Last week’s decision reinstating Texas’s draconian abortion restrictions was an excellent illustration of why Republicans are so determined to keep President Barack Obama from making appointments to the federal courts. Unfortunately, that case was only the first of a spate of scary decisions announced by conservative circuit court judges in the last seven days.
One of last week’s terrible opinions was issued by the United States Court of Appeals for the District of Columbia Circuit, the very tribunal Senate Republicans believe Obama should be barred from appointing further judges to. In an opinion written by the extremist George W. Bush nominee Janice Rogers Brown, the court held that-in at least some circumstances-the government’s mandate that health-insurance providers cover contraception violates the Religious Freedom Restoration Act. The one silver lining to the opinion is that the Court found (correctly) that secular corporations cannot claim Free Exercise rights, although it invited the Supreme Court to find otherwise. But the Court found that while the Freshway corporation, which claimed its religious rights were being violated, could not bring a Free Exercise claim, the owners of the privately held company could.
If this case involved state law or a new statute passed by Congress, the claim brought by Freshway would be frivolous. The Supreme Court, in the 1990 case Oregon v. Smith, held that laws that incidentally burden religious practice violate the Free Exercise clause only if they are directly targeted at religious practice rather than having a secular purpose. Since the contraception mandate was obviously not targeted at religious practice, there’s no decent argument that it violates the First Amendment. However, the 1993 Religious Freedom Restoration Act (RFRA) attempted to restore the old Sherbert standard previously used by the Court. Under the Sherbert test, if a law substantially infringes a sincere religious belief, the state must pursue the least restrictive means of maintaining it.
While Congress could not apply the Sherbert test to the states or the federal courts, it could apply it to the executive branch. As such, it is not sufficient for the government to show that the contraceptive mandate did not directly target religion. The D.C. Circuit’s ruling against the mandate was based on its alleged violation of RFRA.
Brown’s argument that the contraceptive mandate violates the rights of Freshway’s owners seems designed to vindicate Supreme Court Justice Antonin Scalia’s argument in Smith that the Sherbert test is incoherent and unworkable. This isn’t to say that Brown’s holding is required by the Sherbert test, or that it even represents a reasonable application of it. Consider the massive factual differences. In Sherbert, there was a clear burden on religious practice involved, as the plaintiff faced the choice of not observing her Sabbath day or losing her job. And the ordered remedy did not burden the rights of either party, as she was simply deemed eligible for unemployment insurance. Last week’s case was far different in both respects.
First of all, there is no direct burden on the owners of Freshway, who are not forced to use contraception themselves, and only the most attenuated, indirect one (the taxpayer-subsidized health insurance earned by Freshway’s workers covers contraception). The proposed remedy would deprive Freshway’s workers of the statutory right guaranteed by the Affordable Care Act (ACA). Indeed, Brown’s opinion represents a net diminution of religious freedom, as the party with the stronger bargaining position is able to impose their religious beliefs on the weaker party. After erroneously finding that the contraceptive mandate places a substantial burden on the owners of Freshway, she argues that the mandate fails the “strict scrutiny” test applicable to violations of fundamental rights because the government’s interest is insufficiently compelling and the policy is not narrowly tailored to the interest.
If taken seriously, Brown’s opinion would wreak havoc on the ability of the federal government to protect the rights of employees. If a burden this trivial can justify an exemption, it’s not clear how it would be possible to regulate corporations at all (admittedly, for Brown this is probably more of a feature than a bug). If owners of a privately held corporations sincerely believe that their religion requires that women be confined to the domestic sphere or that the races be separated, are they exempt from anti-discrimination laws? This is why the Court unanimously found in 1982-under the Sherbert test-that individuals could not claim exemption from Social Security taxes because they were inconsistent with sincerely held religious beliefs. As Judge Harry Edwards notes in a dissenting opinion that thoroughly demolished Brown’s reasoning, the Court has repeatedly held that even under the test used prior to Smith, the kind of “burdens” imposed by the contraceptive mandate simply do not violate the Free Exercise clause. The clause is not a broad license for people to be a law unto themselves.
The mischief worked by the circuit courts last week did not end with Judge Brown’s gross distortion of Free Exercise law. In a remarkable opinion last Thursday, the Second Circuit Court of Appeals not only stayed Judge Shira Scheindlin’s historic ruling against New York City’s racially discriminatory stop-and-frisk program, but ordered her removed from subsequent hearings. The three-judge panel-consisting of two Republican appointees and a disastrously anti-civil-liberties Bill Clinton nominee-found that Scheindlin violated the code of conduct for federal judges by not avoiding the “appearance of impropriety” and requiring the removal of judges whose “impartiality might reasonably be questioned.”
For the reasons explained by Jeffrey Toobin at The New Republic and Emily Bazelon at Slate, the Second Circuit’s order is absurd. There was nothing unusual or inappropriate about Judge Scheindlin’s comments during the trial. Like the D.C. Circuit’s contraception opinion, the reasoning used in the stop-and-frisk case would lead to absurd results if applied broadly. (Should Justice Scalia recuse himself from all future Fourteenth Amendment cases because he’s spoken about the issue in public?)
The good news about the Second Circuit opinion is that the issue may soon be moot. As Toobin notes, Bloomberg’s stop-and-frisk program is highly unlikely to survive the coming election of Bill de Blasio, making further judicial intervention unnecessary in the short term. With the contraceptive mandate, the future is less rosy, as the case will almost certainly head to a Supreme Court that is openly hostile to the ACA as a policy matter and increasingly solicitous of the rights claimed by corporations. It’s very possible that the Supreme Court will not only find that the mandate violates RFRA but accept Rogers’s invitation to apply the ruling not only to owners of corporations, but secular corporations themselves.
In general, last week was a vivid and depressing example of why appointments to the federal circuit courts matter. And as the Second Circuit’s bizarre removal order should remind us, it matters not only that Obama make appointments, but that he make the right ones.