Monday, July 21, 2014

Obama (& Bush) on Executive Orders Regarding LGBT Discrimination and Religion

Today President Obama signed an Executive Order:  "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity." 

Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.

Here's the video put out by the White House:

 

 And here are some more specific details:

The Executive Order  broadens the terms of prohibited discrimination in federal employment in Executive Order 11478  by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."

It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."

As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

But what about Bush's Executive Order?  Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial. 

GilmanThis might be a good time to reread Michele Gilman's terrific article from 2007,  If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007).  Gilman argues that Bush has exceeded his constitutional powers.  Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.

And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.

While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo.   It allows religious entities to discriminate on the basis of religion, but not on any other basis.  The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit."   It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.

July 21, 2014 in Equal Protection, Executive Authority, Gender, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"

On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act)  to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage?  Here's our primer on the issues for more detail.  Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results. 

The oral arguments  in March were contentious and so too are the opinions in this 5-4 decision. 

Birth_Control_Review_1919bThe majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim.  The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.

The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.

Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong.  However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.

 Justice Kennedy writes a brief concurring opinion.  As we discussed,  Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.

 The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg,  joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons).  The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of  "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."  Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.”  I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.

Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.”  Counsel for Hobby Lobby was similarly noncommittal.

[citations and footnotes omitted].

Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."

However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.

[image via]

June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Thursday, June 26, 2014

United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley

A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley,  reversing the First Circuit.

Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary.  However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in  Ward v. Rock Against Racism, 491 U. S. 781 (1989).   The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored.  In large part, this was based on the statute's exceptional coverage of public streets and sidewalks.  It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk coun­seling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach.  As the Court concluded:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi­ tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.

Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one

that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.

Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.

The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds.  The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs.  But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.

June 26, 2014 in Abortion, Courts and Judging, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 25, 2014

Federal District Judge Invalidates Indiana Laws Banning Same-Sex Marriage

In his decision today in Baskin v. Bogan, United States District Judge Richard Young permanently enjoined Indiana officials from enforcing its requirement that marriage requires a female and a male, and its ban on the recognition of same sex marriages legally valid in other states, Indiana Code Section 31-11-1-1 (subsections a & b).

621px-Flag_map_of_Indiana.svgAfter resolving problems of the proper defendant and quickly disposing of the argument that Baker v. Nelson's summary finding by the Supreme Court in 1972 has meaningful precedential value, Judge Young's opinion proceeds along three separate tracks.

First, Judge Young finds that marriage is a fundamental right and therefore the statutory ban on same-sex marriage should be subject to strict scrutiny.  Judge Young concluded that the scope of the fundamental right is not limited, quoting Judge Black's opinion in Henry v. Himes that the United States Supreme Court has not limited this fundamental right in its pertinent cases; the Court  "consistently describes a general ‘fundamental right to marry’ rather than ‘the right to interracial marriage,’ ‘the right to inmate marriage,’ or ‘the right of people owing child support to marry.’"  Applying strict scrutiny, Judge Young articulates the state's proffered interest "in conferring the special benefit of civil marriage to only one man and one woman is justified by its interest in encouraging the couple to stay together for the sake of any unintended children that their sexual union may create," but declines to asess it and assumes that it is "sufficiently important interest."  However, Judge Young finds that the state has not demonstrated that the statute is “closely tailored” to that interest, but instead is  "both over- and under-inclusive."

Second, Judge Young analyzes the statute on the basis of equal protection, rejecting the argument that the statute makes a gender classification and concluding that it makes a sexual orientation classification.  While Judge Young contends that while it might be time to "reconsider" whether sexual orientation classifications should be analyzed under rational basis scrutiny, the "court will leave that decision to the Seventh Circuit, where this case will surely be headed."  Applying rational basis scrutiny, however, Judge Young concludes that there is no rational relationship to the interests proffered by the state.

Third, Judge Young independently analyzes subsection b of the statute, applying to recognition.  The judge notes that the "parties agree that out-of-state, same-sex marriages are treated differently than out-of-state, opposite-sex marriages," and thus "the question is whether that difference violates the Equal Protection Clause."  Again, applying rational basis scrutiny, Judge Young concludes:

Defendants proffer that the state refuses to recognize same-sex marriages because it conflicts with the State’s philosophy of marriage – that is that marriage is to ameliorate the consequences of unintended children. Recognizing the valid same-sex marriages performed in other states, however, has no link whatsoever to whether opposite-sex couples have children or stay together for those children. Thus, there is no rational basis to refuse recognition and void out-of-state, same-sex marriages.

Judge Young's opinion is economical (at 36 pages), well-structured, and well-supported with relevant citations.  Judge Young did not issue a stay of his opinion.  One assumes that such a decision may be sought from the Seventh Circuit.

UPDATE HERE

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Full Faith and Credit Clause, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tenth Circuit Holds Utah's Same-Sex Marriage Ban Unconstitutional in a Divided Decision

In a divided decision, the Tenth Circuit opinion in Kitchen v. Herbert held that the

Due Process and Equal Protection Clauses of the United States Constitution, those who wish to marry a person of the same sex are entitled to exercise the same fundamental right as is recognized for persons who wish to marry a person of the opposite sex, and that [Utah's state constitution's] Amendment 3 and similar statutory enactments do not withstand constitutional scrutiny.

Affirming the district court's decision as well as its analysis, the Tenth Circuit panel majority, authored by Judge Carlos Lucero, and joined by Judge Jerome Holmes, applied strict scrutiny because it found that the "right to marry is a fundamental liberty."

In applying strict scrutiny, the panel majority assumed that three of the four interests advanced by the government - - - (1) “fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children”; (2) “children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home”; (3) “ensuring adequate reproduction” - - - were compelling.  However, the court found that the means chosen - - - the prohibition of same-sex marriage - - - did not sufficiently serve these interests.  Instead, each of the

justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.

The court noted that Justice Scalia, dissenting in Windsor, and numerous district judges, reached a similiar conclusion.  The majority observed that the lack of narrow tailoring is "often revealed" by underinclusiveness, finding it important that Utah did not ban nonprocreative marriages. 

The court's analysis of each of the three rationales is substantial and erudite, firmly rooted in precedent and well-reasoned.

As to the fourth and final interest asserted by the government - - -“accommodating religious freedom and reducing the potential for civic strife,” - - - the court reasoned that "the Supreme Court has repeatedly held that public opposition cannot provide cover for a violation of fundamental rights" and emphasized that its "decision relates solely to civil marriage." 

Dissenting from the more than 60 page majority opinion, Judge Paul Kelly wrote more than 40 pages in disagreement (although he did agree with the majority on the standing issue, making the opinion concurring in part).   Not surprisingly, he disagreed with the level of scrutiny to be applied; he concluded that there was no fundamental right at issue and would have applied rational basis scrutiny.  Also not surprisingly, he would have concluded that Utah's ban on same-sex marriage satisfied this most easily satisfied level of scrutiny given the state's interests in (1) responsible procreation, (2) effective parenting, and (3) the desire to proceed cautiously in this evolving area.

More surprisingly, Judge Kelly found that the Supreme Court's per curiam dismissal in 1972 of Baker v. Nelson, for "want of a substantial federal question" controlling ; it  "should foreclose the Plaintiffs’ claims, at least in this court," notwithstanding the Court's decision invalidating the federal Defense of Marriage Act's ban on recognition of same-sex marriage last term in Windsor.

 If - -  and most probably when - - - the United States Supreme Court does consider the issue of state laws banning same-sex marriage, Baker v. Nelson will be irrelevant and the Court will directly grapple with issues if fundamental constitutional rights and levels of scrutiny under the Fourteenth Amendment's due process and equal protection doctrines. 

Given that the Tenth Circuit stayed its decision pending the disposition of any subsequently filed petition for certiorari it may be that both sides seek review from the United States Supreme Court,

June 25, 2014 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, June 16, 2014

Supreme Court Grants Certiorari of "Facebook Threats" Case, Elonis v. United States

The United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.

The question presented in the certiorari question is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order today, the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: "Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."
 
266px-No_Facebook.svgThus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.
 
The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof.  There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court's decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was "prima facie evidence" of a intent to intimidate. 
 
The doctrine of "true threats" has long been a fraught one.  As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a "true threat," the speech is not protected; if it is not a "true threat," then it is protected speech.
 
266px-Facebook-reversed.svgAt times, this inquiry becomes grammatical.  For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a "true threat," could have reasonably been found by a jury to be a true threat.  This passage, posted after his estranged wife obtained a protective order, conveys the flavor of the other passages quoted in the Third Circuit's opinion:
 

Fold up your PFA and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true threat jurisprudence

And prison time will add zeroes to my settlement
Which you won’t see a lick
Because you suck dog dick in front of children

****

And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s department
[link: Freedom of Speech, www.wikipedia.org]

The Court's grant of certiorari may - - - or may not - - - indicate that some Justices found that Elonis's facebook postings failed to rise to the level of true threats.  Undoubtedly, however, this case will be watched not only by those interested in "free speech on the internet" but also by those interested in "intimate partner violence."
 

June 16, 2014 in Cases and Case Materials, First Amendment, Gender, Speech, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

India's Supreme Court Recognizes Transgender Constitutional Rights of Equality as "Third Gender"

In its opinion National Legal Services v. India, the Supreme Court of India has recognized the constitutional rights of transgender persons, including the right not to be denominated as either "male" or "female." 

 The opinion by K.S. Radhakrishnan begins with an invocation of the "trauma, agony and pain which the members of Transgender community undergo" but rather quickly also invokes the cultural roots and importance of the community: "TG Community comprises of Hijras, eunuchs, Kothis, Aravanis, Jogappas, Shiv-Shakthis etc. and they, as a group, have got a strong historical presence in our country in the Hindu mythology and other religious texts." 

436px-Constitution_of_IndiaThe judgment rests on an interpretation of several provisions of the Constitution of India, including Article 14 (equality before law); Article 15 (prohibition of discrimination on the basis of various grounds, including sex); Article 16 (equality of opportunity in public employment, including sex); Article 19 (including freedom of expression); and Article 21 (protection of life and personal liberty).  The judgment engaged in some originalist reasoning that broadly interpreted "sex" to include sex-stereotyping:

Constitution makers, it can be gathered, gave emphasis to the fundamental right against sex discrimination so as to prevent the direct or indirect attitude to treat people differently, for the reason of not being in conformity with stereotypical generalizations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics, of course, include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self image, the deep psychological or emotional sense of sexual identity and character. The discrimination on the ground of ‘sex’ under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male or female.

Given this interpretation, the Court not suprisingly ruled

We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.

The Court has some interesting discussions of dress and grooming as an aspect of gender which included references to US cases and is further discussed here. 

The Court also specifically disavowed any relationship between its present judgment in National Legal Services v. India and the controversial opinion Koushal v. NAZ Foundation decided in December in which the Court - - - or as the Court states here "A Division Bench of this Court" reversed the 2009 decision of the Delhi High Court that §377 of the Indian Penal Code was unconstitutional under the India Constitution and upheld India's sodomy law as constitutional:

we express no opinion on it [Kousal] since we are in these cases concerned with an altogether different issue pertaining to the constitutional and other legal rights of the transgender community and their gender identity and sexual orientation.

In a separate judgment, A.K. Sikiri did not mention the sodomy decision in Koushal v. Naz Foundation, but the judgment's expansive rhetoric could be read as an implicit disagreement with that decision as well as serving as a further butressing of today's judgment.  The concurring opinion elaborated on the importance of TG persons and communities to India's culture. It referenced Immanuel Kant, John Rawls, Amartya Sen as providing the "jurisprudential basis for doing justice to the Vulnerable Groups which definitely include TGs."  It explicitly stated the "dynamic" and "living character" of the Constitution and its interpretation.  It considered judicial review in the context of democracy (including, implicitly, "sexual democracy") and decidedly opined that it is the role of the judiciary to "ensure access to justice to the marginalized section of the society," and that undoubtedly "TGs belong to the unprivileged class which is a marginalized section."

The judgment not only requires the government to recognize a "third gender" and to grant "legal recognition of their gender identity such as male, female or as third gender," but also directs the government to take positive steps in education, health provisions, and "seriously address" various problems. 

April 15, 2014 in Comparative Constitutionalism, Courts and Judging, Due Process (Substantive), Equal Protection, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

March 25, 2014 in Courts and Judging, Current Affairs, First Amendment, Gender, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, March 15, 2014

Arkansas Federal Judge Permanently Enjoins Arkansas 12 Week Gestation Abortion Ban

In an opinion in Edwards v. Beck, a federal judge permanently enjoined portions of Arkansas' Act 301, which imposed regulations on the performance of abortions in Arkansas.

Judge Wright considered the Act's three provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks’ gestation.

She found that the 12 week ban prohibits pre-viability abortions and "thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability."

Yet Judge Wright concluded that the disclosure and heartbeat testing could be severed from the unconstitutional 12 week provision, because they are

independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. The State, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision- making process and is rationally related to the State’s interest in protecting the unborn.

The judge's analysis on the severability issue is relatively slight and she could easily have reached the opposite conclusion under her articulated rationales.  But she decided that only the ban on 12 week abortions was declared unconstitutional.

 

March 15, 2014 in Abortion, Due Process (Substantive), Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, March 6, 2014

Massachusetts Supreme Court on Upskirting

In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").

The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.

Cameralucida01

Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge.  The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original).  Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.

Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley.  The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.

The court concluded that at the

core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.

And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case.  Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.

[image via]

March 6, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Gender, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Saturday, January 25, 2014

Daily Read: Virginia Woolf and Justice

This 132nd anniversary of the birth of Virginia Woolf (born Virginia Stephen on January 25, 1882), is suitable for reading Jeremy Bradley's essay, Virginia Woolf and The Judicial Imagination, available on ssrn.

VW
Virginia Stephen [Woolf] circa 1902

Through his readings and discussions of Woolf's most famous novels, Mrs Dalloway and To the Lighthouse, Bradley hopes to establish that

literature brings with it evaluative commitments on the part of the reader, commitments that mirror a judge’s recognition of the significance of vulnerable events, a focus on the epistemological value of emotion, and on the competing choices human agents often face. At the same time, the practical aspect of this evaluative process is the very quality that makes analysing literature ‘so unlike dogmatic abstract legal processes. Thus to supplement judicial decision-making with imagination is to redefine what is meant by effective decision-making.

Whether or not judges can integrate empathetic imagination - - - or even whether Virginia Woolf could actualize empathy in her own life when it came to her "servants" as I've discussed in "A Servant of One's Own," available on ssrn - - - the project is an important one if we seek to achieve "justice" rather than merely legal outcomes.

 

January 25, 2014 in Courts and Judging, Gender, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 14, 2014

Oklahoma District Judge Invalidates State's Prohibition of Same-Sex Marriage (But Stays Judgment)

In a lengthy opinion today in Bishop v. United States (Smith), Judge Terence Kern of the Northern District of Oklahoma found unconstitutional the state constitutional amendment, article 2, §35 that defines marriage as consisting "only of the union of one man and one woman," and further that no law "shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

The lawsuit, originally filed in 2004 soon after the state constitutional amendment, also challenged the federal DOMA, as well as other portions of the state "little DOMA" and includes several plaintiffs.  As to these challenges, the judge found a lack of standing.  However,  as to the definitional section of article 2, §35 (above), known as "Part A" of the Oklahoma Constitutional Amendment, the judge found that the "Bishop couple" had standing - - - and that the provision violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Map_of_USA_highlighting_Oklahoma
As to the Equal Protection claim, the judge rejected the argument by Smith, the Oklahoma county clerk, that Baker v. Nelson (1972) was binding precedent.  More interestingly, the judge also rejected the argument that last Term's decision in Windsor v. United States, holding section 3 of the federal DOMA unconstitutional was determinative:  "Both parties argue that Windsor supports their position, and both are right." 

Judge Kern correctly observed:

The Windsor Court did not apply the familiar equal protection framework, which inquires as to the applicable level of scrutiny and then analyzes the law’s justifications. Instead, the Windsor Court based its conclusion on the law’s blatant improper purpose and animus. See id. at 2693. The Court reasoned that DOMA’s “unusual deviation” from the tradition of “accepting state definitions of marriage” was “strong evidence of a law having the purpose and effect of disapproval of the class.” Id. The Court concluded, based upon DOMA’s text and legislative history, that DOMA’s principal purpose “was to impose inequality.” Id. Thus, Windsor does not answer whether a state may prohibit same-sex marriage in the first instance. Nor does Windsor declare homosexuals a suspect class or discuss whether DOMA impacted a fundamental right, which would have provided this Court with a clear test for reviewing Part A [of the Oklahoma Constitutional Amendment].

The judge then applied the Tenth Circuit's framework for analyzing equal protection questions:

First, the Court asks “whether the challenged state action intentionally discriminates between groups of persons.”  Second, after an act of intentional discrimination is identified, the Court must ask “whether the state’s intentional decision to discriminate can be justified by reference to some upright government purpose.”

By examining the legislative actions - - - including a press release - - - the judge found that the exclusion of the defined class was not a "hidden or ulterior motive," but was "consistently communicated to Oklahoma citizens as a justification" for the amendment.  

For the next line of inquiry focusing on the justification for the discrimination, the judge rejected the argument that it was gender discrimination (relying on "common sense"), and concluded it could be best described as "sexual-orientation discrimination."  The judge applied the familiar "rationality" standard, but rejected the "morality" government interest originally proffered, as well as the "negative impact on marriage" interest.  While he did not use the label of "animus" for these interests, the import of the analysis is sympathetic to such a reading.

He similarly rejected the interests of "Encouraging Responsible Procreation/Steering Naturally Procreative Couples to Marriage," and "Promoting the “Optimal” Child-Rearing Environment,"  finding that while these interests might be legitimate, they were not being rationally served by the means chosen of prohibiting same-sex couples from marriage.  

The judge concluded:

The Court permanently enjoins enforcement of Part A against same-sex couples seeking a marriage license. In accordance with the U.S. Supreme Court’s issuance of a stay in a nearly identical case on appeal from the District Court of Utah to the Tenth Circuit Court of Appeals, see Herbert v. Kitchen, U.S. Supreme Court Order in Pending Case 13A687 (Jan. 6, 2014), the Court stays execution of this injunction pending the final disposition of any appeal to the Tenth Circuit Court of Appeals.

Thus, same-sex marriages will not occur in Oklahoma as they did in Utah while the state government sought stays.  Instead, the Tenth Circuit's expedited appeal in Herbert v. Kitchen is now also determinative of Oklahoma.

January 14, 2014 in Courts and Judging, Equal Protection, Family, Federalism, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

Utah Federal District Judge Declares State's Same-Sex Marriage Ban Unconstitutional

In his  opinion in Kitchen v. Herbert, federal district judge Robert Shelby held

that Utah’s prohibition on same- sex marriage conflicts with the United States Constitution’s [Fourteenth Amendment] guarantees of equal protection and due process under the law. The State’s current laws deny its gay and lesbian citizens their fundamental right to marry and, in so doing, demean the dignity of these same-sex couples for no rational reason. Accordingly, the court finds that these laws are unconstitutional.

Visiting_utahNotably, Utah has both a state statute and state constitutional amendment defining marriage as limited to "a man and a woman." 

The judge interestingly relied upon Justice Scalia's dissenting opinion in last term's decision in United States v. Windsor, which held §3 of DOMA unconstitutional:

The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare . . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same- sex couples marital status.

133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

Perhaps most controversially, Judge Shelby determines that marriage is a fundamental right and that restrictions on marriage merit strict scrutiny.  He further finds that there is no compelling governmental interest justifying the same-sex marriage restriction, unlike, for example, a regulation of the age at which a person may be married which is supported by the compelling state interest of "protecting children against abuse and coercion."

Judge Shelby's opinion on equal protection grounds is much less controversial, and perhaps even conservative.  Judge Shelby rejects the arguments - - - or at least the need for the arguments - - - regarding any sort of heightened scrutiny and resolves the case on rational basis review.  This rejection includes the arguments centering on animus as a non-legitimate state interest.  Instead, he concludes that the legitimate government interests that Utah cites are not rationally related to Utah’s prohibition of same-sex marriage.  These interests include the by now familiar ones of "responsible procreation," "optimal child-rearing,"  "proceeding with caution," and "preserving the traditional definition of marriage."

He ends with an extended analogy to Loving v. Virginia,  or more specifically, Virginia's arguments in the landmark case ruling the state's anti-miscengation law unconstitutional.  And after clearing declaring sections 30-1-2 and 30-1-4.1 of the Utah Code and Article I, § 29 of the Utah Constitution unconstitutional under the Fourteenth Amendment, enjoins their enforcement.

 

December 20, 2013 in Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Catharine MacKinnon Awarded Ruth Bader Ginsburg Award for Lifetime Achievement from AALS Section on Women in Legal Education

Professor Catharine MacKinnon, author of the books Feminism Unmodified and Toward a Feminist Theory of the State, as well as Are Women Human? has been announced as the recipient of the Ruth Bader Ginsburg Lifetime Achievement Award.  There will be an event January 3, 2014 at the AALS Conference in NYC .

  Image_facbio

 

More from Feminist Law Professors here.

For those unfamilar with MacKinnon's recent work, this video from a 2011 talk at U Chicago Law School "Trafficking, Prostitution and Inequality" provides a good introduction.

 

 

December 20, 2013 in Books, Gender, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, December 19, 2013

New Mexico Supreme Court Declares Same-Sex Marriage Cannot Constitutionally be Barred

In its unanimous opinion in Griego v. Oliver, the New Mexico Supreme Court has declared that the state must recognize same sex marriages.  The court found that

barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

Justices
Justices of the New Mexico Supreme Court: 

From left to right: Richard C. Bosson; Charles W. Daniels; Chief Justice Petra Jimenez Maes (seated in middle);  Barbara J. Vigil;  Edward L. Chavez (author of opinion).     


Interestingly, the court concluded that any prohibition of same-sex marriage raised a classification based on sexual orientation (and not sex), although its rationale raised the specter of the kind of formal equality at issue in Plessy v. Ferguson:

We do not agree that the marriage statutes at issue create a classification based on sex. Plaintiffs have conflated sex and sexual orientation. The distinction between same- gender and opposite-gender couples in the challenged legislation does not result in the unequal treatment of men and women. On the contrary, persons of either gender are treated equally in that they are each permitted to marry only a person of the opposite gender. The classification at issue is more properly analyzed as differential treatment based upon a person’s sexual orientation.

Nevertheless, the court found that the appropriate level of scrutiny was intermediate:

 because the LGBT community is a discrete group that has been subjected to a history of purposeful discrimination, and it has not had sufficient political strength to protect itself from such discrimination. . . .  the class adversely affected by the legislation does not need to be “completely politically powerless, but must be limited in its political power or ability to advocate within the political system.”  Nor does intermediate scrutiny require the same level of extraordinary protection from the majoritarian political process that strict scrutiny demands. It is appropriate for our courts to apply intermediate scrutiny, “even though the darkest period of discrimination may have passed for a historically maligned group.” 

The court notes that its "decision to apply intermediate scrutiny is consistent with many jurisdictions which have considered the issue," citing the Second Circuit in Windsor, as well as the same-sex marriage cases from Iowa and Connecticut.

The court found that the same-sex marriage ban did not survive intermediate scrutiny.  It considered three  governmental interests advanced for prohibiting same-gender couples from marrying in the State of New Mexico:

  • promoting responsible procreation
  • responsible child-rearing
  • preventing the deinstitutionalization of marriage

As to the last interest, the court noted that the defendants conceded there was no evidence that same-sex marriages would result in the deinstitutionalization of marriage, and the court implied this interest was "intended to inject into the analysis moral disapprobation of homosexual activity and tradition" and flatly rejected it. 

As to procreation and child-rearing, the court rejected these interests as the governmental interests underlying New Mexico's marriage laws: "It is the marriage partners’ exclusive and permanent commitment to one another and the State’s interest in their stable relationship that are indispensable requisites of a civil marriage."  But the court also found that neither interest would be substantially served by the prohibition of mariage to same-sex partners.

Thus, by a relatively brief opinion (approximately 30 pages) the New Mexico Supreme Court has unanimously ruled that same-sex marriages must be allowed in the state.  Because the decision rests on the state constitution, it is not subject to review by the United States Supreme Court and   New Mexico becomes the 17th state to allow same-sex marriages on the same terms as other marriages.

 

December 19, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Gender, Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Saturday, December 14, 2013

Federal District Judge Finds Portions of Utah's Criminalization of Polygamy Unconstitutional

In a 91 page  opinion  in Brown v. Buhman,  federal district judge Clark Waddoups has concluded that Utah's anti-bigamy statute is partially unconstitutional. 

Sister wivesThe 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.

The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book ) and are represented by Professor  Jonathan Turley,  who blogs about the case here.


The judge's scholarly opinion includes a discussion of Edward Said's groundbreaking book Orientalism as a critique of the well-known passage in the United States Supreme Court’s 1879 decision in Reynolds v. United States upholding the criminalization of polygamy by reasoning, in part, that "Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people."

Judge Waddoups considers both the due process challenge (applying Washington v. Glucksberg) and the free exercise challenge (applying Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah). 

In the due process analysis, the judge specifically found

 there is no “fundamental right” to polygamy under Glucksberg. To phrase it with a “careful description” of the asserted right [citations omitted],  no “fundamental right” exists to have official State recognition or legitimation of individuals’ “purported” polygamous marriages—relationships entered into knowing that one of the parties to such a plural marriage is already legally married in the eyes of the State. The fundamental right or liberty interest that was under consideration in Glucksberg is instructive for the analysis of whether the asserted right to polygamy is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.”

The judge also found that the criminalization of what it called the "religious cohabitation" portion of the statute did not rise to the level of a fundamental right, extensively discussing Lawrence v. Texas and the Tenth Circuit's limiting interpretation of Lawrence. 

However, the judge did find that "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.

Complementing this conclusion regarding discriminatory enforcement, the judge's free exercise of religion analysis concludes that while the Utah statute may be facially neutral, the cohabitation prong is not "operationally neutral" and not of general applicability.  The judge therefore applied strict scrutiny to the cohabitation prong and easily concluded the statute failed.

As an alternative free exercise analysis, the judge reasoned that the cohabitation prong also merited strict scrutiny because it involved a "hybrid rights" analysis under Employment Division, Department of Human Resources of Oregon v. Smith (1990), given the claims of due process, but also claims that the judge did not extensively analyzes such as free association, free speech, establishment, and equal protection.  

Thus, the judge concluded the cohabitation prong of the statute is "unconstitutional on numerous grounds."  However, the court explicitly narrowed the constructions of  “marry” and “purports to marry" in the statute, so that the Utah statute continues to "remain in force as prohibiting bigamy in the literal sense—the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage."  Not surprisingly then, the judge's opinion does not cite the Supreme Court's opinion last term in United States v. Windsor involving DOMA and same-sex marriage, in which Justice Scalia, dissenting, invoked the effect the decision would have on polygamy. [I've previously discussed the similarities of same-sex marriage and polygamy claims here].

Given the district judge's narrowing construction and the clear constitutional issues with the Utah statute's breadth, it might be possible that the state does not appeal.

 

[video via]

December 14, 2013 in Books, Equal Protection, Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

Survey of Recent Commentaries on the Religious Rights of Corporations in the Context of the ACA

With Hobby Lobby (and Conestoga Wood) headed to the United States Supreme Court, there's more and more commentary on the issue of whether a for-profit secular corporation, or its "owners" has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause sufficient to be exempted from compliance with the ACA's so-called contraception mandate requiring most employers to provide employees with health insurance that includes contraception.

Interestingly, after the grant of certiorari, some news reports headlined the religiousity of corporations aspect while others headlined the ACA contraception provision. 

The issue has generated many commentaries which often take very polarized positions.  Here's a round-up:

450px-Arthaberpark_Figurengruppe

*     Garrett Epps' Hobby Lobby and the New 'Alienable' Rights in The Atlantic argues that "market triumphalism" is at the heart - - - and will determine - - - cases such as Hobby Lobby.  “In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder.”   The abstract “inalienable” framework of rights in the Constitution has been transformed into rights as  “assets”  that can be treated as property and owned by corporations, especially those that are assumed to “create” the jobs encompassing the rights being asserted by the individuals.  "The employees have no right to complain; they sold their rights on the free market."

*    Richard Garnett's The Righteousness in Hobby Lobby’s Cause in the LA Times argues that Hobby Lobby should be praised for maintaining and supporting responsible corporate ethics through religious commitment. "Like millions of religious believers and groups," these corporations "reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work."  At  "the heart"  of these cases "is the straightforward argument that federal law does not require us to 'check our faith at the door' when we pursue vocations in business and commerce."

*     Linda Greenhouse's  Doesn’t Eat, Doesn’t Pray and Doesn’t Love, in NY Times contends that the conflict is not really over religion but part of the continuing culture war surround sex.  “To the extent that the “contraceptive project” changes anything on the American reproductive landscape, it will be to reduce the rate of unintended pregnancy and abortion. The objection, then, has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby. While most Americans surely share this view, given the personal choices they make in their own lives, many nonetheless find it uncomfortable to acknowledge.”

 *    Dahlia Lithwick's Un-People over at Slate argues that the "conservative crusade to declare everything a “person”—corporations, fertilized eggs—will have disastrous consequences."  Lithwick notes the extension from Citizens United: "Corporate Personhood is back! And this time, it’s got God on its side.”  She predicts the consequences: "If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah's Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws."

*    David Catron's SCOTUS, Hobby Lobby, and Media Practice over at The American Spectator argues against the "mainstream media" characterizations:  “Those Americans still naïve enough to rely on establishment news outlets for information on current events are being told that Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius are part of a sinister conspiracy to restrict access to birth control, endow corporations with religious rights, and escalate the 'war on women.'" Instead, the main question should be this: "Can the government strip individuals of their religious liberties simply because they own a controlling interest in a corporation?"

*    Sally Cohn's When Religion and Liberty Collide over at the Daily Beast draws on originalist interpretations of the First Amendment's religion clauses that  "freedom *from* religion" is central.  She contends that "the settlers who came to America wanted to express their own religious beliefs, but an equal if not greater motivation was escaping the reality of religious tyranny embedded in government," and to "put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us."

*    David Skeel's Corporations and Religious Freedom in WSJ argues that even if corporate religious rights are recognized, that doesn't mean there will be a flood of cases.  Corporations will need to meet the sincerity requirement "and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not."

*    Clarence Page's Law Protects All Faiths, Not All Behavior Op-Ed in The Chicago Tribune discusses the legal landscape in accessible terms, ultimately relying upon the belief/practice distinction as articulated  "in the 1878 test case of the bigamy conviction of George Reynolds, the personal secretary to Mormon leader Brigham Young."

*     Angelo Young's The Same Religious Conviction That Has Hobby Lobby Challenging Obamacare is Also Why Its Full Timers Start at $14 an Hour with Evenings (and Thanksgiving Off)  in International Business Times argues exactly what its title captures.  Focusing on Hobby Lobby, the article has an interview with David Green, the 73-year-old founder, including Green's comments about salary increases because "Our idea is that we should care about our people. It’s just a basic Christian do-unto-others idea."

*    Amanda Marcotte's Christian Conservatives Have Perfected Playing the Victim Card in Salon (via alternet) argues that by the controversy is fueled by conservatives "redefining “religious freedom” to mean its opposite."  She says  the "hope is that by repeatedly using the term “religious freedom” when they mean “giving the Christian right power to impose their faith on others,” they can eventually drain the phrase of all its meaning and finally, after decades of fighting secularism, make it easier for the religious right to strip away individual protections for religion.”

*    Megan McArdle's A Fight Over Contraception Won’t Help Obamacare Op-Ed in Bloomberg contends that the Obama Administration should "pick its battles carefully."  She argues that if the ACA is to be " viable for the long term" it will "need the support of folks like Hobby Lobby."  

We previously discussed
Ruthann Robson's Puzzling Corporations: The Affordable Care Act and Contraception Mandate originally published over at Jurist, and
Marci Hamilton's Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible, originally published over at Justia.

[image via]

ADDITIONS:

Bill Keller, Conscience of a Corporation, Op-Ed Column in NYT (February 13, 2013).

 

 

 

Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpufwere discussed on conlawprof previously

December 13, 2013 in Cases and Case Materials, Current Affairs, First Amendment, Free Exercise Clause, Gender, Interpretation, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, November 28, 2013

UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?

Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple? Does it make any difference that he couple have entered into a civil partnership?

This is essentially the question presented in the UK Supreme Court's opinion in Bull v. Hall involving the Chymorvah Hotel in Cornwall, pictured below.

Chymorvah House

The main opinion, authored by the twelve justice Court's only woman member, Lady Hale, affirms the lower court's finding that the same-sex couple's equality claims must prevail.  While the decision is unanimous, some justices wrote separately because of differing on the rationale, including whether the discrimination should be deemed direct or indirect.  These differences resulted from highlighting sexual orientation or highlighting marital status, with the added wrinkle of civil partnership being equivalent to marriage.

But clearly, the Court held, there was discrimination.  And further, the Court held, that discrimination cannot be justified.  The Court construed the statutory frameworks prohibiting discrimination based on both sexual orientation and religious belief, and then turned to article 9 of the European Convention on Human Rights, which guarantees the ability to manifest religious beliefs in “worship, teaching, practice and observance."  But Article 9 also provides:

Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

This "rights of others" qualification is key to the Lady Hale's analysis, as these rights  include rights under "ordinary law," including UK's regulatory framework that prohibits discrimination.

But, as Lady Hale makes clear, it is not a matter of sexual orientation discrimination trumping religious discrimination.  Instead:

If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today.

While the UK Supreme Court did cite cases from other jurisdictions, it sometimes noted that they occurred in a "different constitutional context."  

In the United States, the constitutional context pits First Amendment rights of free exercise of religion against Equal Protection rights based on sexual orientation.  When the sexual orientation rights of equality have been statutory, the United States Supreme Court has clearly held that the First Amendment interests prevail, as in Boy Scouts of America v. Dale (2000) and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. (1995).  However, with the constitutional recognition afforded same-sex marriage last term in United States v. Windsor under the equal protection component of the Fifth Amendment in the challenge to DOMA (Defense of Marriage Act), the legal landscape has altered.  

Thus, it may be that the US Supreme Court will soon be confronting an issue quite similar to the one that the UK Supreme Court in Bull v. Hall.  One possibility is Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer and in which Elane Photography has filed a petition for writ of certiorari.

Interestingly, the petition relies upon the compelled speech doctrine, arguing that requiring Elane Photography, a wedding photographer to photograph a same-sex wedding would be to require her to "create expressive images" that conveyed messages that conflict with her religious beliefs and therefore violates the First Amendment doctrine of compelled speech.  The petition heavily relies upon Wooley v. Maynard (19977) the New Hampshire "leave free or die" license plate case. As Lyle Denniston notes, the case "does not ask the Court to rule on any right of gays and lesbians to marry" and NM presently does not either prohibit or allow same-sex marriage. 

Given the US Supreme Court's highly discretionary grant of certiorari and the lack of a developed conflict in the circuits on this issue, it seems more likely than not that the US Supreme Court will refuse to hear Elane Photography.  But given the probabilities of recurrence of the issue, the US Supreme Court will most likely be confronting this issue sometime soon.

November 28, 2013 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, Family, Gender, Opinion Analysis, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Tuesday, November 26, 2013

United States Supreme Court Grants Certiorari on Religious Claims of Secular For-Profit Corporation

As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.  

SCOTUS
Supreme Court Justices by Donkey Hotey

 

In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby  essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees. 

The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.  First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion.  Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.

For ConLaw Profs, here are some useful links:  A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here;  a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here,  ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here,  a discussion of the district judge's opinion in Hobby Lobby is here,  a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.

[image: Supreme Court Justices by Donkey Hotey via]

~Ruthann Robson

November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, November 25, 2013

Daily Read: Julie Goldscheid on the Constitutional and Social Problems of Violence Against "Women" (on this International Day for the Elimination of Violence Against Women)

The 25th of November is "International Day for the Elimination of Violence against Women" declared by the United Nations by a Resolution in 2000

IntDayElimViolenceWomen

The resolution echoes earlier attention to the problem which it defines as including

any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

The responsibility of governments to address private violence is one that is controversial in United States constitutional law, but so - - - and perhaps increasingly - - - is the framing of the issue with special attention to victims on the basis of gender.  Isn't a focus on women violative of sex-equality, excluding not only men but transgender and gender nonconforming people?

GoldscheidProfessor Julie Goldscheid (pictured) takes on this issue in her forthcoming article, Gender Neutrality, the “Violence Against Women” Frame, and Transformative Reform, available in draft on ssrn.  Goldscheid uses framing theory to explain the benefits and disadvantages of the frame "violence against women."  She discusses constitutional challenges against anti-violence legislation and regulations that codify the woman-specific lens, including one from West Virginia and California in which equal protection arguments were mounted.  In West Virginia, the Supreme Court of Appeals in  Men & Women Against Discrimination v. Family Protection Servs. Bd. ultimately upheld the special requirements for men.  As Goldscheid describes it, the court

concluded that the rule authorizing particular rules for male victims and adult male children was “not unreasonable” given that the majority of domestic violence victims seeking shelter are women, and that the provision requiring training in historical attitudes toward women simply mandated gender-neutral instruction about the history of domestic violence and did not imply that all perpetrators are men or that women cannot be perpetrators.

To the contrary, in California the appellate court applied strict scrutiny under its state constitution to state sex-specific provisions in Woods v. Horton and found they were not justified by a compelling governmental interest and that gender-neutral alternatives were possible.  However, the court did not find the state provisions unconstitutional, but, as Goldscheid explains,

the remedy was to reform the statutory provisions to provide funding to survivors regardless of gender.  The court recognized that the vast majority of the programs funded under the programs already were provided on a gender-neutral basis. It also recognized that programs need not offer identical services to men and women, given the disparity in the number of women needing services.  For example, the court recognized that a program might offer shelter for women, but only hotel vouchers for men.

These cases do not lead Goldscheid to advocate for a simplistic gender-neutral approach, but to argue for what she names a "modest shift" that "meets both descriptive and transformative goals, and that is sensitive to differences in context and usage."  

Goldscheid's solution - - - discussed in her article - - - credits the power in naming and framing.  It may be "modest," as she suggests, but it is certainly worth contemplating on this International Day for the Elimination of Violence against Women.

November 25, 2013 in Courts and Judging, Current Affairs, Equal Protection, Family, Gender, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)