HH: It’s my first opportunity to with a Happy New Year to the Smart Guys – Dean of the University of California, Irvine Law School, Erwin Chemerinsky, Dean Emeritus at Chapman University School of Law, the Fowler School of Law, John Eastman, together, my friends on the radio for fourteen years. Happy New Year, Erwin and John, I hope it will be a good one for you. Erwin, and I hope the law school’s back in session at UCI already.
EC: It is. I taught federal courts this morning, and Happy New Year to you and to John, and I look forward to another year together.
HH: Now John, what’s nice is that we at Fowler start a week later.
JE: Well, we like to say we spend another week recuperating and getting ready to hit the ground running.
HH: There we go. So I may bore you guys relentlessly over the first ten weeks of this year, because ten weeks from today, we’re going to have an argument in the United States Supreme Court on Tuesday, March 25th, or ten weeks from yesterday, Sebelius V. Hobby Lobby Stores and Conestoga Wood Specialties Corporation, two cases consolidated. It will be argued on March 25th. The Court released its argument list today. And I want the audience to really understand, this is the second Obamacare case. And to me, it is actually more important than the first, because it involves religious liberty. Would you set it up, Erwin, and then we’ll have John talk about RFRA and then come back and debate what we think’s going to happen.
EC: Sure, it’s important to know that this is about secular corporations, so it’s a completely distinct issue from the one that came to Justice Sotomayor last week as to whether or not the nuns of Little Sisters Of The Poor Home For The Aged could be have to required that their insurance provide for contraceptive coverage. We’re talking in these two cases about secular corporations. And they’re required under regulations promulgated under the Affordable Care Act to have insurance for their employees that includes preventative medical coverage. Preventative coverage includes coverage for contraceptives. And they’re arguing that it burdens their religious freedom to have to provide insurance to their employees that includes contraceptive coverage. The Hobby Lobby case is entirely about a federal statute, the Religious Freedom Restoration Act. The Conestoga Woods case involves both the Religious Freedom Restoration Act, and free exercise of religion under the 1st Amendment.
HH: And John, would you unpack what the Religious Freedom Restoration Act is, and whether or not there’s a way for the Court to put that aside and rule on the free exercise clause as opposed to RFRA, either by declaring RFRA inapplicable to Hobby Lobby, or by declaring it unconstitutional, though it has previously been upheld?
JE: Well, I think to set that up, you have to go back a couple of decades to a very important decision that Justice Scalia authored called Employment Division V. Smith. It dealt with the state of Oregon’s firing of somebody for peyote use in violation of state law. The gentleman raised a religious liberties claim, because the peyote use was in conjunction with a religious ceremony. And Justice Scalia said generally applicable laws that are not targeted to religion get what are normal deferential review, where acts of the legislature are upheld if there’s a rational basis for them, very deferential. Prior to that, when religious liberty claims were involved, the Court applied what was called heightened scrutiny, or strict scrutiny, that the government had to have a compelling interest for the law, and the law had to be narrowly tailored to further that compelling interest before it could be implemented in ways that infringe on religious liberty. Now Justice Scalia’s much lower threshold means that many infringements on religious liberties today get upheld. And then the Congress stepped in with their Religious Freedom Restoration Act, trying to restore that heightened scrutiny to federal government actions that implicate religious liberties. And the Court has held that that’s perfectly okay. The federal government can impose a higher burden on itself if it wants to. And so the government would have to demonstrate that its law meets a compelling governmental interest, and that it’s narrowly tailored to further that interest. And quite frankly, I think this particular one falls both of those accounts. But even if you say that the provision of contraceptive services is a compelling governmental interest, there are certainly ways that are more narrowly tailored than forcing religious corporation owners to provide funding for something that violates their religious conscience. The government could provide it directly, for example, without having to go through the employer insurance mandates. And so that’s the kind of the setup of the question, and also I think where the Court’s likely to go on the Religious Freedom Restoration Act. Now I’d like to see the Court go even further and say this doesn’t even meet the rational basis review test that we have from Employment Division V. Smith, but I don’t think the Court’s going to go there, because I think this so clearly violates the Religious Freedom Restoration Act.
HH: Erwin Chemerinsky, I have been telling people I fear they will find a way around RFRA, that they realize it doesn’t meet RFRA, or they will actually declare it does meet RFRA and get to the free exercise, or that they will somehow revisit RFRA’s Constitutionality. Do you think it will be a clear, it has to be a double decision if it’s negative. They have to rule that RFRA is not offended, and the free exercise clause is not offended, correct?
EC: That’s correct. There are so many levels of questions that have to be reached. And let me try to state the questions neutrally before I express views on them. One question is, is it a significant burdening of religious freedom to require that a company have insurance that includes contraceptive coverage? They’re not being forced to pay for the contraceptives. They’re not being forced to take a position on contraceptives. They’re just having insurance that covers that. Second, can a secular corporation claim to have religious views and religious beliefs? Third, is there a compelling government interest in facilitating the availability of contraceptives, so that even if burden of religion is allowed, if this is sufficiently narrowly tailored? All of those are questions that are going to be reached both under RFRA and under the free exercise clause.
HH: Now in the weeks ahead, I’m actually going to spend considerable time on this, and ask you to ask each other questions, to in essence do a murder board of you each opposing each other, perhaps on both sides. But John Eastman, as we step back at this moment in time, what do you think’s going to be the outcome here?
JE: Well, I think the Supreme Court is going to find that one, secular corporations, if they’re particularly closely-held family corporations like Hobby Lobby, have as much right to engage in religious liberty as, say, a secular corporation like the New York Times has a right to engage in free speech, one of the other provisions of the 1st Amendment. We don’t say that the corporation itself doesn’t get to exercise those rights. We routinely recognize them. And so I think they’re going to find RFRA applies. I think they’re going to find, then, that this is not a compelling governmental interest, because the provision of these things might be helpful, might for a lot of government policies, but certainly doesn’t qualify as compelling. And then even if they reach that, they’re going to say this is not narrowly tailored, because there are lots of ways governments can further its purpose of providing free contraceptive services without having to go through the mechanism of forcing somebody to cover it through their insurance policies.
HH: Don’t go anywhere, either of you. I want to give Erwin a chance to respond in our last segment of the day when I come back with the Smart Guys.
— – – – –
HH: Erwin Chemerinsky, John Eastman, like I said, I’m going to spend a lot of time on what the Court announced today will be its March 25th argument in Hobby Lobby and Conestoga Wood. I had John give his prediction, Erwin. I wanted to make sure you had your opportunity as well.
EC: I appreciate it and look forward to talking about this in depth in the weeks ahead. I think it is a far harder question than what John says. John says corporations like the New York Times get speech rights, so they should have religion rights, too. But the Supreme Court has always said the reason we have corporation speech rights is that when there’s more expression, we’re all better informed. That has no analogy with regard to religion. A corporation is a separate fictional entity. Can a fictional entity really have religious beliefs? Also, is there really any infringement of the owners if all they’ve got to do is provide insurance? They’re not kept from opposing contraception. They can express their religious views. They’re not required to pay for contraception. All they’re doing is providing for insurance coverage. And I think that John really underestimates the compelling interest in making sure that contraceptives are provided. The Supreme Court has said that there’s a fundamental right to purchase and use contraceptives. And what we’re talking about here is the ability of women to have access to contraceptives. And I think that there is a compelling government interest. I don’t think there’s ever been a case like this, so we can each tell you why we think our side is going to win, but I think in the end, this is such a unique issue, one can’t other than say what they want to see happen.
HH: Let me ask you both with 30 seconds, what’s the toughest issue for your side, John Eastman?
JE: Well, I think the toughest issue is whether a corporation gets to exercise religious liberty. And I think that the Hobby Lobby case, the closely-held corporation, is going to present that question in very fine form to the Court to try and address.
HH: And how about you, Erwin? What’s the toughest for Secretary Sebelius and President Obama to answer?
EC: Exactly what John said. Aren’t there less restrictive alternatives? If you want to make sure that people have contraceptives, can’t the government just pay for it or make them available?
HH: And do you both agree this is worth our time over the next few weeks, Erwin?
EC: Oh, absolutely. I think that this is the most high profile case of the term, and it’s a very difficult issue with regard to religious freedom versus a fundamental right to purchase and use contraceptives.
HH: John Eastman?
JE: Well, it is right now. I’m hoping it gets crowded out by a cert grant on Friday of my Arizona abortion case.
HH: Oh, well, we’ll watch for that as well. John Eastman, Erwin Chemerinsky, it is always great to start a new year with two of the smartest and most gracious gentlemen on the radio with me.
End of interview.