Hoisted on its Own Petard
As Adam Liptak reported in the NY Times today, the Supreme Court is poised to grant cert Tuesday in a case challenging the Affordable Care Act’s contraception mandate as a violation of religious liberty. The case raises important questions about the free exercise rights of for-profit corporations and is, in that sense, a sequel to Citizens United, albeit involving religion instead of speech. But it is also interesting for what it reveals about the ongoing power struggle between the Supreme Court and Congress. In particular, the case shows how Congress’ efforts to counteract an unpopular Supreme Court decision may come back to haunt it.
Consider the following chronology of events:
1990 – A (mostly) conservative majority of the Supreme Court holds that neutral, generally applicable laws that incidentally burden religious practice are subject only to rational basis review under the Free Exercise Clause, instead of the strict scrutiny that had been applied for nearly three decades.
1993 - Spurred by public outrage over that decision, Congress, in a rare show of bipartisan unity, responds by passing the Religious Freedom Restoration Act, which attempts to restore the standard of strict scrutiny for any state or federal action that substantially burdens religious exercise.
1997 – Annoyed by this challenge to its authority, the Supreme Court strikes down RFRA’s application to the states, holding that it exceeds Congress’ power under section 5 of the 14th Amendment. But the Court leaves intact RFRA’s application to the federal government, which is not dependent on the reach of section 5.
Now fast forward to the present and the contraception mandate. Although the mandate includes an exemption for religious organizations, it does not exempt for-profit secular corporations. That has prompted lawsuits by corporations with religious owners who believe the law violates their right to religious freedom.
As a result of the Supreme Court’s 1990 decision, those corporations are not likely to succeed under the Free Exercise Clause since the Affordable Care Act is a neutral, generally applicable law that was not targeted at religious practice. So they are also invoking RFRA, and having at least some success. This summer, the Tenth Circuit held that for-profit corporations are covered by RFRA, and that the contraception mandate cannot survive strict scrutiny. The Supreme Court is likely to grant cert, and if does so, the odds seem high that the conservative majority that nearly struck down Obamacare two years ago will rule against the government.
In other words, a law that Congress passed twenty years ago in a response to a deeply unpopular Supreme Court decision – a law that was mostly gutted by the Supreme Court in 1997 — will likely be used by the Court’s conservatives to strike down an important element of another federal statute. And Congress, having tried to do battle with the Supreme Court, will find itself hoisted on its own petard.
The qualification to this account is that only the liberals in Congress will be troubled by this turn of events. The conservatives will no doubt be pleased that a law they supported in 1993 is now being used to undermine one they opposed in 2010. And the Supreme Court, as usual, will have the last word.