Wednesday, November 6, 2013

Oral Arguments in Town of Greece v Galloway: Can the Town Council Ask Those Attending to Bow Their Heads and Pray?

The Court today heard oral arguments in Town of Greece v. Galloway regarding a New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian. 


Head of Apollo
Head of Apollo,
Attributed to Kephistodotos the Elder
(active early 4th century B.C.)
Recall that the unanimous panel opinion of the Second Circuit held that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and violated the First Amendment's Establishment Clause.  The case has attracted much attention - - - a great PBS  video is here - - -  and in a move that surprised some, the Obama Administration filed a brief in support of the town.


Doctrinally, the arguments centered on an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer.  The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer.  Among the many references to Marsh in the argument and its reliance on history is this one with (ConLawProf) Douglas Laycock, representing the challengers to the prayer, after some laughter:

JUSTICE KENNEDY: I mean, I'm serious about this. This involves government very heavily in religion.

MR. LAYCOCK: Well, government became very heavily involved in religion when we decided there could be prayers to open legislative sessions. Marsh is the source of government involvement in religion. And now the question is how to manage the problems that arise from that.

JUSTICE ALITO: Well, Marsh is not the source of government involvement religion in this respect. The First Congress is the source.

MR. LAYCOCK: Fair enough. The tradition to which Marsh points.

JUSTICE ALITO: The First Congress that also adopted the First Amendment.

Yet another possible distinction from Marsh is the Town of Greece town council is a "hybrid" body which has administrative function and persons appearing before it who are seeking specific relief, as well as being local.  Justice Ginsburg complimented the Deputy Solicitor General, who argued as amicus curiae, supporting the Town of Greece, for being "quite candid" about this quality and stating that it would be proper to have "certain checks" in that setting.   But the nature of those checks preoccupied the arguments.   Does it matter how far the prayer and the "hearing" are separated in time?  Should there be guidelines for those giving the prayers - - - and how much does this involve (entangle) the government in religious matters?  Does it matter if the attendees are asked to show their hands if they personally feel in need of prayer?  (To which Justice Scalia interjected, "That's not a prayer.")   Additionally, there was little satisfaction with either the coercion or endorsement tests, and the (in)famous Lemon test made no appearance at all.

For some Justices, prayer as practiced in the Town of Greece council meetings seemed deeply troubling.  For example, Justice Kagan quickly interrupted Thomas Hungar, arguing on behalf of the town:

JUSTICE KAGAN: Mr. Hungar, I'm wondering what you would think of the following: Suppose that as we began this session of the Court, the Chief Justice had called a minister up to the front of the courtroom, facing the lawyers, maybe the parties, maybe the spectators. And the minister had asked everyone to stand and to bow their heads in prayer and the minister said the following: He said, we acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. Blessed are you who has raised up the Lord Jesus. You who will raise us in our turn and put us by His side. The members of the Court who had stood responded amen, made the sign of the cross, and the Chief Justice then called your case.

During his rebuttal argument, Mr. Hungar's attempt to demonstrate the town was not sectarian in its prayer was less than successful for Justice Sotomayor:

MR. HUNGAR:  Thank you, Mr. Chief Justice. 
First I would like to correct one factual misimpression, the assertion that only non-Christian prayer-givers delivered the prayer after 2008. It's not in the record, but the official web site of the Town of Greece shows that at least four non-Christian prayer-givers delivered prayers thereafter in 2009, '10, '11 and '13.

            JUSTICE SOTOMAYOR:  Counsel.

            MR. HUNGAR:  I'm sorry?

            JUSTICE SOTOMAYOR:  One a year.

            MR. HUNGAR:  I'm sorry, Your Honor?

            JUSTICE SOTOMAYOR: Four additional people after the suit was filed.

            MR. HUNGAR:  Yes, Your Honor.

            JUSTICE SOTOMAYOR:  One a year.

            MR. HUNGAR:  Approximately.

            JUSTICE SOTOMAYOR:  How often does the legislature meet?

            MR. HUNGAR:  Once a month.  
            And on the sectarian line  . . . . .

It was clear that several of the Justices found this as unacceptable as the Second Circuit had.  Yet how and where to draw the lines engendered little agreement.

November 6, 2013 in Establishment Clause, First Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 29, 2013

Catholic Media Corporation, Alabama Sue Over Contraception Mandate

The Eternal World Television Network, a Catholic media corporation, and the State of Alabama filed suit against the government yesterday, seeking to halt the contraception mandate in the Affordable Care Act. 

EWTN argues that the mandate violates the Religious Freedom Restoration Act and the religion clauses, among other claims.  Alabama says that the mandate intrudes on its "sovereign prerogative to regulate the insurance market in accordance with its own law and policy, without being contradicted by unlawful federal regulations."

The case is just the latest religious-based challenge against the contraception mandate.  We posted most recently just yesterday, on the Sixth Circuit's ruling in Eden Foods.  If Eden Foods seemed more political than religious-based--the plaintiff's "deeply held religious beliefs" "more resembled a laissez-faire, anti-government screed," according to the court--this case seems more political than religious-based for a different reason: EWTN is exempt under HHS regs, and if the mandate is valid Alabama simply has no claim.  In other words: the plaintiffs don't seem to have much to complain about.  We posted on the government's proposed regs exempting religious employers here; and we posted on the then-developing circuit split on the issue here.

EWTN says this about its accommodation under the regs:

This is a mere fig leaf.  It would still require EWTN to play a central role in the government's scheme by "designating" a fiduciary to pay for the objectionable services on EWTN's behalf.  This would do nothing to assuage EWTN's objections to the mandate.

The so-called "accommodation" also continues to treat EWTN as a second-class religious organization, not entitled to the same religious freedom rights as the Church it exists to serve.  It also creates administrative hurdles and other difficulties for EWTN, forcing it to seek out and contract with companies willing to provide the very drugs and services that EWTN speaks out against.

As to Alabama, the State apparently seeks to protect itself and its citizens from the "immediate and continuing burdens" of the mandate.  The State points out that its law expressly says that insurers do not have to provide contraception coverage in their plans.  The claim sounds in federalism, but the complaint doesn't say why or how the federal mandate violates federalism principles.  (Maybe that's because it doesn't.)

The plaintiffs also raise free speech, due process, and APA claims.

October 29, 2013 in Cases and Case Materials, Congressional Authority, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, October 4, 2013

Daily Video: Town of Greece Legislative Prayer Case

The United States Supreme Court will consider the constitutionality of "legislative prayer" in Town of Greece v. Galloway this Term, with oral arguments scheduled for November 6, 2013.  As we discussed previously, the Obama Administration has filed a brief supporting the Town of Greece.   Recall also that the Second Circuit found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and thus violated the Establishment Clause.

This video from PBS provides a great overview (in 7 minutes) of the case, and a transcript is also available.


This could be a great video to show in class as a prelude to discussion of the arguments. 

October 4, 2013 in Establishment Clause, First Amendment, News, Religion, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Texans Debate Creationism in the Classroom

Yesterday we wrote about the latest case in Kansas challenging evolution in the classroom.  In a comment, reader Eli Bortman gave us the heads-up that yesterday's NYT included an article on the same issue in Texas.  (Thanks, Eli.)

Here's a bit from the Times piece that helps explain the edu-ese and pseudo-scientific language in COPE's complaint in the Kansas case:

By questioning the science--often getting down to very technical details--the evolution challengers in Texas are following a strategy increasingly deployed by others around the country.

There is little open talk of creationism.  Instead they borrow buzzwords common in education, "critical thinking," saying there is simply not enough evidence to prove evolution.

COPE went even further, though, arguing that the Kansas standards (with (secular) evolution as a centerpiece) themselves represent a kind of religious orthodoxy, and that Kansas in imposing this orthodoxy, without balancing it with "origin science," violated the religion clauses, free speech, and the Eqaul Protection Clause.  In doing so, COPE adopts the language and legal claims of opponents of creationism and tries to create an equivalence between its position and the position of science--putting itself on par with science, both on the "science" and in its legal positions in relation to science, and casting science as a kind of religion.  Then, after creating this topsy-turvey world where religion is science and science is religion, COPE asks the question: If "origin scientists" have an equal claim to the truth, doesn't it violate equality, speech, and religious principles to exclude their position from the curriculum?  

This isn't new, but as the COPE complaint and NYT piece suggest, creationism advocates may be getting a little better at clothing their positions in official- and technical-sounding langauge, and in turning the same constitutional claims that proponents of a curriculum based on science have used against creationism right back on them, in support of creationism.  The strategy is designed to frame the debate as one scientific theory against another scientific theory, not science against religion, and to put the competing policy and constitutional claims on par in order to gain traction under the religion clauses, free speech, and equal protection.

September 30, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (2) | TrackBack (0)

Thursday, August 15, 2013

Court Permanently Enjoins Oklahoma's Anti-Sharia Constitutional Amendment

District Judge Vicki Miles-LaGrange (W.D.Okl.) today permanently enjoined the Oklahoma state constitutional amendment that would forbid Oklahoma courts from considering Sharia law, international law, or "the legal precepts of other nations or cultures."  The court ruled that the amendment violated the Establishment Clause.  The ACLU posted its press release here.

The permanent injunction comes in round two of the litigation.  In the earlier first round, the Tenth Circuit affirmed the district court's temporary injunction against the amendment.

Judge Miles-LaGrange adopted the Tenth Circuit's reasoning in concluding that the amendment violates the Establishment Clause.  In particular, Judge Miles-LaGrange held that strict scrutiny applied under Larson v. Valente (1982) because the amendment discriminates among religions, and that Oklahoma couldn't provide a compelling government interest in enacting the provision.  Quoting the Tenth Circuit:

[Defendants] do not identify any actual problem the challenged amendment seeks to solve.  Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.

Op. at 7.

Judge Miles-LaGrange also held that the anti-Sharia portion of the amendment couldn't be severed, because, she said, the whole purpose in adopting the provision was to forbid the use of Sharia law, and the amendment wouldn't have passed without the anti-Sharia provision.

This ruling is surely not the end of the case.  But given the Tenth Circuit's earlier ruling, the result will almost surely be the same on appeal.


August 15, 2013 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, August 10, 2013

Obama Administration Supports Town of Greece's Prayer on Certiorari to United States Supreme Court

In Galloway v. Town of Greece (New York), the Second Circuit held that the town's practice of legislative prayer "impermissibly affiliated the town with a single creed, Christianity."  

The Court granted the Town's peitition for writ of certiorari, and the Solicitor General has just filed the United States Government's brief supporting the Town. 

At issue is an application of Marsh v. Chambers (1983), in which the Court upheld the constitutionality of the Nebraska legislature's employment of a chaplain to lead a legislative prayer.  The majority opinion, authored by Chief Justice Burger, was seemingly not worried that the same chaplain had been employed for almost two decades, and relied upon the historical practice of legislative prayer, applying Lemon v. Kurtzman.

The Second Circuit in Town of Greece, however, looked at the content of the prayers and essentially found, as we phrased it here, "one invocation to Athena out of 130 is simply not sufficient" to meet the requirement of non-endorsement given that two-thirds of the prayers contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”

The Solicitor General's brief, however, argues that the court should not consider the content of the prayers.  The government argues:

Under the principles announced in Marsh, which relied heavily on the history of legislative prayer in this country, a prayer practice that is not problematic in the ways identified in Marsh (as petitioner’s practice concededly is not) does not amount to an unconstitutional establishment of religion merely because most prayer- givers are Christian and many or most of their prayers contain sectarian references. The unbroken history of the offering of prayer in Congress, for example, has included a large majority of Christian prayer-givers and a substantial number of prayers with identifiably sectarian references. Neither federal courts nor legislative bodies are well suited to police the content of such prayers, and this Court has consistently disapproved of government interference in dictating the substance of prayers.

Taken to its logical conclusion, the government's position here would disable the judiciary from considering the content of any prayer, including one that was vigorously and even violently sectarian.

[image of Athena, via]

August 10, 2013 in Current Affairs, Establishment Clause, First Amendment, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Friday, July 12, 2013

Fourth Circuit Upholds Employer Mandate in Affordable Care Act

A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act.  The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine.  Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.

The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate.  (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.)  What's the difference?  See below.

The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius.  Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power.  The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB.  (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)

The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act.  (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)

On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority.  (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.)  What's the difference between the employer mandate and the individual mandate?  In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause.  The Fourth Circuit explained:

To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it.  In contrast to individuals, all employers are, by their very nature, engaged in economic activity.  All employers are in the market for labor.  And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .

Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . .  Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.

(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court."  We covered that topic here.)

Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.

The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.


July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, July 11, 2013

Daily Read: Marci Hamilton on Hobby Lobby

Should a for-profit corporation have free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment as the en banc Tenth Circuit held in Hobby Lobby, Inc. v. Sebelius?

Marci-Hamilton_039-RET-flat-FINALConLawProf Marci Hamilton thinks not.  In her column over at Justia, Hamilton (pictured right) provides cogent arguments countering the majority's opinion. 

Hamilton ultimately contends that RFRA, at least as interpreted by the Tenth Circuit, is unconstitutional under the Establishment Clause in that it means that "large for-profit employers, who may not discriminate in hiring based on religion, can still coerce their employees into following their religious beliefs." 

Hamilton's even larger argument, however, involves the relationship between religion and capitalism in our constitutional democracy.  Assume, she argues, that Hobby Lobby and similar companies

assert that they don’t mind losing money from those who don’t share their religious beliefs.  Or to put it another way, they really only want business from those who share their religious beliefs.  That is the slippery slope on which the Tenth Circuit has set free exercise reasoning.

That isn’t capitalism, which, when working as it should, is driven by the quality of products and competition on price, regardless of the political or religious beliefs of the producer and purchaser.  It is Balkanization, and a first step on the path to the religious wars we in the United States have avoided so far.

Yet perhaps the owners of Hobby Lobby is not anticipating that consumers will actually know that it is an entity with specific religious beliefs rather than simply a store selling sequins?

Whatever the beliefs of the owners of Hobby Lobby, however, Hamilton's column is a must read on the contentious issue of recognizing religious freedoms of for-profit companies.


July 11, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Profiles in Con Law Teaching, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, June 23, 2013

Muslim Surveillance in NYC: Federal Complaint Challenges Constitutionality of Practices

4-nypd-casepage-mgb-150x150-v01The complaint in Raza v. City of New York details over 150 paragraphs of facts and alleges that NYPD practices have infringed upon the plantiffs' equal protection and First Amendment religion clauses rights, as well as state constitutional rights.  The plaintiffs are United States citizens as well as Muslim community leaders, as well as two mosques and one chartitable organization.  They allege that they have been "religiously profiled" and subject to surveillance, including infiltration of their organizations.

The complaint is worth reading for its specific facts of an extensive practice of surveillance of the named plaintiffs. Interestingly, the complaint does not include a Fourth Amendment claim but does include a First Amendment Establishment Clause claim, contending that the NYPD practice "fosters an excessive government entanglement with religion by, among other things, subjecting Plaintiffs to intrusive surveillance, heightened police scrutiny, and infiltration by police informants and officers."   More predictable are the equal protection and free exercise of religion claims.  

With the increasing public discussion of generalized surveillance, this challenge to a specific tageted practice within a city is worth watching.  Of course, it is not the first time that the NYPD has been challenged for its practices of surveillance.

[image: logo of the plaintiff organization via]


June 23, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Establishment Clause, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Daily Read: First Amendment Institutions by Paul Horwitz

ConLawProf Paul Horwitz's new book, First Amendment Institutions seeks to develop the conversation about reorienting First Amendment doctrine towards institutionalism. 


Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.

But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list.  My longer review appears in Law and Politics Book Review.


May 15, 2013 in Books, Establishment Clause, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 3, 2013

N.C. Bill Takes on First Amendment, Supremacy, Judicial Review--All in One Fell Swoop

North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause.  The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.

But the bill doesn't just take aim at the Establishment Clause.  It also challenges federal supremacy and takes on federal judicial review.  Here are some of the whereases:

Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .

Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and

Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .

Here's the punch-line:

Section 1. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

Section 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivision of the State from making laws respecting an establishment of religion.


April 3, 2013 in Establishment Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, April 1, 2013

Federal Judge Rejects Challenge to WTC Cross in September 11 Memorial and Museum

In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.

365px-FEMA_-_5490_-_Photograph_by_Andrea_Booher_taken_on_10-20-2001_in_New_YorkJudge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints.  The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed.  Batts dispatched this argument with a rehearsal of the causal connections:

But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.

She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.

The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.

In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971).  The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion.  Judge Batts found it important that

there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.

She disagreed that the size of the cross was determinative.  First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall.  Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."

As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review.  The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history.  The museum has the choice whether or not to include atheistic symbols.

Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful.   It looks as if the September 11 Museum will include the seventeen foot cross.

[image via]

April 1, 2013 in Current Affairs, Equal Protection, Establishment Clause, First Amendment, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, March 1, 2013

Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.


March 1, 2013 in Cases and Case Materials, Establishment Clause, First Amendment, Fundamental Rights, News, Opinion Analysis, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Ninth Circuit Allows Prisoner Wiccan Claim to Proceed

In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions. 

Wiccan SymbolThe operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant.  At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.

Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment.  Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,

while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.

On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation.  The panel, assuming again that the allegations were true, held that the  prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs."  the panel provided some guidance to the lower court (and counsel):  at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.

The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants.  But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.

[image: Wiccan symbol via]

February 20, 2013 in Establishment Clause, First Amendment, Free Exercise Clause, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, February 1, 2013

HHS Proposes New Rules on Contraception Coverage, Exempts Religious Employers

HHS today issued proposed new rules on the contraception coverage requirement under the Affordable Care Act, including new exemptions for religious employers.  The proposed rules come on the heels of a spate of litigation by religious employers challenging the contraception coverage requirement as violating their religious liberties.

The D.C. Circuit most recently rejected these claims based on the administration's promise to issue new regs exempting religious employers, but the court also retained jurisdiction over the case, holding it in abeyance, to monitor the administration's adoption of new rules.  The United States District Court for D.C. similarly recently rejected the claims, but declined to retain jurisdiction and dismissed the case.

According to HHS, the proposed rules allow non-profit religious organizations that object to contraception on religious grounds to side-step the ACA's contraception mandate, but still give employees free access to contraception.  Here's how it'll work:

The proposed rules lay out how non-profit religious organizations, such as non-profit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization.

With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer.  The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.

With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator.  In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.

The proposed rules also simplify and clarify the definition of "religious employer" for the purpose of exemption from the contraceptive coverage requirement.

The proposed rules are the first step in issuing new regulations.  HHS will collect comments on the rules until April 8, 2013, and then move forward on finalizing them.


February 1, 2013 in Cases and Case Materials, Establishment Clause, Free Exercise Clause, Jurisdiction of Federal Courts, News, Ripeness | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 15, 2013

Establishment Clause Challenge to Government Contract with Bishops Moot

The First Circuit ruled today in ACLU of Massachusetts v. Sebelius that the ACLUM's Establishment Clause challenge to a government contract with the United States Conference of Catholic Bishops was moot after the contract expired and after the USCCB failed in its bid to win a new contract.  The ruling reverses an earlier district court ruling for the ACLUM on both mootness and the merits.

The case arose out of an HHS contract with the USCCB to provide services to human trafficking victims in the United States under the Trafficking Victims Protection Act.  USCCB won the contract, even with its statement that it "could not provide or refer for abortion services or contraceptive materials" for trafficking victims under the contract.  The ACLUM lodged a taxpayer suit for declaratory and injunctive relief, arguing that the contract violated the Establishment Clause.

The district court ruled for the ACLUM on the merits.  It said that HHS violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, or by impermissibly delegating authority to USCCB to impose those views on others.  As to standing, it said that the case fell under the "voluntary cessation" exception to the mootness doctrine.

The First Circuit reversed.  It ruled that the contract expired, leaving no case or controversy, and that it didn't satisfy requirements either for "voluntary cessation" or capable-of-repetition-but-evading review.  Key to the court's holding was that the ACLUM asked only for injunctive relief, and that HHS denied a new contract to the USCCB.

The ruling ends the case and means that we won't get a final merits decision on the Establishment Clause claim, except in the highly unlikely even that the case goes to the full First Circuit or the Supreme Court.


January 15, 2013 in Cases and Case Materials, Establishment Clause, Mootness, News, Opinion Analysis | Permalink | Comments (1) | TrackBack (0)

Saturday, December 22, 2012

No Aid, Establishment of Religion in Lease to Boy Scouts

A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses.  The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion.  The ruling almost certainly ends this long-running case in favor of the City.

California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ."  Cal. Const. art. XVI Sec. 5.  The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.

The Ninth Circuit said the lease satisfied the four-part test.  It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government.  (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)

The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it.  The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.


December 22, 2012 in Cases and Case Materials, Comparative Constitutionalism, Establishment Clause, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, November 26, 2012

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

  • Whether the mandates violate the Religion Clauses or the RFRA;
  • Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
  • Whether the mandates violate equal protection;
  • Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.


November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

D.C. Circuit Says Navy Chaplains Have Standing to Challenge Promotion Policies

A three-judge panel of the D.C. Circuit ruled in In re Navy Chaplaincy that Navy chaplains have standing to lodge their Establishment Clause claims against the Navy's chaplain promotion policies.  The court also ruled that the lower court issued insufficient factual findings for it to review the chaplains' likelihood of success on the merits in evaluating their motion for a preliminary injunction.  The court thus reversed the lower court ruling and remanded for further findings.  In short, the ruling means that the case will go back to the lower court for additional findings related to one of the chaplains' Establishment Clause claims on their motion for a preliminary injunction.

The chaplains argued that Navy policies violated the Establishment Clause in two ways.  First, they argued that the Navy improperly delegated government authority over promotion decisions to a religious entity by allowing chaplains themselves to make promotion decisions without sufficient, secular standards.  Next, they argued that the Navy's promotion procedure--small selection boards, secret votes, and the appointment of the Chief of Chaplains as president--have resulted in denominational discrimination and, if not, will likely result in such discrimination in the future.

The district court ruled that the chaplains lacked standing (because they alleged future speculative harms, not imminent harms) and that they were unlikely to succeed on either substantive claim.  It thus dismissed the case and alternatively rejected the chaplains' motion for a preliminary injunction.

The D.C. Circuit reversed.  It ruled that the chaplains had standing, because they challenged actual policies that the Navy planned to use in the future, and because at least some chaplains will probably appear before selection boards in the near future.  Comparing the case to City of Los Angeles v. Lyons the court wrote, "Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards."  Op. at 9.

The court agreed with the district court that the chaplains were unlikely to succeed on their first substantive claim--the one about delegation of authority to a religious entity without standards.  (The court wrote that there were standards, making this case a "far cry from the 'standardless' delegation scheme at issue in [Larkin v. Grendel's Den, Inc.]."  Op. at 14.  But the court said that the lower court didn't issue sufficient facts for it to evaluate the second claim--the one about the likely discriminatory effects of the promotion procedure.  It thus remanded the case for findings on this claim.


November 5, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, October 11, 2012

Court Remands USDA Loan Denial for Religion Clause Evaluation

Judge Reggie Walton (D.D.C.) remanded a religious service organization's appeal of its denial of a USDA loan to the agency for review of the constitutional claims involved in the appeal.  The ruling in Care Net Pregnancy Center v. USDA means that the agency will take the first crack at the Free Exercise and Establishment Clause and free speech claims in the case.

Care Net applied for a USDA loan through the Community Facilities Loan Program, which makes and guarantees loans to non-profits and others for essential services in rural areas.  Care Net intended to use the loan to purchase property for its "Learn to Earn" program, including classes that help clients prepare for parenthood and option Bible study.  Care Net proposed to host its optional Bible study after hours in the same space as its parenting classes and thus claimed that its optional Bible study--the only religious aspect to its program--added no cost to the purchase and renovation of the property.  In short, the religious aspect of the program merely piggy-backed on the secular aspect.

The USDA nevertheless denied the application, stating that the project was not eligible under agency regs.  Care Net appealed to a USDA hearing officer, arguing, among other things, that the denial violated free speech and the Free Exercise Clause; the agency said that granting the application would violate the Establishment Clause. 

The hearing officer affirmed the agency's denial of Care Net's application based on an agency reg that reads in relevant part,

Where a structure is used for both eligible and inherently religious activities, direct USDA assistance may not exceed the cost of those portions of the acquisition, construction, or rehabilitation that are attributable to eligible activities in accordance with the cost accounting requirements applicable to USDA funds.

7 C.F.R. Sec. 16.3(d)(1).  The hearing officer wrote that Care Net failed to provide sufficient information about its program to allow the USDA "to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion."  The officer rejected Care Net's argument that the regulation allowed the agency to issue a loan for the full amount of the project, when the religious portion of the project merely piggy-backed on the secular portion (and didn't add anything to the cost).  The officer declined to address any constitutional claim, however, beyond the statement that Care Net's proposed use would cause excessive entanglement with religion.  (The officer wrote that his role was simply to apply agency regs, not to rule on their constitutionality.)

Judge Walton affirmed the hearing officer's interpretation of the regulation--that the regulation prohibited loans for projects that didn't sufficiently segregate the costs of religious and secular components--but remanded the case for consideration of the religion clause claims and the free speech claim.  Quoting D.C. Circuit law, Judge Walton wrote that "[a]gencies . . . have 'an obligation to address properly presented constitutional claims which . . . do not challenge agency actions mandated by Congress,'" in order to ensure against premature or unnecessary constitutional adjudication and to give the courts teh benefit of the agency's first-crack analysis.


October 11, 2012 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)