Wednesday, July 2, 2014

He's George Takei and It's Okay ... For Him to Be Wrong

Ensign Sulu, I won't tell you how the Enterprise slipped into a worm hole, and you don't tell me  how the Free Exercise Clause and Religious Freedom Restoration Act work.

George Takei, who entertains me daily with his Ohhhh Myyyyy reactions to internet memes and stories, is "mad as hell and he's not going to" leave you unaware of it.  He posted a short piece on his blog site sharply criticizing Hobby Lobby and the decision of the Supreme Court.  You can read his blog post here.

I'm sharing this article, not to approve of its reasoning, but to get to a point that it brushes against.

In the late 1980's the Supreme Court decided Employment Division vs. Smith.  It was a case involving a claim for unemployment benefits.  The claim was denied by the State after the claimants were terminated (from their jobs as drug counselors) after testing positive for the use of peyote (a sacramental in Native American religions).  The Supreme Court, then for some  thirty years, had upheld religious freedom claims in certain unemployment cases (Jehovah's Witnesses that refused work on Saturdays, for example, and then lost their jobs as a result.

In Smith, however, the Court hewed a new line, one that caused great consternation in the small community of religious liberties attorneys and commentators.  It was, it seemed, as though the Court had torn the Free Exercise Clause out of the First Amendment.

You see, before Smith, the Court applied a test in such cases that fairly doomed state actions that substantially burdened the exercise of religion and conduct compelled by religious belief.  Where a claimant -- for unemployment as an example -- was engaging in conduct as a product of adherence to religious belief, the government could only impose substantial burdens on that conduct if it did so (a) in service of a truly compelling government interest and (b) by the least restrictive means available to serve the government's asserted interest.

With Smith, in the vast majority of cases, the Court's instruction was that when the government's actions burdened religiously animated conduct, not because such conduct was targeted for its religious connection, but by means of a law that was neutral as to religion and that was generally applicable, the Court's prior line of decisional law no longer applied, and religious claimants would not fare well on their claims.

So now we have George Takei making pronouncements in response to the Hobby Lobby decision of the Supreme Court from June 30.  Unlike many celebrities, he actually employs the language of courts, of judges, and of constitutional litigators, directly quoting the language of the standard articulated by Justice Scalia in the Smith case.

Truth is, George gets the standard exactly right.  As a former Adjunct Professor that actually taught the Law of Religious Liberties and also Constitutional Litigation, I would be dishonest to grade his ability to quote a relevant Supreme Court lower than an "A."

But neither the Supreme Court, nor lower courts, simply announce a relevant standard or test and then immediately announce the winners and the losers.

In between the Court's announcement of the governing test and the Court's announcement of its judgment comes that other, sometimes tedious, stuff:  the Court's reasoning, statement of issues, and analysis.  Unfortunately, it is at this step that George goes off the rails, and simply expects us to enjoy the fall into his chasm of misunderstanding.

Here's George's terse application of the standard he considers governing:

""Once the law starts permitting exceptions based on 'sincerely held religious beliefs' there's no end to the mischief and discrimination that will ensue.""

Well, actually, George you missed my class, so I won't fault you terribly for how you got confused.  Under Smith, the requirement is that a law must be (a) neutral as to religion and (b) generally applicable.  Let's concede for now that the Affordable Care Act is, on its express terms, neutral as to religion.  In other words, and it's hard to argue otherwise, that the text of the law does not contain such language as, "shall provide coverage for contraception except where objected to for political reasons, for public health reasons, or for moral, but not religious reasons."  Obamacare lays a thick and heavy blanket on all, and from 30,000 feet it looks like a 1500 thread count affair not cheese-clothed with holes.

The law, under the standard to which George adverts, also requires that the law be generally applicable.  This is a historical derivation from the Court's cases.

In the granddaddy of unemployment compensation--Free Exercise cases, Sherbert v. Verner, South Carolina denied unemployment compensation to a Jehovah's Witness terminated from employment after declining to work on the Sabbath.  Had the facts in the case ended there, perhaps the Supreme Court would have ruled differently.  South Carolina, however, had the cheese-cloth problem.  The State imposed so called Blue Laws requiring Business Closings on Sundays.  The State, however, authorized the relevant state official to declare an emergency during which Sunday closures of factories would be lifted.  The statute went further:  even when the Blue laws were suspended in their operation, the law barred the State Unemployment Compensation Commission from denying unemployment to those that refused to work on Sundays.  Now that punctured was a big old bunch of holes in the State's "generally applicable" law.

South Carolina is part of the Bible Belt, and home to one of the most widely known conservative and religiously affiliated colleges:  Bob Jones University.  Folk there observed Sundays, attended church, and would not lightly surrender to employers' demands for Sunday labor.  Refusing to work on Sundays was a low risk venture for such people, because the State demanded that they not be denied unemployment compensation if they were fired for refusing to report to work.

Just how significant could the State's interests be in its schemes of Sunday Blue Laws and restricted access to unemployment compensation if the State wrote an exception likely to cover better than a bare majority of its citizens, and deliberately leaving unprotected those claimants whose day of religious observation and worship fell on Saturday or some other day?

So Sherbert taught South Carolina the importance of what might otherwise be called a foolish consistency.

And, as they say, therein lies the rub:  Takei is "okay" on the statement of the test, but misses entirely that this administration has cheese-clothed the Affordable Care Act with exceptions.  If the purposes of the legislation were so very compelling, why the delays?  If the purposes of the legislation were so very compelling, why grant the exceptions to its mandates?  Friendly corporations, large unions, unfavorable deadlines risking political suicide for Democrats that voted in the new statutory regime ... all these commanded exceptions, and left the Affordable Care Act leaking like the dikes of New Orleans during Hurricane Katrina.

So even under the Smith case, the United States should have lost.

But wait, as the late night hawkers say, there's more.

Hobby Lobby and the claimants in its companion case were not principally relying on the Free Exercise Clause of the First Amendment (the constitutional provision Scalia interpreted in Smith).  They claimed that the contraception mandate of Obamacare violated their rights under a federal statute:  the Religious Freedom Restoration Act ("RFRA").  And RFRA, you see, was the law passed by Congress in its reactive displeasure to the Smith decision.  In it, Congress created a cause of action against the federal government for actions that substantially burdened religiously motivated actions unless those burdens ... wait for it ... were the embodiment of compelling government interests and served by the least restrictive means.

So, for a second time, I must drop George by a letter grade or three, because he flippantly stated a legal standard that applies to Free Exercise of Religion claims arising under the First Amendment, ignoring all along that these cases arose under RFRA.  I sympathize with George.  I suspect he understands that Hobby Lobby will have effect, ultimately, beyond the area of health care insurance.

In fact, it may impact a small set of cases that could arise under federal law involving discrimination against gays, lesbians, bisexuals, transgendered, queer and questioning folk.  After all, if you can refuse to provide certain contraception insurance coverage as a result of RFRA, then perhaps you could take other actions, plainly discriminatory, against individuals because of their sexual orientation or self-identification, and have the umbrella like protections of the Court's reasoning in Hobby Lobby.

I say a small category of cases because, frankly most of the sexual orientation discrimination matters today arise under state and local law, which is unaffected by the Court's decision interpreting and applying RFRA.  That statute, when passed by Congress, included a section applying its restrictions to the actions of States and local governments.  That section, however, was struck down in the late 1990s in the City of Boerne v. Flores case.

At the end of the day, Hobby Lobby is good news to a religious liberties attorney like me for one reason.  Out of the dozens and dozens of cases, perhaps hundreds, filed under RFRA since the statute's enactments, this one is the first to reach the Supreme Court.  This case is the first to actually analyze RFRA.  This case is the first to provide relief to claimants at the Supreme Court under RFRA.  And it happened all because Congress rejected the very standard adopted by the Court in Smith, and quoted in objection by George today.