A theme is an excellent way to leave an impression on the reader and pull together arguments that might otherwise seem disjointed. HHS advances one of its themes time and time again—the argument that corporations are distinct from their incorporators and officers. Throughout the brief, HHS notes the “bedrock principle” that corporations are distinct legal entities and, therefore, have no rights under RFRA:
-“Few norms are more deeply ingrained into the fabric of American law than the principle that a corporation and its stockholders are deemed separate entities. And this Court has consistently interpreted federal states in a manner than respects this bedrock norm.”
-“Nothing in RFRA purports to reject the bedrock principle that a corporation is legally distinct from its owners.”
-“The corporations [the Greens] formed are distinct legal entities, and nothing in RFRA overrides that bedrock principle of corporation law.”
Additionally, HHS makes good use of non-legal sources--a tactic we saw in Christopher Simmons's brief in Roper--to further its argument that the contraceptive mandate advances public health, a compelling government interest. HHS notes that a woman’s decision about whether and when to become pregnant “impacts her health, her child’s health, and the economic well-being of herself and her family.” HHS relies on reports from the American Medical Association, the American Academy of Pediatrics, and the March of Dimes, all of which “recommend the use of family planning services as part of preventive care for women.” Thus, argues HHS, it has provided a “concrete and specific” interest “supported by a wealth of empirical evidence.”
HHS also employs a strategy I recommend for dealing with counterarguments—make your best and strongest arguments first, then address counterarguments. Otherwise, you end up with a muddled ping-pong-like presentation that gives undue credence to the opposing party’s arguments.
HHS starts by arguing that RFRA doesn’t grant rights to for-profit corporations, the Greens’ exercise of religion isn’t burdened by the contraceptive mandate, and the mandate advances compelling government interests. Then—after it’s made its best and strongest arguments—HHS addresses counterarguments. While HHS does use the initial parts of its brief to distinguish some cases relied on by Hobby Lobby, it doesn’t address the “meat” of the counterarguments (and the Tenth Circuit’s holding) until page 48 of the 58-page brief, when HHS starts referencing its earlier points to explain why arguments to the contrary are wrong.
As I've noted previously, the Hobby Lobby and HHS briefs are excellent examples of strong written advocacy and offer a wealth of strategies that lawyers old and young alike can employ.