The Top Ten “Fun Facts” About the Oral Argument in Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius
1. The more junior the Justice, the more she or he spoke at the oral argument, all the way down the line, except for Justice Kennedy who spoke more often than his seniority would have predicted (and Justice Thomas, who never speaks during oral arguments).
2. Contrary to his public image as a dogged and frequent questioner, Justice Scalia only spoke more than Justice Thomas, who spoke not at all.
3. Justice Scalia used most of the few words he uttered to obtain agreement from both sides that RFRA includes an element—the “least restrictive means” test–not present in the Court’s previous free exercise doctrine. They both agreed, because it is true. In other words, RFRA does not “restore” the Court’s doctrine at all.
4. The lawyer for Hobby Lobby and Conestoga Wood, Paul Clement, was pressed on what was the government’s “least restrictive means” of ensuring that all women obtain contraceptive coverage. Here is the answer: “the most obvious least restrictive alternative is for the government to pay for their favorite contraception methods themselves.” I am sincerely hoping he’s correct, because if he is, I just started the Church of Pay No Taxes, and I can assure you that when the IRS calls, I will invoke RFRA and argue that the least restrictive alternative is for the government to pay for all government services itself so I don’t have to. That is as “least restrictive” as it gets, no? Otherwise, I might be complicit in the tax system I don’t believe in.
5. Clement needed the mythology woven around RFRA to make his arguments. First, he talked about the supposed “unanimity” behind RFRA, even though it never did pass unanimously in any House. Second, he made perhaps the most laughable point of the day when he asserted that when RFRA was enacted “everybody in Congress got together and said, all right, you have some claims you actually want to be vindicated, you have some claims you want to be vindicated, we’ll vindicate all of them.” That is precisely what did not happen during RFRA’s enactment. The members had no idea what each religious group actually intended, the groups had a deal that they wouldn’t talk specifics, and the members never asked the hard questions. RFRA was a black box for the members of Congress.
6. Clement also made the entertaining point that the Court’s reasoning should “start with O Centro,” which was the RFRA case decided by the Court in 2006, where the Court held that RFRA trumped the federal drug laws. The case involved a religious group that uses ayuhasca tea during its rituals, the active ingredient of which is DMT, which is on the federal controlled substances list of drugs for which there are no known therapeutic uses. He might want to hold off on endorsing that result. Recent coverage indicates that the decision opened the door to shamans who are now distributing the tea and its hallucinogenic experience broadly to wealthy men and women for purposes of psychological (not religious) revelation; that some of the shamans are raping the women once they take it; that it is dangerous if taken with certain prescription drugs, but no one really knows because the FDA has never tested or cleared it, and it is not prescribed by a doctor or sold through a licensed pharmacist; and that some young women are experiencing debilitating psychological difficulties following its ingestion. Now, that’s a legacy to be proud of.
7. Chief Justice Roberts appears to believe that Congress has enacted exceptions to RFRA. It never has. Oddly, Solicitor General Verrilli did not correct him on this misimpression.
8. One of the most opaque points was made by Justice Kennedy, who was concerned about the fact that some of the ACA’s accommodation for religious nonprofits (beyond churches) was crafted by HHS, an agency, rather than Congress. He seemed to be saying that this could pose a non-delegation problem (i.e., the law is supposed to be made by Congress, not delegated by Congress to be made by the executive). Yet, he had to concede that the Court had not held a tight rein on delegation (to put it mildly), and so what he meant was that when “we have a First Amendment issue of – of this consequence,” there can’t be delegation. This was shocking, given that since the American Trucking case, everyone who fought delegation has thought it a dead letter, and because earlier in his questions he had stated that he believed the case could be decided just based on the statute, without reference to the First Amendment. I’m still puzzling over this one.
9. Our newest Justices are on the cutting edge. Both Justices Sotomayor and Kagan mentioned that if Hobby Lobby or Conestoga Wood were to win, then the door would open for an employer to refuse to provide vaccination coverage, because it violates his or her religious beliefs. Right now, there is a measles epidemic in the United States, which is a disease many in the health care community believed several years ago had been eradicated. Doctors are warning about a return of polio, mumps, and whooping cough because of the parental failure to obtain vaccinations for so many children. Creating more pressure against vaccinations will push us well under the herd immunity we need to stay healthy.
10. Justice Ginsburg made a point that deserved more attention than it got when she said that “RFRA wouldn’t apply to Title VII” because it postdated Title VII. In fact, it is a violation of due process to retroactively apply a substantive change to a law (which RFRA is) under settled Supreme Court doctrine. Why does this matter? If Hobby Lobby were to win against the ACA, when its female employees or a civil rights group turns around and sues it under Title VII, it will not have a RFRA defense. That means its female employees will win, because Hobby Lobby’s health care coverage discriminates on gender and religion.