Thursday, November 1, 2012

Geddicks on HHS

A former visiting professor of mine, Fred Geddicks, has written some particularly inane things about the HHS mandate. His original bit, a response at MOJ, and Geddicks' making-it-worse response.

I left the comments below in the ACS comments box.

I find Prof. Geddicks' reference to Estate of Thornton v. Caldor decidedly unpersuasive. Thornton involved a state law that granted unique legal privilege to one class of religious believers, those who found it morally objectionable (or, given the actual facts of the case, perhaps simply inconvenient) to work on Sunday.

If giving a unique legal privilege to a distinct class of religious believers violates the establishment clause, then so be it. Mr. Justice Burger's statement about the burden that privilege places on other persons, while it may have helped rationalize the outcome, cannot logically necessitate it. It's the privilege, not the burden, that the law creates, and if the privilege be unconstitutional, it would be so even if it were socially cost free. (See, e.g., every Christmas-display case ever decided.) Burger's statement about burdens is a dictum.

But even if Mr. Justice Burger's odd statement about burdens were necessary for the outcome in Thornton, it bears no relationship to the HHS mandate at all. What Prof. Geddicks proposes is that the religiously motivated actions of a private individual can impose a constitutionally significant burden on the personal (not religious, perhaps commercial) conduct of another private individual.

This is horse feathers. I know Prof. Geddicks has expressed elsewhere dissatisfaction with Cruikshank, but the rule that non-government actions do not impose Constitutional burdens is not going away (and even if it were, Prof. Geddicks prefers that we discuss the issue under present doctrines). The idea that there is a Constitutionally protected liberty interest in being free from burdens imposed by the religiously motivated actions of other individuals, without the intervention of any privilege, compulsion, or intervention by the law on the part of the religiously motivated actor, is simply absurd. It might be the most absurd and barbaric assertion made by any defender of the Mandate to date.

Let us be clear about what Prof. Geddicks claims here. He cannot be claiming, as he might insist, that it is merely a Constitutional exemption that would be an imposition. That at least would have a flavor of legal compulsion. No, the Professor is saying that the religiously motivated actor's choice to do or not do a Thing (in this case, subsidize contraception) itself imposes a burden on third parties. This has to be the case, because Prof. Geddicks wants us to balance the burden against the claimed liberty interest of the religiously motivated actor in determining whether the Constitutional exemption should exist. Clearly, the Constitutional exemption cannot be used as a justification for its own existence.

In the end, Prof. Geddicks' argument in this regard is either a call for a shockingly tyrannical reduction in the meaning of religious liberty or a specious display of circular reasoning. In fact, it bears many indicia of being both. It is the sort of argument that makes one wish that Rule 11 applied to academic papers.

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