Wheaton College Order: Missing the Point

Update: Tom Goldstein has more confused musings on Breyer's apparent join (I'd agree there -- if he didn't take part, why wouldn't they say? it is a significant order) and the possible value (in his view) of it.  The dissent, e.g., did not say the order firmly "deprived" care -- it "risks" depriving care. This isn't THAT hard.

FWIW, I think Breyer might have thought the order, without more, was something he could live with. If the government could show more evidence, e.g., of "risks" here, maybe he would change his mind. Maybe not.  Don't still much value of him joining in. Wouldn't, given his HL concurrence, Kennedy very well request similar language anyway? And, even a 4-1-4 split would give you the same result there, just four justices who questioned if the coverage actually would be properly supplied. Breyer could have briefly commented to note this.  Sorta sick of the whole thing.

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Prof. Lederman's posts on RFRA and the contraceptives mandate cases are getting a bit out of hand. I think even many law professors at some point will get lost on his extensive discussion on the Wheaton College order. Tom Goldstein, a lawyer if not a professor, disagrees somewhat with the analysis.  And, is himself wrong on a key point in my view:

The dissent’s response in Wheaton College is that “the Court has no business rewriting administrative regulations” and that it is concerned that the Court’s rule may not be “workable or administrative on a national scale.” But it doesn’t otherwise explain its reason for believing that the injunction “risks depriving hundreds of Wheaton’s employees and students of” coverage.

I think the first part is damning enough -- broadly, it is appropriate to leave to the executive department the discretion to write regulations that fit the needs of the statutes and agencies involve. It is not in the skill-set of the courts per se to know all the ins and outs there regarding what is necessary to best advance the ends, including not depriving people contraceptives, including for some period of time.  Still, noting this is an intermediate order, so the dissent won't be as detailed as a final ruling, it did note:

Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating database that tracks every employer's insurer or third-party administrator nationwide? And, putting that aside, why wouldn’t Wheaton’s claim be exactly the same under the Court’s newly-fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage.

How is this not explaining "the risks"?  This is just an example. As I have repeatedly noted, RFRA is not going to only cause concerns in this one area of law.  The extended focus on but one tidbit by Marty Lederman suggests the problems for agencies, lower courts etc., especially when "restoration" of religious freedom means expansion of it, at least for some people in some cases.*  Insubstantial burdens will lead to additional complexities time and time again, often in cases out of the public eye, partially since they don't touch upon the hot button issue of sex related topics.

But, perhaps most importantly, he seems to miss the point of how such hair-splitting on each possible regulation with some "significant burden" (I use quotes advisedly) on religious beliefs is problematic. I think it harms religion particularly.  Some of the responses I have read include comments by those who are no fans of "religion" including various comments with a sort of self-satisfied "I'm an atheist, so I don't buy into that sort of crap" tone.  Religion need not involve belief in God (many follow Jewish or Christian ritual while being nonbelievers in that fashion).

Moving past that, it is a matter of ritual, community and so forth that brings forth many positive things.  Anyway, millions are believers and are basically, shall we say, are not assholes.  A subset are, but that shouldn't be used to smear religion generally. You disrespect many of the liberal community too.  Still, how surprised are we that this occurs? If "religion" is going to come off as greedy and inconsiderate of the needs of others (see also, let's say gun rights where even broadly supported legislation is blocked in Congress), it will be seen as a bad thing.

I guess, as Breyer might assume, the order here is workable and contraceptives will continue to be provided to those in need. I say such things warily, especially if some future administration is involved. To take a for instance, it was only by chance that I determined the health insurance I myself use doesn't provide certain types of family planning. Perhaps because of my sex and lack of a dependent who would use it, but who knows, I was not specifically notified that an alternative was available via the government.  The fact that certain companies only after ACA came along (I'll be nice and assume good faith here) decided that they had religious opposition to ongoing coverage underlines the level of oversight and confusion possible here.

But, big picture, the whole thing is troubling.

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* The level of disconnect and different wavelength thinking here is highlighted by the failure of many apparently to realize that contraceptive (and even abortion) coverage furthers the religious needs of many people. Many mainstream Christian religions, e.g., quite explicitly accept such usage, especially when it would prevent abortions. And, do so, in the context of religious beliefs and practice.  Employee choice in this fashion promotes free exercise principles and avoids religious favoritism.

Sometimes, the claim is that such people are different because they are not being required by the government to do something. But, as suggested before, regulation "secures" liberties in various respects, and those supportive of these claims surely recognize this in regard to state authorized accommodations in non-governmental employment.  Employment is not purely private -- "public" accommodations are involved.  At the end of the day, we are left with hairsplitting. Tiresome.