January 23, 2013
Associate Justice Antonia Clarentia Ligouri: A(nother) response to Cathy Kaveny
In this post -- continuing her discussion of the HHS mandate and the RFRA and constitutional challenges to it -- Cathy reminds us of some important questions that arise in the deployment of First Amendment doctrine and in the enforcement of RFRA, namely, that (a) courts have to confirm that the challenged government action does place a "substantial" burden on religious practice (this does not, in the caselaw, mean "huge" or "crushing", but I agree with Cathy that it would exclude trifles and trivia) and that (b) courts have to decide whether the government interest purportedly justifying that burden is "compelling" (or some other evaluative word). And, as she discusses, it is an interesting and important the extent to which courts should defer to the claimant (on (a)) and the government (on (b)).
In practice -- in order to avoid, probably, the risk of conflating judges' views of a policy's merits with the "compellingness" (for doctrinal purposes) of the government's interest -- what courts often (and, I think, reasonably) do is to assume for the sake of argument that the interest the government holds out as "compelling" really *is* compelling (unless it's obviously illegitimate or impermissible), and then inquire about the "fit" -- the "tailoring" -- between the burdensome regulation and the asserted state interest. And, when laws are invalidated via the application of this method, it is very rarely because the interest is identified by the court as not-compelling. It is, instead, because the "fit" is poor -- it's "underinclusive", say. This poor fit serves as a signal that (i) the *government* doesn't *really* think the interest is all that important (because it has pursued it so half-heartedly, perhaps in a way that fails to spread the burdens of the policy fairly), or (ii) that the asserted interest isn't *really* the government's aim (i.e., the bad fit exposes a bad motive).
I think that those of us who think the mandate RFRA think so not so much because we think a court will and should hold that "increasing access to contraception is not, in fact, a compelling public interest, because contraception is immoral", but instead think that "the burden on religious practice is unnecessary, because the government's interest could have been achieved by less burdensome means and because the government's willingness to exempt so many employers from the mandate calls into question the claim that the *government* believes the interest is really compelling."
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The Supreme Court's one RFRA case was decided on a lack of compelling interest. The court also specifically explained that generic interests, such as "education," are not compelling as such for strict scrutiny. There is actually no such thing as a generic compelling interest. The idea of contraception promoting health or equality is similarly insufficient to satisfy strict scrutiny. Kaveny's "Justice Liguori" need not be influenced by any of the factors she lists, most of which are not relevant. The EEOC's non binding determination in a small case about contraception has no precedential or persuasive value at all, as held by the Eighth Circuit (in a real court case that Kaveny failed to even mention both times she referenced the EEOC). The EEOC determination doesn't even bind existing employers. It adds nothing to the idea that the interest here is compelling, and does not help satisfy what the Supreme Court says must be only the most "grave" and "paramount" interests "of the highest order. The IoM study, as Kaveny implicitly admits, contains mostly information about preventive services generically, which contraception objectors provide, not contraception; and it offers only imprecise correlation evidence about contraception but not even about the effect of this Mandate. The failure to show this mandate will cause the prevention of grave harms among employees is fatal to the government's compelling interest case. Fear not! "Justice Liguori" can follow good law and also line up with Humanae Vitae 100%
Posted by: Matt Bowman | Jan 23, 2013 4:27:49 PM
The case that Matt is talking about (for those who don't already know!) is the O Centro case (546 U.S. 418). I have an essay about the case here:
The Court rejected the idea that the government had a "compelling" interest in the "uniform application of the Controlled Substances Act" noting (quite correctly, I think) that the very existence of RFRA -- which presumptively requires exemptions in cases where general laws impose substantial burdens -- rules out the idea that "uniform" application of general laws itself can constitute a "compelling" interest. As the Court said, "context matters" when applying the compelling-interest requirement.
That said, I think it remains the case that, generally speaking in constitutional-rights cases, much more work is done by the "fit" inquiry -- which is used as a means of evaluating the government's own commitment to its stated interest -- then by independent judicial evaluation of the importance of the asserted interest.
Posted by: Rick Garnett | Jan 23, 2013 4:45:58 PM
That's one way to say it, and I agree with your point that "fit" feeds back into the real quality of the interest in the first place. I just wouldn't want to give the impression that narrow tailoring is where the work gets done. Not only O Centro Espirita, but most recently Brown v. Entertainment Merchants, require the government to actually meet a very high burden to show its interest is compelling and is supported by compelling evidence. The interest also has to meet "fitness" that feeds into how important the interest really is, and narrow tailoring / least restrictive means.
Posted by: Matt Bowman | Jan 23, 2013 5:14:58 PM
Prof. Kaveny should not cite the EEOC contraception letter ruling without mentioning the on-point adverse precedent--namely how the highest court asked to apply it refused to do so and rejected its reasoning. See In re Union Pacific Railroad Employment Practices Litigation, 479 F.3d 936 (8th Cir. 2007). Good thing this is before a fictional "Catholic justice" real judges don't like it when you hide adverse precedent: http://abovethelaw.com/2013/01/benchslap-update-skadden-partners-learn-their-fates/
Posted by: Anonymous | Jan 23, 2013 7:26:24 PM
Matt, I disagree. In most FA cases, "fit" is where the work gets done.
Posted by: Rgarnett@nd.edu | Jan 23, 2013 9:03:25 PM
The government doesn't get deference on defining its interest. Certainly not after Brown, and the supermajority in that case believed it was applyig black letter law despite the government producing multiple relevant scientific studies. But these factors work together. If the alleged interest isn't served by the mechanism chosen, then the alleged interest isn't the real one, so it isn't a compelling one.
Posted by: Matt Bowman | Jan 23, 2013 9:24:45 PM
Hopefully, Justice Ligouri would have in her possession for review, a copy of Humanae Vitae, Catholic Canon 750, Catholic Canon 915, and CCC on The Eucharist- http://www.scborromeo.org/ccc/p2s2c1a3.htm as well as The Catholic Church's Teaching on explicit and implicit material cooperation in regards to that which,even if permitted by civil legislation, is contrary to God's Law.
Posted by: N.D. | Jan 23, 2013 9:39:01 PM
Matt, I agree wtih the concluding sentence of your last comment. It's what I said. It's not so much that the government gets deference with respect to the actual "weight" of its interest (it does, of course, get deference in identifying or "defining" its interest -- who else would do that?), it's that (as I said) courts generally *assume* for the sake argument the sufficiency of the interest, and then proceed to questions about the fit. The fit between the asserted interest and the regulation is easier to evaluate, courts seem to think, so this stage in the analysis does all the work. In most cases. Not all.
Posted by: Rick Garnett | Jan 23, 2013 9:39:55 PM
Perhaps our disagreement is a difference between what you describe happening and what the legal standard says. If a court decides to "assume" the compelling interest only to determine there's no "fit," then its assumption of the interest does not carry any precedential weight, because the government lost anyway. Brown v. Entertainment Merchants is an extended discussion of the idea that the government does not get the benefit of such assumptions, but loses if its "evidence is not compelling," which the court explains is a high standard.
Posted by: Matt Bowman | Jan 24, 2013 9:34:11 AM
Professor Kaveny should not cite the EEOC contraception ruling because The Court in Hosanna-Tabor, by stating that Religious Groups have the right to shape their own Faith and mission, assumes that Religious Groups and their members who do not condone the use of contraception, are not discriminating when they are acting according to the tenants of their Faith, and thus have a Right to purchase Insurance that does not include contraception coverage.
Posted by: N.D. | Jan 24, 2013 7:52:08 PM
Not to mention that if the EEOC's main concern in Hosanna-Tabor was justice for Ms.Perich, they would not have tried to redefine "ministerial" in order to limit Religious Liberty, they would have pointed out that the purpose of the ministerial exception was not to allow Religious Groups to discriminate against their own members due to a disability, and thus violate The Spirit of The Law.
Posted by: N.D. | Jan 24, 2013 8:35:46 PM