http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvi-half-dozen.html
* Hobby Lobby Part XVI -- A half-dozen possibilities that shouldn't surprise you in today's decision * Marty Lederman The Supreme Court will almost certainly issue its decision in *Burwell v. Hobby Lobby* this morning (at about 10:15). The Chief Justice likely assigned himself the lead opinion at conference back in March. Here are six possibilities that you might not have considered concerning the decision. I am *not *predicting that all of them will come to pass--indeed, perhaps none will. But each of them is distinctly possible (I'd say that Nos. 1 and 3 are probable), and none should come as a surprise: *1. * *The Court unanimously rejects the government's "threshold" argument that none of the plaintiffs can sue under RFRA*. This is the basic question that has dominated debate in the lower courts. But for reasons I explained here <http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html>, I think it very likely that there will be few, if any, Justices who conclude that the suits should be tossed out without reaching the merits. *2. * *The Court does not resolve the question of whether for-profit corporations can "exercise religion"*. As I've discussed in several posts (such as this one <http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html>), this is not the most propitious case for the Court to examine this abstract question, which has dominated public discussion. Indeed, the Court might never have to resolve it. The much easier and more appropriate route for the Court would be to hold that it is the individual corporate directors -- the Greens in *Hobby Lobby*; the Hahns in *Conestoga Wood *-- who can bring RFRA suits, since if the federal law here burdens anyone's exercise of religion by requiring or coercing violation of religious obligations, it is the obligations asserted by those individuals acting in their capacity as corporate decision-makers (not shareholders). *3.* *The Court holds that there is no "employer mandate" and that federal law does not require the corporations to provide insurance coverage for contraceptive services*. Those of you who have been reading along with my posts will recognize this argument. As I explained recently <http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html>, the remarks of several Justices (including the Chief Justice) at oral argument in March suggested that most if not all of the Justices may reject the factual premise that every court of appeals has assumed--namely, that corporations of a certain size have a *legal duty* to provide an employee health plan that includes contraceptive coverage, and that they are subject to a penalty or fine if they do not do so. They don't; and they aren't. Please note: This would *not *mean that the government necessarily wins. It would, instead, shift the initial merits question to whether federal law imposes substantial pressure on these or any other employers to offer such a plan (notwithstanding that many if not most employers nationwide will abandon their plans <http://images.politico.com/global/2014/04/30/health_care_4-29_3.html>), something I've discussed at length in several Balkinization posts (see posts III, III-A, III-B, VIII, IX, XIV and XV here <http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html>). *4. The Court does not resolve the merits, but instead remands the case to the lower courts for adjudication of either or both of two factual disputes*. These possibilities both came up at oral argument, after having received almost no attention in the briefs. *First*, the Court might remand the cases for trial on the question of whether federal law does, in fact, impose substantial pressure on these particular employers to provide an employee health plan (see Point 3, above), something their lawyer, Paul Clement, urged the Court to give him an opportunity to demonstrate. *Second*, the Court might remand the cases for trial on the question of whether the government could offer for-profit employers the same option that it has afforded nonprofit religious employers, pursuant to which they could opt out of involvement with contraceptive coverage, which would then be provided, and paid for, by third-party insurers or administrators. This is an alternative that plaintiffs' counsel first proposed at the end of his oral argument (see page 40 <http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf>). When Justice Breyer asked the Solicitor General about this alternative, the SG explained that because the plaintiffs had not previously suggested such a solution would be acceptable to them, the government had not yet calculated whether it was something that might be feasible: "You're talking about a very openended increase in the cost to the government. Now, we don't know how much that cost would be. . . . Since this wasn't litigated in the lower courts, there's not a record on it. So I can't tell you what that what that increased cost is going to be, but it could be quite considerable." The Court might well instruct the lower courts to make factual findings about the cost and feasibility of that option. *5. The Court raises questions about the agencies' statutory authority to offer religious accommodations that are not required by RFRA*. This is a question that Justice Kennedy appeared to be interested in (see pages 56-58 and 70-71 of the transcript). *6. Some of the Justices (but not a majority) reject the common assumption that RFRA incorporates the pre-Smith free exercise doctrine*. RFRA famously uses the language of strict scrutiny--if the plaintiff demonstrates that federal law imposes a substantial burden on her exercise of religion, the government must show that denying a religious exemption would be "in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1. As I explained in an earlier post <http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html>, however, Congress did not intend to impose strict scrutiny; instead, it intended to incorporate the Court's own pre-1990 Free Exercise Clause jurisprudence, which could hardly have been described as the application of strict scrutiny (indeed, the government virtually always prevailed--unanimously--in cases arising in the commercial sector <http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html> ): Congress intended RFRA to incorporate by reference the Supreme Court’s Free Exercise Clause doctrine from the period between *Sherbert v. Verner <http://www.law.cornell.edu/supremecourt/text/374/398> *(1963) and *Employment Division v. Smith <http://www.law.cornell.edu/supremecourt/text/494/872> *(1990), a body of case law that Congress determined to be “a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” 42 U.S.C. § 2000bb(a)(5). The committee reports made clear that courts should “look to free exercise cases decided prior to *Smith *for guidance in determining whether the exercise of religion has been substantially burdened and the least restrictive means have been employed in furthering a compelling governmental interest. . . . [T]he compelling interest test generally should not be construed more stringently or more leniently than it was prior to *Smith*.” S. Rep. No. 111, 103d Cong., 1st Sess. 8-9; *accord* H.R. Rep. No. 103-88, 103rd Cong., 1st Sess. 7 (1993); *see also id. *at 14-16 (views of Reps. Hyde, Sensenbrenner, McCollum, Coble, Canady, Inglis, and Goodlatte) (“A major issue of contention in the 102nd Congress was whether the bill was a true ‘restoration’ of the law as it existed prior to *Smith* or whether it sought to impose a statutory standard that was more stringent than that applied prior to *Smith*. . . . Several changes were made to the bill during the Judiciary Committee markup in late September of 1992 and prior to the bill’s introduction in 103rd Congress. [ML: Most importantly, earlier proposed versions of RFRA had required the government to show that denial of an exemption was “essential to” a compelling government interest; but RFRA as enacted requires the government merely to show that the denial is “in furtherance” of a compelling interest.] These changes resolved the ambiguity about the standard to be applied and made it clear that the bill does not reinstate the free exercise standard to the high water mark as found in *Sherbert v. Verner* and *Wisconsin v. Yoder*, but merely returns the law to the state as it existed prior to *Smith*. . . . The amendments . . . make clear that the purpose of the statute is to ‘turn the clock back’ to the day before Smith was decided.”). In particular, RFRA’s use of the phrase “substantial burden” was designed to refer to the sorts of burdens on religious exercise that the Court of the pre-*Smith* era would have recognized as triggering the requirement for the government to justify denial of an exemption under the “compelling interest” test. *See* 139 Cong. Rec. S14352 (daily ed. Oct. 26, 1993) (statement of Sen. Kennedy) (amendment offered by Senators Hatch and Kennedy, and unanimously agreed to by the Senate, to change “burden” to “substantially burden,” “is intended to make it clear that the pre-*Smith* law is applied under the RFRA in determining whether” a governmental burden on religion “must meet the [compelling interest] test”). That has been the Court's understanding of RFRA, too. *See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal*, 546 U.S. 418, 424 (2006) (RFRA “adopts a statutory rule comparable to the constitutional rule rejected in *Smith*”). At oral argument in *Hobby Lobby*, however, at least two Justices hinted that, in their view, RFRA's words ought to be taken at face value, which would make the statute much more restrictive than the pre-*Smith* jurisprudence: "It's more than pre-*Smith*," said Justice Scalia. (See also Justice Alito at page 50.) As it happens, there has been a very heated debate among the Justices this Term, in several statutory cases, about the relationship between what might simplistically be characterized as textualist and purposivist methods of statutory interpretation. In light of those decisions, I can easily imagine a Justice Scalia opinion in *Hobby Lobby*, joined by one or more other Justices, arguing that the words of RFRA must be applied according to their literal terms, regardless of what Congress intended and regardless of how unexpected the results might be. Even so, I'd be very surprised if such a view commands a majority of the Court: Justice Scalia has lost most of those interpretive battles this Term; and a Scalian, textualist reading of RFRA would result in a virtual revolution in federal law, across the U.S. Code--something that I doubt five Justices would endorse.
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