Baude on the Third Circuit's Contraceptive Mandate Decision

Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot "exercise" religion and that they therefore can have no constitutional free exercise or RFRA claims.

Will asks some good questions about the court's analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions--the distinction between "for profit" and "nonprofit," and the distinction between "religious" and "secular." There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can "exercise" religion. But they do not appear in the majority's opinion.

There is another odd portion of the majority's opinion that Will does not discuss. Will's post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority's argument was surprisingly short:

Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).

Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA.

With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That's not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority's own preferred approach to divining the meaning of "exercise" in the Free Exercise Clause is to engage in what it calls a "historical" analysis. But presumably to divine the meaning of the statutory language, one would begin with the "plain meaning" of the words in the statute. The court uses the words "plain meaning" in the first paragraph, but it does not discuss plain meaning. One might also, depending upon one's views, talk about or maybe just mention legislative intent. Perhaps the usage is the same in the RFRA as in the Free Exercise Clause; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be mistaken.

ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term "tax" as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that "tax" in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term "exercise." See 42 USC s. 2000bb-2(4) (exercise of religion "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief") (emphasis added).