Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted.

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Mike Spector: The Passing of a Public Servant

IMichael-Spector1 set out in June to write a story for the current issue of Marquette Lawyer magazine about the state of the idea of local control of schools. I started with the expectation of saying local control was pretty much a fiction now, amid all the laws and regulatory mandates coming down from the federal and state governments.

The first person I went to talk to was Mike Spector. I knew if I wanted wisdom, perspective, and common sense, he was at the top of the list. And he knew a huge amount about schools – for decades, he was a leader as a lawyer and citizen in education matters in the Milwaukee area and throughout Wisconsin.

And it only took him a few minutes to shift my thinking on the piece I was going to write. He talked about the law on local control in Wisconsin. He talked about the history of specific issues. And he pointed out how local school boards, school administrators, and teachers can still put their own imprint on the education they offer. Look at how different communities have different education cultures and practices, he said, citing his home community of Shorewood, where he was involved in school governance for many years, and how its education culture differs from nearby communities.

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Here’s What We Don’t Know About Election Day

By now, we’ve seen the ads.  We’ve heard the talking points. We have at least some idea of which policy positions Scott Walker and Mary Burke favor or oppose.  But with only hours remaining before the votes are counted, there is still plenty we don’t know about the 2014 gubernatorial election in Wisconsin.

Some of it has been hashed over pretty thoroughly.  Turnout, for instance.  Simply put, the Burke campaign needs less-likely Democratic voters to go to the polls in numbers that more closely resemble a presidential election, or at the very least, the 2012 recall election for governor.  Three million people in Wisconsin voted in the November 2012 presidential contest.  Two-point-five million voted in the June recall election.  If turnout looks more like the governor’s race of 2010, when 2.1 million people went to the polls, the Burke campaign will face enormous odds, given historically strong turnout by Republican voters in the state.  But turnout is hardly the only “great unknown” Tuesday.  Here are a handful of others to consider.

1) Do Democrats return to the fold?  Exit polling data from the June 2012 recall election suggests a number of Democrats voted for Governor Walker because they didn’t agree with the recall. Even AFL-CIO President Richard Trumka told me recently that some of his members supported Walker in 2012 because of their discomfort with the recall.  And Trumka is hardly a fan of the governor.  Walker acknowledges that those voters exist.  The question is will they stick with him in this election, or return to their Democratic-voting ways. 

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