A couple of observations about the Seventh Circuit's discussion of RFRA's reach in the contraceptives mandate challenges

I have finally finished reading through the 154 pages of the Seventh Circuit opinions in Korte v. Sebelius (mentioned by Rick a bit earlier today). To Rick's assessment of Judge Sykes's "excellent opinion" as "one of the most detailed and deep" analyses of the interaction between RFRA and the contraceptives mandate, I would add that Judge Rovner's dissent is one of the most thorough expositions of the government's side of the case (although Judge Rovner's mode of analysis does not map directly onto the government's). Reading the majority and dissenting opinions together provides a good overview of the state of the arguments on both sides. 

Judge Rovner's dissent argues that allowing a corporation to assert a RFRA claim against the government mandate on the same terms as a human being is "irreconcilable with the very essence of religious faith and, for that matter, humankind." Although the dissent acknowledges that "[p]erhaps there are good reasons to extend the right of free exercise to religious organizations, including not-for-profit corporations organzied to pursue religious ends," Judge Rovner says that "it is not entirely clear to me why even this step is necessary given the associational standing of such entities to assert the free exercise rights of their members." While the dissent views corporate RFRA claims with deep skepticism, the majority judges "take it as both conceded and noncontroversial that the use of the corporate form and the associated legal attributes of that status--think separate legal personhood, limitations on owners' liability, special tax treatment--do not disable an organization from engaging the exercise of religion within the meaning of RFRA (or the Free Exercise Clause, for that matter)."

For reasons I have identified previously (as well as some additional arguments advanced by the panel majority in this decision), I think that the panel majority is on the mark in its assessment of this issue. I will not repeat my earlier arguments or those adopted by the panel majority. But here are a couple of additional observations about the differing interpretations of RFRA's reach:

(1) In forming one's own assessment of the merits of the competing analyses of RFRA's reach, it might be helpful to explicitly foreground the oeprative methodologies that lead to the different results. While textualism and purposivism are not always easy to distinguish, it's a fair assessment to describe Judge Sykes's reasoning as more textualist, and Judge Rovner's as more purposivist. Judge Sykes relies on the Dictionary Act and the Supreme Court's instruction that judges should not "stray too far from the statutory text" in applying the Dictionary Act's direction as to context. Judge Rovner, by contrast, focuses on the enactment of RFRA against a Free Exercise Clause backdrop in which the Supreme Court had not previously recognized "that secular corporations have free exercise rights." To compare to another area of the law, Judge Rovner's approach to RFRA seems more like the interpretive approach that the Supreme Court has adopted toward the Eleventh Amendment in its sovereign immunity jurisprudence while Judge Sykes's approach to RFRA is more like that advocated by John Manning with respect to the Eleventh Amendment. (Perhaps it is also revealing that Judge Sykes twice cites Nick Rosenkranz's Federal Rules of Statutory Interpretation.)

(2) Judge Sykes's discussion of the problems with the government's attempt to argue for implication of a religious/nonprofit limitation from Title VII and the ADA into RFRA is the best I have yet seen at relating these statutes to the differing strands of constitutional protection for religious liberty. Here are a couple of key paragraphs:

The religious-employer exemptions in Title VII and the ADA are legislative applications of the church-autonomy doctrine. By their terms the exemptions are limited to religiously affiliated employers, a limitation that makes sense in light of the rationale for the rule. The exemption is categorical, not contingent; there is no balancing of competing interests, public or private. In other words, where it applies, the church-autonomy principle operates as a complete immunity, or very nearly so. Such a strong hands-off principle isn't justified for organizational associations that are not religiously affiliated.

In contrast, the judicial remedy in RFRA is both broader and more flexible. It covers religious organizations as such, but it does not stop there. The remedy is available to any sincere religious objector--individuals and organizations alike--and its organizational applications are not limited to religiously affiliated organizations. The exemption is comprehensive in that it applies across the United States Code and Code of Federal Regulations and restrains the conduct of all federal officials. But it can be overriden by a sufficiently strong governmental interest.