Wednesday, July 2, 2014

Hobby Lobby, The Supreme Court and Strict Scrutiny

It's been said that in polite society, one does not discuss religion or politics.  Over the last couple of days, however, every media outlet in our society seems to have been quite impolite in discussing religion and politics, specifically regarding the Supreme Court decision involving retail chain Hobby Lobby and the Department of Health and Human Services mandate for contraception coverage under the Affordable Care Act ("Obamacare").  So, in the spirit of polite society, let us take the religion and politics out of the discussion for a while and focus on the process by which the Supreme Court judges cases like this and the tests they apply in order to come to their decisions.

In a case like this, where there is a fundamental Constitutional protection at stake, the justices will generally apply a set of tests known as "strict scrutiny".  This method of analysis requires the defendant (almost always a governmental entity) to prove three things:  One - is there a compelling governmental interest at stake?; Two - is the law narrowly tailored to advance that interest?; and Three - is this the least restrictive means of executing that interest?   Let's look at each element and see what they mean.

Is there a compelling governmental interest at stake?  In other words, is there something the government wants to do that is considered critically important to the country as a whole?  Is it more than simply a preferred course of action or something "nice to do"?  The government lawyers must convince the court that there is a national need so important that it may require the curtailment of some individual liberties.  That, of course, is a tough case to prove, but rightly so - none of us wants the government restricting our Constitutional protections for just any reason.  It must be a "compelling" reason (though, to be clear on it, the court has never "brightly defined", to use a legal term, what exactly constitutes a "compelling" interest, leaving it up to a case-by-case basis).

Next, the government must also prove that the law is narrowly tailored.  It cannot be an over-broad or blanket rule.  The focus of the government action must be specific to the compelling government interest at stake and can't encompass a wide range of actions.

Finally, if the government proves the first two cases, it must also prove that the law under review is the least intrusive means of employing it.  If there are other means of accomplishing the government's goal that do not interfere with Constitutional protections, or at least interfere minimally, then the court will likely direct that those methods be employed, rather than the one under protest.

Now, as an exercise, put yourself in the place of the government lawyer arguing before the Supreme Court (remember, the burden of proof in these cases is on the government, not on the plaintiff).  How would you argue that the mandate under question is a compelling interest of the government?  Could you make the case that birth control leads to fewer unwanted pregnancies, and therefore likely lower welfare payments for the government?  Sure - sounds like a reasonable argument.  But can you make the case that is a compelling national interest - one so important that it can potentially supersede someone's freedom of religion?  That's a tougher case to make.  But let's say you're super-lawyer and you make the case.  The justices agree that the reasons above and others you put forward are justification enough to show a compelling governmental interest.

Next, you need to prove that the law is narrowly tailored.  Is it specific enough that it can't be reasonably interpreted to cover other areas?  If the law is written clearly, this is likely the least problematic of the three questions to answer.  Let's say you prove this case, as well.

Now, the grand finale - is this the least intrusive way of accomplishing the government's interest?  Is there no other way than this to do what the government says must be done?  This is where, I think, many of the cases fall apart.  With apologies to our feline friends, there's more than one way to skin a cat, and it's a tough sell to say, "Your Honors, there is no other possible way to do this."  Again, this is a very high bar to set, but thankfully so.  It's a great throttle on government power, and this is the kind of thing the Supreme Court was really set up to do (or if not specifically set up to do, it assumed that power in the landmark Marbury v. Madison case).  It's no wonder the government bats well south of .500 in strict scrutiny cases - they are very tough to prove (though, interestingly, given the current case, the government has historically done better than average in religious freedom cases).

But even if the court applies strict scrutiny and rules in favor of the government, they can still make bad decisions, such as in the infamous Korematsu (Japanese-American internment) case during World War II.  The court members, after all, are human, and therefore prone to error, just like the Legislature and the Executive.  After all, that's why we have three co-equal branches of government.

I hope this (very brief) explanation has provided some clarity about the judicial process, and that no matter which side you've taken in the Hobby Lobby case, you can at least appreciate the procedure and the tests that the court applies in matters of fundamental Constitutional liberties.