interview by Hugh Hewitt (HH)
HH (Hugh Hewitt): … There occurred in the Bill O’Reilly interview with President Obama on [Superbowl] Sunday – and my following conversation with Bill O’Reilly yesterday — a couple of exchanges that led me think I needed to bring the “Smart Guys” in for a special extended segment today. The Smart Guys are, of course, Professor John Eastman (JE), dean emeritus at Chapman University’s Fowler School of Law, and Erwin Chemerinsky (EC), the dean of the University of California, Irvine School of Law. They are the Smart Guys (Note: John Eastman is generally ‘Conservative’ and Erwin Chemerinsky is generally ‘Liberal’). [And] I promised you that coming up to the March 25th arguments before the Supreme Court in Hobby Lobby, I would cover the case extensively. And, as I get you ready, and I see President Obama and Bill O’Reilly sit down and blow up all my good work, I wanted to go back and repair it and then do so with the Smart Guys.
BO’R: Little Sisters of the Poor, come on, give them their little waiver that they don’t have to buy…
PO: They have, you know…
BO’R: Come one, Little Sisters of the Poor, give them want they want, all right?
BO’R: Right now, let’s just do this.
PO: Bill, take… here’s the way this thing works. All they have to do is sign a form saying they don’t, they are a religious institution, and…
BO’R: And they get what they want, right?
PO: They get what they want. The problem is they don’t want to sign the form, because they think that that somehow makes them complicit.
BO’R: All right, I’m happy now that the Little Sisters of the Poor are going to get what they want.
HH: All right, so that was (Superbowl) Sunday. So then, O’Reilly comes on with me yesterday; which exploded into the big Dana Milbank/ Bill O’Reilly confrontation. But here’s part of what I told Bill yesterday.
HH: You blew the Little Sisters of the Poor question, because you mixed up your cases that were remanded to the Circuit. Only lawyers would know this stuff, but it’s the Hobby Lobby case. And, he out and out lied to you about all they have to do is sign a piece of paper. That’s simply not the case. But you’re not a lawyer, and I don’t expect you to know that.
BO’R: But I can’t take up time…
BO’R: …explaining that to the audience who doesn’t understand it.
BO’R: I was hoping I could get a taunt there.
HH: And so we went on. John Eastman, the conflation of Hobby Lobby and Little Sisters of the Poor is very annoying to me, because they are very different cases. And the media doesn’t seem to understand this.
JE: Well, that’s right. The issue at Hobby Lobby is whether a non-religious corporation, company that’s closely held and furthers the religious views of its owners is entitled to religious exemptions either under the 1st Amendment’s Free Exercise of Religion clause, or the Religious Freedom Restoration Act. And the administration has taken the position that once you enter into the marketplace, if you will, and take on a corporate stature, the corporation doesn’t have a religious free exercise right. And that becomes particularly acute when you’ve got an organization like the Little Sisters, which of course is incorporated as well, as are just about, whether corporations sole or all sorts of different corporate structures that the organized churches in this country use to do business in this country, where do you draw the line? And I think what the President was saying there is if you just claim you’re the church rather than an affiliated religious organization, we’ll give you the churches exemption. But of course, the right to exercise free exercise of religion is much broader than just the structure, the tabernacle, the church, the synagogue, the mosque, what have you.
HH: And I’m going to come back to Hobby Lobby, but Erwin, would you first for the audience tell people what the Little Sisters of the Poor case is, and why the President and Bill O’Reilly were just, they just didn’t have a clue what they were talking about.
EC: I want to strongly agree with you. I don’t always get to say that, but here, I do. I think that they mixed up distinct categories. The regulations promulgated by Health And Human Services create three categories. One is for the religious institution itself, the Catholic Church. It does not have to provide insurance to its employees that include contraceptive coverage, period. That’s not what we’re talking about here. The second category is religiously affiliated institutions. I think of here a Catholic university. Here, the example is the Little Sisters home for the Aged, the ‘Little Sisters of the Poor Home for the Aged,’ it’s called. They can get out of the obligation of providing contraceptive coverage by signing a two page form. That’s what President Obama was referring to. The third category is secular corporations. They must provide insurance to their employees that include contraceptive coverage. ‘Hobby Lobby’ fits into this category. ‘Conestoga Wood Specialties’ fits into this category. But I completely agree, I think it does no good and just causes confusion to not keep these categories distinct.
HH: And we are not now going to talk about Little Sisters of the Poor, except, Erwin, procedurally, it is gone back down to the Circuit (court) without substantive guidance from the Supreme Court. Am I not correct?
EC: That’s exactly right. They went, and they brought a challenge right before they’d have to comply, and what the Supreme Court simply did was say let’s freeze the situation so they don’t have to sign anything, and they don’t have to provide for insurance that includes contraceptive coverage so as to allow this to be litigated in the lower courts. But the Supreme Court was clear, as you just said, it was taking no position on the ultimate merits of whether having to sign this two page form violates its religious freedom.
HH: And so what I told Bill yesterday is that he really botched it and his staff didn’t help him too much. He ought to have asked about Hobby Lobby, and he ought to have asked; Mr. President, Hobby Lobby employees 28,000 people. The Greens have run their company as a Christian company from the time they began it. There were 81, [John Eastman], amicus briefs filed in the Hobby Lobby case this past week, the deadline came, (56 of which supported the Greens). That’s a lot of amici, what do you make of the split?
JE: Well, the split’s interesting, and I should, for full disclosure, we’re one of those 81, or one of the 56, if you will, supporting Hobby Lobby, and we’ve actually taken a pretty hard line that since the founding, people have engaged through corporate structures and whatever in religious exercise. Religion isn’t something you do only on Sundays. It was kind of life-encompassing. And the notion that a businessman just to enter the marketplace has to leave his religion at the door, if you will, it’s just foreign to our understanding of the 1st Amendment. So…and as far as the number of the briefs, I think a lot of organizations around the country recognize how significant this case is in establishing the contours of our free exercise rights in the public square.
HH: Now Erwin, a total of 107 federal legislators from both houses, including 15 U.S. senators and representatives who co-sponsored the 1993 RFRA, 21 state governments, a broad representation of prominent religious leaders from all Christian denominations, Jewish publishers, orthodox Jewish groups, a Santeria church, a Hindu society, influential Islamic scholar, more than 30 eminent legal and Constitutional scholars, Democrats for Life, medical groups, several women’s groups, they all lined up with Hobby Lobby. Did you file on the other side, on the…
EC: I did not, so I could also read you the list of impressive people on the other side. And I don’t think we get anything in any Supreme Court case by reciting who are the amici on each side. I disagree with John pretty strongly about this one. I think that they have the right to run their business however they want if they don’t want to make it a corporation. Once they make it a corporation, though, they’ve said that there’s an entity that’s separate from them. And they create the corporation to protect themselves from liability. Their only liability is whether they invest in the corporation. And if there’s no distinction between the entity and individuals, then the individuals become liable for what the entity has done. A corporation is a fictional entity. It can’t have religious beliefs.
HH: Now Erwin…
JE: Well, let me press that.
HH: All right, go ahead.
JE: Can a corporation have free speech beliefs? And the New York Times is a corporation. It clearly has 1st Amendment rights. The Catholic Church is structured as a corporation. It clearly has religious rights. So why just draw the distinction by you saying there are secular corporations? The owners of Hobby Lobby, and the owners of Conestoga Wood conduct their business out of their religious beliefs. They do it under the corporate structure, but that doesn’t make it any less protected of their actions.
EC: First, with regard to speech, the Supreme Court has said, including in Citizens United and First National Bank of Boston V. Bellotti, we protect the right of corporations to speak, because it means all of us are better informed. We don’t give corporations the right to speak because there’s something about the autonomy of the corporation. We give corporations the right to speak because instrumentally, it’s good. All of us get more speech. All of us are exposed to more ideas. That has no analog with regard to religion. Second, no one here is disputing that the Catholic Church doesn’t have to provide this. The question is if it’s a secular corporation, truly a fictional entity that’s distinct from the owners, and if somebody wanted to, if Hobby Lobby was sued, go after the owners and hold them liable, the owners could rightly say that’s a separate entity. That’s not me. Unless you can “pierce the corporate veil”, they’re not liable. I don’t think they can have it both ways. I don’t think they can say for purpose of this law, we’re the same as the corporation, but for purpose of liability, we’re really different.
HH: When we come back, we’re going to allow Erwin and John to ask each other questions as though they were Justices facing down Paul Clement or the Solicitor General. Paul Clement, I assume, will be arguing at least part of the case for Hobby Lobby. And of course, the Solicitor General will be arguing it for the Obama administration. So we’re going to start to game this a little bit. Don’t go anywhere, except maybe to http://www.hobbylobbycase.com. That’s www.hobbylobbycase.com.
HH: The Hobby Lobby Corporation is owned by the Green family. They have more than 550 stores in 45 states employing more than 28,000 individuals, many of whom will stand up and say this is the greatest company they’ve ever worked for. But they are organized around the Christian belief of the Greens, and they’ve always allowed their faith to guide their business decisions, as the 10th Circuit Court of Appeals recognized in their decision on this. But the United States Government wants them to provide the morning after pill, and the Greens won’t do it. And whether or not the corporation has the right to refuse will be the subject of that.
John Eastman, if you’re a justice, and Erwin’s in front of you as the Solicitor General, what question would you direct to him?
JE: Well, Professor Chemerinsky, Dean Chemerinsky, how far are you going to push your rule, that, once you engage in business by using the corporate form, the entity itself no longer has religious exercise rights? Will that apply to a limited liability corporation? Your position, it seems to have been, that the limitations on liability that come from using the corporate form should distance you from being able to claim religious exercise rights on behalf of the corporation. Would that apply to a limited liability corporation, a limited liability partnership?
EC: People create a corporation so as to shield themselves from liability. It’s an entity that’s distinct from them. A corporation can’t have conscience or beliefs. So if what you’re talking about here is a limited liability corporation that is a separate identity, the answer is they can’t have religious beliefs. However, a partnership is different, because with regard to a partnership, those who are the partners are fully liable for whatever happens in that partnership. And so I would say that a partnership can have religious beliefs, because the partnership is the alter ego of the individuals who own it.
JE: I’m stunned that you would say, Dean Chemerinsky, that corporations shouldn’t and can’t have conscience or beliefs. In fact, we have whole movements trying to hold corporations to social responsibility and conscience in the way they conduct their business. And this particular corporation at the behest of its closely held owners has decided to exercise corporate responsibility and consciences as a corporation by not supporting the funding, the subsidizing the provision of contraceptive and abortion services for its employees Why shouldn’t this corporation be able to act in its defined socially-conscious way, in the way that other corporations act in environmentally conscious ways, or a Free South Africa conscious ways, or a number of other things that have been movements over the last couple of decades?
EC: Your Honor, your question confuses the desirability of a corporation acting in a socially responsible way versus the ability of the law to regulate the corporation, and whether the corporation has a right to ignore that law. Sure, I want every corporation to act in a socially responsible way. But that’s not the issue in this case. The issue in this case is can the corporation claim and exemption either under the 1st Amendment or under the Religious Freedom Restoration Act, the law that applies to all other employers? To speak of social conscience generally doesn’t answer that question.
HH: Now I want to switch over to allow Justice Chemerinsky to pose a couple of questions of Counsel to Hobby Lobby, Mr. Eastman.
EC: Professor Eastman, if a Christian Scientist owns a company and doesn’t believe in medical care, can it refuse to provide any health insurance to its employees under your theory?
JE: Yes, it can, and those employees are free to get health insurance in another manner, or not to work for that company.
EC: Do you believe there’s a compelling interest in making sure that everybody in this country has health insurance, and that often requires it coming through the employer?
JE: Well, you’ve conflated two issues there. One, I don’t think there’s a compelling governmental interest to force other people to pay for a third person’s health insurance. The government seems to want to do that, but there’s a more direct way to do it. Even if it is a compelling interest, forcing an employer to provide insurance and health services that violate its fundamental beliefs, even if that’s a compelling interest, there’s a more narrowly tailored way to provide health insurance to those individual employees, and that is to have the government do it directly. That has the added benefit of not hiding the costs of what the government is imposing here.
EC: Let me ask you this. So if there’s an employer who on the basis of conscience believes that providing insurance to their employees is wrong, will you allow that employer on the basis of conscience to have the same privilege you’re giving to those who have religious opposition?
JE: Yes, I would. I would. In fact, quite frankly, the extent of the federal mandates in this context so far exceed Congress’ authority to regulate commerce, as the Supreme Court itself recognized when it considered the Constitutionality under the Commerce Clause, that we really ought to be very careful about what the federal government is mandating people to provide. And there are more direct ways that the federal government through its Tax and Spending power thinks provision of health services to everybody in the country is a valid and Constitutional good. They can do it directly rather than imposing mandates on employers, whether corporate or private, that violate their conscience, including their religious beliefs.
HH: All right, now this is Chief Justice Hewitt directing a question to both. Isn’t this a fairly simple case, that RFRA was passed overwhelmingly by Congress, and an accommodation must be made, Dean Chemerinsky, that there’s a private market for birth control. People can buy their own birth control. Why in the world must it be mandated? It’s not that expensive.
EC: Actually, for a woman, that’s what we’re talking about here, is coverage for women, birth control can be about $600 dollars a year. And maybe for you or me, $600 dollars isn’t insurmountable. But for many people, $600 dollars is an enormous cost. And what Congress has decided here is that it’s so important that insurance provide for preventative health care coverage, and contraceptives are that, in fact, this Court has repeatedly said there’s a fundamental right to purchase and use contraceptives.
HH: And Mr. Eastman, I’m sure Dean Chemerinsky believes that, but as a matter of course, RFRA was concerned with much greater impositions than $600 dollars. Isn’t this just a pretty quick cut and dried RFRA case?
JE: It is, and you’re requiring a company, and its closely held owners, to basically violate their fundamental religious beliefs. RFRA says that in no act of Congress, government shall not substantially burden a person’s exercise of religion. And of course, person is elsewhere defined in the U.S. Code to include corporations. And what we have here is a substantial burden on the free exercise of religion by mandating that people violate fundamental tenets of their religious faith in order to continue in business, because the fines that will be imposed on them will put these companies out of business.
HH: And a last question for you, Dean. If you know, we upheld this law last year, and it was very controversial, and many people hate this law. If we carve out an exception for those who are religiously motivated, aren’t we just rebalancing the scales a little bit, because this thing was barely alive after our last consideration of it.
EC: I don’t know that 5-4 is any more barely alive and 9-0. What I’ve learned as a lawyer is 5-4 and 9-0 have the exact same meaning. This Court upheld the Constitutionality of the Patient Protection Affordable Care Act. This is a distinct question. This is not about whether or not the law is Constitutional. This is about the question of whether or not requiring secular companies to provide contraceptive coverage for their employees violates the Free Exercise of Religion, or the Religious Freedom Restoration Act.
HH: Do you agree with that, Mr. Eastman? Ten seconds.
JE: Well, it is, but I think it’s broader that just religious liberties. It’s liberty, and the government is intruding on it.
HH: Erwin Chemerinsky of UCI, John Eastman of the Fowler School of Law at Chapman University, one of many conversations we’ll be having about Hobby Lobby before March 25th. Thank you.
End of Interview
Interview transcript derived from hughhewitt.com.