Dramatically raise your bar exam scores

MPT Bar Exam Tips on Using Case Law

facebook twitter linkedin
MPT Bar Exam Tips on Using Case LawMPT Bar Exam Tips on Using Case Law

At BarWrite the Multistate Performance Test is our specialty. Dr. Gallagher’s study guide Perform Your Best on the Bar Exam Performance Test (MPT) teaches systems for finishing the MPT work product in 90 minutes and scoring high on the the MPT. You can see the reviews on Amazon. Students learn the MPT systems in our 10-Day intensive, in the 4-Day Bar Camp, in the 2-day MPT Crash Course. And of course, they may learn it in one-on-one coaching. Everywhere except in the 6-Day MBE Immersion Course, that is. MPT bar exam tips on using case law are fundamental.

Following are some of our tips for using the case law on the MPT. They come from Perform Your Best on the Bar Exam Performance Test (MPT).

Some Tips for Using Case Law on the MPT from Perform Your Best

In the Multistate Performance Test (MPT) the bar examiners aim to “evaluate your ability to handle a select number of legal authorities in the context of a factual problem involving a client.” Legal authorities in the MPT Library are usually either statutes or cases. The Library may also include selections from hornbooks, official commentaries, or even newspapers or web sites.

After you read the facts, and before you read the cases, read the statutes. Cases usually interpret statutes, rather than the other way around. If the statutes are too long or too complicated for close reading, skim to get the objectives. If possible, study the key statute, and if there are elements, number them.

Next, survey the cases. Using the cases on the MPT is easier than doing case research in the real world. On the MPT, the Library component of the task gives you the only case law you will need. You cannot possibly miss an important case on the MPT. The bar examiners have given you the case law. If you are using the MPT system in Perform Your Best on the Bar Exam Performance Test (MPT), you will be reading and analyzing the case law while making your MPT-MatrixTM.

Decide Whether Each Case You Wish to Use is Mandatory or Persuasive Authority

Some cases you will distinguish. They do not apply to your facts. Those cases have no authority for your argument.

When you find cases you wish to use, on the other hand, decide on the weight of each case as authority. The two key words are mandatory and persuasive. The main factor is which court authored the decision. You will recall that, all other things being equal, a decision from a higher court in the same jurisdiction as your client’s case is probably mandatory authority. Lower courts in that jurisdiction must follow it. Likewise, the federal constitution is mandatory law in every jurisdiction.

Decisions of courts in other states, of federal courts applying state cases or statutes in other states, and of lower courts or courts on the same level in the same state, can be persuasive, but not mandatory. A federal or state court may choose to employ a decision as persuasive for any of a number of reasons, including factual similarity or compelling reasoning.

The year the case was decided is important. The MPT Library may not present the cases in chronological order, so read carefully. Be careful to check on whether a case has been overruled. Unlike Westlaw or Lexis-Nexis, the MPT gives you no red or yellow flag to tell you that the case is no longer good law. The examiners do give you enough information, however, so that if you know what to look for, you can decide for yourself.

In determining the weight of authority, keep in mind that the examiners have not only created the fact pattern in the File, but they have also created the State of Franklin, all of its case law, and the fictitious Fifteenth Circuit of the United States, where Franklin is located.

Do not confuse the hierarchy of courts in your own state with the hierarchy of courts in the state of Franklin. In Franklin, the trial court of general jurisdiction is the District Court, the intermediate appellate court is the Court of Appeal, and the highest court is the Supreme Court. In the New York State Unified Court System, for example, the highest court is the Court of Appeals, the Appellate Division is intermediate, and the New York Supreme Court is a trial court.

A word of warning about familiar-seeming cases. If you notice that a case resembles a case you already know, do not assume that the two cases are the same. It is not even fair to the graders to call this a trap because they warned you in the MPT instructions that you should not assume that cases in the MPT are the same as cases you know. The case law in the MPT Library can be “real, modified, or written solely” for the purposes of the MPT task.

Since the MPT may concern an area of law you have never studied, you must pay especially close attention to the weight of authority. The question is whether the case is mandatory or persuasive authority, or no authority at all.

You Can Usually Find the Holding of the Case in the First Two or Last Two Paragraphs

You will usually find the holding of the case in the first two paragraphs, the last two paragraphs, or both. It is usually safe to skim the discussion in between. But you must pay careful attention to other cases cited and to the footnotes. The cited cases may themselves provide authority for your arguments.

Whether a case is mandatory or persuasive will dictate the weight of the authority. When you determine and utilize the weight of the authorities provided, you demonstrate to the graders that you understand the hierarchy of the law. You will use the case law appropriately in your MPT work product.

###

 

Sample Bar Exam Study Schedule

facebook twitter linkedin
Sample Bar Exam Study ScheduleSample Bar Exam Study Schedule

During the first hour in every BarWrite course we discuss sample bar exam study schedules. One of my former students, Greek lawyer and New York lawyer Annie Noula, says, “If you don’t have a study schedule, don’t take the bar exam.” Study schedules are key, whether for the 2-Day MPT Crash Course, the 4-Day BAR Camp, the 6-Day MBE Immersion, or the 10-Day Intensive. Sample bar exam study schedules vary, depending on whether the student is working or not, studying full time or not, and whether the bar candidate has additional responsibilities, like taking care of small children. BarWrite also offers a free one-hour teleseminar before the bar exam that talks about sample bar exam study schedules, provides free sample schedules, and answers students’ questions.

SAMPLE BAR EXAM STUDY SCHEDULE NO. THREE

This is the schedule for a student who was working full-time in a major New York law firm in Midtown Manhattan until three weeks before the bar exam. She passed!

MONDAY-FRIDAY

6:30 am-7:45am  
BarWrite® MBE system.
7:45am – 8:20am
Get Ready for work. Memorize one MBE rule.
8:20am – 9am
Quick review of outlines or flashcards, or listen to MBE CD (Pick one
and stick to it) on the subway. [BarWrite® recommends flash cards,  and does not recommend CDs. Active study is better than passive.]
9am – 1pm
Work. Memorize one or two rules during bathroom breaks.
1pm-1:45    
Lunch – Study outlines, memorize one MBE rule.
1:45 pm – 8/10pm      
Work (Depending on the day of the week, this candidate would sometimes have to work until 10:00pm. Then she would study on the subway.
8pm -9pm        
BarWrite® MBE System. Answer ten questions, analyze answers.
9pm-10pm    
Outline two essays and analyze answers
10pm-11:30pm    
Review law outlines and create flashcards for MBE substantive law and/or World Cup Rules
11:30pm-Midnight
MBE (at least five questions). BED

SATURDAY

7am – 7:35am  
Get ready for work – memorize one or two MBE rules
7:30am – 8:10am
Subway to work – Read outlines; Memorize at least one MBE rule
8:30am – 4pm
Work – memorize one or two MBE rules during bathroom breaks. Memorize on subway home.
5pm – Midnight    
Quick review of one subject outline, ten or more MBE problems. (Review, make flashcards for unfamiliar rules, do analysis); outline one essay.

SUNDAY

8:45am – 4:30pm    
BarWrite® Class. Memorize two or three MBE Rules during breaks.  Study on subway.
5:30pm – Midnight  
Quick review of one or two subject outlines, ten or more MBE Problems. (Make flashcards for unfamiliar rules, do analysis); outline one essay.

This bar candidate would take 10-minute breaks every 90 minutes and
exercise every other day. [Not enough exercise, alas.]

Because this bar candidate’s time was so limited, her first priority was to make sure she knew the MBE rules and the World Cup Rules cold. Shortly after this candidate learned she had passed the bar exam, we got together and talked about how she had done it. She made a gesture like shuffling cards. She told me that for the final month before the exam, she had taken her 150 MBE cards and spent most of her time just reciting those rules from memory every day.

Her study schedule, and her emphasis on knowing the black letter law cold, worked!

OUR BARWRITE BOOKS AND COURSES

 

Best MPT Bar Exam Preparation

facebook twitter linkedin
Best MPT Bar Exam PreparationBest MPT Bar Exam Preparation

— By the sponsors of the 2-Day MPT Crash Course. . . .

What are a Bar Candidate’s Choices for Preparing for the Multistate Performance Test (MPT) Part of the Bar Exam?

The MPT is 20 per cent of a bar candidate’s score on the Uniform Bar Exam (UBE). Better take it seriously! Bar candidates must ask what the best MPT bar exam preparation is. From my experience and observation, so long as the MPT uses appellate briefs in its tasks, the absolute best preparation for the performance test is to work in a law office. The MPT really is related to the practice of law.

I learned by experience that the key to the MPT is the right habits

I took and passed the California Bar Exam in 1982. It was the first year for the Performance Test part of the exam, and everyone was anxious. But when I opened the test packet and saw that the task was an appellate brief, I was delighted. I had been writing briefs in a law office for a year and a half! Hurray! I geared up my Selectric typewriter and dove in: Questions Presented! Brief Answers! And so on. While I never submitted the paperwork to become a member of the California bar, I did learn this invaluable lesson about writing a performance test by taking the California bar exam. The key is having the right habits.

The best preparation for the MPT is time spent developing the habits, in a law office.

That brief on the California Performance Test was easy for me because I had developed the habits for writing appellate briefs. Like most JDs, I had written a brief in Legal Writing class in law school. In fact, I had also done moot court, so I had written more briefs than most JDs. But I had not written enough briefs in law school to develop habits. Today, not just from my own experience in California, but also from reading my bar-prep students’ papers for many years, I know that the best preparation for the MPT is to spend time working in a law office. Over and over again, my own experience is confirmed. Students who have worked in a law office do better on the MPT. The difference is the habits such a job creates. Habits are key.

For Bar Candidates Who Cannot Work in a Law Office the Answer is to Learn a System for the MPT

What can bar candidates do who cannot develop the habits for writing briefs, memos, letters, and so on, in a law office? After much serious thought, I decided that without habits for briefs, memos, and so on, the next best thing is to learn a system for doing the MPT itself. With a system, bar candidates can make using the system into a habit. But where can a bar candidate look for serious MPT bar-prep?

The National Conference of Bar Examiners (NCBE) Offers Released MPTs

The National Conference of Bar Examiners (NCBE) itself provides abundant released MPT tasks and point sheets. For some bar candidates that is enough. With due respect to the NCBE, however, they provide no system. If a bar candidate needs help with the MPT, those materials are just saying Go practice! Many candidates have trouble managing time on the MPT. Doing more tasks does not teach them to manage time. Nor does it help bar candidates to organize the materials. The MPT tasks are too different from one another: doing many tasks does not build habits, or even skills. The Point Sheets that the NCBE provides give an abundance of information about points a candidate could make, but they do not teach candidates how to do the task.

Many Students’ Will Look First to the Big Commercial Bar Review Courses

The big commercial bar review courses all include the MPT in their programs. To be sure, most bar candidates will do well enough just relying on this instruction. But if a bar candidate needs work on the MPT, will the big bar courses be the best preparation? Especially for candidates who have not worked in a law office? Alas, no.

From what I understand, the big courses give bar candidates a few hints, and they demonstrate one or two MPT examples. Then they hand out a stack of old MPT exams, and they say “Go practice!”

Practicing the MPT Does Not Solve the Problem for Most People

But if the bar candidate can’t finish MPT tasks inside 90 minutes to start out with, what good does it do to practice not finishing inside 90 minutes, over and over again? These courses cannot offer enough practice on any given task to develop habits. Likewise, if the bar candidate can’t understand task memos and find the issues in a task memo, how can a lot of practice help? Nor can LLM who has never written even one appellate brief learn how to do it in one of the big bar review courses.

Here’s what the great master teacher of legal writing, Professor Louis Sirico, said when the book Perform Your Best on the Bar Exam Performance Test (MPT) came out:

As far as I can tell, the large commercial bar review courses have yet to fully master how to train students to take the MPT. . . .”

So if bar candidates cannot look to either the NCBE materials alone or to the big bar review courses for training on the MPT, what choices do they have?

Students Do Have an Alternative. The BarWrite 2-Day MPT Crash Course Is the Best MPT Course by Far

The BarWrite 2-Day MPT Crash Course. If a bar candidate is searching for the best MPT bar exam preparation, nothing beats the BarWrite 2-Day MPT Crash Course. Offered live in New York City, where students can receive classroom instruction and immediate feedback, and not offered online at all, this course combines learning the system in Perform Your Best on the Bar Exam Performance Test (MPT) (see below), with explanations and feedback. Bar candidates have come to us who have failed the bar exam twice because of the MPT, they took this course, and today they are practicing law.

Best Available Book: Perform Your Best on the Bar Exam Performance Test (MPT).

If we disregard the text materials from the big commercial bar review courses, there are only two books available to help bar candidates for the Multistate Performance Test (MPT). I recommend Perform Your Best on the Bar Exam Performance Test (MPT) as the best MPT bar exam preparation. This is not just for selfish reasons. First, Perform Your Best uses real NCBE materials, and the other book, by Rigos, does not. Second, more important, Perform Your Best teaches a system for doing the MPT and finishing on time. No other course, and no other book, does that. Nowhere else will candidates find a system that teaches not just how to complete an MPT task but how to complete an MPT task, finish inside 90 minutes, and get a high score.

Experience Shows that the Perform Your Best System Works!

The best MPT bar exam preparation is the system in the book Perform Your Best on the Bar Exam Performance Test (MPT). My students and I have tested the system in Perform Your Best on the Bar Exam Performance Test (MPT). As I developed the system, I taught the MPT in my own 10-Day Intensive and 4-Day bar-prep classes, over a number of years. My students tried it out. It worked!

In addition to teaching a system for the MPT, the book Perform Your Best on the Bar Exam Performance Test (MPT) also provides not just 12 real NCBE-released MPT tasks but (a) sample answers for each task and (b) explanations for how to perform each task.

Read the Reviews of Perform Your Best on Amazon

After spending years developing the system, I spent two years getting the system and materials into publishable form. This was hard to do and very expensive, not just in time spent and lost opportunities but in the expense of paying design contractors. In the end, the MPT systems and the book were worth my time, expense, and trouble.  You can read the reviews of Perform Your Best on Amazon. I especially like the one that says the system is “the Swiss Army knife of MPT-preparation.” This is true. This book will help you on the MPT!

Wishing you the greatest success on the bar exam,

— Mary Campbell Gallagher, J.D., Ph.D.

*****

 

Why Our Bar Exam Tutors Use Memorization

facebook twitter linkedin
Our BarWrite Bar Exam Tutors Use MemorizationWhy Our BarWrite Bar Exam Tutors Use Memorization
Memorization Helps Students Master the Basic Rules of Law

Our BarWrite BarWrite bar exam tutors have years of experience helping candidates learn how to pass the bar exam. They recommend memorization because it works. Does memorizing basic rules mean that bar candidates do not understand the law? Certainly not. Does it mean that they cannot apply those rules? No. BarWrite students don’t just learn the law, they learn how to apply it at the same time. Our bar tutors make sure that students take the rules apart into their constituent parts and apply those elements one-by-one to the facts of typical fact patterns.

Our BarWrite Bar Exam Tutors Know That Memorizing is Simple but not Easy

Can you memorize? Yes. In fact, to learn the basic rules in each tested area of law you do not need a special gift. It is simple, but it is not easy. Very few human beings have a natural gift for memorizing. Not even the champions at memorizing that Joshua Foer wrote about in his exceptional book Moon Walking With Einstein: The Art and Science of Remembering Everything, which is about champions of memorization and reports on the latest research, too.

Our Bar Exam Tutors Find That Memorizing Is Good for You!

Our BarWrite bar tutors report that if students memorize one rule of law and learn to apply it, the next rule in that area of law is easier to learn. That makes sense. Research shows that memorizing changes the shape of the brain. It primes the brain for further learning. See our blog post “Memorizing Law, Can it Make You Brilliant on the UBE?”

In fact, signs are that there may be an upsurge in support of memorizing, and not just among our own bar exam tutors. In the New York Times, you could read “Memorize That Poem,” by Molly Worthen, New York Times, August 26, 2017

That same day, the New York Times Book Review included a review of a book about Chinese education which said that “Chinese students memorize what they have to, then explore deeper, more complex applications.” Americans, by contrast, have “so much focus on applicable knowledge that concepts are taught in a shallow fashion.” Alan Paul, “Study Skills: A personal investigation into China’s education system,” a review of Lenora Chu, Little Soldiers.

BarWrite Bar Tutors Say that Bar Candidates Can Start by Memorizing a Section of the Basic Rules in One Area of Law

A bar candidate can start by memorizing and applying, for example, the basic UCC rules for contract formation. Next the bar candidate can compare them with the basic common law rules. The candidate who masters those rules and how to apply them will find it much easier to answer MBE contracts questions.

Try it. Our bar exam tutors know.

*****

 

How to Analyze and Answer MBE Contracts Questions

facebook twitter linkedin
Contracts MBE questions are challengingContracts MBE Questions Are Challenging

Contracts MBE questions are challenging for many bar candidates. Unlike Evidence questions, for example, Contracts questions rarely give hints about what rule of law will apply. (An Evidence question might say: “Plaintiff’s lawyer moved to strike the testimony as hearsay.” Aha! Apply the hearsay rule!) With a Contracts question, the bar candidate must figure it all out.

In the BarWrite 6-Day MBE Immersion Course and the BarWrite 10-Day Intensive, students use the Gallagher/BarWrite MBE Study System. We will illustrate key components here that will help you raise your MBE score.

With Contracts MBE Questions Use the Tactics of the Gallagher/BarWrite MBE System

Here is one key component of our system. Before doing any MBE practice question, cover the answer choices with your hand or with an index card. The MBE is a test of a candidate’s ability to apply law to facts, it is not a test of dancing with the answer choices. Read the interrogatory with special care.

Your answer must respond precisely to that interrogatory.
  1. Read the fact pattern meticulously, deciding what rule of law must be applied. By “what rule of law” we do not mean “what large area of law,” e.g., Contracts law. We mean, for example: Is an acceptance effective upon receipt or upon dispatch?
  2. Next, analyze the facts in the fact pattern. Take the facts apart and apply a term from the rule of law to each relevant fact. This is the offeror. That is the offeree. These facts are the dispatch. This fact is the receipt.
  3. Apply the whole rule to the fact pattern, one term at a time, as you have analyzed it.
  4. Decide on your own answer to the interrogatory.
  5. Read over the answer choices and pick the one that is closest to your own answer.
  6. Examine the other answer choices just to make sure you have the right one.
Sample Contracts MBE Question

This simplified sample question reflects the structure of many Contracts MBE questions.

Smithtown sponsored a marathon race to raise money for local charities. It sent a written invitation to the internationally famous marathoner Jacob Jobes. The letter announced a special bonus for Jobes to take part in the race, namely, $10,000. Although the letter never arrived, Jones heard about the race and he did take part. He placed first in the men’s race, and he received the $10,000 first place prize. But he had heard about the bonus from one of the officials, so he asked for the $10,000 bonus for taking part, as well.

How much must Smithtown pay to Jacob Jobes?

(1) $10,000.00 as a bonus for taking part in the race;

(2) $10,000.00 for winning first prize;

(3) Both (1) and (2);

(4) Neither (1) nor (2).

The interrogatory asks how much money Smithtown must pay to Jacob Jobes. In other words, must Smithtown give Jobes the $10,000 bonus for taking part? Jobes never received the letter that contained the offer. So the legal issue is whether the offer of the special bonus must be received to be effective. Did Jobes have to know about the bonus in order to qualify?

RULE. The rule is that in order to be effective, an offer must be communicated to the offeree. An offer is effective only upon receipt.

Word-by-Word Analysis of the MCE Contracts Fact Pattern Yields the Right Response

The offer was this: The letter announced a special bonus for Jobes to take part in the race of $10,000.

Was the offer dispatched? Yes, Smithtown sent Jobes a written invitation.

Was the offer received? No, the letter never arrived.

Was the offer communicated to the offeree? No. The facts tell us: . . . the letter never arrived.

Thus, since the offer never reached Jobes, it was not communicated to him.

Therefore, although Smithtown must give Jobes the $10,000 for winning the race. Smithtown need not give Jobes the $10,000 bonus for taking part. Accordingly, the answer is (2): $10,000 for winning first prize. 

Applying the BarWrite System Takes Patience, and the MBE Rewards Patience

Bar candidates often worry about taking too much time to learn certain parts of the law, or taking too much time to master certain MBE questions. If a rule is fundamental, and the rule in our example is, then there is almost no such thing as taking too much time. This rule is likely to appear on the MBE. A bar candidate will raise his or her score by learning to apply it. That takes patience. The bar exam rewards patience. Patience is one ticket to a passing score.

###

 

What is the Multistate Performance Test (MPT)?

facebook twitter linkedin
What is the Multistate Performance Test (MPT)?What is the Multistate Performance Test (MPT)?

The Multistate Performance Test (MPT), or the California Performance Test (PT), is a part of the bar exam in which candidates must perform a law office task under timed conditions. The examiners provide sample law office materials (the File) and research materials (the Library). The first item in the File is the most important item in the entire packet, namely, the instructions, also known as the Partner Memo or the Task Memo.

We might say that the MPT is a test of a bar candidate’s ability to follow instructions. Not following instructions is the surest route to a low grade on the MPT. One excellent bar candidate got a low score on one of the February 2017 MPTs by disregarding the instruction in the partner memo to find a way to hire a junior lawyer despite an apparent conflict of interest. His MPT paper said, “Don’t hire her.” But that was not the instruction!

Another excellent bar candidate spoiled her chances on a recent MPT by not reading the section of the instructions telling bar candidates to list findings of fact and conclusions of law in one-sentence segments. When the bar examiners ask for one-sentence segments, they do not want three-sentence segments. A bar candidate who provides three-sentence segments will receive a very low grade.

Unfortunately, bar candidates may be unaware that they are reading the instructions carelessly. That’s why in the Gallagher/BarWrite systems, they read the instructions not just once at the beginning but several times at the beginning. But that’s not all. Then they read the instructions again, twice more, as they produce their work products. The instructions in the Partner Memo are the most important item in the entire MPT packet. They don’t just deserve all these readings, they require this much attention.

What is the Multistate Performance Test (MPT)?

Whatever else it is, the MPT is a test of a bar candidate’s ability to follow instructions. You cannot be too careful.

Take our BarWrite 2-Day MPT Crash Course to learn how to use Dr. Gallagher’s MPT System and to get feedback. Read all about the System in Perform Your Best on the Bar Exam Performance Test (MPT), by Mary Campbell Gallagher, J.D., Ph.D. Or find out why one-on-one coaching may be the right solution for you.

###

Can Bar-Prep Mentors Help With Bar-Prep Anxiety?

facebook twitter linkedin

Continue reading Can Bar-Prep Mentors Help With Bar-Prep Anxiety?

Failed the bar exam?

facebook twitter linkedin

Failed the bar exam?

Help! I failed the bar exam, and I don’t want to do that again!

Here’s what you must do.

  1. Once you have recovered from the shock, find out the facts and face them. First, take a little time to adjust. Then jump right back in. Study what happened. Did you spend enough time studying? Were you working? Worried about your own health or a family member’s? Concerned about money? Whatever it was, make sure that Continue reading Failed the bar exam?

MBE Disaster on the Way?

facebook twitter linkedin

MBE Disaster on the Way?

MBE Disaster on the Way? Reports from Pennsylvania suggest that nationwide MBE scores on the February 2017 bar exam have hit an all-time low. MBE scores fell from 136.2 to 135 on the February 2016 bar exam. But on the February 2017 exam the MBE plummeted to 134. The previous lowest score, in 1980, was 134.3. With the New York results not yet out, this news causes nail-biting from Brooklyn to Buffalo.

What’s going on? Derek Muller has shown that the reason the decline in MBE scores is Continue reading MBE Disaster on the Way?

Gorsuch j & HObby Lobby

Gorsuch, J., & Hobby Lobby

facebook twitter linkedin
On the morning of Monday, April 10, Neil Gorsuch stood in the sunshine outside the White House with the President, Justice Kennedy, and Mrs. Gorsuch. He took one of the two oaths of office required to become an associate justice of the United States Supreme Court. Whatever your views on originalism, to which Judge Gorsuch is committed, his qualifications fit the profile for serving on our highest court. Accordingly, I have been curious about recent attacks I’ll call Gorsuch, J. & Hobby Lobby. Was his legal writing not good? Was his reasoning not defensible? As time permits, I am going to report, first, on two of Justice Gorsuch’s most controversial opinions in the 10th Circuit. After that, again as time permits, I’ll take up a case involving church and state, No. 15-577, Trinity Lutheran Church v. Comer, set to be heard by the Supreme Court on April 19, where the new Justice Gorsuch’s vote may tip the balance. Readers wishing to review all of Judge Gorsuch’s 10th Circuit jurisprudence may consult the helpful index on ScotusBlog.
The plaintiffs in Hobby Lobby Stores, Inc. v. Sibelius were two closely-held for-profit corporations with a strong religious character and also the individual owners of those corporations, the Greens.
The plaintiffs argued that under the Religious Freedom Restoration Act [RFRA]. they could refuse to pay for four specific types of contraceptives for their employees. Providing those four types would otherwise have been mandated under regulations pursuant to the Affordable Care Act [ACA]. The case came before Tenth Circuit as an appeal from the district court’s denial of a preliminary injunction. The narrow issue was whether the plaintiffs as a privately-held for-profit corporation, and its owners, with a religious objection, were likely to have success on the merits.

As Judge Gorsuch wrote:

In many ways this case is the tale of two statutes. The ACA compels the Greens to act. RFRA [Religious Freedom Restoration Act] says they need not. We are asked to decide which legislative direction controls. The tie-breaker is found not in our own opinions about good policy but in the laws Congress enacted.
The Tenth Circuit held that the plaintiff corporations had a sufficient likelihood of success on the merits to quality for a preliminary injunction. The question, again, was whether a private for-profit corporation with a religious objection could use the RFRA.

The Tenth Circuit held that the Department of Health and Human Services could not require closely-held, for-profit, secular corporations, where the owners had a religious objection, to provide those specific types of contraceptive coverage as part of their employer-sponsored health insurance plans. The government had not provided the most narrowly-tailored way of achieving the goals of the legislation. The U.S. Supreme Court affirmed.

Readers of the Supreme Court opinion know that making employees forego coverage was never an issue in the case. The government has come up with alternative ways of providing full coverage for all employees, either where employers are sponsored by a religion or where they are religious non-profits. And, now, where they are privately-held for-profit corporations with a religious character.

Here is how Westlaw summarizes the Hobby Lobby holding, with Gorsuch as a member of the majority. I do not find anything in it that demonstrates either religious discrimination or indifference to women’s health. ScotusBlog quotes Westlaw:
En banc court held that petitioning companies, closely held family businesses, were likely to prevail on their claim that the Affordable Care Act’s contraceptive mandate substantially burdened their exercise of their religious beliefs.
In his concurring opinion, which had four rather than five votes, and was therefore not the opinion of the Tenth Circuit, Judge Gorsuch argued that the individual owners of the plaintiff corporations were also entitled to relief under the RFRA.

This is the opinion that critics challenge. Here is how ScotusBlog, quoting Westlaw, summarizes Judge Gorsuch’s concurring opinion:

Gorsuch would have held that the business-owners as individuals were entitled to relief, stating that “it is their personal involvement in facilitating access to devices and drugs that can have the effect of destroying a fertilized human egg that their religious faith holds impermissible.” Moreover, he added, “it is not for secular courts to rewrite the religious complaint of a faithful adherent.”

Critics disparage the way Judge Gorsuch framed the issue:

All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others. For some, religion provides an essential source of guidance both about what constitutes wrongful conduct and the degree to which those who assist others in committing wrongful conduct themselves bear moral culpability. The Greens [owners of Hobby Lobby Stores] are among those who seek guidance from their faith on these questions.

The issue Judge Gorsuch’s opinion addressed was just whether the Greens as individuals could use the RFRA. Slate interpreted this concurring opinion to mean that Judge Gorsuch is hostile to women’s health care. The Atlantic.com called it religious discrimination. Others have alleged that the holding of the Supreme Court permits conservative Christians to override the interests of women and minorities. These objections seem to me to stretch their points.
###