Posner, Chemerinsky, and the Perils of Dishonest and Dangerous Formalism
As readers of this blog probably know, I was extremely fortunate to have a close relationship with retired judge Richard Posner, including hours of on the record taped conversations (it is common knowledge that he tragically now suffers from severe Alzheimer’s). I was recently listening to one of our discussions about the Hobby Lobby and Little Sisters of the Poor cases. We discussed both after his court rejected Notre Dame's absurd argument that signing a form granting it an exemption from the Affordable Care Act's requirement to provide birth control for its employees constituted a substantial burden on religion. We got into the weeds of free exercise and RFRA doctrine, or I should say, I tried to engage him in that conversation, but he refused. I was trying to show him that Justice Alito in Hobby Lobby effectively reduced substantial burden claims to non-reviewable sincerity claims, a point Justice Ginsburg made in dissent. I argued Alito’s move was deceitful and wrong. ...