The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2017, I began writing a paper titled Compelling Interests under the First Amendment. I argued that "if the state carves out exemptions from a policy, the case for a compelling interest is undermined." This issue arose in Hobby Lobby. The Court–to keep Justice Kennedy's 5th vote–would only "assume that the interest in guaranteeing cost-free access" to contraception was compelling for purposes of RFRA. However, this assumption was very precarious given the fact that HHS carved out so many non-religious exemptions to the mandate, such as grandfathered policies. Solicitor General Verrilli dodged Chief Justice Roberts's questions on grandfathering. Here is an excerpt from Chapter 16.4 of Unraveled, pp. 231-232:
But the biggest point of contention during oral arguments concerned the grandfather clause. Health insurance plans that were in existence before the mandate came into effect were grandfathered, and were not subject to the mandate unless they were changed. (Ironically, Hobby Lobby's plan lost its grandfather status after the Greens removed coverage of Plan B, which in turn made them subject to the mandate to cover Plan B). How could the government's interest be so compelling, Hobby Lobby argued, if thousands of grandfathered plans nationwide were exempted? One of the lawyers for Hobby Lobby told me that when the government has a compelling interest, you don't exempt over half of the people that it applies to. And if the interest is not compelling, under the RFRA analysis, Hobby Lobby would be entitled to a religious accommodation. The government took that argument very seriously. A senior DOJ attorney acknowledged that "we didn't have an iron-clad answer on grandfathering."
Chief Justice Roberts exploited this liability with a series of questions. Roberts asked the solicitor general, "Can you make a representation to us about how long the grandfathering is going to be in effect?" In other words, how long would the grandfathered plans – that are not subject to the mandate – stick around? Verrilli would not answer the question. "I can't give you a precise figure, [but] there's a clear downward trajectory." Ironically enough, the president's false promise that people can keep their plans provided the basis for the solicitor general's answer. Every year, more and more old, noncompliant plans would be cancelled. Invariably, as plans were changed, they would lose grandfather status and become subject to the Affordable Care Act's mandates. But Verrilli could not say that in Court. All he could say was that "[t]here's significant movement downward every year in the numbers." Paul Clement pounced on this concession, which he called "devastating." When the "government pursues compelling interest, it demands immediate compliance. It doesn't say, 'Get around to it whenever it's convenient.'"
But a senior DOJ attorney told me that the government had "a pretty good counter punch" to the grandfathering argument: Title VII of the Civil Rights Act of 1964, which prohibited workplace discrimination. Even five decades after its enactment, the solicitor general explained to the Court, "employers with 15 or fewer people are [still] not subject to that law, and that's 80 percent of the employers in the country." As a result, Verrilli continued, as many as "22 million people … are [still] not within the coverage" of the landmark discrimination law. He asked rhetorically, "No one would say that because the coverage is incomplete in that respect, that Title VII doesn't advance a compelling state interest."
Well, I made just that argument in my paper–years ahead of Tandon and Fulton.
Ultimately, after oral argument in Masterpiece Cakeshop, I put the paper on hold. I suspected–wrongly–that the Court would opine on the question of compelling interest. Alas, the Court didn't address the compelling interest question. The Court wrote a wafer-thin opinion based on animus, and dodged the difficult Free Exercise issues. Nearly four years have elapsed since I last touched the paper, but I recently dusted it off.
Two weeks ago, a federal district court in Texas decided Bear Creek Bible Church v. EEOC. This post-Bostock case considered the interaction between Title VII and religious exercise. Part of the opinion expressly considers the issues I flagged years ago: does the government have a compelling interest if it creates many exemptions to that policy? Fulton and Tandon suggest that the answer to this question is no. Here is an excerpt from the court's opinion:
Defendants' argument that they had an interest in eradicating all forms of discrimination is undercut by their willingness to grant exemptions for other purposes. By its express terms, Title VII does not apply to every employer. For example, for no apparent reason other than administrative convenience, Title VII exempts businesses with fewer than fifteen employees. See 42 U.S.C. § 2000e. Notably, Title VII overtly permits employers, with a specific statutory exclusion, to fire an employee if the employee is a member of the Communist Party of the United States or affiliated with a Communist-front organization. See id. § 2000e-2(f). Title VII also categorically permits employers on or near Indian reservations to discriminate on the basis of race or national origin in favor of Indians. See id. § 2000e-2(i). These exemptions are "secular" in nature. Since Defendants extend these exemptions to nonreligious decisions, they must treat requests for religious exemptions the same. See Tandon, 141 S. Ct. at 1296 (holding that a government regulation is not neutral and generally applicable whenever they treat any comparable secular activity more favorable than religious exercise).
In my draft paper, I identified very similar exemptions that would challenge the compellingness of non-discrimination laws. Here is an excerpt, with footnotes removed:
To this day, the primary federal employee discrimination statute—Title VII of the Civil Rights Act of 1964—only applies to firms with at least fifteen employees. As one scholar observed, "there is little in the record to suggest a studied effort to arrive at precisely the right threshold, other than to find the threshold leaving enough small business owners outside the Act's coverage to make the new law palatable." Later efforts to drop the threshold from twenty-five to eight failed, the limit remains at fifteen to this day. According to one scholar, "[f]irms small enough to be exempt from Title VII employ more than 19 million employees-equal to the entire population of the State of New York or more than sixteen percent of the national workforce." Likewise, the majority of states have implemented minimum thresholds with respect to their employment discrimination laws. Further, all states—including the seventeen states that do not impose a size threshold—created other carve-outs for religious or other private organizations. [JB: These numbers were accurate in 2017, but I cannot account for updated statutes]
Likewise, the Fair Housing Act exempts from its provisions landlords with five or fewer rooms for rent. This exemption stems from the famous Mrs. Murphy exemption, whereby members of Congress sought to protect the hypothetical boarding-house owner, who did not wish to rent her small number of rooms to certain people—even if based on their race or gender. As one commentator observed, "implicit was an understanding that the First Amendment right at stake was specifically Mrs. Murphy's right not to associate with African Americans."Despite this obvious backdrop, Attorney General Nicholas Katzenbach supported this threshold, rather than an "exemption based upon dollar receipts or delivery volumes . . . since there is considerable opposition to this sort of exclusion." According to estimates at the time, the Mrs. Murphy exemption would exclude nearly two million housing units, and that total was predicted to rise to sixty million. This rule remains on the books to this day. As Professor Wilson observed, "exemptions for individuals who were posited to be mere racial bigots remain in the law fifty years later," even as "Americans have become increasingly intolerant of racial intolerance." At the state level, the courts have split about whether landlords can decline to rent an apartments based on religious liberty objections.
This survey presents an inconvenient truth: on the federal and state level, laws are pocked with a series of exemptions that openly tolerate limited exercises of discrimination in the employment and housing contexts. And far from incrementalism, these exemptions have existed for decades. This survey raises another difficult question: can an interest be deemed truly compelling if the federal government, and the majority of states, create so many exemptions?
At some point, I will return to this paper. If you think I write a lot, just imagine all of the things I start writing but never publish!