Is providing women with cost-free birth control a “compelling government interest”?

July 7

One aspect of Hobby Lobby that has received little attention is the Court’s treatment, or really non-treatment, of what constitutes a “compelling interest.”  Justice Alito writes, “Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.”

Here’s what I would have written:

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we have no reason, beyond government assertion and our own personal opinions, to believe that the HHS regulations meet this exacting standard.  While our jurisprudence has never been clear as to how to measure the “compellingness” of a governmental interest, it has to be something more than “an interest the government asserts in litigation is compelling.”  Here, Congress couldn’t even be bothered to specify in the ACA that contraceptives must be provided by employers, “cost-free” or not, and instead simply delegated to HHS the authority to decide whether and to what extent contraceptives must be provided in a basic insurance package.  Nor did Congress bother to exempt any part of the ACA from RFRA, despite surely knowing that some of the ACA’s provisions could face RFRA challenges.  Even accepting the fiction that HHS was simply doing Congress’s unexpressed will and not simply reflecting the Obama Administration’s political and ideological priorities, HHS then used its authority to provide various exemptions to this package, in particular for religious non-profits.  It’s hard to see how an interest that is not sufficiently “compelling” to apply across the board suddenly becomes compelling when applied to a small group of another group of employers dissenting for religious reasons.

That said, the Court’s “compelling interest” jurisprudence is a mess.  The low point was reached in Roberts v. Jaycees, in which the Court rejected the Jaycees’ First Amendment expressive association defense to a Minnesota law requiring them to give full membership rights to women. Justice  Brennan emphasized that “even if enforcement of the Act causes some incidental abridgment of the Jaycees’ protected speech, that effect is no greater than is necessary to accomplish the State’s legitimate purposes.” To the extent Minnesota’s public accommodations law infringed on the Jaycees’ right to freedom of association, it did so to advance compelling interests, i.e., eliminating gender discrimination and ensuring “equal access to publicly available goods and services.” Because compelling government interests were served, the Jaycees’ right to expressive association was trumped.

Here’s what I wrote about this back in 1999:

Although the interest in forcing the Jaycees to admit women was purportedly compelling, federal law did not (and still does not) forbid public accommodations to discriminate on the basis of sex. The Court justified its decision by repeating the Minnesota Supreme Court’s finding that Minnesota had a “strong historical commitment to eliminating discrimination.” Bizarrely, a federal constitutional right was overridden by a state’s claimed compelling interest, an interest not even protected by federal statute.

Another oddity in Roberts, as well as in other cases applying the compelling interest test, is that the Court considered the importance of eliminating discrimination in the abstract, rather than considering whether the state’s interest in the particular case at issue was compelling. The underlying facts of Roberts hardly established a compelling case for interfering with a federal constitutional right… Thus, it appears that the state’s interest in preventing sex discrimination by the Jaycees was not objectively compelling, but merely offended the Justices’ sensibilities.

The Court for unexplained reasons refused to follow Roberts in Boy Scouts of America v. Dale.  The scope of what constitutes a compelling interest is therefore unclear even in First Amendment cases, much less in RFRA cases.  So while it’s not surprising that the Court punted on the issue, I think Justice Alito should have at least clarified that a “compelling interest” will not be found when the federal government asserts such an interest in defending a statute but Congress has failed to act as if agrees.

UPDATE: A commenter points out, quite rightly, that Justice Kennedy’s concurring opinion asserts that the government showed that the contraception rules did indeed serve a compelling government interest. So an obvious reason that the Court didn’t address the compelling interest issue is that there were not five votes in the conservative side to define compelling interest narrowly, But there was five votes to find that the regulations were not narrowly tailored.

Also, as a historical aside, one reason that the late Eighth Circuit Judge Richard Arnold was passed over by Bill Clinton for the Supreme Court in favor of Ruth Bader Ginsburg is that Judge Arnold wrote a dissent favoring the Jaycees, leading to massive resistance to his appointment by left-wing women’s groups. His opinion in that case was one of the last major gasps of traditional liberal civil libertarian jurisprudence before it was undermined by more collectivist trends on the left.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.
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