Yesterday, Washington DC federal district court Judge Richard Leon – one of George W. Bush’s earliest judicial nominees – issued a bizarre ruling exempting a secular anti-abortion group from complying with the ACA’s contraception coverage requirement. Judge Leon ruled that not giving March For Life the same exemption as religious entities like churches violates the Equal Protection Clause, and that requiring its employees to have insurance that covers contraception violates their religious liberty under the Religious Freedom Restoration Act.
Leon concluded that, even under the lowest level of Equal Protection scrutiny, there is no rational basis for treating an organization opposed to contraception for moral grounds differently from one opposed on religious grounds. But that goes against a long legal tradition of recognizing the unique position of religion in our society and under our Constitution. The Supreme Court has made clear that when the government creates an exemption to a regulation that might otherwise interfere with religious organizations’ exercise of religion, the government does not have to offer that same exemption to secular organizations. Judge Leon even cites a Supreme Court case saying that, but then proceeds to ignore it on the basis of seeming identity between religious and non-religious opponents of certain methods of contraception.
His RFRA analysis of March For Life’s religiously-motivated employees was no less flawed. Leon rejected the government’s assertion that their religious exercise isn’t substantially burdened because they don’t have to use the contraception they oppose. He called that a “veiled attack” on their religious beliefs, which he wrote are not just about using the contraception, but also about participating in a health insurance plan that covers such contraception. This is the fruit of Hobby Lobby, the 5-4 Supreme Court ruling in which the far-right Justices distorted RFRA and gave the green light to religious conservatives to seek to equate being religiously offended with having a substantial burden placed on their exercise of religion.
Adding insult to injury, Judge Leon didn’t even follow the appropriate process in granting the exemption. Early in his opinion, he violated a judicial doctrine known as a “constitutional avoidance,” where a judge is supposed to decide cases on statutory bases if possible in order to avoid making unnecessary constitutional rulings. In this case, Leon declined to “delv[e] into the thicket” of an inquiry into whether the rules comply with the Administrative Procedure Act (APA), which might have allowed him to avoid ruling on any constitutional issues, and instead jumped right to two constitutional arguments and one additional statutory one:
The APA permits a reviewing court to set aside an agency action that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or, alternatively, that is (B) contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(A)-(B). Stated differently, the APA allows courts to right two types of agency wrongs: procedural missteps and substantive transgressions. While procedural correctness is, to be sure, an important facet of any judicial inquiry, compliance with the law is the true touchstone of legality. Thus, in a context such as this, where plaintiffs have alleged serious constitutional and statutory infirmities, the appropriate starting point for the Court’s analysis is not the integrity of the agency’s decision-making process, but rather the lawfulness of the Mandate itself. I will therefore begin by addressing plaintiffs’ Fifth Amendment, RFRA, and First Amendment arguments and, because I find the first two challenges meritorious, I will refrain from delving into the thicket of an APA review.
A fair reading of the law shows that both statutes and the Constitution make clear that no exemption should have been granted. But in this case the judge’s reluctance to address the APA issue allowed him to make a much more dramatic ruling, one with potentially wide repercussions if upheld by an appeals court, without even doing the tedious work of properly adjudicating it under the APA.
It is hard to imagine this decision not being reversed by the DC Circuit. As to what the five Supreme Court Justices who gave us Hobby Lobby would do if they took the case, it might be better not to have to find out.