Discovering Elephants in Mouseholes

Predictably enough, with the Supreme Court’s decision in Burwell v. Hobby Lobby (2014) 573 U. S. ____ , the dicta hit the fan.  The Court split 5-4 over whether a closely held corporation could be required to provide employee health insurance benefits which included pay-outs for abortion procedures.  The Court held that such a requirement contravened the Religious Freedom Restoration Act of 1993 (RFRA).

As I shall attempt to explain without writing a law review article, the majority’s opinion was a dishonest piece of work.   But although this article discusses the merits of the decision, it also seeks to discuss legal methodologies and to highlight the features of a jurisprudence which has become decadently over-refined and, at the same time, grossly animated by objects of desire.

We begin at the end. 

Most commentary in the press has summarized Hobby Lobby as holding that corporate employers have a First Amendment Right to refuse to support government mandates which infringe upon their religious beliefs.

However, the majority opinion concludes as follows,

“The contraceptive mandate, as applied to closely held corporations, violates RFRA. Our decision on that statutory  question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns.”

Huh? 

“In determining whether challenged government actions violate the Free Exercise Clause of the First Amendment, ....

“...under the First Amendment, “neutral, generally applicable laws may be applied to religious practices...

“The RFRA prohibits the ‘Government [from] substantially burden[ing] a person’s  exercise of religion ....’”

After 48 pages of such ink, a reasonable man might be excused for thinking that the case was about First Amendment protections.  How could the court “not reach” the parties’ First Amendment claim?

Nowhere in the court’s opinion did it bother to explain what that First Amendment claim was.  Nor for that matter did the dissent. 

To verify our suspicion as to what that claim might be we chased down Hobby Lobby’s filed brief.  Indeed, that brief raised two separate claims: (1) that the insurance requirement was a violation of the Religious Freedom Restoration Act of 1993 and (2) “that corporations should be treated as natural persons for virtually all purposes of constitutional...analysis” including “freedom to speak, to worship, and to petition the government.”  (Resp. Brf. pg. 24.)

In plain words, Hobby Lobby argued that a for-profit, fictitious person had an affirmative right, under the Free Exercise Clause, to worship as it best saw fit.  How this might be possible would present an interesting theological question.  But as a merely legal issue, since it is an accepted principle that ‘the right to believe includes the right to abstain,’ the implication from the First Amendment premise was that Hobby Lobby, Inc. had a direct First Amendment “worship-right” not to be forced to subsidize abortions.

However, the Hobby Lobby brief never quite drew that conclusion.  It never said “under the First Amendment... Q.E.D.”   Instead its brief slid back into talking about a statutory violation of the RFRA. 

That act provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”  Under the act, once a “substantial burden” is shown to exist, the government must then prove that “application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Thus, under the Act, any government regulation which prohibits some religious practice or which requires conduct that contravenes a religious tenet is illegal if the prohibition or requirement is more than trivial and is not really, really necessary.  For example, an orthodox Jew deployed to the NORAD Command, could be required to press the red button on the Sabbath on the basis that defense from a nuclear attack was an outweighing “important public interest.”

There was no question among the justices that this is what the RFRA in fact requires.  Nor was there any question that the overall purpose of the Religious Freedom Restoration Act was to implement and reaffirm First Amendment religious rights.

The reason the act was passed was that, in Dept. of Human Resources of Ore. v.  Smith  (1990) 494 U. S. 872, the Supreme Court had promulgated a rule to the effect that prohibitions on religious practices (such as eating peyote) were permissible under the First Amendment so long as the purpose of the rule was not aimed at discriminating against a religion per se but was part of some general, namby-pamby, public health, safety and welfare scheme. 

Of course, under that amorphous standard, the government could run roughshod over any number of religious practices and, as Ginzburg’s dissent noted, the RFRA passed through Congress without so much as a peep.  The purpose of the RFRA (again, as Ginzburg noted) was to restore the Supreme Court’s own prior jurisprudence.

Under previous, Supreme Court cases, prior to Smith, any infringement on the free exercise of religion was subject to “strict scrutiny” which is the short way of saying that it must be justified by a really compelling state interest which cannot be achieved by other or less restrictive means.

Smith had lowered the bar for government interference with First Amendment rights, allowing infringements so long as government lawyers could conjure up some reasonable sounding excuse.  This, as I shall explain further on, was a key aspect of the Court’s 20th century “functional” jurisprudence.  In essence, through RFRA, Congress ordered the Supreme Court to apply the stricter standard of its own previous cases.

But those prior Supreme Court cases were not decided under the statutory authority of the RFRA (which after all didn’t didn’t exist) but under the First Amendment itself.  

And so we have come full circle.  The reason the Hobby Lobby brief slid imperceptible from a First Amendment premise into talking about a statutory violation of the RFRA is that there is no substantial difference between the two.  It is a truism that the Constitution means what the Supreme Court says it means; and the Act simply restated what the Supreme Court said the First Amendment meant in the context of religious exercise. 

Since at least the days of Euclid, it has been an accepted axiom of thought that things equal to a third thing are equal to one another.  If the RFRA revived the Supreme Court's pre-existing First Amendment jurisprudence, then an issue decided under the RFRA is decided under the Supreme Court's First Amendment jurisprudence, which is to say that the case is decided "under the First Amendment."

Thus, the majority’s concluding dictum that it was “not reaching” the First Amendment question was pure and simple pixy dust.   A “non-First Amendment, Free Exercise Issue,” is about as honest and upright as a “non-tax tax.”  Both are part of a jurisprudence which consists of “distinctions without a difference.” 

That the Court could even engage in such mutterances illustrates how caselaw has become overly-clever, overly-refined and intellectually decadent.   To understand how the majority could get away with such skullduggery it will help to get  a sense of how Supreme Court jurisprudence has become an impenetrable thicket of compound complexities and hypothetically contrived distinctions.  Any point can be argued six ways to Sunday, even without recourse to the bad grammar and lax thinking which currently infuse any given case. 

In terms of legal methodology, the Court’s cases are burdened by dicta.  Dicta means words, phrases, comments, general bon mots which are not necessary to the decision.

Every case ends in an Order such as, “judgement affirmed” or “judgement reversed.”   That order, most strictly speaking, is what the case stands for; e.g. “on an appeal from a denial of a petition for habeas corpus, the judgement of the lower court is reversed.”

However, such a procedural summation does not have much precedential value without some reference to the substantive issue which the case decided and on which it turned.  This is called the ratio decidendi — what the logic was which tipped the balance one way or the other.

Here things get dicey because the result in any case may depend on a series of questions or string of issues.  Traditionally, good legal thinking follows what might be called the “Straight Line Rule” — the ratio decidendi consists in the minimal necessary steps to get from point A to point B.   Minimal includes not only least in number but least in weight or importance.  A court should not decide a case on a grand, juicy ground, if it the case can be decided on a small, dry, boring one.  These rules promote a discipline of economy.  It is a fact of life that the more anyone talks (or writes) the more he or she simply creates grist for controversy.  Courts exist to settle controversies not to stir up the pot by writing Op-Eds or “advisory opinions.”

Although some of the most famous cases have violated precisely these rules, by and large, the Supreme Court has abided them.  But in the past 50 or so years, the Court’s cases have increasingly been larded with dicta and, as a result, have become lengthy, disputatious advisory opinions arguing over something which is most charitably described as “judicial philosophy.”

All too often opinions cite other cases not for what they actually held but for speculations, theorizings, observations and  even throw away lines.  All too often, opinions are laced with, “As we have said...”  or “As Justice So and So observed...”  One might as well take all of literature as precedent.  A certain amount of fat gives lean meat its flavor; simply frying fat produces goo.

In addition to the goo of dicta there are the thin shavings of legislative over-refinement.  All too typically the Hobby Lobby case presented a daunting array of citations such as: “26 U. S. C. § 5000A(f)(2)” or “§§4980H(a), (c)(2)” and “45 CFR §147.131(b)” or “78 Fed. Reg. 39874 (2013)” and references such as “RFRA through RLUIPA see 42 U. S. C. §2000bb-2(4) (2000 ed.) (incorporating §2000cc-5).” 

The overall result, as Edward Gibbon observed of late-empire Roman law, is

“[an] infinite variety of laws and legal opinions had filled many thousand volumes, which no fortune could purchase and no capacity could digest.”

Supreme Court literature has the tedious quality of a senescent old man talking to himself and quoting himself for nuances and propositions that  bear an idiosyncratic significance comprehended by himself alone.  

A contributing cause of this wretched state of jurisprudence is plain bad grammar.  After all, most of the justices are products of the post-war non-educational system.  Obama managed to get through Columbia without knowing what a “catechism” was and Justice Sotomayor recently wrote about "ongoing emergencies”  which "encompassed ... a threat potentially to the police" and "possible danger to the potential victim." (Michigan v. Bryant (2011) 562 U.S. ____.)

Huh?  An emergency is an ongoing possible potential harm ("danger") to a possible victim?

Many years ago, a defense attorney was dragging out a proceeding by asking verbose, compound and circumlocutional questions.  Leaning forward, the old geezer judge implored the lawyer to “just get to the point.”  “You honor,” the lawyer replied hotly, “I am obligated to defend my client to the best of my ability and words are the tools of my trade!”   “Well counsel,” the judge replied, “I suggest you get a new set of tools.”

The Supreme Court might well heed Ol Geezer’s advice.  It’s opinions are littered with pleonasms, dangling participles, composite noun-adjectives as substitutes for subordinate clauses and pseudo-concepts such as “objective reasonableness,” as distinguished from what? From,

"the reason of your reasons does with reason convince me of your comeliness” (Don Quixote, Ch. 1.) ? 

Do we really need to be “thinking” in terms of “subjective reasonableness” when the word “arbitrary” will do just as well?   As George Orwell observed in a delightfully trenchant article, "This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing."  (Politics & the English Language (1946).)

Words are indeed the “tools of the trade” and “the Law” is nothing but words.  Bad Grammar is a major cause of the current deplorable state of American jurisprudence.  

But thinking is not possible without grammar.  (Unless one is Hillary Clinton in which case “thought” is reduced to adjacent but disconnected phrases and labels exploding in the mind like some psychedelic light show.) 

Bad grammar cultivates disjointed thought. An example of lax thinking was found in the Hobby Lobby majority opinion in which Justice Alito wrote that if the complaining companies “do not comply [with the insurance requirement] they will pay a very heavy price; as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.”

To say as much confused the burden of the requirement with the burden of punishment for violating the requirement.   It is like saying that a requirement to wear seat belts is a “heavy burden” because the state might choose to punish a violation of the seat belt law with three years imprisonment.  The punishment may be excessive, but the requirement itself (to fasten one’s seatbelt) is not a “substantial burden.”

In all events, when the law becomes a heap of hyper-clever and subtle distinctions mushed together with bad grammar and sloppy thinking, anything goes.   There is no there there to guide the mind and any decision is not the deductive product of precedent but rather a manifestation of Will.  “I want” becomes the real determinant of any issue and all the rest is a masquerade of articulate howling. 

The Supreme Court justices are reportedly sensitive to the charge that they are mere second tier politicians.  The actual situation is worse.  When Will is the driving force behind Law, the Law ceases to exist.

Law, as I have said, is words and either words guide or they don’t.  If words do not guide or inform a decision then they become mere covers for an exercise of will.  Desire for a result, and no more, is the ground of decision.    One of the reason dicta is so prevalent is on account of the fact that free form "functionalist" speculation as to social goals and purposes has replaced drawing delineated inferences from existing precedents.

In Germany, the will as law was called “teleological jurisprudence.”  The law will mean what it has to mean in order to fulfill a decided upon purpose.  In the United States this methodology is referred to as “outcome determination.”  One picks a desired “social policy goal” and scrounges up the “rationales” needed to get there.  This method is taught in law schools and is considered to be be a kind of sophisticated real-jur. 

It never seems to have occurred to the deans of law schools that once the law is presented a collection of “rationales” prostituted to a result there is no good reason to take any of it seriously, unless one just happens to like being a law review monkey. As for the rest of us, once again, Gibbon,

"the Romans were oppressed at the same time by the multiplicity of their laws and the arbitrary will of their master."

And so, in the Hobby Lobby case, the deciding factor was no more and no less than the arbitrary will of the majority.  The majority fluffed up its opinion with a lot of blabber about how “sincerely” held were the beliefs of this “family corporation”  whereas the minority fluffed up its with yap about how access to “reproductive care” (aka non-reproductive abortion) was essential to “womens right to participate in the work force.”  Blah, blah, blah.

"The books of jurisprudence were interesting to few and entertaining to none; their value was connected with present use, and they sunk for ever as soon as that use was superseded by the innovations of fashion, superior merit, or public authority." (Op. Cit.)

To the extent that Hobby Lobby involved an actual legal principle, it  had nothing to do with the burdens of insurance or the viability of “reproductive care” but with the question of whether the RFRA applied to artificial persons (i.e. corporations).  In this regard, whichever way the decision went, it could have gone in three to four pages; and, in my opinion, the 54 pages of fluffy rationales which surrounded the core were intended to obfuscate the shabby rot.

The majority held that the RFRA applied to closely held corporations, citing the Dictionary Act, (1 U. S. C. §1) to the effect that  “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
 
The argument was sophomoric.  They might as easily have cited Websters or WikiWord.   It was seemingly direct and minimal.  But if it was sufficient, then how to account for the plethora of pages that followed?

All meaning is contextual and the issue was not the abstract and generally possible meanings of the word ‘person’ but whether, in context, Congress intended to include that part of the range of meanings which meant “corporations.”  It did not.

As has been said, no one disputed that the purpose of the Act was to over-rule the Smith decision and to restore the Supreme Court’s strict scrutiny standard for evaluating impacts on religious exercise. But Supreme Court decisions prior to the RFRA had never held that for-profit corporations had “worship-rights” under the Free Exercise Clause.  Nothing in the Act’s terms or stated purpose indicated that Congress intended to expand the Supreme Court’s First Amendment so as to give blanket First Amendment rights to any and all types of corporations. 

By ruling that the RFRA expanded prior Supreme Court First Amendment decisions, the majority actually did reach an issue it said it was not reaching.  It just masqueraded the result.

Alas, the pristine cleverness of the majority's ran smack into the wall of impossibility.   On  its plain face the statute excluded corporate persons because it is impossible for a corporation to worship.  Simply put, no one in their right mind would think that a statute which prohibited discrimination against persons in public accomodations applied to Ma Bell, because corporations do not sit at lunch counters or on busses.

No matter.  When logic fails, get indignant!  Pristine absurdity was followed by a sophistical tour de force  in which the majority chastised the dissent for not proving how a corporation “cannot exercise religion.”  “Is it because of the corporate form?” the majority asked rhetorically.  Would the minority be so bold and foolish to assert that mere corporate form prevented General Motors from taking Communion?! 

In answer to its own rhetorical question the majority replied that  “nonprofit corporations can be protected by the RFRA”  But this answer switched issues.  The question the majority asked was not whether the RFRA protected nonprofit corporations but how does a corporation exercise a religion.  How does it pray?  How does it repent?  How does it laud the Lord?  How does it earn eternal life?  (In fact, why should it even bother seeing as corporations by definition are of “indefinite duration.”)

This, then, is how the majority’s argument went: (1) the RFRA applies to all “persons”; (2) how can a corporation not exercise religion?  ergo (3) the RFRA applies to nonprofit corporations.   Normally this is called “talking in circles.”

Not only did the majority duck its own rhetorical question it followed up with a non-sequitur.  The reference to “non profit” corporations was an allusion to the fact that the Common Law has always recognized “religious corporations” such as monasteries, seminaries and bishoprics.  These are sui generis and have their origins in the medieval fact that ecclesiastical entities were, at one time before the nation state, their own jurisdiction independent of Crown authority. It was that independence which Article One of Magna Carta vindicated and which ultimately became our First Amendment, as updated for the bourgeois state.

To smooth over the inconvenience of a non-analogy the majority resorted to the trite but oft used analogy-by-function.  As already noted, this is the favorite hobby horse of modern jurisprudence. In this case the functionalist argument was was that just as a religious corporation “furthers individual religious freedom”  so too “allowing Hobby Lobby, Conestoga, and Mardel to assert RFRA claims protects the religious liberty of the Greens and the Hahns.”  To say as much both begged and shuffled the question. 

The question at issue was whether the RFRA, by its terms, applied to corporations in the first place.  The begging began by shifting the issue from the Greens and Hahns as clothed in corporate form to them as individuals “naked before their God.”  This switch was followed up with a second which retrieved an answer from the supposed function or societal purpose of the statute.

As precedent for its functional analogy the majority cited Braunfeld v. Brown (1961) 366 U.S. 599 which had held that a Sunday blue law did not infringe an Orthodox Jew’s religious practice of the Sabbath.

The Braunfelds were “merchants engaged in the retail sale of clothing and home furnishings.”  As observant Jews they closed up shop on Saturdays.  Nothing in the law required them to be open on Saturdays.  Their argument was that they had a religious right to be open on Sundays. 

As thus summarized, Braunfeld's argument was fallacious.  Because God enjoined labor on Saturdays does not mean that He required work (as a religious observance) on Sundays.

The Court (then in its functionalist hey day) rejected the claim, ruling that “the establishment of a day of community tranquility, respite and recreation, a day when the atmosphere is one of calm and relaxation, rather than one of commercialism”  was a legitimate secular police function which served the desirable goal of  “improving the health, safety, morals and general well-being of our citizens.” 

The Court’s ruling was as grotesque as Braunfeld’s claim.  Blue Laws were not enacted for a secular health and safety purpose but on the basis of pure and plain Biblical injunctions. The correct decision would have been that by being forced to close on Sundays a Christian observance of the Sabbath was imposed on the Jewish Braunfelds. 

As Scalia has pointed out, such “functionalization” of the law allows the Court to re-write statutes and provisions in whatever way it pleases. By the same token it allows judges to by-pass arguments they cannot refute.

So, what did the Hobby Lobby majority extract from this precedent? “In Braunfeld, 366 U. S. 599, we entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants, and the Court never even hinted that this objective precluded their claims.”

In other words, according to the majority Braunfeld stands for a proposition not reached in the case.  We have truly reached a superlative state of jurisprudence when, going beyond even dicta, a case stands for nothing it ever considered. 

Not only was the corporate issue not reached it was not even latent.  The Braunfelds had not sued as a corporation or under the RFRA, but (as the majority could not but note) as individuals under the First Amendment which it will be recalled was a claim supposedly not reached in Hobby Lobby. 

Ginzburg’s dissent rightly pointed out that Braunfeld and similar cases had involved individuals and never considered the question of “corporate” exercise of religion.

Moreover, Braunfeld  involved at most a sole proprietorship and as Ginzburg noted, “[i]n a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity ...”

She likewise pointed out that “religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations.  “Workers who sustain the operations of those corporations commonly are not drawn from one religious community.” 

In tandem, Ginzburg observed that if corporations served to protect and further the religious scruples of the Hahns and the Greens, what was one to do about the the religious beliefs of other employees who might ascribe to “sincerely held” religious values different from those of the Greens.   After all, under corporate law, the Hahns and the Greens were just as much "employees" of the corporation as the night janitor.

In Ginzburg’s view, there was an obvious and fundamental distinction between non-profit and for-profit entitities and there was no indication that the RFRA was designed to encompass both.  “Congress” she said, “does not hide elephants in mouseholes”

Ginzburg was spot on.  The defect in her dissent was that she tacitly acquiesced in the majority’s shell game  that the First Amendment issue had somehow not been reached.  Moreover her trenchant refutation of the one critical point in the case was buried in fifty pages of blather about reproductive rights and the benefits of a uniform health care system. 

In fairness to Ginzburg, she doubtless felt compelled to dissect and reply to each of the fallacious points the majority had tossed about like so much hay.  But it  would have been more efficacious in my view, if she had adhered to the premise of good judicial practice by reaching only the least, minimal and necessary question in any case. 

If the RFRA applied to non-profit corporations the case was all but decided on that point.  If it did not, then the case would have to proceed to the First Amendment” claim as such.  Since, in Ginzburg’s view, the RFRA did not apply to she ought then to have addressed why (in her view) for profit corporations did not have religious rights under the First Amendment.

But Ginzburg as much as her colleagues is a creature of capitalism and is unlikely to discard the wool sack on which she sits.

The Court has never squarely confronted whether the Bill of Rights applies to artificial persons. Instead, it has adopted an underhanded, incremental approach which has over time resulted in the civil enfranchisement of corporations which could never be justified in the light of plain day.

The skullduggery began in the notorious case of Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886), in which the court reporter, a former railroad mogul, took it upon himself to write into the headnote of the case that all of the justices were of the opinion that the Fourteenth Amendment applied to corporate persons.   The case opinion said no such thing and never reached that issue.

Even if it had reached the issue, forthrightly and on the up and up, it would not have had a leg to stand on.  

The underlying theory of the Bill of Rights is that it constitutes a reservation of primordial natural rights by natural people as against their duly contracted government.  It is not a grant of right but a reservation of birth-rights upon entering into the “social contract.”

Corporations, by contrast, are creatures of the State created by the State for such purposes and under such terms as the State shall determine best serves the public interests.  Any extension of privileges or immunities to a corporation is a matter of grace not right.  It is as simple as that.

For profit-corporations are allowed a plethora of immunities and benefits not allowed to natural persons.  They are allowed to “headquarter” themselves in one state so as to avoid paying taxes in another.  They are allowed to arise phoenix like from the ashes of bankruptcy.  Corporations are endowed with these public gifts, benefits and emoluments because they are deemed, ultimately, to serve the public interest by generating economic activity and wealth for all. 

Accepting the premise that the corporate entity serves the overall public good, there is no reason why the State cannot also impose such obligations on its creatures as it sees fit.  If a corporation wants a cornucopia of benefits for itself it can be required to provide other benefits for its employees on such terms as the State may require.

Nor is there any need to make a conundrum over newspapers and book publishers as corporations.  Because the corporate entity is a creature of the state, the government can choose to exempt the New York Times from any conceivable restrictions on its privilege of free speech. 

Should the government choose not to do so, the remedy lies in the ballot box.  If the owners of the Times want to claim an absolute free speech under the First Amendment as such, they can disincorporate and print their paper as sole proprietor individuals. 

This is not ignore the facial problem created by the use of the word “person” in the Fourteenth Amendment. Despite the fact that the legislative history of the amendment conclusively shows that its drafters were thinking solely in terms of natural persons, corporate henchmen on or arguing before the Court have contrived to use that mousehole as the the gate through which to drive an elephant.

In fact, viewed historically, the majority’s work in Hobby Lobby falls into the category of plus ça change.

In the present case, the contrivance goes even further by pretending not to reach the constitutional issue while purporting to decide the case on “narrow” statutory grounds.  As explained, that is normally considered good judicial practice but not where the two issues are to all intents and purposes the same.  In this case, there was no truly distinct statutory ground of decision.  The majority decided a major constitutional issue while piously pretending not to. 

If the Supreme Court refuses to confront the fundamental issue head on it is because it prefers a jurisprudence of incremental decisions based on contrived dicta ultimately derived from a headnote.  Its plain and evident aim is to corporatize civil society which necessarily means reducing natural persons to slaves.  The minority prefers to tinker around the edges because it too refuses to confront the fundamentals.

Not surprisingly and focusing on their own objects of desire, opponents of the decision have excoriated Hobby Lobby as “an attack on women.”   However, the principle at issue is broader than particular benefits and concerns the composition of civil society.  

There is an elephant in the room indeed.  It is a blown up contrivance of our own creation and it is time for the mice to pull out their pins and bust the balloon.

©WCG, 2014