The last two decisions of the Supreme Court this term both have just been handed down.
Harris v. Quinn: Can public employees, hired as home-health-care workers, be required to join a union? No, the nature of their work renders them dissimilar to other kinds of public employees. The court distinguishes this case from a prior case authorizing state employees to unionize, Abood v. Detroit Board of Education (1977) 431 U.S. 209. Therefore compelling them to join a union with other similar workers violates their First Amendment rights of free speech and free association. 5-4 decision by Alito, dissent by Kagan.
Burwell v. Hobby Lobby Stores, Inc.: An across-the-board victory for the petitioners and an across-the-board loss for the government. Closely-held corporations cannot be required to provide contraception coverage under Obamacare; they must be offered the same sorts of accommodations to religious beliefs as are available to nonprofit religious entities.The government did not demonstrate that the Contraception Mandate was the least-intrusive means available to fulfill its avowed purpose of ensuring access to birth control. 5-4 majority opinion by Alito. Justice Kennedy joins and concurs, noting that the government could pay for the contraception itself, directly, and that the waiver mechanism already exists, both of which demonstrate the government’s failure to meet the “least intrusive means” prong. Two dissents, Ginsburg (joined by Sotomayor and in part by Breyer and Kagan), and Breyer joined in full by Kagan.
My own first thought about Hobby Lobby: Having read the briefs for our mock Supreme Court exercise, I can’t say I’m surprised in the end result. The government’s showing was weak, particularly on the area where Justice Alito’s opinion applies the most pressure: the availability of alternative ways the government could ensure access to contraception. But on the big existential question, the Court seems to have held that a closely-held corporation can indeed adopt the religion, or at least the religious beliefs, of its owners. (That’s lunacy in my opinion. Can it fall in love, too?)
The opinion offers specific silence (as in “We do not comment or opine about … “) concerning 1) other religiously-restricted medical procedures, like transplants or blood transfusion, 2) the use of a claim of religious belief to exempt from some other otherwise-illegal practice like discrimination, and 3) publicly-traded corporations. So these are technically open questions of law. The second of those three putative lacunae, however, bothers me the most. I’ll read the opinion and see if its reasoning stops short of requiring a religious belief justifying an exemption to, say, Title VII, but I don’t see how that line gets drawn (in a principled way, anyway).
So, it’s a big day for Samuel Alito groupies. Others will sort of mutter about amongst themselves and contemplate the importance of electing a Democrat to the White House in 2016.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.