The blog in a nutshell

The blog in a nutshell

Tuesday, April 26, 2016

A not-overly-well-thought-out unifying theory that all "constitutional rights" are just prohibitions

Actually, that wasn't technically the issue.  Technically, the issue was what 42 USC 1983 vindicates, a question of statutory interpretation. But I think you get to the same place either way.

As the majority decision correctly notes about the First Amendment, constitutional rights are not so much as "rights" per se, they are generally instead prohibitions of certain types of conduct upon the government.  I actually think--as this post explains--this is true regardless of the framing of the Constitution, so when them majority contrasts the First Amendment with the Fourth Amendment, which, Justice Breyer notes " begins by speaking of the 'right of the people to be secure in their persons, houses, papers, and effects . . . ,'" I think the distinction is without a difference.  The Fourth Amendment still prohibits certain government conduct.  The individual inquiry - about "who" has the right - is merely one of standing.  But standing is not an issue in this case.

Instead, this is a question of statutory interpretation under the Act which gives a federal damages claim for such a breach, 42 USC 1983.  

42 USC 1983 states that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...

If we put on our law student hats, the "elements" of such a claim are that the person acted (1) under color of any statute (etc.) (2) subjected any citizen to (3) the deprivation of a right secured by the Constitution, and (4) [proximately] causes (5) injury.    In this case, 1, 2, 4, and 5 are not disputed...or are they? 

And so we get to the same point:  Has the plaintiff suffered a deprivation of a right?  And we get to the same answer from my position:  Yes, because that's really just asking whether the Government has acted unconstitutionally toward the individual.  

To me, (3) is really just saying that the injury must be caused by a Constitutional violation.  The use of the affirmative language of "rights" is rhetoric that means nothing.  If you must think of it from the vantage of the individual, the individual's right is really not to be injured by an unconstitutional action.

So why is the majority right?  Let's look at the most obvious place to find out...the dissent:

When the dissent says, critical to its analysis, that  "[t]he mere fact that the government has acted unconstitutionally does not necessarily result in the violation of an individual’s constitutional rights, even when that individual has been injured," I think that only really means something because the government's action may not have caused an injury of the type that the Constitution protects.

Now let's look at the example used by the dissent:
Consider, for example, a law that authorized police to stop motorists arbitrarily to check their licenses and registration. That law would violate the Fourth Amendment. See Delaware v. Prouse, 440 U. S. 648, 661 (1979). And motorists who were not stopped might suffer an injury from the unconstitutional policy; for example, they might face significant traffic delays. But these motorists would not have a §1983 claim simply because they were injured pursuant to an unconstitutional policy. This is because they have not suffered the right kind of injury
Well, yes, that's right.  But the point is that the injury suffered there was a traffic delay.  (In contrast, if the motorists were on a line in which they were told they could not leave, they may have been seized.)  A traffic delay is never really a legally cognizant injury.*  If you cause a traffic injury due to your reckless driving, the people who are late to work can't sue you.  

At first glance, a better example would have been a search of person A's home, which might turn up evidence about person B, who then goes to jail.  The Supreme Court has ruled that person B can't exercise person's A's rights and move to exclude the evidence.  But I think the answer is, that in the exclusionary rule situation, the injury being asserted isn't directly cognizable:  we don't consider someone who is  correctly arrested for committed a crime to be suffering a legally cognizable injury, either.  The exclusionary rule, however, isn't designed to remedy an injury (which is why some conservatives hate it) but, instead, is designed as prophylactic, i.e., a realization that without the rule, there would be no real ability to enforce the constitutional limitation against the government. And the standing requirements isn't because of "injury," but instead because of a counter-concern about the negative effects of the prophylactic rule applying more broadly than necessary to keep the government in check. 

So let's look at a third example, that may work better.  In issuing a search against A's private residence, they destroy B's property.  Does B have a claim? His privacy rights were not implicated, after all.  And, to be sure, I actually don't know the answer off the top of my head (if someone knows, chime in),  But I suspect that the answer of yes would be reasonable. 

And so, and I am just ruminating here, but I think we should always keep in mind that the term "rights" is a misnomer.  Rather, the Constitution is a list of government prohibitions.  To Thomas, that's not true at all (although I suspect in other situations Thomas might agree), and to Breyer, it's only true depending on how the government phrased the right in the Constitution.  But, notwithstanding arguments by some on the left for "positive rights,"**  I think it is always true.  The term "rights" is useful in that it connotes that there must be standing, causation, and a legally cognizant injury that flows from the harm. 

Taking that view of the law, it is unquestionable that "not being fired" is precisely the kind of injury that the First Amendment is supposed to vindicate.  The question then is the happenstance of the fact that the government's illegal motive turned out to be a misunderstanding changes the causation and injury analysis.  And I don't think it does. 

Thomas would say it does because the injury of "not being fired" is not cognizable.  Instead, the injury has to be a deprivation of a constitutional right, and nobody has a constitutional right to employment.   Thus, to Thomas, the right only protects the plaintiff if he engaged in speech.  But why stop there?  Technically,Section 1983 prohibits the deprivation of rights, not the punishment for exercising rights.  Taking Thomas's logic to its rational conclusion, the Plaintiff would have to prove that he was *unable* to speak because of the government's conduct.  And his remedy might be limited to the metaphysical value of that speech.  Yet I don't think even Thomas would go that far. 

Again, I'm kind of  just shooting from the hip here.  So can anyone explain a fundamental flaw in my theory?  Can someone think of a situation in which the government causes a type of injury we normally would consider legally cognizable, which directly and naturally flows from a constitutional violation, but it would be unreasonable to give someone a 1983 claim because it wasn't "his rights" that were violated?  

*  I suppose we can imagine situations where causation is so obvious and "proximate" that there might be an exception - say, where a guy intentionally caused a car crash to prevent someone from getting to the hospital in a specific ambulance, so that person would die.  But Alito's example doesn't establish that kind of narrow exception.

**To me, a "positive right" to do Y might exist, but only conditionally.  If you give someone A, you may be obligated to give other people A as well.  But you could always, you know, not give person A in the first place.  Then, the prohibition is that the government is prohibited from doing X without doing Y.

Tuesday, March 29, 2016

In which I pretend that someone important reads my blog:

So after the oral argument today, it appears strongly possible, perhaps likely, that we are headed for a 4-4 split.


[Regarding what might happen in the Eighth Circuit:]

So no notice, fine.  But what if the government decides (properly, changing whatever regulations might otherwise disagree) that no notice is necessary?  Instead, as suggested in the objectors' brief to the Supreme Court, an individual's notice suffices.  And so the Michigan employee who is very upset calls and tells the HHS that they aren't providing the health care in question.  What then?
I think the right answer is that the Government can call the insurer or third-party administrator up and tell them they have to provide that coverage (or, heck, they can probably require the third party administrator, known as a TPA, or insurer do it even without notice, because the fact that the proposed coverage *doesn't* cover contraception is probably sufficient constructive notice).  Presumably, the insurer will then provide coverage.  

In a surprise move, today, the Court asked the following question:

The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees. 
Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.  
For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing.

Such a solution would invariably not solve the "hijacking" burden that objectors claim because insurance would still be provided through "their insurer."   It would instead be based on the "notice" objection that got no play during oral argument, except to the extent objectors said that relief on that ground alone would be insufficient.

Here's what I don't think happened.  I don't think there are any Justices who reject the "hijacking" theory but buy the "notice" theory of substantial burden.  But I do think they are looking at the Eighth Circuit decision, which did precisely that.  And now they have to solve the question about what to do about it.  A decision that requires them to conform to the Eighth Circuit's reasoning, but no further, could create uniformity and resolve chaos.  A fifth vote - or more - might coalesce on that ground, because conservatives are unlikely to do any better, even in the Eighth Circuit,* and liberals allow the government a way to ensure that another accommodation does not get struck down.  For the liberals to get on board, however, they must believe that such an accommodation can work in practice.  

So I think the objectors' brief won't be very interesting.  But the government's brief will likely be very interesting, because the government has a real decision about whether to stick to its guns and risk a 4-4 split, or allow the regulation to be rewritten (which takes time, and during which there may be no accommodation), and maybe get a majority.

*The Eighth Circuit technically did not reach the "hijacking" question, so in theory if the notification "burden" is eliminated, someone might still be able to challenge that in the Eighth Circuit after a 4-4 affirmation, and the Eighth Circuit might rule that even without notice, the contraception accommodation remains a substantial burden that is not narrowly tailored.  But so much would have to happen before such a ruling (whose geographic applicability is questionable), that keeping the possibility alive may not be worth the effort from the eyes of some conservative Justices.

UPDATE:  On thinking about it, there appears to be at least the possibility that the Court might coalesce around some alternate-hijacking argument, where as long as the insurer does something to segregate the contraception coverage from the rest of the coverage in some superficial way, there is no "hijacking."  I don't think this really helps, because what the objectors are really asking for is a right to contract with their insurers in a way to require them not to issue contraception coverage to their employees.  But it's possible that the objectors might strategically retreat to get a minor victory.  Unlikely, but worth reading the objectors' brief for that reason.

Friday, March 25, 2016

RFRA Can't Require the ACA to Change

There have been a couple of responses to a series of questions by Justice Alito at oral argument in the Zubik Contraception Cases, where Alito suggests using the exchanges as an alternative to the accommodation, so that the accommodation is not "narrowly tailored."

I agree with Professors Dorf and Lederman that this is wrong, not just factually, but legally.  But I think they're making the point in a slightly less straightforward and strong way than I would make the point.

Thus, something prohibited under the statute can't be an alternative to an accommodation under the ACA.  Assuming the interest is compelling, the statute contemplated that it be fulfilled.  And the statute could not have contemplated an alternative solution that is inconsistent with its clear text.  The details are actually relevant:  One possible solution the objectors put forth is that perhaps contraception coverage can be put out on the exchanges.  

But the ACA forbids that kind of partial coverage on the exchanges.  In any event, employees who get coverage through their employers are not eligible for subsidies on the exchanges, and there are other critical limits in the ACA regarding the extent of subsidies in this kind of unexpected scenario. 

JUSTICE ALITO: Couldn't the Executive deal with the problem of what's available on the Exchanges at the present time in this way: Policies are available that provide comprehensive coverage. Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against  insurers who offer contraceptive­ only policies, and in  fact, we are going to subsidize those insurers at 115 percent, just as we do in the situation of the self-­insured plans?
But this is a less serious argument.  Although Professor Dorf ultimately and correctly finds the argument wanting, he gives it too much credit.  It is one thing to say that, in practice, it is possible that the government can allow an unlawful black market for contraception coverage to go on in the marketplace, creating an alternative way to provide effective contraception coverage--and yes, it's about as unlikely to be effective as it sounds.  But it's quite another to say that Congress contemplated this in passing the ACA, when its text plainly *forbids* it.  And if Congress did not contemplate it, one cannot say that the ACA intended to forbid the kind of accommodation the government put forth here because of its potential existence.  Because, at the end of the day, while we are discussing what RFRA means, what we are fundamentally construing is still the ACA itself.

In other words, regardless of the President's powers, it is only Congress' intent that matters.  Thus, while commentator Hashim claims that maybe Alito was trying to make the United States give a fatal confession on the immigration cases, it's really two different issues.  The Immigration cases relate to the government's ability to formally de-prioritize or even ignore Congress's instructions, while the issue here is whether Congress could have itself intended an outcome it expressly forbade.  

And Now for Something Completely Different: EPL Soft Salary Caps

About these soft salary caps.  These salary caps are not the result of negotiations with a union, right? I'm no expert on EU or British antitrust law, but this is blatant price fixing, right?  Somebody please explain why this is legal?

Thursday, March 24, 2016

A right you don't have can't get hijacked

So in the Zubik (contraceptive cases) oral argument, the idea that signing a form was a substantial burden did not appear to get far.  Yet, it looked like the objectors are going to get 4 votes.  As smart commentators explained, the reason is because the conservative Justices appear to accept that the substantial burden is having their plans "hijacked" by the government.

This is wrong.  This is just another way of saying that the government is preventing them from imposing their religion on others by contract.  Let me explain.

First, as Justice Breyer pointed out at oral argument, the plan "infrastructure" that is allegedly getting hijacked belongs to the insurer.  This seems like a pretty debatable and abstract point, but what it means is that the insurance cards, the management team, the paperwork, etc. - everything that is used to make sure you don't have to pay for your doctor's visit - is all the property of the insurer or the third-party administrator.  The only thing the insured or self-insured does is write checks, and the system is set up so that none of the checks go to pay for contraceptive care.

Still, I think a hypothetical here will color the point, and explain what is really going on.  

Religious University is a (fictional) catholic school that has a sincere religious belief that contraception use is immoral.  They contract with TPA Insurance to be either their insurer or their third-party administrator - for this purpose, it doesn't really matter which.  But what are they actually contracting for?

They're contracting with TPA to provide, in return for money, certain coverage.  They want TPA to cover things like wellness visits, cancer, flu shots, and pregnancy (well, the type that ends in a healthy baby, anyway).  But not included in this coverage is contraception coverage.  Fine.

So the TPA, as the contractee/agent. provides these services.  But they also like their customers, so they give out a $5 Starbucks gift card.  The Starbucks card isn't part of the coverage provided by Religious University, it's just an add-on that the TPA is providing at no cost to Religious U.*

Okay, so they aren't $5 Starbucks gift cards.  Instead, the free gift is contraceptive care.  Religious University objects!  This is outrageous!  We're a Catholic institution, and we don't support contraception.  But TPA isn't a Catholic institution, and it is TPA that is giving away the contraception.  Of course, Religious University could contract with TPA ex ante to make them forebear from giving away contraceptive care.  But that doesn't change the nature of who was giving the contraceptive care in the first place.  And what such a contract would be is the imposition of Religious University's beliefs on TPA by contract.  Now, there's nothing wrong with that in the abstract.  But as the Laycock brief explained, RFRA simply does not go that far.  And when the Supreme Court talk about "hijacking a plan," that's really what they are talking about.  Take it away, Professor:

The regulations in these cases do not substantially burden petitioners’ religious exercise. Petitioners have been wholly exempted from providing contraception themselves. They object to the government delivering contraception separately, with segregated funds and segregated communications, through petitioners’ secular insurers.  
Petitioners’ briefs make clear that they would object even if they were wholly unregulated. Suppose government repealed all regulation of employers, and required only that insurers and third-party administrators of employer-sponsored plans provide contraception separately from those plans. These petitioners would say that this regulation of their secular insurers substantially burdened the religious exercise of insuring their employees.  
Petitioners’ objection is not saved by saying that they cannot provide contact information for their insurers, or that they cannot contract with insurers that provide contraception. No matter how they phrase it, they are objecting to the government’s regulation of their secular insurers. This case is ultimately like Bowen v. Roy: government need not conform its own affairs—whether insurance regulation or record keeping—to petitioners’ religious understandings. 

One other thing.  What Religious University is objecting to here is TPA's not acting in an appropriate Catholic manner, by giving away contraception care (as mandated by the ACA, to be sure).  But Religious University is not objecting to the TPA not acting completely in accord with Religious University's tenets.  Religious University also has a RFRA-based anti-discrimination exception (let's say) to hire only co-religionists.  Religious University doesn't make their employees work on Sundays.  And yet, something tells me, they don't require their "plan" to be solely worked on by fellow Catholics.  They're okay if TPA has employees working to support the "plan" on Sunday.  

I don't doubt the hypothetical Religious University, or any of the actual objectors in these cases, have a sincere religious conviction that contraception care is immoral.  But I don't think they are being sincere in that the objection is merely to the contraception being furnished by a party they have a contractual relationship with.  Rather, they object to their employees getting health care.  And they're defining that strategically, in order to make it as hard as possible for their employees to get that health care.  Liberals with their pluralism and conservatives with their support of religion should get behind the basic concept of reasonable opt-outs of generally-applicable laws.  But when RFRA is gamed like this, it destroys the broad support for RFRA and imperils its continued existence.

* If Religious U. was Mormon, would they have a right to object?  Absent government regulation, I'm sure they could put that in a contract:  no Starbucks gift cards.  But, as this post explains, the question is whether RFRA would permit a law banning such a contract.  (UPDATE:  To clarify, Mormons do not drink coffee.)

Wednesday, March 23, 2016

Even Justices get it wrong

CHIEF JUSTICE ROBERTS: Well, the way constitutional objections work is you might have to change current law.

Uhhh, Mister Chief Justice - there's no constitutional objection in play here.  The issue is a question of how to interpret the requirements of the ACA in light of the existence of RFRA.  So yeah, no.

So what if it is 4-4

If the Supreme Court is deadlocked, at 4-4, all the decisions are affirmed without any precedent set.  In the Contraception Cases, as far as I am aware, the 3rd, 5th, 6th, 7th, 10th, and D.C. circuits have all ruled for the government, and the 8th Circuit has ruled against the government.  I am not sure if  the 1st, 4th, or 9th Circuits have reached any decision, but given the tilt of those Circuits, they'd be likely to join the majority (either in a panel decision or en banc*).  The Second Circuit rarely goes en banc, so it is possible that a conservative panel could hear the case first, decide the issue, and then the 2nd Circuit will just let that be the law; but unless the 4-4 split is resolved soon, I would bet this would be the exceptional case the 2nd Circuit does take en banc. 

Normally, a circuit split isn't a problem, because the connection between what the law is and who must follow it is pretty straightforward.  A rule that conduct A is criminal in the Fifth Circuit but not in the Eighth Circuit means that the conduct is lawful in one but not the other.  

But the problem is, the same conduct is often subject to the jurisdiction of multiple courts.  If you sell your product on the internet, and ship to all fifty states, you might be sued (or criminally prosecuted even) for that conduct in any court.  And unlike state law, there is no "choice of law" analysis regarding circuit splits.  If the Fifth Circuit thinks that 18 USC XXXX makes certain conduct a crime, it won't excuse that conduct merely because the criminal case could also have been brought in another Circuit that disagreed.  

So, what is the result?  Well, if someone wants to commit certain conduct that only the Fifth Circuit thinks is criminal, it can do so unless done in a way that would give the Fifth Circuit jurisdiction.  Likewise, if some conduct is considered subject to punitive damages in the Fourth Circuit but not the Fifth Circuit, and someone commits an act that would subject him to suit in the Fourth or Fifth Circuit, then whether or not he faces punitive damages or not depends on where the plaintiff sues him, and whether he can get a change of venue.

What does this mean for the religious  objectors?  I am not entirely sure.  In these cases, the claims were all brought by the objectors against the government, seeking a declaratory judgment that they don't have to sign the notice at issue.  So what happens then?  It depends.

First, it's theoretically possible that the government can bring an enforcement action against certain subjects that do business in the Eighth Circuit and another jurisdiction, making sure to bring the case in the other jurisdiction.  But knowing that, entities that want to avoid the accommodation and still deny their employees contraceptive care can preempt this and bring a declaratory judgment act against the government in the Eighth Circuit.  I'm not 100% sure the federal government is bound by these decisions in later enforcement actions, but I suspect the federal government wouldn't choose these cases to press the issue in any event.

So, at first glance, it's pretty simple.  Those companies who do business in the Eighth Circuit can get a declaratory judgment that they don't have to sign the form, and everyone else has to comply with the accommodation.

But does that resolve the matter?  Not quite, for three reasons.  First, it isn't clear what connection, if any one needs to the Eighth Circuit to bring a declaratory judgment action.  Second, the declaratory judgment action between the federal government and the objecting party only binds the federal government.  And third, it's not clear--due, in part, to the objectors own obfuscation of what they are trying to accomplish--what relief the objectors would be entitled to.

Let's look at one of the Eighth Circuit, plaintiffs, Cornerstone University.


Cornerstone University is based out of Grand Rapids, MI.  Yes, that's the same Cornerstone University.  The Eighth Circuit doesn't cover Michigan; the Sixth Circuit does.  The Sixth Circuit ruled that the contraception accommodation does not violate RFRA.  Why is this case before the Eighth Circuit?  To be honest, I have no clue.  The best I can think of is that the government didn't bother to challenge venue in the case.  But I'm not a jurisdiction expert and I don't have the whole case file.  Maybe it's always possible to challenge a government regulation anywhere, so that the government cannot challenge venue.  If so, everyone can file a declaratory judgment against the United States in the Eighth Circuit- I honestly don't know.  If someone knows more, please comment and I will update.


So Cornerstone University got its declaratory relief.  But now one of its employees doesn't have health care.  Can he sue?  Probably not.  The penalty for non-compliance with the coverage mandates is a tax penalty, but I'm not aware of a private cause of action.  So that won't help the Michigan employer.  Again, please let me know if I am wrong here and I will update.


What right does the Eighth Circuit award?  This is the rub.  The litigants have been as careful as they can not to frame their claimed burden as an inability to control third-parties from acting.  They've been entirely vague, using weasel words such as "facilitate" to avoid the fact that what they object to is what some other party is doing.  The closest thing the Eighth Circuit came to announcing exactly what the burden involved was, that Objectors "argue that they 'must still submit a document that they believe wrongfully facilitates the delivery of such coverage.'"  Sure, the litigants have argued to the Supreme Court that even requiring their contractee to provide coverage hijacks their contract, but this argument was not accepted by the Eighth Circuit, and a 4-4 decision would leave no analysis (binding or not).

So no notice, fine.  But what if the government decides (properly, changing whatever regulations might otherwise disagree) that no notice is necessary?  Instead, as suggested in the objectors' brief to the Supreme Court, an individual's notice suffices.  And so the Michigan employee who is very upset calls and tells the HHS that they aren't providing the health care in question.  What then?

I think the right answer is that the Government can call the insurer or third-party administrator up and tell them they have to provide that coverage (or, heck, they can probably require the third party administrator, known as a TPA, or insurer do it even without notice, because the fact that the proposed coverage *doesn't* cover contraception is probably sufficient constructive notice).  Presumably, the insurer will then provide coverage.  

Now, one of five things, four interesting, can happen.

One, the insurer/TPA can do what its told.  

Two, the objector can sue either the government or the insurer/TPA, claiming that this provision by the third party violates their rights.  But I think that would nakedly call out what the objectors are doing here, and the Eighth Circuit opinion does not go so far to validate such a claim.  

Three, the insurer/TPA - presumably based on a threat from the objector that they will withdraw the plan - can refuse, and the government *might* be able to bring a claim against the insurer/TPA.  I'm again not sure here, so if someone knows the details, please let me know and I will update.  But my guess is that they likely can, otherwise the insurers would have little reason to provide these this coverage under the accommodations now - after all, the insurers have to do so without recovery of cost the insurers.  The TPAs get reimbursed, but cannot make a profit, and could still be pressured by the objector to disobey if there was no legal repercussion.

Four, the same situation as three could arise but they could bring a claim against the objectors for their interference.  But such interference might be hard to prove.  And presumably, if the insurers are not subject to repercussion then it also isn't illegal for the objectors to encourage non-cooperation.  And if they are, then the government would just go after the insurers.

And five, the government can decide that the objector's plan is not qualified, and deny the tax credit.  Then the objector will bring a claim (or defend one, depending how it plays out) on the basis that they provided health care to the best that they religiously believed.  The government will argue that it was the interference, not the provision of health care, which led to the denial.  I think this argument probably ends up in the objector's favor here.  If contraception *is* part of the package, that matches up perfectly with the framing of the objectors, and in that case they probably *should* win under Hobby Lobby.

This post isn't intended to give answers, exactly.  If it did, I suspect I failed.  Rather, it points out the uncertainty of a split decision and the need for uniformity here.  The failure of uniformity could lead to a certain level of chaos and unpredictable results that I think the Supreme Court should be very careful about before deciding to split 4-4.

* En banc means decided by the court as a whole.  Assuming jurisdiction, the vast majority of appeals are heard by the circuit courts as a matter of right in 3 judge panels.  If one objects to the decision, they can petition the courts of appeal to hear the case as a whole.  This is what en banc is.  It is entirely discretionary, much like appeals to the Supreme Court in most cases.  If a panel decision is not heard en banc, it is binding on all future panels of that circuit, unless the case goes en banc or if it is overruled by the Supreme Court.