Liberals and the Court

By Howard Slugh

Thursday, January 29, 2015

Imagine that the Supreme Court decided a case this term following the same reasoning as in last summer’s Hobby Lobby decision. Anyone who witnessed liberals denouncing that decision as an unjustifiable curtailment of women’s rights would expect another round of pandemonium. In fact, the Court decided exactly such a case last week, and hardly anyone seemed to notice.

In Hobby Lobby, the Supreme Court held that the Religious Freedom Restoration Act (RFRA) exempted private employers who could reasonably claim that their beliefs were infringed upon by a regulation requiring them to provide their employees with insurance that covered abortifacients and contraceptives. Nancy Pelosi responded that “we should be afraid of this court.” Harry Reid described the ruling as “outrageous” and vowed to fight it through legislation. The New York Times called it “deeply dismaying” and claimed that the Court “missed the point.”

Then, this January 20, the Supreme Court decided another RFRA case, Holt v. Hobbs. In this case, the Court ruled that the RFRA required an exemption from an Arkansas prison regulation prohibiting prisoners from wearing beards. The legal reasoning applied in Holt, which cited Hobby Lobby nine times, is indistinguishable from that of its predecessor.

This time, most of the former critics responded with silence. That silence would have been inexplicable if the critics were truly interested in the Court’s legal reasoning. However, their behavior is easier to comprehend if their real interest was in fighting a perceived “war on women.” They are simply less concerned with beards than with birth control.

In Holt v. Hobbs, Gregory Holt, an Arkansas prisoner, claimed that the Religious Land Use and Institutionalized Persons Act (RLUIPA) protected his desire to grow a beard as required by his Islamic faith. RLUIPA and RFRA are sister statutes that contain substantively identical provisions. Both statutes prohibit the government from placing a substantial burden on a person’s religious exercise unless the burdensome regulation is the least restrictive means of furthering a compelling governmental interest.

Prison officials argued that their beard regulation served compelling governmental interests in safety and security. The regulation, they claimed, made it harder for prisoners to smuggle contraband into the prison and made it harder for prisoners to escape by making it easier to identify them.

The Court expressed doubt concerning Arkansas’s contraband interest, but it ultimately held, “Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband.”

With regard to Arkansas’s identification interest, the Court acknowledged that “prisons have a compelling interest in the quick and reliable identification of prisoners,” and it agreed that allowing beards might make it somewhat more difficult to satisfy that interest. Nevertheless, it found that less restrictive alternatives could fulfill the need.

The Court’s decision in Hobby Lobby relied on exactly the same reasoning. The Court found that even if the government could establish a compelling interest, the abortifacient mandate did not represent the least restrictive means of satisfying that interest. For example, there was an alternative already available to objecting nonprofits “that achieve[d] all of the Government’s aims while providing greater respect for religious liberty.”

Justice Ginsburg concurred in Holt and attempted to claim that the two cases are distinct because accommodating Mr. Holt “would not detrimentally affect others who do not share [his] beliefs.” This alleged distinction is unconvincing.

If the detriment Justice Ginsburg was referring to was harm to the regulations’ intended beneficiaries, both cases involved no detriment whatsoever. Since both cases were premised on the existence of less restrictive alternatives, neither decision prevented the government from fully achieving its objectives. If she meant detriment to a governmental entity in the form of higher administrative expenses, both plaintiffs should have lost. The less restrictive alternative in both cases required additional governmental action. Under either interpretation, there is no viable distinction.

In Hobby Lobby, the Court recognized that if the government extended the nonprofit accommodation to for-profit companies, the effect on women “employed by Hobby Lobby and the other companies involved in these cases would be precisely zero,” and that the accommodation would ensure that “employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections.”

The government took steps to implement that policy within weeks of the decision. In August 2014, the government proposed rules that would extend the nonprofit accommodation in order to ensure that female employees of for-profit employers “receive coverage for recommended contraceptive services at no additional cost.” The purpose of this rule was to “ensure that the religious concerns of organizations are respected and women are able to get coverage of recommended preventive services without cost sharing, as intended under the health care law.” The government’s proposed regulation explicitly acknowledged, in two separate places, “that these proposed regulations would not result in any additional significant burden on or costs to the affected entities.”

The reasoning in Holt is identical. In her concurrence, Justice Sotomayor noted that the opinion was based on the prison’s “failure to demonstrate why the less restrictive policies petitioner identified in the course of the litigation were insufficient to achieve its compelling interests.”

Arkansas claimed that allowing prisoners to wear beards threatened the safety of the prison guards and the public at large. The Court responded that the prison could implement less restrictive security measures, such as having guards comb through prisoner’s beards to search for contraband and taking additional pictures of prisoners to aid in identification.

If Justice Ginsburg meant that no amount of burden could be shifted to anyone, including the government, then the plaintiffs in both cases would have lost. In both Holt and Hobby Lobby, the alternatives suggested by the Court shifted a burden, albeit a minimal one, from religious adherents to a government entity. In Holt, the prison had to implement additional security protocols, and in Hobby Lobby, the government had to spend some amount of resources extending the nonprofit accommodation.

Nothing in either statute supports such a harsh interpretation. But even if such an interpretation were correct, it would apply equally to the plaintiffs in both cases.

The difference in many liberals’ reactions to the two cases simply cannot be explained by differing legal circumstances. A closer look at the reaction to Hobby Lobby helps clarify the differing responses.

The commentary contained inflammatory language about the alleged effect of the decision but did not question its legal reasoning in any serious way. Nancy Pelosi’s objection to the decision was that it supposedly consisted of “five guys . . . determining what contraceptions are legal.” Harry Reid’s criticism was that “women’s lives [should not be] determined by virtue of five white men.” (Apparently, by virtue of his vote on this case, Justice Clarence Thomas became white.) An article in The New Republic claimed that a temporary injunction issued a few days after Hobby Lobby demonstrated that the Court “abandoned its concern” for women.

The law that House and Senate Democrats proposed to overturn the decision did not broadly repeal or even “fix” the RFRA; it merely stated that the RFRA would not apply to the abortifacient mandate. The findings in those bills and a press release attached to the Senate bill were high on hyperbole and lacking in legal reasoning.

In the light of the muted response to Holt, this indicates that the liberal critics’ attacks on the Supreme Court were a foray into the culture wars masquerading as a legal critique. The critics did not think that the Court had misinterpreted or misapplied the statute, or even that the statute was generally inappropriate; they just did not like one particular application of the law.

A republican government depends on neutral application of the laws regardless of political circumstances. Liberals can claim that the RFRA sometimes leads to bad outcomes, but they cannot legitimately argue that the Court erred by refusing to allow political preferences to influence its judgment.

Some on the Left claimed that, in Hobby Lobby, the Supreme Court imposed its own policy preferences and would have decided the case differently if the plaintiff had been a Muslim. Holt demonstrates that this critique was meritless. Both Holt and Hobby Lobby involved a neutral application of the RFRA statute. Liberals’ outrage over suffering a minor setback in the culture wars should not be mistaken for a serious legal critique.