Wednesday, August 1, 2018
The D.C. Circuit ruled yesterday in Archdiocese of Washington v. WMATA that the Washington Metro Area Transit Authority rule that bans religious content advertising on buses did not likely violate free speech. The court denied the Archdiocese's motion for a preliminary injunction.
Judge Kavanaugh was an original member of the panel, but recused himself from the ruling.
The ruling sides with the government on a key free-speech question: Is religious content necessarily a viewpoint? The court said no.
The case involves WMATA's Guideline 12, which closes the public-transit authority's advertising space to issue-oriented ads, including political, religious, and advocacy ads. (Importantly, the Guideline banned by pro- and con- ads on each topic.) When WMATA, acting pursuant to the Guideline, rejected the Archdiocese's request to place religious ads on buses, the Archdiocese sued, arguing that the denial violated free speech, the Free Exercise Clause, and RFRA, among others. The Archdiocese moved for a preliminary injunction, but yesterday the D.C. Circuit rejected that request.
The court ruled that the Archdiocese was unlikely to succeed on its free speech claim, because buses are a non-public forum, and Guideline 12 permissibly discriminates based on the content, not viewpoint, of the message.
The court rejected the Archdiocese's argument that any content restriction on religious speech was necessarily a viewpoint based restriction on speech because there's a religious viewpoint on any matter. "Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices."
The court distinguished Rosenberger, Lamb's Chapel, and Good News Club--all of which struck government bans on religious speech as viewpoint-based discrimination. The court said that those cases involved religious-viewpoint discrimination within a defined content of speech. But here, the government simply banned the content of all religious speech, again, both pro- and con- (or otherwise).
[F]ar from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court's viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA's in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.
The court also said that the Archdiocese didn't demonstrate a likelihood of success on its other claims. As to Free Exercise, the court said that Guideline 12 was merely a religiously-neutral rule of general applicability, with no evidence of religious animus, and therefore valid under rational basis review.
Monday, June 25, 2018
The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.
Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
Shortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:
in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.
Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.
Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.
Monday, June 4, 2018
In its opinion today authored by Justice Kennedy in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court found that the cakeshop owner's First Amendment Free Exercise Clause right was infringed upon by the Colorado Civil Rights Commission. Recall that the Civil Rights Commission had found the cakemaker violated the state equal accommodations statute protection on the basis of sexual orientation when the cakemaker refused to be employed for a same-sex wedding cake.
Justice Kennedy's opinion decides the controversy on the basis of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court found that the City of Hialeah's prohibition of killing animals was aimed at the religion of Santeria, especially given the numerous exceptions in the ordinance. Here, Kennedy's opinion for the Court rejects the ALJ's conclusion that the Colorado anti-discrimination statute was a neutral law of general applicability (and thus should be evaluated under a rational basis test), finding instead that the Colorado Civil Rights Commission in its adjudication of this case was not neutral but expressed hostility: "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection."
These expressions of hostility surfaced in the oral argument as we noted in a specific statement from Kennedy quoting one of the civil rights commissioners ( "freedom of religion used to justify discrimination is a despicable piece of rhetoric") which Kennedy asked counsel to disavow. This foreshadowed the opinion's quotation of the commissioner "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”
The opinion then stated:
To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare [cakemaker] Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
With the decision based on this, the Court admittedly sidesteps the more contentious issues and widespread issues of the case:
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
Perhaps another limiting factor is that the Court observes that the cakebaker's refusal occurred before Obergefell v. Hodges (2015) when Colorado law did not authorize same-sex marriages. However, the Court also pointed to language in Obergefell that religious objections to same-sex marriage are protected by the First Amendment.
Yet there is also the issue of arguably inconsistent rulings from the civil rights commission.
Justice Kagan, in a brief concurring opinion joined by Justice Breyer, stressed the fault found with the Civil Rights Commission that did not give the cakemaker's religious views “neutral and respectful consideration.” She argued that any "inconsistent" rulings could be explained: the cakemakers in other cases objected to placing words on the cakes that they found offensive; in Masterpiece, the cakemaker objected to the customers who were purchasing sentiments he would provide for others.
In dissent, Justice Ginsburg, joined by Justice Sotomayor, concluded that there was not sufficient evidence of "hostility" neither in the arguably inconsistent rulings nor in the statements. As to the statements,
Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.
First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission?
For Ginsburg, then, this was "far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council."
Certainly, the Court's opinion rests on narrow grounds, perhaps unique to this case. But it nevertheless represents the Court chipping away at equality on the basis of sexual orientation.
Friday, June 1, 2018
The Seventh Circuit this week rebuffed a First Amendment challenge to the phrase "In God we Trust" on our currency by a non-theistic Satanist. The unsurprising ruling allows the government to continue to print that phrase on money.
The plaintiff challenged the phrase under the Establishment Clause, the Free Exercise Clause, and the Speech Clause, among others. The court rejected each.
As to the Establishment Clause, the court said that the phrase wasn't an endorsement of religion, that it didn't coerce religious beliefs, and that it wasn't based on a forbidden religious purpose. In short, the court said that the phrase is simply a part of our nation's heritage:
The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation's religious heritage. Examples include the phrase "one nation under God," which has been in the Pledge of Allegiance since 1954, as well as the National Day of Prayer, which has existed in various forms since the dawn of the country and is now codified [in the U.S.C.]. Moreover, when the religious aspects of an activity account for "only a fraction," the possibility that anyone could see it as an endorsement of religion is diluted. In the case of currency, the motto is one of many historical reminders; others include portraits of presidents, state symbols, monuments, notable events such as the Louisiana Purchase, and the national bird. In this context, a reasonable observer would not perceive the motto on currency as a religious endorsement.
As to free exercise, the court said that the plaintiff's "claim fails because the motto's placement on currency has the secular purpose of recognizing the religious component of our nation's history."
As to free speech, the court rejected the plaintiff's claim that the phrase amounted to forced speech, because nobody would regard the phrase as the plaintiff's own speech.
The court also rejected the plaintiff's RFRA claim (no substantial burden on the plaintiff's practice of Satanism) and his equal protection claim (because the government had at least one legitimate objective, "acknowledging an aspect of our nation's heritage").
Wednesday, March 14, 2018
The Supreme Judicial Court of Massachusetts ruled last week on the constitutionality of local grants going to church improvements under the state Anti-Aid Amendment. The ruling balances the interests behind the Anti-Aid Amendment, on the one hand, and the Free Exercise Clause under Trinity Lutheran, on the other, and comes out with a cautious thumb on the scale in favor of anti-aid.
The case, Caplan v. Town of Acton, arose when a local church applied for and received two grants of public funds for church improvements--one for a "Master Plan for Historic Preservation," covering several renovation and preservation projects on the facilities, and one for restoration and preservation of the church's religious-themed stained-glass windows. Taxpayers sued under the state private-attorney-general provision, arguing that the grants violated the state constitutional Anti-Aid Amendment. That Amendment prohibits the "grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society."
Two questions came to the court. First, does the Anti-Aid Amendment categorically bar the grants, or are the grants subject to a three-factor test that the state uses for a companion provision in the Amendment? (A categorical bar would prohibit the grants without further inquiry, whereas the three-factor test could permit the grants if they met certain factors.) Next, if the three-factor test applies, do the grants satisfy it?
The court ruled that the Anti-Aid Amendment isn't categorical, and is instead subject to its three-factor test. (That test looks to whether a motivating purpose of each grant was to aid the church; whether the grant would have the effect of substantially aiding the church; and whether the grant avoid the risks of the political and economic abuses that prompted the passage of the Amendment.) The court gave three reasons: (1) because the three-factor test applies to a companion provision in the Amendment, it made sense to apply it to this provision, too; (2) the Amendment by its own terms requires a case-by-case analysis, which is consistent with a three-factor test (but not a categorical approach); and (3) a categorical approach "invites the risk of infringing on the free exercise of religion" under Trinity Lutheran. As to that last reason, the court said that the three-factor test allowed it to account for the Amendment without violating free exercise, Trinity Lutheran style.
As to the application of the test, the court ruled that the plaintiffs were likely to succeed in their challenge to the stained-glass window grant, but remanded the case on the "Master Plan" grant.
Two justices concurred, and one dissented, arguing in different ways how the Amendment and the grants stacked up against Trinity Lutheran.
Wednesday, February 14, 2018
The Seventh Circuit ruled this week that the First Amendment's ministerial exception barred a Hebrew teacher's Americans with Disabilities Act claim against her employer, a Jewish school. The ruling is the first time the Seventh Circuit applied the ministerial exception.
The case, Grussgott v. Milwaukee Jewish Day School, arose when Grussgott, a Hebrew teacher at the school, suffered memory and cognitive issues as a result of medical treatment for her brain tumor. During a call from a parent, Grussgott couldn't remember an event, and the parent taunted her about her memory loss. Grussgott's husband, who happens to be a rabbi, sent an e-mail from Grussgott's work account criticizing the parent for being disrespectful. The school fired her, and she sued under the ADA, arguing that she was fired because of her cognitive issues resulting from the brain tumor.
The Seventh Circuit ruled that the ministerial exception applied and dismissed the case. Applying the "fact-intensive analysis" of Hosanna-Tabor, the court held that while Grussgott's title and the "substance reflected in that title" both tilted against applying the ministerial exception, Grussgott's use of the title and the religious functions she performed both tilted in favor. The court explained:
But Hebrew teachers at Milwaukee Jewish Day School were expected to follow the unified Tal Am curriculum, meaning that the school expected its Hebrew teachers to integrate religious teachings into their lessons. Grussgott's resume also touts significant religious teaching experience, which the former principal said was a crucial factor in the school hiring her in 2013. Thus, the substance of Grussgott's title as conveyed to her and as perceived by others entails the teaching of the Jewish religion to students, which supports the application of the ministerial exception here.
Grussgott undisputedly taught her students about Jewish holidays, prayer, and the weekly Torah readings; moreover, she practiced the religion alongside her students by praying with them and performing certain rituals, for example.
The court was careful to say that its analysis is holistic and fact-intensive, and not a rigid and mathematical application of the four "factors" from Hasanna-Tabor. On the other hand, the court also rejected "a purely functional approach to determining whether an employee's role is ministerial."
We read the Supreme Court's decision to impose, in essence, a totality-of-the-circumstances test. And it is fair to say that, under the totality of the circumstances in this particular case, the importance of Grussgott's role as a "teacher of  faith" to the next generation outweighed other considerations.
Saturday, October 7, 2017
The ACLU filed suit yesterday in the Northern District of California challenging the Trump Administration's roll-back of the contraception benefit under the Affordable Care Act. The lawsuit seeks declaratory and injunctive relief.
The lawsuit also illustrates the new approach to religion under this administration as stated yesterday in AG Sessions's principles of religious liberty.
The suit, which also includes SEIU-UHW as a plaintiff, argues that the roll-back in HHS's interim final regulations would permit religiously affiliated organizations that currently get an exemption from the contraception-coverage requirement to back out of the requirement altogether. (The exemption permits religiously affiliated organizations to pass the implementation off to their insurer or third-party administrator, so that the organization itself doesn't have anything to do with contraception, but so that employees and students of the organization still get direct and free access through the insurer or third-party administrator. The interim final rules would permit those organizations to deny contraception coverage entirely.)
The complaint argues that the move violates the Establishment Clause, equal protection, the Administrative Procedure Act, and the ACA itself:
By authorizing businesses, non-profit organizations, and universities to impose their religious beliefs on their employees and students, and rob women of health coverage that is otherwise guaranteed by law, the Religious Exemption [interim final rule] violates the Establishment Clause. Furthermore, by authorizing employers to block contraception coverage based on religious or other grounds, both [interim final rules] violate the right to equal protection guaranteed by the Fifth Amendment to the U.S. Constitution. Moreover, because the [interim final rules] were promulgated without good cause for foregoing notice and comment and without providing a reasoned basis for the change in agency position as required by the Administrative Procedure Act, they violate federal statutory requirements that agencies not act in an arbitrary and capricious manner and observe procedures required by law. Finally, the [interim final rules] exceed the statutory authority given to the agencies by the Affordable Care Act.
As to the Establishment Clause, the complaint argues that the purpose and effect of the interim final rules were to advance religion, and that they foster an excessive government entanglement with religion.
It's no coincidence that the interim final rules came out the same day as AG Sessions's principles on religious liberty.
But note that while the ACLU complaint speaks in terms of the Lemon test (purpose, effect, entanglement), AG Sessions's principles don't mention the case. The principles instead discuss the Establishment Clause barely (privileging free exercise) and only in terms of "establishing a religion and coercing Americans to follow it," "restrict[ing] government from interfering [in religion]," "prohibit[ing] government from officially favoring or disfavoring particular religious groups," and "neutrality towards religion."
In other words, AG Sessions's principles back off the Establishment Clause concerns about religious purpose and effect, and even excessive entanglement, and instead emphasize only more blunt forms of government establishment of religion (and downplay even those, in favor of free exercise concerns). It's thus hardly a surprise that HHS would issue these interim final rules, even with a religious purpose and effect: they fall squarely within AG Sessions's free exercise interpretation, and do not violate his (lesser important) establishment interpretation.
In yet other words, these interim regs are just a preview of what's to come under the Sessions approach to religion.
Monday, June 26, 2017
SCOTUS in Trinity Lutheran Finds Missouri's Denial of Funding to Church Playground Violates First Amendment
In its opinion in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision, a so-called Blaine Amendment, prohibiting any state funds from being awarded to religious organizations.
Recall that at the oral arguments, most Justices seemed skeptical of Missouri's argument. However, recall that the Eighth Circuit had concluded that Trinity Church sought an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
In the Trinity Lutheran opinion authored by Chief Justice Roberts, the Court characterized the Missouri policy as one that "expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character." Relying on the Free Exercise precedent it had discussed, it concluded that if such cases "make one thing clear, it is that such a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny." The Court added that "Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government program without disavowing its religious character."
Yet the question of subsidy or funding caused some consternation amongst the Justices who joined the Chief Justice's opinion for the Court. Footnote 3, which provides in full "This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination" is joined only by a plurality - - - Justices Thomas and Gorsuch explicitly exempted this footnote. In two brief concurring opinions, one by Thomas joined by Gorsuch and one by Gorsuch joined by Thomas, the continued vitality of Locke v. Davey is questioned.
In the Court's opinion, Locke v. Davey is distinguished because "Davey was not denied a state-funded scholarship of who he was but because of what he proposed to do - to use the funds to prepare for the ministry." (emphasis in original). For Gorsuch, this status-use distinction is not sufficient.
Justice Sotomayor's dissenting opinion, joined by Justice Ginsburg, and almost twice as long as the Chief Justice's opinion for the Court, is rich with originalist history as well a discussion of Locke v. Davey and a citation to the 38 state constitutional provisions similar to the Missouri one. For Sotomayor,
Missouri has recognized the simple truth that, even absent an Establishment Clause violation, the transfer of public funds to houses of worship raises concerns that sit exactly between the Religion Clauses. To avoid those concerns, and only those concerns, it has prohibited such funding. In doing so, it made the same choice made by the earliest States centuries ago and many other States in the years since. The Constitution permits this choice.
Sotomayor points to the possible ramifications of the opinion, including the troublesome footnote 3:
The Court today dismantles a core protection for religious freedom provided in these Clauses. It holds not just that a government may support houses of worship with taxpayer funds, but that—at least in this case and perhaps in others, see ante at 14, n. 3—it must do so whenever it decides to create a funding program. History shows that the Religion Clauses separate the public treasury from religious coffers as one measure to secure the kind of freedom of conscience that benefits both religion and government. If this separation means anything, it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. I dissent.
It dies seem that Trinity Lutheran opens the floodgates for claims by religious entities that they are being "discriminated" against whenever there are secular provisions for funding.
Wednesday, April 19, 2017
The nine Justice Court heard oral arguments this morning in Trinity Lutheran Church of Columbia, Mo. v. Comer, involving a First Amendment Free Exercise Clause challenge to a denial of state funding that was based on Missouri's state constitutional provision prohibiting any state funds from being awarded to religious organizations.
The state Department of Natural Resources had denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. The state officials had reasoned that supplying such funds would violate the state constitutional provision, a provision often called a Blaine Amendment, and which the attorney for Trinity Lutheran Church noted was often rooted in "anti-Catholic bigotry." In upholding the Missouri denial of resources the Eighth Circuit had relied in part on Locke v. Davey (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
Locke v. Davey arose frequently in the argument. The attorney for the church argued that Locke's "play in the joints" was pertinent, but distinguished the program in Locke as being more inclusive of religion. Justice Kennedy seemed to distinguish Locke v. Davey, stating that "this is quite different than Locke, because this is a status-based statute." Later, Chief Justice Roberts broached Locke, in a colloquy with James Layton, representing Missouri, who argued that Locke was a closer case than the present one because here the state's money was a "direct payment" to the church rather a scholarship to a student as in Locke. But Justice Kagan, evoking Locke, seemed troubled by Missouri's argument:
JUSTICE KAGAN: But here's the deal. You're right that this is a selective program. It's not a general program in which everybody gets money. But still the question is whether some people can be disentitled from applying to that program and from receiving that money if they are qualified based on other completely nonreligious attributes, and they're disqualified solely because they are a religious institution doing religious things. Even though they're not --they could --they could promise you, we're not going to do religious things on this playground surface, and you're still saying, well, no, you --you can't get the money.
Soon thereafter, Justice Kagan stated:
JUSTICE KAGAN: But I don't understand -I --I think I understand how the States' interests might differ some, but essentially this is a program open to everyone. Happens to be a competitive program, but everyone is open to compete on various neutral terms, and you're depriving one set of actors from being able to compete in the same way everybody else can compete because of their religious identification.
Layton, representing the State, also had his own status and the status of the litigation to discuss.
[Sotomayor]: Mr. Layton, I'm --I'm --I know the Court is very grateful that you took up the request of the Missouri Attorney General to defend the old position, but I --I am worried about the, if not the mootness, the adversity in this case. If the Attorney General is in favor of the position that your adversary is taking, isn't his appointment of you creating adversity that doesn't exist?
MR. LAYTON: Well, I don't know the answer to that --that, but let me --let me give some of the factual background here.
The Attorney General himself is recused because he actually appears on one of the briefs on the other side. The first assistant in this instance is the Acting Attorney General, and the Acting Attorney General, at a time before governor --the governor gave his new instruction, asked me to defend the position, because at that point, it was still the position of the State, and was not being disavowed.
JUSTICE SOTOMAYOR: Well, but that's the question. It doesn't appear to be the position of the State right now. Reading through the lines of the Acting Attorney General to us, it doesn't appear that he believes that you're taking the right position.
The problem of whether the case is moot because the Governor of Missouri announced this week a change of policy was the subject of a Court instruction to the attorneys to respond by letter regarding the issue. It dominated very little of the discussion, but Chief Justice Roberts did ask this:
CHIEF JUSTICE ROBERTS: You --do you agree that this --this Court's voluntary cessation policies apply to the mootness question?
MR. LAYTON: I agree . . .
Justice Gorsuch, new to the bench this week, then brought the matter back to the substantive issue.
Whether or not the Court will dismiss the case or rule on the merits was not evident from the oral argument, although it did seem as if there was not much enthusiasm for Missouri's now-previous position that prevailed in the Eighth Circuit.
Thursday, February 16, 2017
In its unanimous opinion in State v. Arlene's Flowers, the Supreme Court of Washington upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding.
The owner of Arlene's Flowers argued that the anti-discrimination statute was not applicable to her and if it did, it violated her constitutional rights of free speech, free exercise, and free association under the First Amendment as well as under the Washington state constitution.
On the First Amendment claims, the court found that Arlene's Flowers argument regarding compelled speech failed because the owner's flower arranging did not meet the threshold of expression. The court relied on Rumsfeld v. FAIR to hold that the owner's
decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. As [she] acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism. [She] also testified that she has previously declined wedding business on "[m]ajor holidays, when we don't have the staff or if they want particular flowers that we can't get in the time frame they need." Accordingly, an outside observer may be left to wonder whether a wedding was declined for one of at least three reasons: a religious objection, insufficient staff, or insufficient stock.
The court rejected the applicability of Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1985), as well as a litany of other United States Supreme Court cases regarding this threshold of expression. In essence, the court emphasized that it was the sale of all flowers from her shop rather than any particular floral arrangement that was at issue in the case.
On the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny. Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed.
However, the analysis of free exercise under the Washington state constitution, article I §11 was not so simple because Washington has not always adopted the Smith standard when reviewing claims under its state constitution. Nevertheless, the court found that even subjecting the Washington anti-discrimination law to strict scrutiny, the statute survives. The court "emphatically" rejected the claim that there was no compelling interest of the state in flowers for weddings: the "case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches."
Finally, the court rejected Arlene's Flowers' argument regarding free association, noting that all of the cases upon which she relied were not businesses. As to the business itself, the court also upheld a finding of personal liability of the owner, the person who had refused service.
The United States Supreme Court has denied petitions for writ of certiorari in similar cases, but it is highly likely that a petition for certiorari will follow, especially given the nomination of Neil Gorsuch to the Court.
February 16, 2017 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Speech, State Constitutional Law | Permalink | Comments (0)
Saturday, February 4, 2017
In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban."
Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed. Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).
The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inﬂicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.
Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy. Here is the entire last paragraph:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this speciﬁc lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulﬁll its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.
The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Monday, January 30, 2017
In a complaint filed today in Sarsour v. Trump, attorneys with CAIR, the Council on American-Islamic Relations, have challenged the constitutionality of President Trump's late Friday EO, Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here. Recall that the EO was fairly quickly subject to a partial stay by a federal judge and encountered "judicial resistance" as Jonathan Hafetz over at Balkinization observes. There are now several cases pending; a very helpful updated post with litigation documents from Qunita Juresic is over at Lawfare here. In addition to litigation, the EO has sparked nationwide protests, as well as criticism from other Republicans and 16 State Attorney Generals.
In Sarsour, the complaint acknowledges that the text of the EO does not contain the words "Islam" or "Muslim," but argues in its Introduction that:
the Executive Order has already gained national and international media attention and nationwide protests, and has been dubbed uniformly as the “Muslim Ban” because its apparent and true purpose and underlying motive—which is to ban Muslims from certain Muslim‐majority countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) (hereinafter the “Muslim majority countries”)—has been broadcast to the general public by the Trump Administration
and that the EO is a
fulfillment of President Trump’s longstanding promise and boasted intent to enact a federal policy that overtly discriminates against Muslims and officially broadcasts a message that the federal government disfavors the religion of Islam, preferring all other religions instead.
The complaint has three constitutional claims, as well as a a fourth count alleging violations of the Administrative Procedure Act.
Front and center are the First Amendment Religion Clauses claims. The first count is labeled an Establishment Clause violation, but also argues that Islam is being singled out for disfavored treatment as "uniquely threatening and dangerous." A discussion of the Establishment Clause arguments from David Cole, Legal Director of the ACLU, is over at Just Security here. In the second count, the claim is a violation of the Free Exercise Clause as it relates to the John and Jane Doe plaintiffs who are residents but non-citizens originating from the Muslim-majority countries at issue in the EO. Interestingly, there is not a statutory Religious Freedom Restoration Act (RFRA) claim; there would seem to a good argument that RFRA's "persons" includes noncitizens as well as corporations as the Court held in Hobby Lobby.[Update: In Ruiz-Diaz v. United States, the Ninth Circuit applied RFRA to non-citizen in the United States on five-year religious worker visas, ultimately concluding RFRA was not violated].
In addition to the First Amendment counts, the complaint includes a Fifth Amendment Equal Protection claim on behalf of the John and Jane Doe plaintiffs, contending that by preventing the non-citizen lawful resident Muslims originating from these specific Muslim-majority nations "from engaging in international travel and returning home in the United States" and from "applying for immigration benefits" under the federal statute and international human rights law including political asylum, the EO is unconstitutional. We've previously discussed the Equal Protection issues involved in the EO here.
The EO is certainly going to attract additional judicial challenges, as well as legislative ones.
Tuesday, October 4, 2016
In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law. Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.
The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:
Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.
[Added language underlined; italics in both opinions].
With such a small revision, it would seem there was little contention about the case. Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute. The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.
October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)
Thursday, October 29, 2015
En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival
The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment. The en banc court also found that the government was liable and that there was no qualified immunity.
Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.
The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach." Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"), a "severed pig's head
on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment." A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers. A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.
The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker.
The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words. The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual." In the context of the facts here, these principles deserved further exploration.
After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine. Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of a"few verbal warnings and a single arrest. The court advised:
We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.
In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim." As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:
The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.
The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established. On these issues, there were vigorous dissents. And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:
In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense. . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.
Yet in the discussion of qualified immunity, the en banc court reasoned:
To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.
That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases. (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).
On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers. As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise. The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.
Thursday, September 3, 2015
The full Tenth Circuit today declined to grant an en banc rehearing of the panel's July 2015 ruling that HHS's religious accommodation to the ACA's contraception mandate violated statutory and First Amendment rights of Little Sisters of the Poor. We posted on the panel decision here.
No party called for an en banc rehearing; instead, the court decided sua sponte to consider it. But a majority voted no.
Judge Hartz wrote a dissent, joined by four other judges, arguing that the panel wrongly recast Little Sisters's religious beliefs. In particular, the dissent argued that the panel wrongly interpreted Little Sisters's belief "as being only opposition to facilitating the use and delivery of certain contraceptives to which they object." According to the dissent, "Under this reframing, the plaintiffs have no religious objection to executing the forms; it is just that executing the forms burdens their religious opposition to contraceptives."
Put another way, the panel majority may be saying that it is the court's prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a "derivative" religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty.
Judge Hartz argued that "the doctrine of the panel majority will not long survive," because "[i]t is contrary to all precedent concerning the free exercise of religion."
If you're wondering how, under Judge Hartz's approach, an organization like Little Sisters might tell the government that it has a religious objection to the contraception mandate without violating its own religious beliefs (a question that stumped other courts: how can a religious accommodation itself violate free exercise?), Judge Hartz says that the dissent only goes to the "substantial burden" on religion (and thus triggers strict scrutiny). The certification might still satisfy strict scrutiny--a question that Judge Hartz would send back to the lower court on remand.
Tuesday, September 1, 2015
District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"
In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer. While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.
Judge Leon applied rational basis review, but declared that
Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!
Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.” This not only oversimpliﬁes the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation. For the following reasons, I conclude that it most assuredly is.
In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:
HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of human life. HHS may be correct that this objection is common among religiously-affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not.
In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection. Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny.
Interestingly, Judge Leon states that "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.” Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.
In his application of RFRA, Judge Leon's opinion is on more well-plowed ground. He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds." This brings the case within the purview of Hobby Lobby. As Judge Leon phrases it:
The ﬁnal question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!
While Judge Leon dismissed the free exercise claim, based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).
When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.
September 1, 2015 in Abortion, Courts and Judging, Current Affairs, Equal Protection, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0)
Tuesday, August 18, 2015
A few months after the United States Supreme Court issued its decision in Obergefell v. Hodges, reversing the Sixth Circuit's opinion, and declaring that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the issue of same-sex marriage is again reaching the Sixth Circuit.
This time, however, the issue is whether a government employee, a court clerk in Kentucky, can refuse to issue same-sex marriage licenses - - - or any marriage licenses - - - based upon a claim of free exercise of religion. The claim of religious exemptions from state clerks is not new (consider events in New York in 2011); neither are objections to implementing the Court's decision in Obergefell (consider events in Alabama this summer). Nevertheless, this controversy has become particularly focused.
United States District Judge David Bunning's Opinion and Order last week in Miller v. Davis issued a preliminary injunction in favor of April Miller and Karen Roberts, enjoining Rowan County Clerk Kim Davis from applying the "no marriage licenses" policy. The Judge rejected Davis' First Amendment claims. First, Judge Bunning found that Governor Beshear's directive to county clerks to issue same-sex marriage licenses was a general law of neutral applicability that "likely does not infringe on Davis' free exercise rights." Second, Judge Bunning further found that the issuance of the marriage license did not implicate Davis' free speech rights: the issuance of the license, even with the clerk's certification, is not an endorsement and furthermore is quite possibly government rather than individual speech, citing the Court's decision in Walker v. Sons of Confederate Veterans from last Term. Judge Bunning also rejected Davis' third - and perhaps the most interesting - claim based upon Article VI §3 prohibiting a "religious Test" as a qualification for public office. Davis argued that this prohibition meant that her religious beliefs must be accommodated. Even as he rejected this interpretation, Judge Bunning drew attention to the "first half" of Article VI §3 requiring state officials to take an oath to defend the United States Constitution.
Davis predictably sought a stay of the preliminary injunction. In an Order late yesterday, Judge Bunning denied the stay, including in his 7 page opinion an extensive quote from Obergefell regarding the relationship of religious freedom to same-sex marriage. Yet Judge Bunning did stay the order denying the stay:
in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the Court finds it appropriate to temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.
While decisions to stay and to issue preliminary injunctions involve equitable and other factors, of central prominence is the probable outcome on the merits. Thus, the Sixth Circuit is again poised to consider, albeit less directly, the issue of same-sex marriage.
Saturday, August 8, 2015
The Second Circuit this week became the latest court to reject religious organizations' challenge to the religious accommodation to the ACA's contraception mandate. The Second Circuit joined six other circuits in rejecting the surprising claim that a barely burdensome religious accommodation itself violates the Religious Freedom Restoration Act.
With seven circuits now rejecting the novel claim (with no circuit accepting it), and with the accommodation designed around a Supreme Court order, one might reasonably wonder why plaintiffs keep bringing and appealing these cases. Surely they have better things to do with their time and money than to bring such transparently harassing and abusive claims. (Indeed, one might wonder: At what point should a court consider Rule 11 sanctions?) Still . . . .
The Second Circuit ruling is comprehensive and well analyzed, concluding that the accommodation (to simply notify HHS, either by form, or by letter) isn't substantially burdensome. But after 47 pages, here's the gist:
The burden that the accommodation places on Plaintiffs is merely one notification, equivalent to the burden historically placed on draft registrants to indicate their conscientious objections to military service. Once Plaintiffs avail themselves of the simple, non-burdensome means of opting out, the regulations do not require them to play any role in the provision of contraceptive coverage or to suffer punishments for not doing so. To the contrary, the accommodation relieves them of providing contraceptive coverage, and instead enlists third-party administrators to provide such coverage. If a regulatory scheme that might otherwise violate an objecting individual's rights under RFRA allows the objector to exempt himself from compliance via a simple, non-burdensome act of notification, there is no substantial burden. Furthermore, subsequent regulation of non-objecting parties in a manner that an objecting party finds offensive does not transform the act of opting out into a cognizable substantial burden. The rights conferred by the First Amendment and RFRA do not include a right to have the government or third parties behave in a manner that comports with an individual's religious beliefs.