Saturday, 3/26/16

I separated some legal wonkery into a separate blog so this one could have the theme of “miscellany.” It ended up being pretty shamelessly political because some of the miscellany was self-indulgent and mediocre.

  1. Conservatism to believe in
  2. 160 years: “Plurality is not enough”
  3. Our Reagan-haunted GOP
  4. Neckties and Nooses
  5. Abominations

Continue reading “Saturday, 3/26/16”

Wednesday, 3/23/16

  1. Listening to Lincoln?
  2. Exposing the Underbelly
  3. Hadley Arkes #fail
  4. The pickle we’re in
  5. Islamophobe theologizes about antisemitism
  6. It’s not food if …
  7. Douglas Laycock #fail

Continue reading “Wednesday, 3/23/16”

Little Sisters v. Obamacare update

Many mainstream media write of today’s Supreme Court arguments on the ACA’s contraceptive mandate (about which I wrote at greater length already) with at least faint insinuation that Justice Alito would be pulling the rug out or doing a bait-and-switch if he side with the Little Sisters of the Poor. For instance, Adam Liptak of the New York Times:

Justice Samuel A. Alito Jr., writing for the majority in [Hobby Lobby], said there was a better alternative to the mandate, one that the government had offered to nonprofit groups with religious objections. That alternative, which is at issue in the new case, allows nonprofit groups like schools and hospitals that are affiliated with religious organizations to avoid fines if they inform their insurers, plan administrators or the government that they seek an exemption from the coverage requirement.

Justice Alito wrote approvingly of the accommodation, which shifts contraceptive costs to others, calling it “an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”

(Emphasis added)

In context, Alito was not really writing “approvingly” of the accommodation, but merely noting that it was “less restrictive” than requiring coverage, which is a key element in making a RFRA case (unless you decide to argue that the governmental interest isn’t “compelling,” as former Congressman Bart Stupak’s Amicus Brief implies — a very hard sell these days).

Liptak concludes the block quote honestly, in a sentence I withheld until now: “But he did not say the accommodation was lawful.”

The question of whether the less restrictive alternative was lawful had already been joined in lower federal courts, and Alito wasn’t jumping the gun and deciding the lawfulness of the accommodation, as applied in every imaginable case, without full briefing and argument.

Of course, a still less restrictive accommodation is outright exemption, as enjoyed by powerful players with no religious scruples about contraception, like Exxon, Pepsi Bottling, Chevron, Visa, New York City and the United States Military. Liptak:

Many other employers are also effectively exempt from the contraception requirement. Small employers need not offer health coverage, and some insurance plans that had not previously included contraception coverage are grandfathered, so long as they do not make substantial changes to the plans.


  • “Many employers are effectively exempt” from cooperative with the government
  • in accomplishing its “compelling interest,” but
  • the cosmos would be thrown out of balance if a group of nuns were not compelled to cooperate by
  • “shift[ing] the cost to” their own insurance company, which
  • supposedly isn’t going to reckon on this when setting premiums for its insureds’ plans.

This is the Achilles Heel of much legislation that burdens some people’s or groups’ religious convictions: powerful interests almost always lobbied for a sweeter deal than religious objectors are getting. Unless the Courts can be convinced that the burden on religion is insubstantial, sincere religious objectors should win every case where their treatment is worse than the sweetest deal someone else gets under the law.

And that’s as it should be if religious freedom is “our first freedom.”

Obamacare v. The Little Sisters


The question in the Zubik case is a simple one: Do religious objectors get to disobey the laws they dislike, even when that places burdens on others?

(New York Times Editorial Board)

Question Presented

2. Whether RFRA allows the Government to divide the Catholic Church by creating a narrow “religious employer” exemption that applies to “houses of worship” but excludes the Church’s separately incorporated nonprofit entities that implement core Catholic teaching by providing charitable and educational services to their communities.

(Petition for Certiorari, Zubik v. Burwell; that’s “Most Reverend David A. Zubik, by the way.)

The current iteration of the religious-freedom challenge to the Affordable Care Act’s preventive-services mandate (not, as is sometimes suggested, to the act itself) is called Zubik v. Burwell. This is unfortunate. True, the caption choice improves the “optics” for the Obama administration and reduces the likelihood of awkward headlines and embarrassing talking points. However, calling the case – as I will – Little Sisters of the Poor better captures its bizarre core and character. Calling it by this name reminds us that the administration has not reluctantly stumbled into but has instead doggedly pursued a conflict with a religious community of Roman Catholic nuns over whether and how its employees will receive government-mandated, cost-free insurance coverage for prescription contraceptives. Regardless of how the Court rules, that this pursuit appears to have been for the administration a matter not merely of policy but also of principle is extraordinary.

(Richard W. Garnett at SCOTUSBlog) How about calling it “ObamaCare vs. Little Sisters of the Poor“?

For my money, this “simple question” was answered by RFRA 20+ years ago. A religious entity that is substantially burdened by a law is entitled to an exemption or work-around as commodious as the most commodious afforded anyone else under the law. Exxon, Pepsi Bottling, Chevron, Visa, New York City and the United States Military are among those entirely exempt from the mandate. QED. A simple answer to a tendentiously-framed “simple question.”

That’s probably why the government’s argument has been bringing the Little Sisters to heel with mockery of the idea that there’s a substantial burden. “What’s the big deal about signing a form?” they insist.  (“Shut up,” he explained.)


A Roman Catholic Cardinal, two Bishops, and leaders of Catholic organizations testified that the conduct required of them, including signing and submitting the self-certification form, violates their sincerely-held religious beliefs. Yet if they refuse to take these actions, they are subject to severe penalties. Thousands of religious organizations face the same improper choice.

The Accommodation is not a simple “opt out,” as the Government contends. Petitioners’ signing and submitting the required documents is an essential step, without which their TPAs have no authority nor obligation to provide the morally objectionable coverage. Instead of an opt out, the Government requires continuing actions from Petitioners, within the context of their health plans, that make them complicit in a moral evil with “eternal” consequences.

(Reply Brief of Petitioners, emphasis added)

These witnesses are not part of some vast right-wing conspiracy against Obama or the Affordable Care Act. The Roman Catholic Church repeatedly and famously is supportive of “progressive” legislation in many areas. They just happen in this case to be gloriously out of step with the Zeitgeist.

On September 17, 2015, the U.S. Court of Appeals for the Eighth Circuit issued two unanimous opinions holding that the plaintiffs in those cases “were substantially likely to succeed on the merits of their claim that the contraceptive mandate and the accommodation process substantially burdens their exercise of religion in violation of [the Religious Freedom Restoration Act (RFRA)] and that the current accommodation process is not the least restrictive means of furthering the government’s interests.” Sharpe Holdings, Inc. v. U.S. Dep’t of Health & Human Servs., No. 14-1507, 2015 WL 5449491, at *13 (8th Cir. Sept. 17, 2015); Dordt Coll. v. Burwell, No 14-2726, 2015 WL 5449504 (8th Cir. Sept. 17, 2015).

(Supplemental Brief of Petitioners, showing the “Circuit split” on this “simple question.”)


Do you remember Bart Stupak? He was the pro-life Michigan Democrat who was browbeaten and cajoled into voting for the ACA.

He was betrayed by the contraceptive mandate. The issue statement in his Amicus Brief:

Whether an unelected, unaccountable regulatory agency can create a compelling interest without clear authority from Congress, and thereby unilaterally burden the exercise of religion as long as it meets narrow tailoring?

It’s actually worse than that. the “unelected, unaccountable regulatory agency” “commissioned an outside non-profit group, the Institute of Medicine, to make recommendations.”

At the outset of its report, the Institute of Medicine noted that it had broadly interpreted the statutory language, “preventive care and screenings,” to encompass all “measures—including medications, procedures, devices, tests, education and counseling—shown to improve wellbeing, and/or decrease the likelihood or delay the onset of a targeted disease or condition.”

“The committee [responsible for the report] looked at women’s preventive service needs more broadly to account for women’s health and well-being.” … Instead of just the common understanding of “preventive measures” dealing with “traditional indicators, such as morbidity and mortality,”—the kinds of life-threatening diseases repeatedly referenced by Senator Mikulski in her Senate floor speech supporting the amendment she had proposed—the Committee included in its understanding of “preventive measures” other things it thought to be “more generally supportive of a woman’s well-being.”

Less than two weeks later … the HRSA adopted the Institute of Medicine’s recommendation almost verbatim as “amended interim final regulations,”… directly contradicting both the President’s Executive Order and the Stupak/Waxman colloquy on the House floor on March 21, 2010.

(Stupak Amicus Brief) Stupak argues that the “amended interim final regulations” violate the Administrative Procedures Act, the due process provisions for allowing public comment before the notions of an “unelected, unaccountable regulatory agency” become de facto law.


The Administration’s pretense that the contraceptives aren’t paid for by the objecting religious employers is dubious to the point of economic voodoo:

Many employers, like Catholic University, hire an insurance company to handle their employees’ health claims. In return, we pay our insurer an annual premium, set to cover our usual claims experience. HHS proposes that instead of paying for abortions (and other objectionable services) ourselves, we can opt out, and the government will direct our insurance company to pay. The regulations add that the payments can’t come out of our premiums.

So where does the money come from? HHS suggests that insurers should front the money themselves, and it says that they will actually save money by offering free abortions and “preventive services.” According to the regulations, because the mandated services reduce childbirths, insurers can recoup their costs “from reduced pregnancy-related expenses and other health care costs.”

There isn’t much empirical evidence for this, but let us suppose it is true. In that case, the premiums that Catholic University pays once again cover the costs of abortifacients, contraceptives and sterilizations. Our insurance company simply moves the change around in its pockets so the objectionable services don’t get posted to our account. But we pay the insurer enough to cover the bills.

(John Garvey)


So why is the Obama Administration so adamant about forcing the Little Sisters of the Poor, Catholic University of America and others to “just sign the certification”?

A more tolerant solution would be for the federal government to fund “preventive services.” But President Obama had to promise not to do that to get the law passed.

And, as Russell Moore says, these days the culture wars always come down to sex.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.