The Volokh Conspiracy

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Status, Conduct, and the Yarmulke Tax

There's a lot going on in Justice Kagan's Marietta dissent.


Marietta Memorial Hospital Employee Health Benefit Plan v. Davita is the sort of case that makes my eyes glaze over. Does a group health plan that does not cover outpatient dialysis for all plan participants violate the Medicare Secondary Payer statute? I have no clue. Justice Kavanaugh wrote an opinion for seven Justices holding that there is no violation. Justice Kagan dissented, joined by Justice Sotomayor, and found there was a violation.

Kagan relied, as she often does, on "common sense." She explained that "Virtually everyone with end stage renal disease—and hardly anyone else—undergoes outpatient dialysis." Therefore, the Court "should not care whether a health plan differentiates in benefits by targeting people with end stage renal disease, or instead by targeting the use of dialysis." That point seems reasonable enough. But to support this proposition, Kagan swings for the constitutional fences.

First, she cites CLS v. Martinez!

When "status and conduct" are proxies for each other, "[o]ur decisions have declined to distinguish" between them. Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. 661, 689 (2010).

Woah. That citation came from left field (literally). In CLS, Justice Ginsburg's opinion planted this status/conduct "time bomb" to pave the way for gay marriage. Indeed, this passage was cited in the Prop 8 and Windsor litigation. If I had to make a top-ten list of precedents that will be overruled/abrogated soon, CLS would make the cut. That case reached such a sweeping result based on contrived reading of the record. (Fellowship of Christian Athletes v. San Jose Unified School District, a possible vehicle, is currently before the Ninth Circuit on a motion for an injunction pending appeal.)

As if the CLS reference wasn't enough, second, Kagan cites Lawrence v. Texas.

So, for example, we have explained that a penalty for "homosexual conduct" is a penalty for "homosexual persons." Lawrence v. Texas, 539 U. S. 558, 575 (2003).

The Dobbs dissenters insist that Lawrence is in jeopardy–or at least the substantive due process analysis in Lawrence. Then again, the relevant passage from Lawrence–a classic Kennedy mystical aphorism–blends together equal protection and due process because dignity.

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

Kagan's third citation is the most intriguing:

And likewise, a "tax on wearing yarmulkes is a tax on Jews." Bray v. Alexandria Women's Health Clinic, 506 U. S. 263, 270 (1993). The same goes here: A reimbursement limit for outpatient dialysis is in reality a reimbursement limit for people with end stage renal disease.

Bray, a post-Casey case, was written by Justice Scalia. Abortion clinics filed at Section 1985 suit against those who protested at abortion clinics. The clinics argued that the protestors had invidiously discriminatory animus directed at women–after all, only women can have abortions. (Would such a claim even fly today?) The Court rejected that argument. Justice Scalia wrote:

Respondents' contention, however, is that the alleged class-based discrimination is directed not at "women seeking abortion" but at women in general. We find it unnecessary to decide whether that is a qualifying class under § 1985(3), since the claim that petitioners' opposition to abortion reflects an animus against women in general must be rejected. We do not think that the "animus" requirement can be met only by maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women. It does demand, however, at least a purpose that focuses upon women by reason of their sex—for example (to use an illustration of assertedly benign discrimination), the purpose of "saving" women because they are women from a combative, aggressive profession such as the practice of law.

To support this conclusion, Justice Scalia introduced the yarmulke hypothetical:

Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews. But opposition to voluntary abortion cannot possibly be considered such an irrational surrogate for opposition to (or paternalism towards) women.

Justice Stevens responds to this point in his dissent:

The limitations of this analysis are apparent from the example the Court invokes: "A tax on wearing yarmulkes is a tax on Jews." The yarmulke tax would not become less of a tax on Jews if the taxing authorities really did wish to burden the wearing of yarmulkes. And the fact that many Jews do not wear yarmulkes—like the fact that many women do not seek abortions—would not prevent a finding that the tax—like petitioners' blockade—targeted a particular class.

Would the proposed tax be a tax on all Jews, or only on those Jews who wear yarmulkes? Stated differently, could a Jewish person who never wears a yarmulke seek an exemption from the tax–would his free exercise rights be substantially burdened? Merely being a Jew does not necessarily entail some obligation to actually wear a yarmulke. I know my post on religious abortion engendered some controversy on this point, but the status/conduct line is not always so clear. I will return to that point in the future.

Finally, we can't talk about Bray without talking about Geduldig v. Aiello (1974). Justice Stewart observed in a footnote that "While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra." The Bray  majority favorably cited Geduldig. However, Justice Stevens's dissent urged that "Geduldig [should not] be understood as holding that, as a matter of law, pregnancy-based classifications never violate the Equal Protection Clause."

Fast-forward to Dobbs. After the draft opinion leaked, Linda Greenhouse suggested that Geduldig was no longer a precedent. An amicus made the same point. But Justice Alito's majority opinion treated Geduldig and Bray as precedential.

We discuss this theory in depth below, but before doing so, we briefly address one additional constitutional provision that some of respondents' amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment's Equal Protection Clause. See Brief for United States as Amicus Curiae 24 (Brief for United States); see also Brief for Equal Protection Constitutional Law Scholars as Amici Curiae. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State's regulation of abortion is not a sex-based classification and is thus not subject to the "heightened scrutiny" that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a "mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other." Geduldig v. Aiello (1974). And as the Court has stated, the "goal of preventing abortion" does not constitute "invidiously discriminatory animus" against women. Bray v. Alexandria Women's Health Clinic (1993) (internal quotation marks omitted). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.

And the Dobbs dissenters did not cast doubt on Geduldig.

There is a lot going on in this paragraph from Justice Kagan's Marietta dissent. A lot is on her mind in this otherwise mundane case.