verrilli says that and a bit  more, but I don't think he steps up to Breyer's demand that he give a "precise answer." He mostly talks about how expensive it might be for the government to pay for birth control.

At page 74 of the transcript, Chief Justice Roberts finally brings up the issue that I believe matters the most. If there's really a compelling government interest here, why didn't Congress put an exemption from RFRA in the text of the ACA? Verrilli has no answer at all. I think this point is crushing, especially since RFRA is a statute and the contraceptive requirement comes from the agency. I bet Congress could not muster the political will to deprive religious constituents of their exemptions, and I don't think the Supreme Court should do this work for them. It's anti-democratic. It's lawmaking gone structurally awry. This connects to Justice Kennedy's "what ­­ what kind of constitutional structure do we have...?" problem, above, that I called "extremely important."

Speaking of Justice Kennedy, he comes in at this point with a painful hypothetical:

Under your view, a profit corporation could be forced —­­ in principle, there are some statutes on the books now which would prevent it, but ­­— could be forced in principle to pay for abortions.

Verrilli tries to evade the hypothetical by saying that current law doesn't require paying for abortions. But that lights up Roberts, who points out that from the perspective of the religious believers in this case, the objectionable contraceptives are abortifacients. So Kennedy's hypothetical is left behind, and we're hearing about the divergent beliefs about whether a particular contraceptive — the IUD — works through something we ought to call "abortion." Verrilli says:

[W]e've got about 2 million women who rely on the IUD as a method of birth control in this country. I don't think they think they are engaged in abortion in doing that. It is their belief. It's sincere. We respect it.

I don't see how that answers the question. Women using an IUD may believe it's not doing something they think of as abortion, but the issue isn't about whether they're entitled to act on their beliefs (either that it's not abortion or that abortion is acceptable). It's about whether the for-profit corporation is entitled under RFRA to disconnect itself from involvement in something that it believes is abortion. Both beliefs can be sincere and both can be simultaneously respected.

There's a bit more to Verrilli's argument, but I think things have petered out by this point. Alito pushes him about for-profit slaughterhouses that might be banned — for the humane treatment of animals — to refrain from following the kosher and halal slaughter methods, but this is more of what we saw earlier, and I think it's rather obvious that the Court is not going to exclude for-profit corporations from RFRA coverage.

I think Hobby Lobby will win this case, because Congress passed RFRA, and it's a system of judge-made exemptions. I thought the strongest argument for the government was to say that there isn't a substantial burden, but there was very little talk about that. Mostly, Verrilli persevered insisting on the compelling interest, which was quite hard to see at all, and resisting the need to meet the requirement of least restrictive alternative. The Court could write a super-short opinion here, but I don't think it will. If they go long — when they go long — I hope the detail has to do with the dynamics of lawmaking, what Congress did and what it did not do in its 2 statutes, RFRA and the ACA. I'd like to see Congress's feet held to the fire on this mess it has created for the people and for the courts. Some serious discipline is in order.

___________________________________

* The quote marks are wrong in the transcript. The sentence that begins with "Adherence" is not part of the Jackson quote. And the sentence that begins with "Limitations" combines 2 sentences: "Our basic difference seems to be as to the method of establishing limitations which of necessity bound religious freedom. My own view may be shortly put: I think the limits begin to operate whenever activities begin to affect or collide with liberties of others or of the public." It should be noted that Jackson is writing a separate opinion and disagreeing with principle used by the majority.