JAMES TARANTO ON SONIA SOTOMAYOR’S DISSENT: WITHOUT REASON OR EMPATHY
http://online.wsj.com/articles/best-of-the-web-today-without-reason-or-empathy-1404757875?mod=Opinion_newsreel_11
There’s a good lesson in Justice Sonia Sotomayor’s heated dissent from a Thursday order in the case of Wheaton College v. Burwell: When making an argument, you should be cautious about imputing bad faith to your adversaries–not only because civility has intrinsic value but also because such aggression magnifies the embarrassment if you turn out to be mistaken.
That’s just what Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, did in this dissent. “Those who are bound by our decisions usually believe they can take us at our word,” she declared, using the first-person plural to refer to the court. “Not so today.” In making that assertion, Sotomayor committed an elementary error of logic.
The decision to which she referred was Burwell v. Hobby Lobby, which the court handed down just three days earlier. By a 5-4 majority, with Sotomayor, Ginsburg and Kagan among the dissenters, the court held that Hobby Lobby and two other closely held corporations were entitled to an exemption from parts of ObamaCare’s administrative mandate that employer-provided medical plans include coverage for birth-control drugs and devices. The companies’ owners have religious objections to birth-control methods that also act as abortifacients and filed lawsuits seeking relief under the Religious Freedom Restoration Act.
The government can overcome a RFRA claim if it can show, among other things, that the burden it seeks to impose on the plaintiff is the “least restrictive means” of achieving its goal. The justices held that the Department of Health and Human Services had failed that test–and quite obviously, for it had already developed a less-restrictive means, available only to religiously based nonprofit corporations. Rather than pay directly for the disputed coverage, those nonprofits may sign a form directing their insurance companies to take care of it.
Many nonprofits, including Wheaton College, take the position that even that accommodation intolerably burdens their religious liberty. The court didn’t rule on that contention Thursday; its stay merely bars enforcement of the modified mandate while the litigation proceeds.
Sotomayor imagines that the court gave its blessing to the nonprofit accommodation by citing it in deciding Hobby Lobby. In reality, the court expressly disavowed that position: “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims,” wrote Justice Samuel Alito.
Logic is on the majority’s side. In order to disprove the government’s contention that the mandate is the least restrictive alternative, it is sufficient to establish that there is a less restrictive alternative–the nonprofit accommodation. But for the accommodation to withstand a RFRA challenge, the government would have to prove that it is the least restrictive alternative.
A superlative is harder to prove than to disprove. Disproof requires only a single inconsistent comparison, whereas proof requires showing that all comparisons are consistent. If that’s too abstract, consider the following imaginary dialogue between two schoolchildren, whom we’ll call Sonia and Sammy:
Sonia: “I’m the tallest kid in class.”
Sammy: “No you’re not. I’m taller than you.”
Sonia: “Oh, so you’re saying you’re the tallest kid in class?”
Sammy: “Not necessarily. But–“
Sonia: “GOTCHA! YOU LIE!!!1 I’M THE TALLEST KID IN CLASS!!”
Justice Sotomayor’s fallacy is precisely analogous to little Sonia’s.
There is more to RFRA than the least-restrictive-burden test. In order to sustain a claim under the statute, a plaintiff must show that the government action in question imposes a “substantial burden” on the practice of religion. Sotomayor denies that the burden on Wheaton College is substantial. In doing so, she misreads the court’s precedents–assuming she reads them at all.
In a useful December backgrounder, UCLA law professor and Washington Post blogger Eugene Volokh summarized these precedents as follows: “If someone believes that it’s religiously wrong for him to be complicit in certain behavior, requiring him to act in such a way is a ‘substantial burden’ on his religious practice under RFRA.”
Sotomayor does not cite any of the Supreme Court precedents Volokh does. Instead, she turns to a lower court, the Seventh U.S. Circuit Court of Appeals. In a February ruling in Notre Dame v. Sebelius, Judge Richard Posner offered the following analogy:
Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him.
But as the Quaker leaves the selective service office, he’s told: “you know this means we’ll have to draft someone in place of you”–and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs.
Would this mean that by exempting him the government had forced him to “trigger” the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non-Quaker replacement?
Posner reports that when this argument was posed at oral arguments, Notre Dame’s lawyer gave the wrong answer: “that drafting a replacement indeed would substantially burden the Quaker’s religion.” The correct answer is that it would not. The Quaker’s religious freedom is not burdened by the government’s compelling someone else to do something.
But the analogy is flawed. Wheaton College objects to the accommodation because of what it is compelled to do: sign a form that includes what Sotomayor dismissively calls “merely an instruction to third-party administrators”–the college’s insurance company–to cover the disputed drugs and devices, notwithstanding Wheaton’s religious objection.
Absent the form, Wheaton’s case would be weaker. With the form, it seems to us airtight. Imagine if the law compelled the Quaker in Posner’s hypothetical to sign a form instructing the Selective Service to conscript another man in his place. That would be a substantial burden on the Quaker’s religious freedom, even though its effect on the government and the unlucky substitute would be nil.
“Let me be absolutely clear,” Sotomayor declares, using a locution redolent of Presidents Nixon and Obama: “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened–no matter how sincere or genuine that belief may be–does not make it so.”
Actually, it does, so long as one is the target of a governmental compulsion or prohibition. In Thomas v. Review Board (1981), the court ruled 8-1 in favor of a Jehovah’s Witness seeking unemployment benefits. The plaintiff had quit his job at a foundry after being transferred to a department that made military tank turrets. That, he said, would violate his religious beliefs.
Thomas had testified that he was “struggling” with his beliefs and that he would not object to producing raw steel “necessary for the production of any kind of tank” because he “would not be a direct party.” Chief Justice Warren Burger wrote for the court:
The [Indiana Supreme] court found this position inconsistent with Thomas’ stated opposition to participation in the production of armaments. But Thomas’ statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.
Sotomayor does not explain why she rejects this precedent; indeed, she doesn’t even cite it.
Sotomayor: Talk to the hand. Invision/AP
Two additional thoughts about that last Sotomayor quote. First, in acknowledging “that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” Sotomayor contradicts an assertion in Ginsburg’s Hobby Lobby dissent, which Sotomayor (although not Kagan) joined, to wit: “Corporations, Justice [John Paul] Stevens more recently reminded, ‘have no consciences, no beliefs, no feelings, no thoughts, no desires.’ “
Seventy-two hours is an eternity in liberal jurisprudence.
Second, the tone of the passage is obnoxious. Sotomayor might as well have written: I respect your sincere religious beliefs, but who cares? When the president nominated Sotomayor to the court five years ago, she was described as someone who has empathy for minorities. With this dissent, she has failed even to live up to that meager promise.
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