Why Smart People Sometimes Don't Know Much

In recent years, THC has increasingly found that in discussions of current events there is often difficulty in finding common ground regarding basic facts, particularly with those relying upon sources such as the New York Times, The New Yorker and NPR for their information. Having stopped reading the Times and New Yorker several years ago, THC feels immeasurably more knowledgeable (though admittedly others might prefer to say he has become invincible in his ignorance).

Ann Althouse, a law professor at the University of Wisconsin, brought to our attention a perfect example of this syndrome in her post about Jeffrey Toobin's New Yorker article on the recent Supreme Court arguments in the Hobby Lobby case.  Toobin frequently writes on legal issues for The New Yorker as well as being a legal analyst for CNN.

If one was relying upon Toobin's article, entitled Women Justices Rock The Hobby Lobby Argument, to be informed about the substance of the legal issues in dispute, one would come away armored with misinformation.  In Toobin's telling the case is a constitutional one about "freedom of religion" writing:

"Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment."

The article made no mention of the Religious Freedom Restoration Act (RFRA) which is what the Hobby Lobby case is actually about, not the First Amendment.

In 1992, the Supreme Court, in a First Amendment religious freedom case decision authored by Justice Scalia, agreed with the Federal government's attempt to ban the use of peyote during certain American Indian religious rituals.  That decision was met with vocal bipartisan disapproval and the following year, the RFRA (with one of its chief advocates being Ted Kennedy) was enacted with only three no votes in the Senate and none in the House and signed by President Clinton.  RFRA requires that in any legal challenge to a law restricting religious practice that the standard of strict scrutiny be applied.  In order to prevail the government must show it has a compelling government interest and that its actions must be the least restrictive way in which to further the government interest.

Interestingly, the New Yorker has since altered the online version of the article to include a quote referencing the RFRA without explaining its significance other than explaining in a somewhat disparaging way that it refers refers "to a law on religious expression that Hobby Lobby had cited" instead of pointing out it is the key element of the case  This case is about statutory construction, not the First Amendment.

Toobin makes a second significant factual error with his claim that:

"The Affordable Care Act requires employers who provide health insurance to their employees to include coverage for contraception".

In fact, the ACA does not require coverage for contraception.  Because the RFRA is a statute, Congress could have chosen to insert an exemption from that law into the ACA.  It chose not to.  Instead, the Obama Administration decided, for political and ideological reasons, to make the provision of contraception a regulatory requirement.  It was the Administration that decided to pick this fight placing the Hobby Lobby, a company which already provided health insurance to its employees (and which starts its lowest-paid employees at a wage almost twice that of the minimum wage) in a very difficult position.

Toobin is a smart guy.  He also knows what his audience wants - comfort food that allows readers to feel morally superior.  The result is that his readers, who are smart folks or at least people who think they are smart, end up poorly informed.  As mentioned this general problem is not just limited to The New Yorker and THC covered it in more length in How Can You Be So Obtuse?   That post prompted a request for a correction from Linda Greenhouse, former legal correspondent for the New York Times.  In contrast to the Times' dilatory correction process, within thirty minutes of seeing the email, THC double checked the accuracy of the reference, made the requested correction and informed Ms Greenhouse.  In that instance, despite the Official Policy Of This Blog, making the correction was the right thing to do.

Several other real points to keep in mind about this case.  The Administration has given some waivers to the contraception mandate for some non-profits such as churches.  They've also effectively waived or delayed requirements of the ACA for just about everyone else in America at this point.  What's the big deal about doing so here?  How can you have a compelling government interest in requiring this when so many others are exempt?

Don't let the rhetoric about for-profit versus non-profit applicability of the RFRA confuse you.  The government is still trying to crush the "obstructionist" Little Sisters of the Poor (see Little Sisters of the Poor v Sebelius and the post It's The Law) in order to bring those dangerous renegades into conformance with the Will of the State. 
(Enemies of the State)
And the next time someone asks you how a corporation can be religious just tell them that it is well established legal doctrine today that corporations can have a race - it's how affirmative action works in government contracting and corporations can sue for racial discrimination.

THC predicted this ongoing conflict between the Administrative State and our constitutional liberties back in June 2012 (More Thoughts About The Decision) in the wake of the Supreme Court's Obamacare decision:

While this may be the end of constitutional challenges to the entire statute it is only the start of a wave of litigation over the next few years regarding various aspects of the healthcare law.  Because of its scope, complexity and structure as an extensive regulatory scheme with a goal of controlling a large swath of the American economy and the lives of its citizens, Obamacare will inevitably butt up against many aspects of what have, until now, been considered aspects of private life, triggering conflicts with our Constitutionally protected liberties, including rights of association, free speech, religion and, to put it at its most basic, our rights to be left alone.  There is simply not enough space in society for Obamacare and constitutional liberties to co-exist in peace.  Sort of like when the Lakers had both Kobe and Shaq on their team a few years ago.

A totalizing legislative scheme requiring (by some counts) more than 1,000 new regulations and establishing new, and largely unaccountable, administrative bodies such as the Independent Payment Advisory Board (IPAB) in an area intertwined with every aspect of our economy and our lives will be a source of unending friction in our society.

The administration's assault on religious liberty (via the contraception mandate) and its directive to insurers to provide a product for free (why didn't the Adminstration just cut out the middleman and order contraceptive manufacturers to provide their products for free?) is just the beginning.  The outcome of these conflicts has the potential to fundamentally redefine the relationship between citizens and the government.  Brace yourselves.