Welcome to the weekly standard podcast. I'm your host Michael Graham with us once again is Adam white who writes about all things Judicial for the weekly standing among others. He's also with Boyden Gray and associates and Adam last time we talked It was a series of nine nothing below outs now. It looks like the usual partisan folks are down in the five four trenches again That's what it seems like Michael.
Thanks for having me I happen to have you and let's focus on the big case everyone's talking about which is the hobby lobby case the two to me the Premier questions are how big a win is this for religious liberty and how big a defeat if any is it for either Obamacare or its legal underpinnings? Well, I think it's a very big win for religious liberty Now, that's not to say that this case has been unleashed a tidal wave of similar claims against other federal mandates the court went out of its way To stress that this case is very much bound up in the facts and the law at issue That said, it's really something for the court to step forward and vindicate religious liberty in this case To push back against the administration's very heavy burdens They're placing upon a handful of businesses and hopefully the administration will take this left at the heart We'll see though Well, when you say the burdens I mean that seemed to me to be the sense that the court by five four margin came to the conclusion that there are other ways to solve The problem other than burdening the you know, the religious owners of Hobby Lobby and the other businesses and therefore they had an escape clause Well, this have been different if the you know way to solving the problem had been you know more difficult Well, I think I think you basically got it right what the administration was trying to do here under the Affordable Care Act was created Giant entitlement program for contraception and and the board of patient contraceptives But rather than actually pay for enough paying for that program itself We government decided to just push the entire cost on to employers including employers with deeply held religious qualms with with with these type of Board of Patience now what this ran afoul of was another statute the 1993 Religious Freedom Restoration Act Which was Congress's reaction to a pretty controversial religious freedom case at the time I'm likely written by Justice Scalia called employment division versus Smith where the court really pushed back on religious liberty claims Congress created the religious freedom restoration acts precisely in order to to restore Religious liberty and so when the administration pushed forward with the HHS program, they ran right into what's called Riffa the act Now fortunately Riffa applies across the board, so it's not specific to the Affordable Care Act, but it applies its restrictions in very Fact-specific ways did any of the justices note the irony of the same administration that has Chunked entire mandates overboard without hesitation including not even letting the original employer mandate take effect Insisting that this small mandate that affects a relatively small nerve businesses was sacrosanct and at the essence of Obamacare working Well that really is sort of looming over the case throughout the majority's analysis because part of what Riffa the Religious Freedom Restoration Act Asks is are these burdens that are placed on religious religious liberty? Are they the least restrictive means by which Congress can achieve what it wants to do and the court points out? There are already opt-outs or accommodations for for non-profit corporations for so-called grandfathered plans There are plenty of carve-out that exemptions and the court points out that if with those already on the books It's strange credulity to suggest that this particular that imposing this specific mandate on this specific type of plaintiff namely religiously faithful Owners of closely held corporations that this particular mandate is just indispensable and that's the argument that the court rejected How indispensable to the courts argument is the closely held corporation?
Why would these religious liberties these rights extend only to closely held and not to say mega corporations? Or on the other end to you know bill that bills TV shop? Well the court didn't I have to go back and look I'm pretty sure the court didn't draw a total bright line carving out beer corporations Their analysis was basically this obviously under the Religious Freedom Restoration Act an individual has religious liberty and obviously a sole proprietor Company a bills-based shop or what have you that that company would have religious freedom It gets a little bit more difficult when you move on to a corporation Which is by its nature a little more separate from the owners now the administration administration supporters kept trying to compare They can try to draw this argument out to the largest corporations big mega corporations saying well How could these sorts of corporations have religious liberty? The court didn't need to go that far in this case because we're dealing with what are called closely held corporations corporations where the Ownership is tied up completely in one owner or a small handful of owners in this case family members And what they said here is in this case It's not hard to track the religious beliefs of this small cluster of owners to the corporations themselves and the corporations Their own founding documents included statements of religious belief and religious purpose So the fact of this was a closely held these were too closely held corporations made it an easier case now if Say a large corporation like Microsoft tried to bring a religious freedom restoration act claim against some mandate That would present a very different case and the justices would have to grapple with with those arguments separately What those those who don't like lawyers another personal Adam are always delighted when you get stuck with lots of homework and man What was it five different written opinions in this case is that right?
Well, there was I think by my count there were four opinions and the last of those opinions Descent it's just a paragraph long on a procedural a little procedural point the main opinions were Justice Alito for the five Justice majority For conservative and Kennedy Justice Ruth Bader Ginsburg unsurprisingly wrote the lead to send opinion for the four liberals And then the opinion in the middle was a concurrence a very short very short but interesting concurrence by Justice Kennedy speaking only for himself Why was that interesting well Kennedy's opinion and I had written about Kennedy's questions at oral argument I read about it for the weekly standard where he really seemed to bristle at the amount of discretion that was being vested or claimed By the administration to just pick and choose who would be exempt from the requirements and who would not be but in his concurrence He obviously stands by the majority opinion, but he casts it in terms of dignity It's a word that pops up a couple of times in his opinion He says free exercise and important But it's not just freedom of belief it means quote the right to express those beliefs and to establish one's religious or non-religious Deaf self-definition in the political civic and economic life of our larger community I've a little bit of philosophical mumbo jumbo that Kennedy's a little famous for but what's interesting is how he recognizes that what's happening here Isn't just the administration imposing burdens on the religious faithful it really was a case of the administration singling out Religious people and religious businesses for disfavored treatment amongst everybody else who was getting waivers these people were being singled out Now, this is a line of rhetoric the Kennedy you see most famously in Kennedy's opinions on same-sex same-sex relations the old Donald case in Colorado and then much more recently the Lawrence v. Texas case about a decade ago and now the same-sex marriage cases and Legal scholars law professors have really picked up on this theme of Kennedy's concern for dignity and for government programs They go out of their way to demean individuals The most famous common law book out there right now a new one by a yellow professor named Bruce Ackerman really makes his point But the thing is the law professors have been making these arguments and recognizing this threat and Kennedy's opinion They sort of forgot that Liberally favored rights like same-sex marriage aren't the only ones that have dignity at stake And I think Kennedy really recoiled from the way that the dignity of these religious people is being demeaned by this administration It'll be interesting to see what follows from this in future cases And that's what we want to wrap up with is is this ruling today five justices a stepping stone to a widening door on either Religious Liberties or the rights of people when they come together to do business to bring their constitutional rights along with them Or is this just here's the case here's there's let's face in it kind of out of the blue law after all we'd had Decades of businesses offering health care without offering birth control or a motivation before and they always work things out either With an you know giving the employees a chance to buy their own coverage or whatever So is this just really a case of particularly overreaching White House and a particularly easy case to call when it comes to closely held corporations like Hobby Lobby No, I wouldn't say that the door is widening what I'd say is this case stopped the door from planning shut I think it was an important statement about a court that the Religious Freedom Restoration Act It has meaning it has substance it's something that the administration and future administrations can't simply brush aside by pounding the table And saying this program is really important, but that's not to say that it's going to become a a widespread a tool of widespread litigation I think they made an important statement and a powerful one, but it may well be a limited one I will see in the future. Okay, I'll ask you one more question Sure because the case that springs to my mind is a case of and this just happened out in the West of a florist Who was approached about to doing flowers for a same-sex wedding and the florist had no objection to selling flowers They objected to being involved in the ceremony going showing up decor You know the whole you know participating they felt in a religious ceremony that by or in a ceremony that by their religious faith With that florist with the wedding photographer with this provide them the opportunity to say I should be able to conduct my business Way without being punished by local state laws or are those two Am I reaching way beyond based on the rulings you've read today where the justice would be? Well, you're not alone in thinking about this because justice Ginsburg's dissent raised this very issue when she talked about a few This possible tidal wave of so religious liberty claims Her first example was from the 60s case in which private business claimed a first amendment related right to discriminate on a base to race The second example I think was from the 80s and I think it was more of a it might have been a gender discrimination case Or maybe discrimination against a single woman, but then the third example she used I can't recall if it was the case you just mentioned or a similar one It was a case involving the collision of same-sex marriage and religious liberty now by my reading my first look at it I don't think the majority or justice candidate's opinions grappled directly with this issue I suspect the majority probably did not want to step into this quagmire because they didn't need to decide for this case But it's obviously a fight on the horizon But the thing is I can't give you a very good answer on whether this case solves those cases It really doesn't because at the end of the day this case seemed like an easy one for the majority because the religion the burden on the religious liberty was so obvious Namely forcing people to be compliant with concept of with a with a portification contraceptives or levying millions of dollars of fees on them So the burden was heavy and there was obviously a less restrictive alternative namely giving these people the opt-outs That other people were getting and what I find interesting is your use of the word dignity because on the one hand You can see some you know bigoted moron trying to use faith as a smoke screen On the other hand you can see how it would violate the dignity of some you know nice little lady who bakes cakes who has no desire to engage Any debate for any issue But just as uncomfortable being asked to show up at a same-sex ceremony and present a wedding cake And you say so if the word is dignity that to me is a very interesting line that just as Kennedy is drawn It really is an interesting thing and what's gonna be difficult in those cases is you're gonna see calls or defense of dignity on both sides Of the equation the private business owner and a couple that wants to get married And it's very hard to see from here how justice Kennedy is going to settle back just you Well, I have to say that anybody who's so militant that they insist that some guy who runs a florist come down and do his wedding Even though you don't want to when you could go to another florist, you know five miles away You know, they're not thinking a lot about dignity So I but that's that's the uninformed view of a guy who is not going to law school That's we're glad to have you Adam white Thanks for joining us here on the weekly standard podcast