Amicus briefs in the Supreme Court (Contraception Cases)

There's a really interesting amicus brief in the contraception cases being heard about this week.  You can read the brief here, a shortened version here, and some discussion here and here.  But I want to talk about why this brief is so important in a slightly different context.

Amicus briefs are a relatively rare breed in lower courts, but they are commonplace before the Supreme Court.  For those who are unfamiliar with the term, an amicus brief is a brief written by a non-party trying to persuade the Court to come to a certain outcome.  (Amicus is latin for friend, and the briefs are sometimes referred to as "friend of the court" briefs).  Although Amicus Briefs usually support one party or the other, that's not always the case - an Amicus Brief can be filed on behalf of "neither party."  More on that in a bit.

While usually the filer has some interest in the legal issue (think a labor union in a labor case involving a different labor union), that alone is not reason to file a brief in the normal case.  After all, there's already a brief being filed by typically a very good advocate who has the same goals you have.  Even if money isn't important, replicating the party's brief does no good and wastes the Court time.

Yet there are several reasons entities file amicus briefs.

1 - This really isn't, in theory, a good reason to do it, but sometimes organizations file it for the publicity.  They can use it to fundraise (if they are a nonprofit) or to raise their own presence, either in the legal community or more broadly.

2 - Also, sometimes what happens in these cases is a law firm simply wants to file an amicus brief to raise the law firm or lawyer's own reputation.  In that case, they'll often front all the costs, and simply persuade someone who agrees with the law firm's position to sign on.  Again, not really that helpful to the Court, but it happens.

3 - Sometimes a group with a similar interest thinks the party just did a bad job.  Maybe the brief didn't address the right issues, or maybe the brief was just really difficult to read.  So sometimes, in that rare case, the amicus really does want to replicate what the party SHOULD HAVE done, but did not.

4 - Sometimes, perhaps coordinated, an amicus brief wants to take on an issue tangential to the case, or delve into a sub-issue in the brief in a greater level of detail then the initial briefs do.  Sometimes that is done to "scare" the Court from making an adverse ruling, by discussing the potential repercussions of that reading.  Or sometimes it's just over-the-top legal wonkery.

5 - Sometimes an entity has some specialized expertise, often non-legal expertise, that is important to the issue.  They want to present that expertise to the Court to help understand how the law interacts with the facts.  This is known as a Brandeis Brief.

6 - Sometimes the parties' entities aren't exactly the same.  Let's take the labor example.  One labor union might represent, say, state government employees, and are asking the Court for a broad interpretation of a statute that applies generally.  Another union might represent private employees, and they may want a similar reading of the statute, but they know the Court is skeptical of giving it to state employees.  What does the private union do?  One thing it can do is try to come up with an alternative framework for the Court, so it can accept the employee union's claim without reaching the issue in a way that might hurt the private employees. 

7 - Or it can be a sort of false friend.  It can suggest in a brief that the statute be read the way it prefers as to private parties, but maybe not to public parties.  Depending on how this is written, that brief can literally take no position on the merits - in which it is probably filed on behalf of neither party.  Or it can even take an adverse position to the other union.

This brings us to the Laycock Brief, which is a perfect example of this "adverse position" possibility.  Doug Laycock is a law professor, and a prominent legal conservative with an expertise in religious law.  In concept, he absolutely supports the Religious Freedom Restoration Act.  Indeed, he probably supports the most expansive rights for religious dissenters and objectors that he thinks is possible.

And yet he files a brief, on behalf of the Baptist Joint Committee for Religious Liberty, on behalf of the government, not the religious entities in this case!  Why?  Well, because he's afraid.  Specifically, he's afraid that if the government loses this case, the political response will outweigh the benefit of the ruling:

Petitioners also argue that because the government voluntarily exempted churches and their insurers, making no effort to provide contraception to church employees by alternative means, it is required to give the same exemption to all religious non-profits and their insurers. Such a rule would be a mortal threat to the common and important practice of legislatures and administrative agencies enacting specific religious exemptions. If legislators or administrators believe that any narrow religious exemption will automatically lead to a much broader religious exemption, many of them will not enact any exemptions at all.  

The regulations at issue in these cases represent a sophisticated and good-faith effort to exempt petitioners from any obligation to provide contraception, while requiring secular insurers to provide it instead. Petitioners’ claim is not just that they should be relieved from providing contraception—a claim we would support without reservation. Petitioners claim that their secular insurers should be exempt as well. And that claim reaches too far.

 Now, a few thoughts:

First, I happen to disagree with the outcome in Hobby Lobby.  Laycock and his client agree with that case.  Nevertheless, I happen to think he's otherwise right on the merits in this case.  But I think his brief is going to have a major effect on this case merely from its signal.  The Justices know Laycock, professionally if not personally.  Along with his academic work, he's argued a number of RFRA and First Amendment cases, always on behalf of the "religious liberty" side.  Even in cases he has not argued personally, he's at least filed a brief in practically every RFRA case (again, on behalf of religious liberty), including Hobby Lobby.  If he's saying that the Court is going too far, that's going to be an important signal for the Court.

Second, his view of the political blowback from a decision against the government is not universally shared by politically conservative pro-RFRA advocates.  There are almost an excessive number of advocates who have filed amicus briefs on behalf the objectors in this case.  (To be fair, there are an excessive number of amicus briefs on both sides.) 

Third, by filing such a brief, Laycock and his counsel get an amazing kind of influence.  The conservative wing is already ideologically disposed to agree with him, and the liberal wing is supportive of the outcome he is pushing in this case.  This allows him to provide the contours of a decision for the government in a way that promotes his conservative, more expansive view of RFRA. Again, from the brief:

Each of these formulations is a demand for absolute deference on the substantial-burden issue. This cannot be right. But it contains important elements of truth. Courts cannot question petitioners’ sincere religious beliefs. If petitioners sincerely say the burden in these cases is substantial, then it is substantial to them. And that is a fact entitled to great weight. 

But substantial to the believer is not inevitably the same as substantial in law. Courts must ultimately decide whether the burden is legally substantial within the meaning of the statute. Petitioners are entitled to substantial deference on that issue. They cannot be entitled to absolute deference.

The issue Laycock is discussing is whether, when a plaintiff says that they have a religious belief, and that conduct "substantially impairs" that belief, the Court should defer to whether the government regulation being challenged actually and substantially impairs their beliefs.  I agree--and I think Laycock does too--that the contours of their belief are entitled to absolute deference.  But where I part with Laycock is whether they are entitled to *any* deference at all as to whether the government regulation substantially burdens that belief.  And this is important because hidden behind this question is a very important question, which is: what kinds of "beliefs" are subject to RFRA at all.

Let me take an extreme hypothetical, then let me bring this back to the actual facts of the case, and then let me take this to a more narrow hypothetical, to see how the distinction matters.  

One, the extreme hypothetical:  I used in a prior version a particularly zealous Jew who believes everyone should be forced to keep Kosher, so that he can go around stealing other people's pork (or killing pigs, or whatever).  He wants to be exempt from general prohibitions that encompass this conduct.  RFRA will certainly protect the interest that this person should not be forced to eat pork.  At least under Hobby Lobby, it probably protects him from a regulation that would require him to sell pork, if he were a grocer.  But RFRA is not designed to protect at all the religious belief:  "I believe that other people should not be allowed to eat pork."  It doesn't matter if the pain of seeing other people eat pork is truly so hard on his religious beliefs that it causes him physical pain.  Even if the government did not have a compelling interest in allowing others to eat pork, it's not a right RFRA is supposed to protect.  That is not religious freedom--if anything, it is the opposite.  (I think Laycock agrees with all of this, to be fair.)

Two, the actual facts:  As Laycock explains, the heart of the objectors religious belief is that they want to "control their secular insurance companies and the government’s regulation of those companies."  Specifically, they think that making their insurers provide contraceptive coverage burdens their own religious belief.  RFRA simply does not protect this interest at all.  Thus, the government regulations do not "substantially burden" the objectors' religious beliefs no matter how general or specific they couch that belief.  It does nothing to burden their belief about the wrongness of contraception generally, or the lack of morality of being "complicit" in their use, or their belief that it is wrong to have their insurer provide it specifically.  (I think Laycock agrees with this as well.)

Three, let's take a more narrow facts - actual facts from Hobby Lobby.  In that case, Hobby Lobby did not object to all contraceptives, just "abortifacients," which they specifically define as those that terminate an embryo.  But the contraception they objected to provided actually did not do that.  Hobby Lobby was wrong on something they do not claim is an instruction from God, but merely a scientifically-provable fact.  I think Laycock would think that we need to defer to the plaintiff's sincere (but not "religious") belief that forcing them to cover the contraception in question violated their religious beliefs.  I would disagree.  

Now, perhaps Hobby Lobby itself can be read to have answered this question.  But maybe not.  Even if it did, that case was 5-4 and may not be around very long.  But if a Court follows Laycock's analysis here, then it might set in stone the very kind of reasoning that may expand religious liberty in a subtle way that a majority of the Court might not otherwise support.  And regardless of whether I agree with Laycock or not, that is very good advocacy indeed.

UPDATE:  Sensing the danger, Ed Whelan of the National Review attacks the Laycock brief in two blog posts.  Since I'm not focused on the details of the argument here, I will only note that Whelan's response essentially ignores or miscasts Laycock's argument.  Meanwhile, while insisting that the burden here falls on the objectors, as opposed to the objectors'insurers or TPAs, Whelan's explanation, if you can call it that, relies on weasel words (e.g., "facilitates," "complicity," "involvement"), conjecture ("might"), economic analysis that ignores how the ACA applies (the argument regarding money being fungible ignores the price controls on the ACA), and simply assuming the legal issue at issue ("the entire arrangement still depends completely on the government’s conscription of the employer’s health plan and contractual relationships").  Safe to say, I would assume Laycock would not agree that RFRA gives one an enforceable legal interest in imposing its religious beliefs on others via contract.