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Monthly Archives: July 2014


“The card says Moops”

My favorite example of mindlessly formalistic, ruthlessly result-oriented textual interpretation comes from George Costanza. In the “Bubble Boy” episode of “Seinfeld”‘s fourth season, George denied his opponent a win in Trivial Pursuit based on an obvious typo. What frustrated George’s opponent so much was the transparent bad faith displayed by George, who knew perfectly well that Spain was not invaded in the 8th century by the Moops. Today, a DC Circuit Court of Appeals panel struck down crucial Affordable Care Act (ACA) health insurance subsidies, based on a literalist reading of a statutory provision that renders the rest of the statute absurd and defies the understanding of every participant in the legislative debate about the availability of tax credits for people who bought their insurance through the federal exchange because their states refused to set up their own exchanges.  My advice to the judges in the majority in Halbig v. Burwell: when your reasoning closely resembles George Costanza’s, you might need to rethink your position (“do the opposite”?).


Some more thoughts about Hobby Lobby

* First off, a trip to the Wayback Machine:

Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind – ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.

This quotation comes from Justice Antonin Scalia’s majority opinion in Employment Division v. Smith (1990), in which the Court held that the First Amendment’s Free Exercise Clause did not protect the sacramental use of peyote. I was curious as to whether the Hobby Lobby majority opinion, which 2014 Scalia joined, would acknowledge the existence of 1990 Scalia’s statement. Justice Samuel Alito did quote Smith briefly, but otherwise his opinion did its level-headed best to ignore its existence. I also wondered whether 2014 Scalia would write separately to respond to 1990 Scalia. I didn’t really expect 2014 Scalia to address the matter; that would take a certain level of self-questioning that would be out of character for him. But part of me hoped that 2014 Scalia would say some combination of these things:

(1) I was wrong then, but the Court is right now.

(2) Smith was different because it involved a constitutional claim, while Hobby Lobby involved a statutory claim under the 1993 Religious Freedom Restoration Act (RFRA).

(3) I was right in Smith, but the Court has upheld the validity of the RFRA (as applied to federal action) and follow-up legislation in 2000. As such, I’m bound to adopt the Court’s current position.

Then again, I hope for all kinds of things….

* Once again, the Roberts Court’s guiding principle–The Bossman Always Wins–predicts an outcome. The owners of the “closely held” corporation have religious rights, but their thousands of employees do not.

* Alito displays a curious selectivity when it comes to which slippery slopes worry him. He writes that under the Obama administration’s view, “RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question–for example, third-trimester abortions or assisted suicide,” despite the absence of any inkling that anyone might request such a requirement. But he’s dismissive of the prospect that granting RFRA rights to Hobby Lobby regarding its objection to IUDs and Plan B would produce a flood of requests for exemptions from other federal mandates, despite ample evidence that such requests are already being made.

* Politically, both sides get something. Religious conservatives get to celebrate what they see as a victory against forces seeking to quash religious liberty. Opponents of the Affordable Care Act get to celebrate a blow against Big Government. And Democrats get to enjoy the electoral gift that has fallen into their laps.

* Finally, I find persuasive Joey Fishkin’s argument at Balkinization that the case, at its heart, was really about “the politics of recognition”: 

It is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46).