Hobby Lobby and Substantial Burdens


Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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33 Responses

  1. Avatar James Hanley says:

    It’s not-surprising Millhiser got it wrong. Legal reporting in general runs at about the level of reporting in general, and a case as recent and high profile as Hobby Lobby is going to hold such a prominent place in most people’s perspectives that it’s natural for a reporter to gravitate toward it in considering a case that has some similar elements. All we can do is hope that corrective commentaries like this one are widespread enough that people who look to read more on the issue of the present case will stumble across them and become passingly familiar with the more correct analysis.

    And this was a pretty clear explanation of a subtle topic. Well done, and thanks much, counselor.Report

    • Thanks, James! This is almost certainly a much more detailed analysis than was justified, but I kind of got on a roll, and suddenly what I intended to be a short little 500 word post turned into a 1600 word post. I do worry that this is too specific a topic to interest readers, but we’ll see.Report

      • Avatar scott the mediocre says:

        I strongly disagree with “This is almost certainly a much more detailed analysis than was justified”; I find it both an excellent and useful post on the merits, and consistent in its level of detail with the median OT front page post (a modestly high standard, granted). Thanks for this.

    • Avatar Mike Schilling says:

      Someday there may be a piece of general-interest reporting that references Godel’s Theorem without saying it means that logic doesn’t work. I am not holding my breath.Report

    • Avatar Dave says:

      Ian Millhiser – putting the “Think” in Think Progress every time he amazes us with his grasp of constitutional issues.

      I’ve opined on his garbage in the past. Every time I read him, I thank my lucky stars that I did not go to law school to learn about constitutional law.

      Great post Mark. Next time, may I recommend taking on an opponent at your intellectual level? I think you’re slumming a bit here. 😉Report

    • Avatar Michael Drew says:

      People make mistakes, including smart, distinguished people; people also occasionally develop opinions that differ with others’ in ways that don’t reflect incompetence or lack of correct understanding. It kind of has to be so in order for us to think there can be any disagreements in law where opposing views each contain elements of legitimacy.

      What’s clear is that Ian Millhiser’s legal understanding has been deemed to be considerably more than negligible by a number of distinguished people in the field outside of either law journalism or legal academia:

      Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

      (I’m sure you’ve all read that and have discounted appropriately for your biases, but as long as we’re trashing the guy I thought it was fair to at least reproduce his bio for context.)Report

    • Avatar Richard Hershberger says:

      It is an interesting exercise to consider what areas of journalism we can reasonably expect to get the basic facts of the story right. It would be shocking to see the results of sports events misreported, though the analysis is generally garbage. Stock prices seem pretty similar. Anything else?Report

  2. Avatar Jim Heffman says:

    So, in a way, Hobby Lobby has as much to do with Paragon as Stand Your Ground had to do with Zimmerman.Report

  3. Avatar Michael Cain says:

    Instead, the criticism of Alito’s opinion on this point should be… that it doesn’t make clear what test, exactly, it is applying to determine whether a substantial burden exists…

    From some perspectives, isn’t that a feature rather than a bug? Once there’s a bright line, moving it seems like a more difficult undertaking. Instead, like pornography, the Court can leave it at “We’ll know it when we see it” and move the line on a case-by-case basis.

    Nice piece.Report

    • Thanks, Michael. There’s definitely something to that suggestion, though it’s worth mentioning that for purposes of the substantial burden test, it seems pretty clear that Alito’s lack of, err, clarity has the effect of just leaving the relatively bright-line test from Thomas (and, for that matter, its predecessors) untouched, even if it’s ambiguous whether he’s actually applying that test or some other test known only to him.Report

  4. Avatar Burt Likko says:

    The wording of the substantial burden test clearly did not change. We’re talking about the level of substantiality needed to satisfy that prong of that test.

    In Hobby Lobby that substantiality came in the form of having to pay money to buy insurance so insurance might, if requested, buy certain kinds of contraceptives which the individual plaintiffs, factually incorrectly but sincerely, believed were actually abortifacents. I found the basis for that sincere belief with only a few seconds’ worth of teh Google when we did our Ordinary Court exercise a few months ago, so I don’t question the sincerity notwithstanding the inaccuracy of that belief. As I interpreted it, there were at least two levels of indirection and autonomous action between the payment of money and the use of the purported abortifacent, although others interpreted the linkage to be more direct.

    So it seems to me that after Hobby Lobby substantiality isn’t where the action is going to be. That’s going to be a relatively easy prong for most people to prove up. The action is going to be in the framing of the issue with respect to defining the government’s interest as compelling or not, and the steps needed for the government to demonstrate minimal intrusiveness.

    In this case, one way we might frame the government’s interest is in preventing exploitative and harmful child labor practices. Is preventing child labor a compelling state interest? Maybe, maybe not. Or, we might frame it as having the ability to elicit testimony in enforcement actions, either before or after probable cause has been established. Is gathering testimony in a criminal enforcement action more or less compelling than in a civil one? Does it matter if other evidence exists raising probable cause, or even reasonable suspicion? Or, we might frame it as the ability to use compulsory investigatory process. A high level of generality there, but one that suggests to nearly everyone that yes, the government needs at least some capacity to gather evidence lest it lose the ability to enforce the law at all. Which of these seems most compelling? Which of these would you use if you were the U.S. Attorney?

    Let us assume, then, that the government can prove that it has a compelling interest at stake.

    That brings us to the question of intrusiveness, of narrow tailoring. Is that going to be met by a demonstration that there simply is no other avenue of investigation left open? If it’s the case that literally all other avenues of investigation have been exhausted and there is insufficient evidence to support a finding of probable cause then doesn’t that lead us instead to the inference that no crime has been committed at all? Or will we be content to have this decided on a case-by-case, factually-intensive and context-driven analysis? (FTR, I’m usually satisfied if things do come to rest there, my own experience being that most judges approach such issues with good faith and intelligence; but YMMV and I notice there is a lot of distrust of the bench.)

    But this isn’t how I read the “narrow tailoring” prong — “narrow tailoring” does not mean that this particular governmental action is a last resort, it means that the governmental action has been prepared in a fashion that intrudes on the liberty interest as minimally as possible. This is where I wonder what the less minimal investigatory means available to the government, in this case, might be — who else other than the person in charge of setting and administering the church’s policies about what kinds of work children do can testify about that policy? The children themselves might be able to testify about the work they actually did. Contractors might be able to testify about the work they observed children doing. But unless there is a written document setting forth a policy, and there almost certainly isn’t, questions about what the church’s policy might be are necessarily only going to be answerable by policymakers. Which in this case, means this guy — whether or not testimony and documents have been gathered from other sources. This guy is possessed of unique knowledge relevant to an element of the case, which means that the information is available from no other source, which means that compelling his testimony is, in fact, the least restrictive means to vindicate the governmental objective available.

    So I think, in the wake of Hobby Lobby, when religion is invoked to block a particular action of the government, we’ve effectively shifted the burden to the government to justify why it’s doing what it’s doing. All things considered, I’m good with that — so long as the test is one that the government can actually pass in an appropriate case, not a test that is so stringent that the government necessarily always fails.Report

    • Avatar zic says:

      In the OP, Mark says, Whether or not the government could potentially obtain enough information from people other than Steed to indict the FLDS and some of its members, this is purely a hypothetical and, what’s more, the inherent nature of witness testimony is that it’s both unique and cumulative – every witness’ account in most circumstances will be slightly different, but at the same time, where those accounts are similar or overlap, they become significantly more persuasive and reliable.

      There is a potential weird situation here, where the handful of people who, as @burt-likko suggests, might have operational knowledge, would also all be protected from giving evidence under the same standard of belief? If they all do, and none will speak, what would that mean? Could the government re-petition the court, citing a compelling interest that cannot be met any other way? Could such a group action in this (or another case) rise to the level of collusion?Report

      • Avatar Burt Likko says:

        You, too, see the issue which I see, @zic ; and to shamelessly toot my own horn, which I foresaw in the dissenting portion of my Ordinary Court opinion: the invocation of religious belief to avoid a law of general application, rendering the law unpredictably nullifiable based upon an individual’s convenient testament of personal faith.

        The question is whether the facts of this situation are similar enough to the scenario I outline, and whether the method of analysis I have suggested is appropriate given a situation of that nature.Report

      • @burt-likko The thing is, I just don’t buy the argument that Hobby Lobby actually made it easier than was already the case to invoke religious beliefs to avoid laws of general application, except to the extent that it’s now clear that corporations may assert protection under RFRA (which is certainly significant, but is beyond the scope of this post and is irrelevant at the moment in the Paragon case, though it hypothetically could become relevant in the future).

        It’s easy to overlook, I suppose, but Sherbert and its progeny really did set a remarkably low bar for showing sincere beliefs and substantial burden thereof, and thus left the bulk of the burdens on the government. When the Court – led by Justice Scalia, it should be pointed out – pushed back against this, Congress immediately enacted RFRA (by a 97-0 vote) expressly to reinstate that low bar.Report

      • Avatar Burt Likko says:

        Now this may well be an accurate read of the situation, @mark-thompson . I can see the argument that Sherbert really did set a low bar, and RFRA restored it after the Court tried to correct that in Smith.

        Sure, we may never have realized how low a bar Sherbert set for a couple of decades simply because it took that long for someone to get the cheek to say “That’s the law for the rest of you but not for me because of my religion” — and perhaps because the religion in question was one adhered to by a small and historically despised racial minority, and/or because the religious ritual in question involved the highly unpopular act of ingesting a controlled substance, the Court was particularly reluctant to give sanction to that sort of cheekiness.

        But when the religion became Christianity and the law becomes one of questionable popularity, the cheekiness doesn’t look so cheeky but instead looks like mainstream culture.Report

      • Avatar James Hanley says:

        It may be that the clash between a sincere religious belief and a law of general applicability becomes increasingly more likely as government regulates more and more issue areas.

        From the political theory perspective (not speaking to the constitutional issue directly), it’s not clear to me that the state ought to triumph in such a case merely because of the resulting unpredictability of the law–the problem results as much from the extension of the state’s regulatory scope as from the religious beliefs.Report

      • Nob Akimoto Nob Akimoto says:

        Is that necessarily true in this case, though? We’re not talking about a new expansion of the state into new regulatory realms, but rather backdating that areas where the state was presumed to have compelling interests now being on the docket.

        Whatever the strictly legal framing of the case, there is, at least, a cultural and perhaps political procedural change. Just like the shift by liberals into using the Courts to challenge civil rights issues into the judiciary during the Warren era, doesn’t the tactical shift to move questions of applicability of regulations to certain entities using religiously based litigation also represent a new cultural norm?

        From the perspective of establishing a new political NORM, Hobby Lobby and Paragon do seem to show a shift in how religious entities will fight regulatory cases.Report

      • Avatar James Hanley says:

        You’re right; not in this particular case. There’s nothing new about needing to get people to testify.Report

      • I think Nob may be closest to the truth here, but still a bit off. These types of RFRA cases actually seem to be a lot more common than public perception. I think what’s happening instead is that the groups finding it necessary to raise free exercise arguments are changing.

        Historically, these claims have largely – though not entirely- been the domain of non-Christian religious groups or relatively fringe Christian religious groups. And, it should be noted, this Paragon case fits well within that domain – the reason we’re hearing about it is because of the especially big problems surrounding the FLDS combined with the fact that the judge chose to cite Hobby Lobby, the most recent and controversial RFRA case, rather than its predecessors.

        What’s happening to change that dynamic is that particularly religious Christians have thrown their lot entirely with the Republican Party, and no longer have much influence wi the Democratic Party. That means that, while they have more freedom to push their agenda when and/or where Republicans are in control, they have a lot less influence to carve out exceptions for themselves or push any kind of agenda really when and where Democrats are in control.

        In the past, they had substantial influence in both parties (but dominance in neither, perhaps), so there was rarely much reason to pursue RFRA/free exercise litigation – their interests were almost always protected before a bill went to the Presidents desk or a regulation was published for comment.

        But they can’t take that for granted anymore, especially where Dems hold power.

        Since they’re both a majority and a dominant economic group, having Christian groups added to the mix of people with reason to pursue RFRA litigation will notnsurprisingly increase both the frequency of these types of cases and their scale, as well as increasing the public profile of plaintiffs.

        So I think it is likely to become more prevalent and high profile, even though it was already surprisingly frequent, and that this will indeed be a sign of a cultural and political shift. But it’s not so much a conscious shift in strategy as it is an inevitable result of the US becoming more religiously diverse and religious Christians giving up their influence on both parties in exchange for power in the GOP.Report

      • Avatar Burt Likko says:

        If that’s true, Brother @mark-thompson , I’d find it a great shame. The ability of people in this country to practice religion as they see fit is a fundamental freedom worth fighting for in the courts and elsewhere, a historical legacy worth preserving, and an important hallmark of our cultural and legal commitment to the dignity of individual autonomy. (Nor need we sacrifice the rule of law or the instruments of democracy in order to have it.)

        To render that fundamental freedom into a tool for partisan leverage and tribal identification cheapens the coin substantially. Hopefully this will be a moment, a trend, a stratagem used for a time and then generally discarded: much as crusades against campus speech codes or rallying against overt affirmative action were “movements” of the right, with elements of righteous action admixed with partisan signalling, now turned unfashionable.Report

      • I don’t think it would be right to say that religious freedom is becoming a partisan tool. In many ways, what I’m suggesting is quite optimistic- it would mean that there’s no longer a single set of religious interests with near-monopoly power to influence legislation and regulations. The loss of that power means that “law of general applicability” doesn’t always mean “law of general applicability that serves or protects the interests of the largest religious groups.”

        It’s impossible to have laws of general applicability that don’t infringe on someone’s religious beliefs, and if we’re going to have a Sherbert- style test, that means we’re going to have a lot of valid religious freedom claims, many of which won’t ever see a courtroom. If I’m right, then that would mean these necessary infringements are being more evenly distributed, and more of them are falling on the group most capable of defending themselves in court.Report

      • Avatar Jaybird says:

        I do kinda wish that “issues of conscience” were given the same standard. I suspect that, legally, my atheism translates to “I don’t get to make moral claims”.Report

      • Avatar Jim Heffman says:

        Maybe Hobby Lobby just showed us what the RFRA actually allowed, the way Kelo pointed out that the government really can just take your house if there isn’t a law preventing it.Report

    • I’m not sure I agree here with your primary point. I certainly agree that the most action in RFRA cases is going to be on the compelling interest/least restrictive means prong, and that these prongs shift the burden to the government. You also make a really good point that the least restrictive means test doesn’t mean that the burden can only be used as a “last resort,” which obviously adds to the conclusion that the judge here just got that prong completely wrong.

      But I can’t agree that the shifting of the burden to the government on RFRA claims the effect of Hobby Lobby so much as it’s that the clear intent and effect of both RFRA and the Sherbert test (including its progeny, Thomas) it reinstated is and has just about always been to do exactly that.

      While Alito’s decision should have recognized that it was possible to comply with the regulation without any burden on the stated religious belief whatsoever (since HL either already pays for contraception coverage in the same manner through other forms of contraception or has the right to prohibit employees from using health insurance for contraception ), it’s worth re-emphasizing that the government never actually made this argument, and none of the handful of amici briefs I read did, either. In other words, if Alito had raised this point, it would have been something raised pretty much sua sponte.

      Instead, the argument in front of the court mostly seemed to be whether the burden was substantial – the government conceded that there was some burden (or at least made no attempt to dispute the existence of at least some burden), but instead insisted that the burden was too attenuated to be “substantial.” Some amici made the more interesting argument that there was no substantial burden because the penalty for providing no health insurance was less than the cost of providing health insurance even without contraceptive coverage. Both of these approaches were full of holes, but especially the government’s approach, which completely misunderstood the point.

      They conceded (as they kind of needed to) that the religious beliefs were sincere and that inquiry into their sincerity was inappropriate, but then tried to argue that paying for insurance that included coverage for contraception was too attenuated from the stated belief to constitute a substantial burden.

      But Thomas makes extremely clear that if a person is compelled to act in violation of a religious belief, the compelled violation of the religious belief is pretty much automatically substantial – “it is not for us to say that the line [a Plaintiff] drew was an unreasonable one,” i.e., the question of whether the belief the Plaintiff is being asked to violate is important is a question that courts can’t ask. Instead, the inquiry is on whether the government seeks to compel this violation through “substantial pressure.” The government in Hobby Lobby totally missed this distinction, and focused its arguments on the extent to which complying would violate the asserted belief, completely ignoring that the real issue with the substantiality prong is the amount and impact of pressure being applied.

      The amici arguments about how Hobby Lobby could have just paid the penalty and provided no insurance were stronger, because they at least addressed the real issue of whether the pressure being applied was substantial. This argument was more interesting, because it effectively forced the court to determine whether allowing Hobby Lobby to pay less but forcing it to provide no insurance for its employees was “substantial pressure.” This is where I really wish Alito had tried to annunciate a clearer standard (now I need to amend my comment to Michael Cain) as to what does and does not constitute “substantial pressure” rather than just saying generally that forcing employers to choose between cancelling its employees’ health insurance and violating a religious belief is a “substantial burden.”

      I don’t see how that failure amounts to lowering the bar for “substantial pressure,” though – I think it’s obvious to most people why it’s bad policy to thrust that kind of choice on employers (even if we disagree whether the choice is in fact being thrust on employers), as it discourages them from providing health insurance to employees. On the whole, I think a lot of people would find that kind of choice more problematic from a public policy standpoint than, say, denying benefits to a handful of Jehovah’s Witnesses because they quit their jobs for religious reasons. But just because it may be bad policy to thrust that choice on a Plaintiff doesn’t mean that the choice substantially pressures the Plaintiff. Then again, maybe it does.

      Point being that saying that this kind of a choice is “substantial pressure” probably doesn’t affect the height of the bar for “substantial pressure” much one way or another. Instead, merely addressing the question of whether this is “substantial pressure” – even if you want to determine that it is not substantial pressure – really should have required that the court more clearly define what is and is not substantial pressure rather than just saying that this case falls on one side or the other of an ill-defined – but pre-existing – line.

      More importantly though, whatever Alito did, I don’t think we can say that he was meaningfully lowering the level of substantiality required – choosing between no insurance for your employees at all (but at a lower economic cost to the employer) and maintaining existing insurance costs while violating the employer’s conscience is nothing if not a “substantial” choice with significant consequences. The question isn’t so much the substantiality of this choice but instead whether it’s the type of substantial choice we’re concerned about when we talk about substantial pressure.Report

      • Avatar Burt Likko says:

        So is there such a thing as “minimal pressure”? Your read of Thomas suggests no. But if the potential tax liability at issue in Hobby Lobby had been seventeen dollars instead of seventeen million dollars, don’t you think the Court would have said that this was a de minimis issue?

        If the issue is the quality and not the quantity of pressure brought to bear to induce a citizen to violate her religious beliefs, then oughtn’t the government to stop recruiting for the armed forces? After all, when the government buys television advertisements proclaiming the honor of the United States Marine Corps, it intentionally exerts psychological pressure on young people, particularly young men, to enlist in the Marines as a life choice of honor, patriotism, and worth. Doesn’t that constitute at least “minimal” pressure on a Quaker to step away from his faith’s teachings of non-violence and join the military? While it seems trivial to suggest that of course a Quaker must know that there are other ways he can show patriotism and honor besides joining the military [EDIT to restore deleted text] aren’t you arguing that any pressure, however trivial, constitutes an RFRA violation?

        Or are we going to conclude that while matters of money, however trivial in amount they might be, constitute an unacceptable form of pressure, dispensing honor (and by further extension, withholding honor as a form of shame) is perfectly permissible?Report

      • I think there pretty clearly is such a thing as minimal pressure- otherwise there’d be no need to even discuss the idea of substantial pressure. The analysis would end at the idea that being required to violate a belief is a substantial burden, full stop. The problem is that, while “substantial” implies gradation of some sort, what constitutes “pressure” has never been defined. Obviously criminal punishment and monetary penalties are “pressure,” and those are the most common cases, but it’s unclear whether “pressure” can include other forced choices.Report

      • Avatar Jim Heffman says:

        I think that Mark was referring to violation of belief, rather than pressure, when he wrote “Thomas makes extremely clear that if a person is compelled to act in violation of a religious belief, the compelled violation of the religious belief is pretty much automatically substantial[.]”Report

      • @jim-heffman You are correct. The inquiry isn’t, and since Sherbert and Thomas has never been, on whether the belief is substantial, but on whether the pressure being applied is substantial. The belief itself is presumed substantial. The prospect of jail, as in this case, is and always has been indisputably substantial. The prospect of significant monetary penalties or loss of sizable benefit amounts is likewise indisputably substantial. The prospect of de minimis monetary penalties or loss of benefits is almost certainly insubstantial. The prospect of having to choose between paying indisputably significant monetary penalties or having to drop all insurance coverage for employees is an interesting argument that doesn’t fit easily on a de minimis to substantial scale without more clarity about what is part of the scale. The prospect of having to forbid employees from using their insurance coverage for particular purposes – which was not a question asked in Hobby Lobby, but which should have been – seems like it, too, would require more clarity as to what is part of the scale, but would nonetheless be de minimis.Report

  5. Avatar Mad Rocket Scientist says:

    Interesting analysis.

    Very much over my head in so many ways, but enlightening all the same.Report

  6. Two questions:

    1. How is the case at hand any different from Barrenblatt?

    2. Couldn’t Vernon Steed just plead the fifth? Or was he offered immunity?Report

    • On 1- conceptually, not much different I suppose, though I’d need to take a closer look at Barrenblatt. It’s worth mentioning that, though Barrenblatt was not a free exercise case, it was still pre-Sherbert, so I’m not sure how applicable it could be even if we treat it as analogous to a free exercise case.

      On 2- Good question. I’ve kinda been wondering that myself, though some of what he’d be testifying on presumably would not be covered by the Fifth since he’d be testifying about the activities of others.Report

      • Thanks, Mark. My questions were mostly idle ones, because I had read an excerpt from Barrenblatt as an undergrad about a million semesters ago and I thought it dealt with freedom of speech not being a reason one could offer for refusing to give testimony. But that’s all I knew/know. Of course, I could always re-read it, but that would require (gasp!) effort on my part.

        On 2, though, I had thought the 5th amendment right was so absolute that it could cover testimony about the actions of others, on the view that one could claim by doing so, one might tend to incriminate oneself. If, for example, I witnessed somebody do something illegal and I for whatever reason had a duty to report it, and didn’t, couldn’t my testimony of what I witnessed be self-incrimination of a duty-to-report crime? Or if I was so embedded with those whom I witnessed that I could be accused of being an accessory? Or, say, maybe the only reason I witnessed something was because I was doing something illegal? I have a hard time thinking of an example when it comes to child labor violations, but I suppose it could.

        Also, what about the “perjury fishing” expedition you suggest in one of your footnotes might be at play? I suppose that wouldn’t be a valid reason to exercise the 5th explicitly (“I might lie!”), but sometimes it is easy to be tricked into saying something that could be construed as a lie. Sometimes somebody misremembers things, or says “always” when they mean “most of the time,” or whatever.Report

      • I think I need to refresh my memory on the scope of the right against self-incrimination before I can properly respond to this.

        I do know that this sort of “perjury fishing” or the lesser “false statements” fishing has become increasingly common over the last decade or so, which was what led to my speculation.Report