Patterico's Pontifications

11/6/2013

Emily Bazelon and Dahlia Lithwick Completely Misstate Holding of Controversial ObamaCare Opinion

Filed under: General — Patterico @ 6:31 am



UPDATE: Ed Whelan posted about this three days before Olson did, and appears to have been the one who triggered the non-correction correction. Ed’s post opened:

Wow. Is it too much to ask that those condemning a decision actually read it enough to have a basic understanding of it?

Indeed. Apparently it is.

Apologies to Ed for failing to give him credit for being (as far as I can tell) the first analyst to bust Bazelon and Lithwick on their misstatements. Here is the original post:

The redoubtable Walter Olson of Overlawyered hits it out of the park with this excellent post at PowerLine. In the post, Walter demonstrates that Emily Bazelon and Dahlia Lithwick of Slate flatly misstated the holding of a controversial ObamaCare opinion by Janice Rogers Brown. Olson’s post opens with this paragraph:

What happens when the legal analysts at Slate get things flatly wrong, in the service of generating a desired ideological frisson for their liberal-minded readers? Does anyone act embarrassed or make humble noises about not letting it happen again? These questions arise following a November 1 column in which Emily Bazelon and Dahlia Lithwick baldly, flagrantly misstate the holding of a new opinion by Judge Janice Rogers Brown deeming the Obamacare contraceptive mandate in present form to violate the Religious Freedom Restoration Act (RFRA). (RFRA, enacted in 1993, requires government to take certain steps to avoid, when it can readily do so, substantially burdening religious observance.)

Brown’s opinion (.pdf) ruled that the contraceptive mandate in ObamaCare violated the free-exercise rights of the owners of a company. Because the owners have a religious opposition to contraception, Brown wrote, the mandate infringed on their right to exercise their religion by requiring them to do an act — paying for contraception — that violated their deeply held religious beliefs.

In addition, the plaintiffs argued that the company itself was entitled to argue that its rights were violated. If a corporation’s free speech rights under the First Amendment are protected, the argument went, the corporation should also be able to assert free-exercise rights under that very same First Amendment. Not a crazy argument, right?

But Brown’s opinion rejected that argument, allowing only the individuals in the company — and not the company itself, to assert free exercise rights. Brown said that the Free Exercise Clause can extend to religious organizations and entities, such as churches. But, Brown wrote, the company in question was not a religious organization. And so, while it is not impossible that the Supreme Court could one day grant free-exercise rights to a non-religious corporation, Brown wrote that the precedent for doing so was too thin:

While we decline the Freshway companies’ invitation to accept Townley’s ipse dixit that closely held corporations can vindicate the rights of their owners, we understand the impulse. The free exercise protection—a core bulwark of freedom—should not be expunged by a label. But for now, we have no basis for concluding a secular organization can exercise religion.

I gleaned the above by reading the opinion. Evidently, Bazelon and Lithwick did not read the opinion — or, if they did, they either didn’t understand it or consciously chose to lie to their readers about its holding. It’s worth quoting Bazelon and Lithwick at length to see just how brazen their misstatement is:

On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. Brown handed down a similarly dramatic decision holding that the provision in the Affordable Care Act that requires companies to provide health care coverage that includes contraception “trammels” the religious freedom of an Ohio-based food service company, Freshway Foods, through its two owners, who claimed that the mandate violated its Catholic faith. This is a company we are talking about, not its owners. But following headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United that corporations are people, too, Brown found that the mandate violates the company’s strongly held religious convictions. To make the company provide a health care plan—from an outside insurer—that offers contraceptive coverage is a “compel[led] affirmation of a repugnant belief,” Brown wrote. The argument that a for-profit secular company has a religious conscience—separate and apart from the religious beliefs of its owners—is a notion that vaults the concept of personhood from the silly (“corporations are people, my friend”) to the sublime (also they pray).

It’s also a notion that Brown rejected as a legal matter. You see that quote above from the opinion? Here again is the part I bolded: “we have no basis for concluding a secular organization can exercise religion.” That is the exact opposite of Bazelon and Lithwick’s claim: that Brown argued that secular companies “pray.” Here is more from the Brown opinion, showing that Brown was not saying that secular corporations pray:

Perhaps Appellants’ constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free-exercise right, will ultimately prevail. But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. See Conestoga Wood, 724 F.3d at 384. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent.

As you can see, far from “following headlong in the wake of” Citizens United, Brown drew and explicit and quite clear distinction between corporations’ ability to exercise free speech rights and their ability to claim free-exercise rights.

Bazelon and Lithwick could have written that Brown had rejected free-exercise rights for the company, but conferred them upon the company’s owners. They could have argued that this was a distinction without a difference. They could have said that allowing a company’s owners to raise constitutional objections to a mandate directed at a company in effect confers free-exercise rights on the company. In my view, that would be a losing argument, but at least it would not be a dishonest one.

But that is not what they argued. Instead, they told readers “[t]his a company we are talking about, not its owners”; and said Brown had “follow[ed] headlong in the wake of the Supreme Court’s wrongheaded finding in Citizens United”; and indicated that Brown had ruled that a for-profit secular company is a person that prays — when Brown had said the exact opposite.

In short, they blatantly misstated the contents of the opinion to their readers. As Olson notes, it is as if they had their laugh lines written in advance, and they were going to be damned if they were going to let a little thing like the holding of the opinion cause them to rewrite their snark. And anyway: isn’t it easier to make fun of the ruling when you can conjure up the image of a corporation getting on its knees in church? If the judge rules the corporation isn’t a person for purposes of the Free Exercise Clause, there goes that cheap way to attack the opinion. Then you have to make a subtle argument equating owners’ rights with that of the corporation, and subtle arguments iz hard.

So: what did Slate do when they got caught? Slate vaguely admitted a misstatement (good) — but hid the magnitude of the error (bad), and pretended that the argument made in the column was “effectively” correct (awful). Here is the “correction” now appended to the end of Bazelon and Lithwick’s column:

Correction, Nov. 3, 2013: This article originally said the contraception mandate is losing 2–1 in the federal appeals courts. In fact it is tied 2–2. (Return.) It also misstated that the D.C. Circuit ruled that the contraception mandate in Obamacare “trammels” the religious freedom of the company Freshway Foods, and conferred personhood on the company. The court found that the contraception mandate violates the Religious Freedom Restoration Act because Freshway Foods is a closely held company, so the mandate violates the rights of its owners. The ruling effectively confers personhood on the company rather than directly doing so.

See? Brown’s opinion, we are told, “effectively” did that which it absolutely did not do. And the “correction” still does not tell readers that Brown rejected the notion of personhood for the company for purposes of the Free Exercise Clause. Readers will have to go to Olson at PowerLine, or (horrors!) the language of the opinion itself, for that.

It is hard to put into words how shoddy this piece was, and how dishonest the “correction” is. This is an utterly embarrassing travesty for Slate, Bazelon, and Lithwick, and they should be reluctant to show their faces in legal blawgland for some time to come. Kudos to Olson and PowerLine for giving them the whacking that they so richly deserved.

23 Responses to “Emily Bazelon and Dahlia Lithwick Completely Misstate Holding of Controversial ObamaCare Opinion”

  1. Ding.

    Patterico (9c670f)

  2. About the issue, but OT from the issue of shoddy reporting

    So, it is possible that in the future a corporation could be said to have religious freedom rights if it can convincingly argue the case???
    Suppose a corporation, while not being for an explicitly religious purpose, has in its bylaws or mission statement or whatever in print official documents, makes a statement about “glorifying God” or some such as an inherent and necessary part of its working, is that the kind of thing that the court would then need to decide?

    MD in Philly (f9371b)

  3. This is an utterly embarrassing travesty for Slate, Bazelon, and Lithwick, and they should be reluctant to show their faces in legal blawgland for some time to come

    On the contrary, they know what they did, they’re happy with what they did and they’ll be celebrated among their circle. You make the mistake of thinking that liberals are just like us, that they share the same morals and standards of behavior and thus ought to be embarrassed when they do something you think of as wrong. They’re not only following different rules than you, they’re playing a completely different game.

    steve (369bc6)

  4. MD in Philly,

    I think Brown’s opinion makes clear that this is a possibility for the Supreme Court, but that she cannot conclude at this time that the precedent is there. It could happen in the future, yes.

    Patterico (9c670f)

  5. A college of mine had a sign on her desk that was clearly aimed at such mental midgets as Lithwick etc;
    WHAT PART OF THE WORD NO ARE YOU TOO STUPID TO UNDERSTAND? I have always admired that sign.

    Bar Sinister (b48c12)

  6. steve,

    You are absolutely correct. The desired impact has already been delivered and no correction will reduce that. This is what happens when you have zealots that so unerringly believe in their ideas that truth doesn’t matter, only the narrative. They traffic in such actions because they are so ingrained and so insulated that they don’t see this as wrong but only a method to get the desired result. These are the kinds of people we have in government, media, and academia now.

    sirkev (8a9a65)

  7. I blame Mitt Romney and his angry fans.

    daleyrocks (bf33e9)

  8. If I were the attorney for another business with the same issue, I would cite Emily and Dahlia* and not the real opinion. A ruling devoutly to be wished, if it were so. 😉

    *No, I wouldn’t, it would be a fraud on the court.

    nk (dbc370)

  9. Did facts ever matter to the Left? Parroting the Party line, and spreading a pre-ordained narrative was, and is, always more important than conceding facts, or, similarly, taking the time to do one’s research and due diligence.

    It’s getting to the point where Pravda was a more objective observer of events than any of the Leftist “news” websites in the U.S.

    Guy Jones (2a6c7a)

  10. I agree with steve #3. It’s a sad day when we can say that about our fellow Americans, but they earned it.

    DRJ (a83b8b)

  11. The Left never lets The Truth get in the way of The Narrative.

    askeptic (b8ab92)

  12. My favorite line is this:

    Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School.

    Just what does the Truman Capote Fellow at Yale Law School do each day? Perhaps host fabulous cocktail parties where the glitterati of New York can mingle with impressionable young law students? That would be appropriate for a superficial Slate columnist, wouldn’t it?

    Yale Law once gave the world Justice Byron White, but then again it also gave us Justice Sylvia Sotomayor, so I guess the path to the Truman Capote Fellow has been trod for some time now.

    JVW (709bc7)

  13. Didn’t Yale Law also give us two leading legal lights in Arkansas – one who was disbarred, and another that should be?

    askeptic (b8ab92)

  14. MD in Philly – I think it’s plausible that a closely held corporation has free exercise rights.

    I think it’s less plausible that a publically traded corporation like, say, Apple, has free exercise rights.

    The difference, for me, lies in the tight relationship between the corporation and its owners, and in the difficulty in ascribing a particular religious viewpoint to something owned by thousands as opposed to something owned by a small handful.

    aphrael (fb202d)

  15. There are tons of corporations organized for religious purposes. The number of shareholders is immaterial. The purpose clause is the soul and the operations plan the body. This is as good a checklist as any: (1) Is organized for a religious purpose; (2) is primarily engaged in carrying out that religious purpose; (3) holds itself out as an entity for carrying out that religious purpose; and (4) does not engage primarily or substantially in the exchange of goods or services for money.

    Please remember that corporations, not being born of man and woman, exist only as smears of ink on paper. They have no beliefs not contained in their charter, and if they do they must be beliefs permitted to corporations by the statute which gives them existence. It is very telling that Freshway had to pierce its corporate veil, essentially renounce its corporate identity, and proceed as the Giraldi family. (I would have advised them not to to do it, BTW, they might have opened a dangerous can of worms.) Individuals do have beliefs and a reason for existence outside of their business purpose.

    Bottom line for your question, MD. Can Apple amend its charter to state, “Sell overpriced toys with an “i” in front ad maiorem dei gloriam”, and claim religious organization protections and immunities? Not under the present state of the law and likely not ever.

    nk (dbc370)

  16. To put it in a way that progressives can understand:

    Suppose the Cattlemen’s Association got a state’s legislature to require that all restaurants served beef. A chain of vegetarian Indian restaurants sued, claiming that to do so would not only destroy their business model but would force them to violate their deeply-held religious beliefs.

    How is this different? Would even a non-religious claim by a chain of secular vegetarian restaurants work? Why?

    Kevin M (bf8ad7)

  17. On religious grounds, the restaurants would prevail as sole proprietorships or partnerships, they would lose as corporations.

    Secular vegetarians would need to argue substantive due process and there isn’t much of that going around these days — Lawrence v. Texas is all I can think of offhand.

    nk (dbc370)

  18. I like this discussion. A Hindu temple’s parochial school could be forced to serve a balanced diet, including meat, to the students, in its cafeteria. It could not be forced to do so at its potluck supper fundraisers. The question (and the answer) is, “Which is the central and which is the peripheral activity?”

    Now could it fire teachers it saw eating beef on the premises? Hmm.

    nk (dbc370)

  19. Left-wingers never got over the defeat of their precious McCain Feingold Act. I still have overwrought libs bitching about the Nazi state that will inevitably result from its overturn. Too bad these nags didn’t learn how to read before or after they got out of law school. It figures that they work for Slate.

    Dirty Old Man (354f80)

  20. I wasn’t really joking that if they tried to pass off that interpretation of the decision on a judge it would be considered a fraud on the court. But I guess they don’t mind committing a fraud on their readers.

    nk (dbc370)

  21. Comment by nk (dbc370) — 11/6/2013 @ 5:21 pm

    You really think a Hindu school could be forced to serve meat to its students against their religious beliefs?

    I guess I could see an argument that they need to serve a “balanced diet” that included sufficient protein.

    It’s just kind of funny, that a common criticism of religious folk is hypocrisy, that they don’t live out Monday-Saturday what they preach on Sunday;
    then you get folk that are serious about it all week, no matter where they are, and they are told their behavior is peripheral and they need to obey man not God.

    MD in Philly (f9371b)

  22. Err, no, the school could not force it on the students against the students’ religious beliefs. The school, itself — and I don’t want to be too categorical about it, it’s an extreme example — would need to conform to whatever regulations govern school lunch programs. (Why does “school lunch” invariably invoke Michelle Obama in my head?)

    nk (dbc370)

  23. then you get folk that are serious about it all week, no matter where they are, and they are told their behavior is peripheral and they need to obey man not God.

    The glib answer is “Render unto Caesar ….” The better answer is that no society has been without the tension that exists between conscience and law, and that is the reason we have the First Amendment, and that the courts and legislatures seem to be always struggling with these questions.

    nk (dbc370)


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