Justice Sonia Sotomayo Blocks ACA Provision

[Jim Lane]

123. It's not exactly a "pro forma" thing but it's certainly not major.

One standard for granting such a temporary stay in federal court, IIRC (I'm almost always in state court these days), is that there's a fair question on the merits (i.e., neither side has an obviously ridiculous position), and there's a significant imbalance of hardships. Here, the argument probably was that if stay is denied and the appellants end up winning, then the hardship is that in the meantime they will have been unconstitutionally forced to act against their religious beliefs. On the other hand, if the stay is granted and the appellants end up losing, then the hardship is that some people will have to wait a little longer for insurance coverage for abortion or contraception or whatever else may be involved.

As to the first point, religious issues of this sort usually aren't as clear-cut as the DU consensus would make them seem. There are vast gray areas caused by the tension between two parts of the First Amendment: the Free Exercise Clause and the Establishment Clause. Under the former, the government can't compel people to do things that go against their religion. Under the latter, people with religious beliefs can't be given an exemption from laws that affect everyone else. Such exemptions are therefore both required and prohibited. I don't know how much precedent there about the application of these principles in the corporate context, but Sotomayor evidently wants this decision to be made by the entire Court after full briefing and oral argument by both sides. I can't fault her for that, under the federal standards for granting a stay.

As I said in my subject line, Sotomayor's decision isn't purely pro forma. Not every requested stay is granted. In this case, there is room for reasonable disagreement about what should happen until the case can be decided, because, whichever path Sotomayor chose, there would be the potential for an error -- if the litigant that she disappoints now ultimately wins, then that litigant will have suffered in the interim because of the grant or denial of the stay. Absent any evidence to the contrary, I'll assume that she did not choose as she did because she's a Catholic or because she's a woman or because she's a corporatist. Instead, I'll assume that she did her best to make an impartial application of the long-established standards for an interim stay.

And, to answer what VanillaRhapsody keeps saying in this thread:
1. I am not not NOT telling women or anyone else to shut the fuck up. There's room for legitimate criticism of Sotomayor's decision with regard to each of the two criteria I described. Criticizing it instead on the basis that it hurts women or the like is unlikely to persuade anyone who is knowledgeable about the law and who follows the classic rule-of-law approach of deciding cases on the basis of established principles of general applicability. Nevertheless, people who approach the issue from other perspectives are certainly allowed to air their views.
2. Yes, I would say the same thing to the LGBT community, if (for example) there had been a stay pending appeal of a decision overturning DOMA or some such law, or if an appellate court had granted a stay pending appeal of the Utah decision requiring the state to implement marriage equality.
3. Yes, whether it was a law affecting women, or a law affecting LGBT people, or a law that in any other way aroused strong feelings, then I would indeed expect to be excoriated on DU for saying anything in defense of such a decision. That's because there are many people on DU who are either ignorant of the applicable legal standards or who consider those standards irrelevant when they get in the way of some other agenda. (I also expect to be excoriated for that statement but this thread supports it.)