Friday, June 14, 2013
In a divided opinion in Cressman v. Thompson, the Tenth Circuit has allowed a First Amendment compelled speech challenge to Oklahoma's license plate (pictured below).
For those familiar with Wooley v. Maynard (1977), the case seems as if it is a mere reprise. However, unlike Maynard's objection to the New Hampshire license plate motto "Live Free or Die," Cressman objects to the image on the license plate. For the dissenting judge, this distinction makes all the difference. In a nutshell, the brief dissent contends that Cressman can not clear the basic hurdle of "speech." As dissenting judge Kelly explains:
In 2009, Oklahoma changed its standard-issue license plate to incorporate a representation of Allan Houser’s “Sacred Rain Arrow,” on permanent display at Tulsa’s Thomas Gilcrease Institute of American History and Art. Though awarded the Automobile License Plate Collectors Association’s best plate of the year award for 2009, Mr. Cressman considers his display of the image on the license plate to be compelled speech. . . . .Mr. Cressman has connected the image on Oklahoma’s license plate to the sculpture and that sculpture to a Native American legend. He asserts that the license plate promotes “pantheism, panentheism, polytheism, and/or animism,” all of which are antithetical to his religious beliefs. However, he has not alleged facts from which we can reasonably infer that others are likely to make the same series of connections.
For the majority, it was sufficient that Cressman alleged that the image had an ideological message at the complaint stage. The court's analysis of symbolic speech and the "particularized message" cases - - - think flags and parades - - - supported this conclusion. The majority also discussed the compelled speech precedent. From this, the majority concluded the district judge should not have dismissed the complaint. The majority declined to enter a preliminary injunction, however, ruling that the State should have the opportunity to present its interests. The majority very clearly held, however, that Wooley v. Maynard remains viable precedent, despite some arguments that it has been undermined. The majority also very clearly held that Cressman had standing, except as to one individual defendant.
On remand, the district judge will be considering whether Cressman's plausible allegations can be proven as true.
Tuesday, April 9, 2013
A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.
The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission. The dolls were said to have the weight and size of a 12-week-old fetus. Relentless members apparently distributed them to educate fellow students and to protest abortion. But that message only backfired:
Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck. Dolls were used to plug toilets.
Op. at 7-8. And on and on.
The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers. (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)
So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.
The Tenth Circuit rejected each of these claims. As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own. Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption." Op. at 16. The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square. Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how. The court said that the plaintiffs failed to show any arbitrary enforcement.
As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions." As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.
Wednesday, March 20, 2013
Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014
The brief submitted by National Association of Evangelicals; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries supports the position of BLAG arguing for the constitutionality of DOMA.
The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”
The rational basis argument:
This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.” Instead, the issue is a “profound culture debate over the nature and meaning of marriage.” Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.
Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.” The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question. Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.
The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions. Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.
The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.
The moral and religious views argument:
The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.” Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”
Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”
Contribution of the Brief:
This amicus brief supports the position of BLAG that DOMA is unconstitutional. But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.
The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.
The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.
[posted and edited by RR]
March 20, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 27, 2013
In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers." The fortune tellers must have a business license, like all other businesses, but must also:
- have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
- pay a license tax of $300;
- be located within particular business districts, excluding certain other business districts.
As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection. In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine."
As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.
The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."
As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:
Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.
In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny. Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.
This is a case ripe for critique and would make a terrific subject for student scholarship.
February 27, 2013 in Equal Protection, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Religion, Speech, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Wednesday, February 20, 2013
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.
The 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]
Friday, February 15, 2013
There's a growing split among circuit courts that have ruled on whether to grant an injunction pending appeal to private employers who object to the contraception mandate under HHS regs pursuant to the Affordable Care Act. The underlying issues--whether the mandate violates the Religious Freedom Restoration Act or free exercise--seem to be moving closer and closer to Supreme Court review.
(These issues are different than the issue in the other cases testing the mandate--by religious employers. Courts in those cases have held them in abeyance or dismissed them outright in anticipation of new HHS regs that exempt religious employers from the mandate. The regs would exempt religious employers, but not secular corporations owned by religious individuals.)
The Seventh Circuit ruled recently, for the second time, that a private employer was likely to succeed on its RFRA claim against the contraception mandate. That court in Grote v. Sebelius held that the corporation's owners' religious objections to the mandate, the government's likely failure to justify the mandate at strict scrutiny under the RFRA, and the owners' harm meant that the contraception mandate must be enjoined pending the company's appeal. The case echoes that court's earlier ruling in Korte v. Sebelius. (The difference between the two cases--that the company in Grote was self-insured, while the company in Korte wasn't--didn't justify different treatment, according to the court.) Both rulings drew dissents by Judge Rovner, but the Grote dissent was especially sharp and lengthy. In short, Judge Rovner took issue with the idea that the secular corporations enjoyed free exercise rights, even if the owners did.
The Eighth Circuit has lined up with the Seventh Circuit, while the Third, Sixth, and Tenth Circuits have gone the other way. (Recall that Justice Sotomayor denied Hobby Lobby's application for a stay in the Tenth Circuit case. The Seventh Circuit took account of that denial, but distinguished it, saying that the standard for a stay at the Supreme Court was much higher than the standard for an injunction pending appeal.)
These cases are on a motion for an injunction pending appeal, not the underlying merits. Still, they presage a merits ruling, as the courts consider the likelihood of success on the merits as part of the injunction analysis.
Thursday, February 7, 2013
The U.S. Conference of Catholic Bishops released a statement today saying that the newly proposed HHS regulations on the contraception-coverage provision of the Affordable Care Act don't do enough to protect religious liberties. According to the statement, the Conference has three problems:
- the narrow understanding of a religious ministry;
- compelling church ministries to fund and facilitate services such as contraceptives, including abortion-inducing drugs, and sterilization that violate Catholic teaching; and
- disregard of the conscience rights of for-profit business owners.
These are the same objections the Conference lodged earlier, in March 2012, well before HHS proposed the new regs. In short, the Conference says that the HHS proposal doesn't do enough to address its original objections.
The Conference says that the proposed rules maintain an "inaccurate distinction among religious ministries" by not considering Catholic hospitals, universities, and charities as part of the Catholic ministry. In particular, the Conference objects to the "accommodation" that these institutions receive from the contraception coverage requirement--an accommodation that provides their enrollees separate contraceptive coverage, with no co-pays, and at no (direct) cost to the religious organization. The Conference seems to object both to the idea that these institutions get an "accommodation" (as opposed to a full free pass on the contraception requirement) and to the possibility that the institutions might end up indirectly paying the bill for contraception coverage even with the accommodation. As to point three, the Conference balked at the lack of exception for private business owners who, for religious reasons, object to contraception.
The statement says that the Conference will submit its concerns in the notice-and-comment period for the proposed rules.
Friday, February 1, 2013
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.
Monday, January 28, 2013
Judge Amy Berman Jackson (D.D.C.) on Friday dismissed the Roman Catholic Archbishop of Washington's challenge to the HHS regs pursuant to the Affordable Care Act that required insurers to provide coverage for preventive care, including contraception, for women. The ruling comes on the heels of the D.C. Circuit's ruling just last month that a similar challenge was not ripe.
Judge Jackson cited the D.C. Circuit ruling, Wheaton College v. Sebelius, and ruled that the Archbishop's challenge was similarly not ripe. (Recall that the D.C. Circuit reasoned that HHS committed to changing its regs, so that the contraception requirement wouldn't cover the religious employer in that case.) The D.C. Circuit wrote, "We take the government at its word and will hold it to it." So too Judge Jackson.
Unlike the D.C. Circuit, however, Judge Jackson did not hold the case in abeyance. Instead, she outright dismissed it, writing that the Archbishop could bring a new case if and when the government enforced a contraception mandate against it.
Wednesday, December 26, 2012
In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby. In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."
Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment. Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act.
Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."
December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)
Thursday, December 20, 2012
The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72, essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.
At issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses. The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault. The defendants sought to have N.S. remove her niqab when testifying. The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check. The judge then ordered N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong." This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.
The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence. The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable." Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:
A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.In turn, this involved four separate inquiries:
First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?
Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness? The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.
Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"
Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether
the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so? Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice. The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure. The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system. These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab. Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice. When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings. Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance. The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.
In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers.
The concurring opinion of two Justices argued that a "clear rule" should be chosen. This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change.
Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion. On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim. Moreover, Abella argued:
Wearing a niqab presents only a partial obstacle to the assessment of demeanour. A witness wearing a niqab may still express herself through her eyes, body language, and gestures. Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives. Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand.
Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.
From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.RR
[image of niqab via; image of Justices via Canada Supreme Court website]
Monday, November 26, 2012
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)
Sunday, November 18, 2012
Judge Reggie Walton (D.D.C.) on Friday granted plaintiffs a temporary injunction in Tyndale House Publishers, Inc. v. Sebelius stopping the Secretary from enforcing HHS regs under the Affordable Care Act that require health insurance plans to provide contraception coverage against a self-insured Christian publishing house. Judge Walton wrote that the plaintiffs were likely to succeed on their Religious Freedom Restoration Act claim and that they met other requirements for a temporary injunction. The ruling, should it stand, paves the way for self-insured plaintiff-corporations to challenge the contraception requirement under the RFRA.
Tyndale House Publishers is a small Christian publishing house that operates under a Christian "statement of belief and policy" outlining its religious beliefs. It doesn't offer its employees an outside health insurance plan; instead, it's self-insured and thus pays directly for its employees' health benefits. Mark Taylor, the other named plaintiff, is Tyndale's president and CEO.
The plaintiffs balked at HHS regs, enacted under the ACA, that, with certain exemptions for religious organizations, require employers to provide contraception as part of their employee health insurance plans. Importantly, they complained only about "drugs (e.g., Plan B, ella) or devices (e.g., intrauterine devices) that can cause the demise of an already conceived/fertilized human embryo." They filed suit, arguing that the regs violated the RFRA; the Free Exercise, Establishment, and Free Speech Clauses of the First Amendment; the Fifth Amendment Due Process Clause; and the Administrative Procedures Act.
The RFRA forbids the government from "substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability" unless the government can "demonstrate that application of the burden to the person (1) is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest." 42 U.S.C. Sec. 2000bb-1(a), (b).
Judge Walton first concluded that the plaintiffs had standing. He wrote that Tyndale had standing under EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), which held that a corporation has standing to assert the free exercise rights of its owners. Alternatively, Tyndale had third-party standing to assert its primary owner's free exercise rights.
As to the substance, Judge Walton wrote that Tyndale showed a "substantial burden," because
the contraceptive coverage mandate similarly places the plaintiffs in the untenable position of choosing either to violate their religious beliefs by providing coverage of the contraceptives at issue or to subject their business to the continual risk of the imposition of enormous penalties for its noncompliance.
Op. at 22. Judge Walton distinguished O'Brien v. HHS (E.D. Mo. 2012) (holding that the plaintiff did not suffer a substantial burden, because it provided employee health insurance through a group plan), because here the self-insured plaintiff, Tyndale, would pay directly for its employees' contraception (and not indirectly, through a group plan). Judge Walton explained:
The court dismissed the plaintiffs' RFRA claim [in O'Brien], holding that the plaintiffs had failed to show that the contraceptive coverage mandate substantially burdened their religious exercise. Describing the burden at issue as the "funds, which plaintiffs will contribute to a group health plan, [that] might, after a series of independent decisions by health care providers and patients covered by [the company's] plan, subsidize someone else's participation in an activity that is condemned by plaintiffs' religion," the court reasoned that the burden on the plaintiffs' religious exercise was simply too attenuated to qualify as "substantial." . . .
Here, the plaintiffs provide direct coverage to Tyndale employees through a self-insured plan in which "Tyndale acts as its own insurer." This difference in the manner in which coverage is provided is significant because while the company in O'Brien contributes to a health insurance plan which ultimately pays for the services used by the plan participants, Tyndale itself directly pays for the health care services used by its plan participants, thereby removing one of the "degrees" of separation that the court deemed relevant in O'Brien.
Op. at 23-24.
Judge Walton also concluded that the government's compelling interests in promoting public health and providing employed women with access to health care on par with employed men wouldn't be undermined by exempting Tyndale (and therefore weren't necessary here), because the government already exempts a number of other employers. He noted that Tyndale objected only to certain kinds of contraception--Plan B, ella, and intrauterine devices--and provided some other contraceptive coverage through its health plan, and that requiring Tyndale to provide the full range of contraceptives wasn't necessary to achieve public health and equality between female and male employees.
Thursday, October 11, 2012
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.
Monday, August 27, 2012
Judge Ellen Segal Huvelle (D.D.C.) dismissed Wheaton College's case against Secretary Sebelius over federal regs under the ACA that require covered employers to provide women with certain forms of preventive care, including all FDA-approved forms of contraception, without cost sharing.
The case is the second in as many months dismissed for lack of standing and ripeness in the D.C. District. We posted on the earlier case, Belmont Abbey College v. Sebelius, here. This case, by a different judge, now makes it even less likely that any of these suits will succeed.
(There are two other district court rulings. In one, State of Nebraska ex rel. Bruning v. Sebelius, Judge Warren Urbom (D. Ne.) dismissed claims by religious organizations, individuals, and the state itself for lack of standing--the same ruling as in Belmont Abbey and Wheaton College, but also including individual and state plaintiffs. In another, Newland v. Sebelius, Judge John Kane (D. Co.) granted a preliminary injunction to a private corporation, not a religious organization covered under the safe harbor. Newland is different than the other cases, because it was brought by a private corporation with no protection under the safe harbor.)
The most recent case, Wheaton College v. Sebelius, involved the same and very similar issues as those in Belmont Abbey--that is, whether the government's "safe harbor" and commitment to reconsider its regs left the plaintiff without standing and the case without ripeness. Like Judge Boasberg in Belmont Abbey, Judge Huvelle said yes on both counts.
Judge Huvelle rejected Wheaton College's argument that it might be subject to litigation as too speculative. She also rejected Wheaton College's argument that it might be subject to a new government position at any time--just as the D.C. Circuit ruled in Chamber of Commerce v. FEC that the Chamber of Commerce might have been subject to an FEC enforcement proceeding at any time, even with an FEC evenly split between Democrats and Republicans. Judge Huvelle wrote that Chamber of Commerce was different, because here the government's commitment not to act against employers that qualify for the safe harbor (including Wheaton College) "was the product of sustained agency and public deliberation, and it represents a final decision, that has been reiterated twice." Op. at 11.
August 27, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Free Exercise Clause, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Ripeness, Standing | Permalink | Comments (0) | TrackBack (0)
Monday, May 21, 2012
Forty-three Catholic institutions filed 12 separate suits today against HHS Secretary Kathleen Sebelius to halt HHS regulations that they say would require them to "provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries' old teachings of the Catholic Church."
The move is the latest in the ongoing debate between the church and the administration over new HHS guidelines under the Patient Protection and Affordable Care Act that require insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." The plaintiffs reject the White House's February 2012 compromise--to exempt religious organizations that have religious objections from directly paying for those services--as insufficient.
Notre Dame's complaint alleges violations of the First Amendment religion and speech clauses, the Religious Freedom Restoration Act, and the Administrative Procedures Act. It seeks declaratory and injunctive relief and attorneys' fees.
As to its religion clause claims, Notre Dame alleges that the government has no compelling interest in the requirement, that the requirement substantially burdens its religious exercise; that the requirement excessively entangles government in religion (because it requires a government determination of whether the purpose of the organization is to inculcate people into its tenets in order to qualify for an exemption); and that the requirement discriminates among religions (because it treats those religions that do not oppose "abortifacients" differently than those that do).
As to its speech claim, Notre Dame argues that the requirement and counseling are viewpoint-based compelled speech in violation of the First Amendment.
Notre Dame claims that under HHS regulations it has to provide "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" itself, and not through a third-party insurer. That's because Notre Dame does not contract with a separate insurance company for its employees' health insurance; instead, it offers self-insured plans. It also claims that it doesn't qualify for an exemption, because it's not a church or an exclusively religious activity--the exemptions in Section 6033(a)(3)(A)(i) and (iii), respectively, of the IRC.
Wednesday, May 16, 2012
In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school.
"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal."
The next paragraphs, one would assume, would be devoted to discussing the ministerial exception. And they are. Except the discussion is devoted to the procedural status of the ministerial exception in this litigation. While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her. On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ” The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n. But that, the Eleventh Circuit held, was not sufficient.
The court then found there remained material issues of disputed fact as to the reason the teacher was fired. The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.
[image: Woodcut from The Scarlet Letter, 1878, via]
Thursday, May 3, 2012
This year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time."
Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."
While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief. Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."
However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government." There is also a petition seeking President Obama's recognition of the National Day of Reason:
"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."
[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]
Saturday, April 28, 2012
Saturday Evening Review: The Missing Dissenting Opinion in Hosanna-Tabor by Professor Leslie Griffin
As a rule, there is something unsatisfying about a constitutional law opinion from the United States Supreme Court without a well-reasoned and scholarly dissent.
The Court's opinion earlier this year in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is no exception to that rule, despite a short concurring opinion by Justice Thomas and the much longer concurring opinion by Justice Alito in which Justice Kagan joined. The Court in Hosanna-Tabor recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws, including the ADA.
Professor Leslie Griffin supplies the necessary countervailing arguments in her forthcoming article The Sins of Hosanna-Tabor, available on ssrn. Professor Griffin (pictured left) who co-authored the Brief of Amici Curiae Law and Religion Professors in Support of Respondents and who appeared at the AALS Conference panel discussing the case was well-situated to provide a quick and thorough analysis, with excellent research that is mostly absent from the Court's opinions.
Griffin's critique of the case is insightful and pointed, discussing the factual context and reorienting it as a retaliation case, providing some useful historical perspectives, and seeking to reconcile the 1990 case of Employment Division v. Smith. As Griffin argues, after Hosanna-Tabor, "Individual religious believers are subject to the rule of Smith, while institutions are not. Institutional religious freedom allows the firing of ministerial employees for any reasons, even non-religious ones." This does seem incoherent, although as Griffin notes, the "rule always favors employers."
The broad insulation of religious employers from anti-discrimination laws for anyone who is deemed a minister is the import of Hosanna-Tabor. While the Court declined to decide exactly who is a minister, the implication seems to be that this determination must rest on the sincere belief of the employer, lest there be Establishment Clause issues. The Court also declined to express a view "on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Griffin uses her in depth knowledge of the area to explore the implications of this opening.
Griffin's article is worth reading for anyone teaching or writing about Hosanna-Tabor and should certainly be excerpted in Casebooks. It's an important dissenting opinion.
Friday, January 27, 2012
The Sixth Circuit today in its opinion in Ward v. Polite remanded the First Amendment free speech and free exercise of religion claims of a graduate counseling student disciplined because she would not counsel a gay client in her required student practicum. The panel reversed the grant of summary judgment in favor of Eastern Michigan University.
This case may bring to mind a very similar situation from Augusta State University, Georgia, Keeton v. Anderson-Wiley, that we discussed earlier, in which the Eleventh Circuit held that the student-counselor did not have valid First Amendment claims. However, the Sixth Circuit distinguished Keeton at length:
At one level, the two decisions look like polar opposites, as a student loses one case and wins the other. But there is less tension, or for that matter even disagreement, between the two cases than initially meets the eye. The procedural settings of the two cases differ. In Keeton, the district court made preliminary fact findings after holding a hearing in which both sides introduced evidence in support of their claims. Not only are there no trial-level fact findings here, but Ward also gets the benefit of all reasonable factual inferences in challenging the summary-judgment decision entered against her.
The two claimants' theories of constitutional protection also are miles apart. Keeton insisted on a constitutional right to engage in conversion therapy—that is, if a "client discloses that he is gay, it was her intention to tell the client that his behavior is morally wrong and then try to change the client's behavior." That approach, all agree, violates the ACA [American Counseling Association] code of ethics by imposing a counselor's values on a client, a form of conduct the university is free to prohibit as part of its curriculum. Instead of insisting on changing her clients, Ward asked only that the university not change her—that it permit her to refer some clients in some settings, an approach the code of ethics appears to permit and that no written school policy prohibits. Nothing in Keeton indicates that Augusta State applied the prohibition on imposing a counselor's values on the client in anything but an even-handed manner. Not so here, as the code of ethics, counseling norms, even the university's own practices, seem to permit the one thing Ward sought: a referral.
The two decisions in the end share the same essential framework and reasoning. They both apply Hazelwood to curricular speech at the university level, and they both show that the even-handed enforcement of a neutral policy is likely to steer clear of the First Amendment's free-speech and free-exercise protections. Both decisions also are consistent with Christian Legal Society, which considered whether a Christian organization at a law school could insist that its members adhere to certain faith-based codes of conduct. The Court held that the law school's antidiscrimination policy, requiring registered student organizations to accept all comers, did not violate the First Amendment on its face, yet it remanded the case to determine whether the school selectively enforced the policy against some organizations but not others. While Keeton involved Augusta State's across-the-board application of an ethical rule that prohibits counselors from imposing their values on clients, today's case reveals evidence that Eastern Michigan University selectively enforced a no-referral policy against Ward.
The Sixth Circuit's attempt to distinguish its opinion from Keeton - - - mostly on procedural and factual grounds - - - seems persuasive. Yet the distinctions may be too finely wrought.
On remand, the district court will be considering injunctive relief. As to damages, the question of qualified immunity remains. Clearly, however, the Sixth Circuit found that there was no valid facial challenge and affirmed the dismissal of some defendants.
[image: Vincent Van Gogh, Stone Bench in the Asylum at Saint-Remy (The Stone Bench), via]