The Supreme Court’s 5–4 ruling granting certain for-profit companies religious exemptions from Obamacare’s contraceptive mandate has of course generated a flurry of debates between conservatives and liberals (with libertarians siding with the right not to be forced by the government to violate your conscience). But what about within the camp that supported the decision in Hobby Lobby? Was there some conservative vs. libertarian split?
Well, as it happens, one of the icons of the libertarian legal movement, my former professor Richard Epstein, contributed an article to the most recent volume of the Cato Supreme Court Review. He concluded that Justice Samuel Alito’s majority opinion reached the right result for the wrong reason, that the Court should’ve rejected the mandate because the government didn’t have a compelling interest to advance not because it didn’t use the least-restrictive means to advance it.
Epstein wasn’t able to attend our Constitution Day symposium, however, so Ed Whelan — president of the conservative Ethics & Public Policy Center and noted legal contributor to National Review Online — took Epstein’s place in discussing Hobby Lobby. Whelan took issue with Epstein’s approach; during the panel [see starting at 35:00] his comments about the Review article were akin to Justice Antonin Scalia’s “blistering concurrences” this term, agreeing with little other than the final judgment.
So this sounds ripe for the libertarian-versus-conservative trope, right? Maybe Epstein focused on liberty and Whelan on religion? Actually not really; (most of) their dispute is more about principle with pragmatism.
Whelan’s main line of attack, which he wrote up for NRO’s Bench Memos blog, is that Epstein failed to take into account the need to get five votes for an ultimate ruling. “The short answer to Epstein’s argument that Alito should have ruled on this basis is that Alito doesn’t have four colleagues who are Richard Epstein.”
Epstein replied — which reply Whelan graciously had posted on NRO, along with the rest of their debate — that they were “operating on different levels.” “Whelan’s short answer is no answer at all. For all I know, Justice Alito could not have garnered even his own vote for the position I espouse.” Epstein argued for the “necessity for normative analysis.”
Whelan retorted that they were both analyzing the “intellectual and tactical” perspectives of the ruling:
Do I think that Epstein’s “normative case” is “wrong or correct”? That depends on what Epstein means by the question. If he is asking whether I think it is (to use his phrase) “an extravagant abuse of state power” to “force a religious group to act against its conscience by supplying standardized products that are available in competitive markets,” my answer is a definite yes.…
But if Epstein is asking whether I think that the term compelling governmental interest in the Religious Freedom Restoration Act should be construed according to libertarian principles, I’ll have to express my doubts. Under an original public-meaning approach to statutory interpretation, the relevant inquiry is whether the public meaning of compelling governmental interest at the time that RFRA was enacted would support Epstein’s position. I’m not aware of any showing that it would.
So here at last we do have some engagement on the same (normative) field of play. Epstein did have one final point to clarify, however, saying that
Whelan’s reading cuts the salami too fine. Justice Alito observes that it is open to “the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” He then adds “We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty” (emphasis added). In my view, this method is not just a viable alternative, but an ideal method which could apply across the board, including the Wheaton College application [which involved a nonprofit religious employer]. Indeed, what would a better accommodation look like? …
It is therefore a far cleaner resolution to rule in favor of Wheaton College on the merits by making it clear, as I have argued, that the state did not satisfy the compelling-interest standard. The fact that Whelan and I can disagree over the correct reading of the Alito opinion shows at the very least the elusive interpretation of a question that need not have been addressed in the first place.
Epstein has one ultimate sur-reply to that, which ends, amusingly: “How odd that Sotomayor seems to fare better with Epstein than she did with Justice Breyer (who didn’t dissent in Wheaton College).”
I find things to agree with in both writers’ presentation, and I commend this series of writings to anyone who wants to “unpack” (as the academics say) some of the rich debate on Hobby Lobby even among the ruling’s supporters.
Incidentally, I have a book coming out about the case in November; co-authored with David Gans of the Constitutional Accountability Center, we debate the titular question, Religious Liberties for Corporations? Look for it in November.
