[KCW: Comment mildly edited by me. No direct name-calling, please.]

Judges may be (and should be) uncomfortable “reading in new words.” But once we recognize the metaphor for what it is, that discomfort should disappear, for they are not actually doing what it is that should make them uncomfortable to do. Some constitutional tests restrict the as-applied reach of statutes whose text extends more broadly. Think, for example, of a holding that the extension of jurisdiction under a state long-arm statute violates Due Process under particular circumstances. Such a holding does not invalidate the particular subsection of the long-arm statute whose application exceeded the state’s constitutional reach. And when a court holds in a later case that long-arm jurisdiction extends to a particular set of facts under the same subsection of the long-arm statute whose reach went too far in the first case, we would not describe that as reading in words of limitation to the statute.

On your second point, you may be logically correct, but I’ve never seen judges very comfortable with just reading in new words. See Dissent in Healthcare Cases. And isn’t the normal approach enjoining only certain clauses or statutes when it’s a facial attack? See Healthcare Cases Majority (deleting the coercive Medicaid expansion provisions).

Professor Walsh, keep up the Good work!

Suppose that immediately after Lawrence, the Virginia legislature had added the following language to the statutory subsection (I’m not a legislative drafter so pardon the awkward phrasing, but I think you’ll get the idea): “Provided, that this subsection shall neither be construed nor applied to extend criminal liability to the constitutionally protected private sexual conduct of consenting adults, as recognized by the Supreme Court in Lawrence v. Texas.” If that language had been in the statute, petitioner would have had no valid constitutional claim on habeas review. But it really should make no difference whether that language is in there or not. For it is already there as a matter of constitutional command.

Finally, there is no constitutionally significant difference between the metaphorical operations of “erasing clauses that are constitutionally dubious” and “inserting new words into the statute.” Both are just a manner of speaking and both are constitutionally permissible. Moreover, whether a judicial decision has an effect equivalent to one or the other depends on quirks of statutory drafting. Consider an example based on RFRA, which could have been drafted in different ways. Here are two: (1) “Government shall not substantially burden the exercise of religion unless doing so is the least restrictive means of advancing a compelling government interest”; (2) “Neither state nor federal government shall substantially burden the exercise of religion unless doing so is the least restrictive means of advancing a compelling government interest.” The constitutional rule against which this statute is measured allows RFRA to be applied against the federal government but not against the state government. Whether that is accomplished by metaphorically writing in words of restriction (as would be the case for version (1)) or metaphorically erasing words of extension (as would be the case for version (2)) is of no constitutional significance. Both involve the same permissible exercise of judicial power.

The corporate form adopted by the Little Sisters in their ministry to the elderly poor is influenced by the tax code, particularly the obligations of most tax-exempt organizations to file a Form 990. The fact that their homes have to file a Form 990 while the Order itself does not has nothing to do with how “religious” either is.

United States v. Lee is a pre-RFRA case that does not undertake an analysis that is particularized to the claimant, which is what RFRA requires. Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal is thus far the Supreme Court’s only decision applying RFRA against the federal government. In ruling unanimously against the government, the opinion for the Court describes Lee as a case in which “the Government can demonstrate a compelling interest in uniform application of a particular program.” But as you have already noted in connection with the exemptions the government has granted (and not just on religious grounds, I would add), the federal government claims no such interest in uniform application with respect to the HHS Mandate.

The next part is vaguely phrased. The purpose of ACA is to expand health coverage, so yes, it might require more things then “currently” in some fashion. “Decisions” here involves insurance, since we need insurance to actually be able to really make them, given the costs. Thus, when your culture of life leads to a family to decide to have a baby, it costs lots of money and they might be able to “decide” without means to pay. If they didn’t have the insurance, the ‘decision’ would be empty.

What I mean by “general employment law” is that = per rulings like U.S. v. Lee == if religious institutions decide to get involved into employment in the public sphere, they have to generally follow basic rules. There are exceptions but it seems like the institution wants to get some benefits of a particular business form without necessarily following general rules. They need not follow the form, it is just most convenient.

If someone wants to be a ‘large employer,’ especially if they are going to employee and/or serve those not members of their faith, it is fair to apply general applicable employer law. This isn’t about interfering with ministers or something. The exemption, as I said, might apply here too. The Administration has continuously, though some egregiously make them out as some tyrant on this question, to make exemptions. But, it just might be if they are a ‘large employee’ and some employee is raped and wants to use their own health care benefits for Plan B or need an abortion for a serious health reason but as has been shown it isn’t “serious enough” to meet the standards of the religious group employing them, it would be proper to require them to be able to use the insurance they paid for.

Think about this statute from a citizen’s perspective for a second. How the hell could he read the statutory subsection quoted above to say anything about minors? There is no way on God’s green Earth that a judge can sit back with a straight face and argue that minors were the real protected class in that statute. Now, maybe animals–as the first clause seems to stand largely apart from the rest of the statute’s content–but there’s nothing anywhere from 1768 onwards that would suggest minors were a special concern for the purposes of that law.

Of course, the counter argument to this is the good ole’ “Won’t somebody PLEASE think of the children?” http://www.youtube.com/embed/Qh2sWSVRrmo?autoplay=1

I did not intend to be sarcastic and I’m perhaps more surprised by your response than I should be, but at least I got to watch a clip of Tommy Boy. Your clarification of position was a significant concession but one completely warranted by the legal analysis up to that point. I still don’t see how you justify the Fourth Circuit’s carving out one segment of a statutory subsection beyond its unconstitutional applications under Lawrence. The principle you invoke from Reese would take down the whole subsection if actually applied, but that’s not your position, as your comment earlier makes clear. If you want to switch, that’s your prerogative, but then you’ll run into the Supreme Court’s inconsistency with respect to the Reese principle. See United States v. Raines, 362 U.S. 17, 24 (1960) (“[T]o the extent Reese did depend on an approach inconsistent with what we think the better one and the one established by the weightiest of the subsequent cases, we cannot follow it here.”).

And I’m pretty sure that your version of the rule of lenity “resolv[ing] ambiguities in statutory reach in favor of the government” is incorrect. Last I checked, “[t]he rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos, 128 S. Ct. 2020, 2025 (2008) (citations omitted).

I also went back and read Ayotte, as well as re-reading the Fourth Circuit’s discussion thereof. Because this case doesn’t fit into the abortion black hole of constitutional jurisprudence, I think it would be fairer to place it within Justice O’Connor’s explanation for how courts should be “wary of legislatures who would rely on our intervention, for ‘[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside’ to announce to whom the statute may be applied. ‘This would, to some extent, substitute the judicial for the legislative department of the government.’” Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 330 (2006) (quoting United States v. Reese, 92 U.S. 214, 221 (1876)). Seems to me that what was true in 1876 about the separation of powers should still be true today, especially where we’re dealing with a criminal statute.

Just one more thing. What about two teenagers? There still is a lot of consensual teenage conduct that would violate the anti-sodomy provision. I mean, violating it would at least bring down the rate of teenage pregnancies (and politicians will wisely point to this type of useful statistic as a justifiable reason to either re-elect or kick the bums out). I suppose your position is that the Virginia law should be enforceable to them because Justice Kennedy only used the word “adults” in Lawrence, and the kids in Virginia are just out of luck.

I’m sure the counter-argument to this is something along the lines of trusting prosecutors and all that jazz. The Supreme Court spoke about that a few years ago. Something along the lines of how the Bill of Rights “protects [people] against the Government; it does not leave us at the mercy of the noblesse oblige. We would not uphold an unconstitutional
statute merely because the Government promised to use it responsibly.” United States v. Stevens, 130 S.Ct. 1577, 1591 (2010). Thankfully, my time as a teenager was spent in Georgia (which, by that time, had repealed the section taken up in Bowers)–not a state that has apparently forgotten its own motto for the purposes of short term political gain.

You’re right that there is no mention of minors in this subsection of the law. But why does/how should that matter under the relevant doctrine? Your approach seems more like the First Circuit approach reversed by the Supreme Court in Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006), which held New Hampshire’s parental notification law facially unconstitutional because it did not contain a textual health exception.

As to your concern: If the Little Sisters of the Poor’s homes for the elderly are exempt from the HHS Mandate, the homes’ employees will have all the health coverage that they currently have, and they will have the same rights to make health decisions that they currently have.

With respect to your question about Plan B and abortion, I don’t know what you mean by “general employee law.”