Saturday, November 7, 2015

Supremes Take Up Contraception Mandate Accommodation

The Supreme Court yesterday agreed to hear the cases testing whether the government's accommodation to the "contraception mandate" violates the Religious Freedom Restoration Act.

The move was expected. The Court will likely hear oral arguments in March 2016.

The cases involve HHS's requirement under the Affordable Care Act that employers' health insurance plans include certain kinds of contraception, and the government's accommodation to that requirement for religious non-profits. (Religions are already exempt.) The accommodation simply requires non-profit that objects to providing contraception on religious grounds to so notify the government (a letter will do, or the non-profit can use a government form). At that point, the government requires the insurer or third-party administrator to provide contraception, free of charge, directly to the non-profit's employees.

Some religious non-profits argue that the accommodation itself violates the RFRA, because their notification to the government triggers the provision of contraception. Seven circuits have rejected that claim; only the Eighth Circuit has accepted it. We posted most recently, on the Eighth Circuit's ruling, here.

The accommodation isn't a new idea. The Court itself identified it as a possible solution to objecting closely held for-profit corporations in Hobby Lobby. But the Court didn't say whether it would violate the RFRA--that issue simply wasn't before the Court.

The parties in the case will argue whether the accommodation creates a "substantial burden" on their religious freedoms and, if so, whether it is narrowly tailored to meet a compelling government interest.

The non-profits' arguments push the bounds of the RFRA. After all, if an accommodation can be a "substantial burden"--and one that operates in such a minimally intrusive way--it's hard to see what couldn't be a substantial burden on some religion. Moreover, to get to the non-profits' result, the courts have to accept their view of how the law works--that the accommodation triggers the provision of contraception (in contrast to the view that the law itself triggers the requirement that insurers provide contraception). The Eighth Circuit (and the Eighth Circuit alone) got there, but seemingly by deferring to the non-profits' view of their own religion, as I explained here. Under RFRA, the courts certain defer to a religion on its own tenets and beliefs, but it's hard to see why the courts should extend that deference to a religious belief about the way the law works.

November 7, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Thursday, October 29, 2015

En Banc Sixth Circuit Rejects "Heckler's Veto" in "Bible Believers" Protest at Arab-American Festival

The en banc Sixth Circuit's opinion in Bible Believers v. Wayne County clearly rejected the existence of a "heckler's veto" to inflammatory but protected speech under the First Amendment's speech clause, as well as finding the speech protected under the Free Exercise Clause and the Equal Protection Clause of the Fourteenth Amendment.  The en banc court also found that the government was liable and that there was no qualified immunity.

Recall that last year a panel of the Sixth Circuit rejected the constitutional challenges of the Bible Believers group, affirming the district judge's grant of summary judgment for the government.

The underlying controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach."  Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"),  a "severed pig's head

Repin, Demontsration 1905, via

on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment."  A crowd gathered, seemingly mostly of children and adolescents, who yelled back and threw items at the preachers.  A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct. They were eventually escorted out.

The Sixth Circuit's extensive en banc opinion, authored by Judge Eric Clay - - - and in which 8 (including Clay) of the 15 Sixth Circuit judges joined - - - resolutely "confirms" the free speech protections that should be accorded to a speaker even when "angry, hostile, or violent crowds" seek to silence that speaker. 

The opinion first finds that the Bible Believers' speech was protected, rejecting exception of incitement (to riot) and fighting words.  The "fighting words" discussion is regrettably short - - - a single paragraph - - - and summarily advances the "objective standard" requiring the insult to be likely to provoke the "average person" (emphasis in original) and moreover to be directed at an "individual."  In the context of the facts here, these principles deserved further exploration.

After a brief discussion of the public forum, the en banc opinion then discussed at length the "heckler's veto" doctrine and concluded it was not a viable doctrine.  Applying that conclusion, the opinion discussed law enforcement performance, citing the video record (which the court did at several points in the opinion): there was "next to no attempt made by the officers to protect the Bible Believers or prevent the lawless actions of the audience" and  it was not sufficient an effort "to maintain peace among a group of rowdy youths" - - - i.e., the crowd at the festival - - - if it consists of  a"few verbal warnings and a single arrest.  The court advised:

We do not presume to dictate to law enforcement precisely how it should maintain the public order. But in this case, there were a number of easily identifiable measures that could have been taken short of removing the speaker: e.g., increasing police presence in the immediate vicinity, as was requested; erecting a barricade for free speech, as was requested; arresting or threatening to arrest more of the law breakers, as was also requested; or allowing the Bible Believers to speak from the already constructed barricade to which they were eventually secluded prior to being ejected from the Festival. If none of these measures were feasible or had been deemed unlikely to prevail, the WCSO [Wayne County Sheriff's Office] officers could have called for backup—as they appear to have done when they decided to eject the Bible Believers from the Festival—prior to finding that it was necessary to infringe on the group’s First Amendment rights. We simply cannot accept Defendants’ position that they were compelled to abridge constitutional rights for the sake of public safety, when at the same time the lawless adolescents who caused the risk with their assaultive behavior were left unmolested.

In a very brief analysis, the court held that the free exercise claim "succeeds on the same basis as the free speech claim."  As for the Equal Protection Clause claim, the court's discussion is similarly summary, but its analysis seems much too conclusory:

The Festival included a number of other religious organizations that came to share their faith by spreading a particular message. There are several distinctions between the Bible Believers and these other groups. Mainly, the Bible Believers chose, as was their right, not to register for an assigned table under the information tent. Instead, they paraded through the Festival and proselytized, as was also their right, while carrying signs and a severed pig’s head. Although these actions set them apart from the other speakers and religious organizations at the Festival, they do not do so in any relevant respect. Any speaker could have walked the Festival grounds with or without signs if they chose to do so. The Bible Believers, like the other religious organizations at the Festival, sought to spread their faith and religious message. Although they declined to utilize the tent set aside for outside groups, their conduct was at all times peaceful while they passionately advocated for their cause, much like any other religious group. Wayne County did not threaten the Bible Believers based on their decision to march with signs and banners, but based on the content of the messages displayed on the signs and banners. The county’s disparate treatment of the Bible Believers was based explicitly on the fact that the Bible Believers’ speech was found to be objectionable by a number of people attending the Festival. Wayne County therefore violated the Bible Believers’ right to equal protection by treating them in a manner different from other speakers, whose messages were not objectionable to Festival-goers, by burdening their First Amendment rights.

The en banc court also held that the officers were not entitled to qualified immunity and that municipal liability was established.  On these issues, there were vigorous dissents.  And indeed, the en banc majority seems on tenuous ground, especially given its earlier discussion of Sixth Circuit precedent in Glasson v. City of Louisville decided in 1975:

In this Circuit, a modicum of confusion is understandable with respect to the prohibition against the heckler’s veto due to Glasson’s discussion of a good-faith affirmative defense.  . . . . Therefore, to the extent that Glasson’s good-faith defense may be interpreted as altering the substantive duties of a police officer not to effectuate a heckler’s veto, it is overruled.

Yet in the discussion of qualified immunity, the en banc court reasoned:

To the extent that Glasson’s discussion of a good-faith defense confused the issue of whether a heckler’s veto constitutes a constitutional violation, the facts and analysis in Glasson nonetheless alerted Defendants that removing a peaceful speaker, when the police have made no serious attempt to quell the lawless agitators, could subject them to liability.

That both the district judge and a previous panel of the Sixth Circuit had found that law enforcement's actions were constitutional, this seems a harsh conclusion - - - and is inconsistent with recent qualified immunity in First Amendment cases.  (For example, recall the unanimous Supreme Court 2014 opinion in Lane v. Franks, not cited in the Sixth Circuit opinions).

On the whole, the Sixth Circuit opinion validates the First Amendment right of provocative, offensive, and "challenging speech" - - - including symbolic speech such as marching with a pig's head on a stick - - - and requires law enforcement to protect such speech against (physically) hostile reactions by directing their efforts against those who are hostile rather than the speakers.   As Judge John Rogers, dissenting, suggested, one way to view the underlying controversy was that the "Bible Believers were hecklers seeking to disrupt the cultural fair" being held by the Arab-American community as an expressive enterprise.  The en banc majority clearly rejected that view - - - and held that the government should be liable for damages.

October 29, 2015 in Cases and Case Materials, Courts and Judging, Equal Protection, First Amendment, Free Exercise Clause, Opinion Analysis, Race, Religion, Speech | Permalink | Comments (0)

Tuesday, October 13, 2015

Third Circuit Reinstates Constitutional Claim Against NYC for Muslim Surveillance

The Third Circuit's 60 page opinion today in Hassan v. City of New York reverses and remands the terse dismissal of the complaint in February 2014 by United States District Judge William Martini.  The original complaint alleged that the New York City Police Department’s surveillance program targeted New Jersey Muslims solely on the basis of religion, thereby violating their First and Fourteenth Amendment rights.  The district judge found that there was no standing - - - in part because the plaintiffs did not know about their surveillance until it was revealed by the press and thus had no injury - - - and that the complaint did not state a plausible claim - - - in part because the "police could not have monitored New Jersey for Muslim terrorist activities without monitoring the Muslim community itself."

The unanimous opinion by Judge Thomas Ambro, joined by Julio Fuentes, and with a very brief concurrence by Jane Roth regarding the standard of equal protection scrutiny to be applied, comes complete with a Table of Contents.  (Query whether opinions are increasingly availing themselves of a brief-like TOC: compare District Judge Shira Scheindlin's opinion in the NYC stop and frisk lawsuit, although her opinion is more than 3 times as long with many more footnotes.  Or perhaps there is something about NYC police practices that calls for a TOC?).

After a rehearsal of the NYC surveillance program and its disclosure, the court considers the problem of Article III standing.  For the Third Circuit, the "injury in fact" requirement of standing is satisfied by the plaintiffs' allegation of the denial of equal treatment on the basis of their religion under the Equal Protection Clause, as well as the First Amendment.  The court rejected NYC's arguments that there needed to be a tangible benefit denied, that there needed to be an overt condemnation (interestingly contrasting Plessy v. Ferguson and Brown v. Board of Education); and that the injuries were not sufficiently particularized.  As to the "fairly traceable" causation requirement, the court soundly rejected the contention that it was the only disclosure of the surveillance by the press rather than the surveillance itself that caused the injury. Finally, in its brief discussion of "redressability," the court, quoting an Eleventh Circuit case, noted that "While we cannot predict 'the exact nature of the possible relief . . . without a full development of the facts, an order enjoining the policy and requiring non-discriminatory investigation and enforcement would redress the injury.'"

On the equal protection issue, the Third Circuit held that the complaint plausibly alleged that the NYC surveillance program made a facial religious classification.  It further held that this religious classification does not require an "invidious motive.": 

While the absence of a legitimate motive may bear on whether the challenged surveillance survives the appropriate level of equal-protection scrutiny, “intentional discrimination” need not be motivated by “ill will, enmity, or hostility” to contravene the Equal Protection Clause.

The court here interestingly cites the district judge's decision in the NYC stop and frisk case. 

The Third Circuit thus finds that the NYC surveillance program was facially religious, but then discussed the tier of scrutiny that religious classifications should merit:

Perhaps surprisingly, neither our Court nor the Supreme Court has considered whether classifications based on religious affiliation trigger heightened scrutiny under the Equal Protection Clause. . . .

Although the answer to this question is not found in binding precedent, we hardly write on a clean slate. To start, it has long been implicit in the Supreme Court’s decisions that religious classifications are treated like others traditionally subject to heightened scrutiny, such as those based on race.  [Citations omitted]

This line of comment can be traced back to the famous footnote four of the Supreme Court’s 1938 decision in Carolene Products, where the Court suggested that discriminatory legislation should “be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment” if “directed at particular religious, or national, or racial minorities.”

After discussing a number of appellate court decisions, the Third Circuit panel held:

Today we join these courts and hold that intentional discrimination based on religious affiliation must survive heightened equal-protection review. Before turning more fully to our reasoning, however, we pause to reiterate that the term “heightened scrutiny,” as we use it, encompasses both “intermediate scrutiny” and “strict scrutiny.”

The panel stated that it need not - - - and should not - - - "determine in connection with its motion to dismiss which of the two applies, and we leave that question for the District Court in the first instance when and if it becomes necessary to decide it."  However, the court does engage in a Carolene Products-type of analysis to substantiate its conclusion, devoting some discussion to the "immutability" factor (which of course was not in the Carolene Products footnote).  It also noted that the "history of religious discrimination in the United States is intertwined with that based on other protected characteristics, including national origin and race," and that the allegations of the complaint reflected this intertwinement.

It is on this point that Judge Roth differs, arguing in her concurrence that intermediate scrutiny should apply and providing a somewhat personal explanation:

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with “intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

The Third Circuit did acknowledge the national security interest, but added that "it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights," explicitly invoking Korematsu and Hirabayashi.

The court's relatively brief First Amendment conclusion similarly rejects NYC's claim that animus must be proven.

The court concludes:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color.” [citation omitted].

image via



October 13, 2015 in Equal Protection, Federalism, Fourteenth Amendment, Opinion Analysis, Race, Religion | Permalink | Comments (1)

Friday, September 18, 2015

Eighth Circuit First to Strike Accommodation of Contraception Mandate

The Eighth Circuit yesterday became the first federal circuit court to rule that the government's accommodation of the contraception mandate in the Affordable Care Act likely violated the Religious Freedom Restoration Act.

The ruling upholds a lower court's preliminary injunction against the contraception mandate as applied to objecting religious non-profits.

The ruling is notable not only because it's the first federal appellate court (of eight) to so hold, but also because it seems to grant deference to the plaintiffs' beliefs about how their religion works, but also their religious beliefs about how the law works. That could have far reaching impacts for other cases under RFRA, at least in the Eighth Circuit.

The court said that the government's accommodation--that an objecting religious non-profit complete a Form 700, or certify to the government that it has a religious objection to certain contraception--itself was a substantial burden on the non-profits' religious beliefs. According to the court, that's because the accommodation "triggers" the provision of contraception to employees by the non-profits' insurers or third-party administrators.

This contradicts the holdings in other circuits, which have said that it's not the accommodation that "triggers" contraception, but the law itself.

But the Eighth Circuit rejected that approach, based on the deference that it says it owes to the non-profits' interpretation of their own religious beliefs:

Instead, we must accept a religious objector's description of his religious beliefs, regardless of whether we consider those beliefs "acceptable, logical, consistent, or comprehensible." In other words, a religious objector is entitled to "dr[a]w a line" regarding the conduct that his religion deems permissible, and once that line is drawn, "it is not for [a court] to say that the line . . . was . . . unreasonable."

The Eighth Circuit extended the deference traditionally granted to a plaintiff over his or her religious beliefs to the plaintiffs' interpretation of law. In other words, the court didn't look to the way the ACA actually worked (in requiring insurers and TPAs to provide contraception when an employer files the accommodation), as the other circuits did; instead, it simply accepted the plaintiffs' interpretation of the law--based on its deference to the plaintiffs' sincerely held religious belief--that their certification "triggered" contraception. The court explained:

As Hobby Lobby instructs, however, we must accept CNS and HCC's assertion that self-certification under the accommodation process--using either Form 700 or HHS Notice--would violate their sincerely held religious beliefs.

The court went on to say that the accommodation didn't meet strict scrutiny (under RFRA), because there were other ways for the government to achieve its objective of providing contraception: the government could provide contraception directly, itself; or it could use a simple notice requirement consistent with the Supreme Court's requirement in Wheaton College. (The court said that the government's notice requirement was broader, and more burdensome, than what the Supreme Court approved in Wheaton College.)

September 18, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Wednesday, September 9, 2015

Seventh Circuit (again, and again) Upholds Contraception Accommodation

The Seventh Circuit yet again upheld the ACA's accommodation to the contraception mandate for religious non-profits against a RFRA challenge. The decision last week in Grace Schools v. Burwell reversed a lower court's ruling that the challengers were likely to succeed on the merits. But the Seventh Circuit also kept the lower court's injunction in place for 60 days in order to allow the lower court to consider additional arguments made by the plaintiffs but not addressed in the appeal (a First Amendment claim and an Administrative Procedures Act claim). (These claims probably have even less traction than the RFRA claim.)

The ruling says that the government's accommodation to the contraception mandate for religious non-profits doesn't violate the RFRA. This is consistent with the rulings of every other circuit that's addressed the question.

Recall that the accommodation now allows a religious non-profit that objects to the contraception mandate either to complete a government form or to simply inform the government that it has a religious objection to the mandate. If so, the government then informs the non-profit's health insurer or third-party administrator that the insurer or TPA has to provide contraception directly to the non-profit's employees and students free of charge. (Insurers are happy to do this, by the way, because contraception coverage is cheaper for an insurer than not including contraception as part of an insurance package.)

Non-profits have sued, arguing (curiously) that the accommodation itself violates their religious freedom, because it makes them complicit in the provision of contraception. ("But for" their certification, they say, their insurers or TPAs wouldn't be required to provide contraception. Moreover, they claim a religious objection to doing business with insurers or TPAs who provide contraception to their employees, even if required by the government.)

This case zeroed in on the substantial burden requirement in RFRA. (In order to trigger RFRA's strict scrutiny, a government action must first create a substantial burden to a religious practice.) The challengers argued that the accommodation created a substantial burden on their religious practice (for the reasons mentioned above)--and that they, not the courts, got the final word on whether the accommodation was a substantial burden. (They claimed that Hobby Lobby said this.) This was the really important question in the case: Who gets to say whether a government action, as a legal matter, creates a substantial burden?

The Seventh Circuit panel flatly rejected the plaintiffs' arguments. The majority said what every other circuit has said: contraception is triggered by government regulation, not by the non-profit's exercise of the accommodation--and, importantly, that the courts, not the challengers, get to interpret how the law operates. Because there was no substantial burden, the majority didn't reach the question whether the accommodation satisfied RFRA's strict scrutiny.

Judge Manion dissented sharply, arguing that the majority misinterpreted the law and misunderstood how the accommodation actually worked. Judge Manion also argued that the accommodation failed strict scrutiny.

This case follows closely on a decision last week by the Tenth Circuit to deny en banc review of a panel's decision upholding the accommodation. That decision also came with a sharp dissent. It also follows the Seventh Circuit's own ruling in Notre Dame II, also (again) upholding the accommodation.

September 9, 2015 in Cases and Case Materials, News, Opinion Analysis, Religion | Permalink | Comments (1)

Tuesday, September 1, 2015

Ninth Circuit OKs Jesus Statute on Public Land

A divided panel of the Ninth Circuit today upheld a U.S. Forest Service decision to renew a permit for the Knights of Columbus's Jesus statute on public land. The ruling means that Jesus stays on the USFS's Big Mountain.

Judge Owens wrote that the statute didn't violate the Establishment Clause, because the USFS's decision to renew the statute's permit reflected a primarily secular purpose (despite its portrayal of Jesus), and because USFS's permit didn't endorse religion. (According to Judge Owens, several factors suggest that the permit didn't endorse religion, including "the flippant interactions of locals and tourists with the statute [including] decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as [mountain-goers] ski by, and posing in Facebook pictures.") Judge Owens also distinguished Trunk v. City of San Diego, where the court ruled that a giant cross violated the Establishment Clause.

Judge N.R. Smith concurred, but argued that the case should be analyzed as private speech in a public forum. Judge Smith wrote that the permit should be upheld so long as the government didn't discriminate in granting it, and it didn't. Moreover, the Knights (not the government) maintains the statute.

Judge Pregerson dissented, arguing that "a twelve-foot tall statute of Jesus situated on government-leased land cannot realistically be looked upon as 'predominantly secular in nature,'" and that "a 'reasonable observer would perceive' the statute situated on government land 'as projecting a message of religious endorsement.'"

September 1, 2015 in Cases and Case Materials, Establishment Clause, First Amendment, News, Opinion Analysis, Religion | Permalink | Comments (1)

District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"

In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer.  While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.

Judge Leon applied rational basis review, but declared that

Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!

He continued:

Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.”  This not only oversimplifies the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation.  For the following reasons, I conclude that it most assuredly is.

[citations omitted]. 

image via "March for Life" about us

In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:

HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has  consequently moored this accommodation not in the language of conscientious objection,  but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own  view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate.  The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated  differently, what HHS claims to be protecting is religious beliefs, when it actually is  protecting a moral philosophy about the sanctity of human life. HHS may be correct that  this objection is common among religiously-affiliated employers. Where HHS has erred,  however, is in assuming that this trait is unique to such organizations. It is not.

In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection.  Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny. 

Interestingly, Judge Leon states that  "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that  “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.”  Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.

In his application of RFRA, Judge Leon's opinion is on more well-plowed ground.  He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds."  This brings the case within the purview of Hobby Lobby.  As Judge Leon phrases it:

The final question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!

While Judge Leon dismissed the free exercise claim,  based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).  

When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.

September 1, 2015 in Abortion, Courts and Judging, Current Affairs, Equal Protection, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0)

Tuesday, August 18, 2015

Kentucky Court Clerk's "No Marriage License Policy" Going to Sixth Circuit

A few months after the United States Supreme Court issued its decision in Obergefell v. Hodges, reversing the Sixth Circuit's opinion, and declaring that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the issue of same-sex marriage is again reaching the Sixth Circuit. 

This time, however, the issue is whether a government employee, a court clerk in Kentucky, can refuse to issue same-sex marriage licenses - - - or any marriage licenses - - - based upon a claim of free exercise of religion.  The claim of religious exemptions from state clerks is not new (consider events in New York in 2011); neither are objections to implementing the Court's decision in Obergefell (consider events in Alabama this summer).  Nevertheless, this controversy has become particularly focused.

United States District Judge David Bunning's Opinion and Order last week in Miller v. Davis issued a preliminary injunction in favor of April Miller and Karen Roberts, enjoining Rowan County Clerk Kim Davis from applying the "no marriage licenses" policy.  The Judge rejected Davis' First Amendment claims.  First, Judge Bunning found that Governor Beshear's directive to county clerks to issue same-sex marriage licenses was a general law of neutral applicability that "likely does not infringe on Davis' free exercise rights."  Second, Judge Bunning further found that the issuance of the marriage license did not implicate Davis' free speech rights: the issuance of the license, even with the clerk's certification, is not an endorsement and furthermore is quite possibly government rather than individual speech, citing the Court's decision in Walker v. Sons of Confederate Veterans from last Term.  Judge Bunning also rejected Davis' third  - and perhaps the most interesting - claim based upon Article VI §3 prohibiting a "religious Test" as a qualification for public office.  Davis argued that this prohibition meant that her religious beliefs must be accommodated.  Even as he rejected this interpretation, Judge Bunning drew attention to the "first half" of Article VI §3 requiring state officials to take an oath to defend the United States Constitution. 

Davis predictably sought a stay of the preliminary injunction.  In an Order late yesterday, Judge Bunning denied the stay, including in his 7 page opinion an extensive quote from Obergefell regarding the relationship of religious freedom to same-sex marriage.  Yet Judge Bunning did stay the order denying the stay:

in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the Court finds it appropriate to temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.

While decisions to stay and to issue preliminary injunctions involve equitable and other factors, of central prominence is the probable outcome on the merits.  Thus, the Sixth Circuit is again poised to consider, albeit less directly, the issue of same-sex marriage. 

August 18, 2015 in Family, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Interpretation, Opinion Analysis, Religion, Sexual Orientation, Speech | Permalink | Comments (0)

Saturday, August 8, 2015

Second Circuit is Latest Court to Reject Challenge to Contraception Mandate Accommodation

The Second Circuit this week became the latest court to reject religious organizations' challenge to the religious accommodation to the ACA's contraception mandate. The Second Circuit joined six other circuits in rejecting the surprising claim that a barely burdensome religious accommodation itself violates the Religious Freedom Restoration Act.

We posted most recently on the Tenth Circuit's ruling here.

With seven circuits now rejecting the novel claim (with no circuit accepting it), and with the accommodation designed around a Supreme Court order, one might reasonably wonder why plaintiffs keep bringing and appealing these cases. Surely they have better things to do with their time and money than to bring such transparently harassing and abusive claims. (Indeed, one might wonder: At what point should a court consider Rule 11 sanctions?) Still . . . .

The Second Circuit ruling is comprehensive and well analyzed, concluding that the accommodation (to simply notify HHS, either by form, or by letter) isn't substantially burdensome. But after 47 pages, here's the gist:

The burden that the accommodation places on Plaintiffs is merely one notification, equivalent to the burden historically placed on draft registrants to indicate their conscientious objections to military service. Once Plaintiffs avail themselves of the simple, non-burdensome means of opting out, the regulations do not require them to play any role in the provision of contraceptive coverage or to suffer punishments for not doing so. To the contrary, the accommodation relieves them of providing contraceptive coverage, and instead enlists third-party administrators to provide such coverage. If a regulatory scheme that might otherwise violate an objecting individual's rights under RFRA allows the objector to exempt himself from compliance via a simple, non-burdensome act of notification, there is no substantial burden. Furthermore, subsequent regulation of non-objecting parties in a manner that an objecting party finds offensive does not transform the act of opting out into a cognizable substantial burden. The rights conferred by the First Amendment and RFRA do not include a right to have the government or third parties behave in a manner that comports with an individual's religious beliefs.

August 8, 2015 in Cases and Case Materials, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Tuesday, July 14, 2015

Tenth Circuit Rejects Challenge to Contraception Mandate

The Tenth Circuit today rejected statutory and First Amendment challenges to HHS's religious accommodation to its contraception mandate under the Affordable Care Act. We most recently posted on the issue, in the Notre Dame case in the Seventh Circuit, here.

The plaintiffs in the case--Little Sisters of the Poor, Southern Nazarene, and Reaching Souls--argued that the HHS requirement that they notify their health insurance providers, third party insurers, or HHS (with a simple letter) in order to get out from under the contraception mandate violated the Religious Freedom Restoration Act, free exercise and establishment of religion, and free speech.

The Tenth Circuit rejected the claims. In a lengthy opinion that comes with its own glossary and table of contents, the court ruled that it wasn't the plaintiffs' accommodation (the notification of their objection) that triggered the provision of contraceptions; it was the law. (Judge Posner arrived at the same conclusion with more colorful language in the Notre Dame case.) Given this, there was no substantial burden on religion under RFRA. Moreover, the court said that the accommodation met rational basis review under the Free Exercise Clause, that it didn't discriminate between religions and religious organizations in violation of the Establishment Clause, and that the accommodation didn't amount to compelled speech under the First Amendment.

July 14, 2015 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Monday, July 6, 2015

Judge Posner Explains Why Contraception Mandate Accommodation Doesn't Violate RFRA (Again)

Judge Posner explained (yet again) last week why HHS's contraception mandate under the Affordable Care Act doesn't violate religious freedom, in particular, the Religious Freedom Restoration Act. His previous explanation in the Notre Dame case is perhaps the best statement why the accommodation to the mandate doesn't violate religious freedom; his ruling in the continuing, and up-and-down, Wheaton College case is next best.

Wheaton College, a nondenominational evangelical college in Wheaton, Illinois, challenged HHS's accommodation to its requirement that colleges provide contraception as part of their health-insurance policies. Wheaton College doesn't object to all the contraception required under the mandate, only those that it considers abortifacients.Still, the College apparently wasn't satisfied with the Supreme Court's instruction to simply inform the government of its objections (at which point the government would tell the insurers to provide the contraception to Wheaton students and employees free of charge, reimbursed by the government)--a religious accommodation. The College argued that this accommodation itself meant that the government would take over its insurance plan, interfere with its contractual relationship with its insurer, and force it to be complicit in its insurer's provision of contraception. The College sought a preliminary injunction. But the Seventh Circuit rejected the motion.

Judge Posner explained why the accommodation (the requirement to tell the government of its religious objections to contraception) didn't violate RFRA:

Wheaton's antipathy is to having any contractual relations with insurers who provide emergency contraception to members of the Wheaton College community. Because they are "its" insurers, someone not in the know might think it "complicit" in the insurers' provision of a type of coverage that offends Wheaton's religious views. But where's the complicity?


In any event, termination of the [insurance] contracts would give Wheaton only temporary relief, since the government would notify any new insurers hired by Wheaton of their legal obligation to provide emergency-contraceptive coverage.

In short: It's the government, not Wheaton College, that mandates contraception coverage; and the accommodation only requires Wheaton to inform the government of its objection. How can you get an accommodation if you can't inform the government of your objection?

July 6, 2015 in Cases and Case Materials, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0)

Thursday, July 2, 2015

Obergefell, Federalism, and Religion: Constitutional Issues Raised in Alabama and Texas

After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration. 

The situations in Alabama and Texas have been the most contentious.


ALABAMA:     Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of  Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area.  This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.

When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.

However, after the Court decided Obergefell, the Alabama Supreme Court's  "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell.  Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:

The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.

Thus, the officials of Alabama are subject to a direct order by a federal judge.

 TEXAS:   The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages.  Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case."  Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique:  the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages. 

The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the  the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott],  "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed. 

The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations. 

In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution.  This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states.  The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity.  While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.

July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)

Tuesday, June 30, 2015

Oklahoma Supreme Court Declares Ten Commandments Monument at State Capitol Unconstitutional Under State Constitution

In a relatively brief opinion today in Prescott v. Oklahoma Capitol Preservation Commission, Oklahoma's highest court found that a Ten Commandments monument on the Oklahoma Capitol grounds violated the state constitution, Article 2, Section 5, which provides:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

  While the monument was a gift and no public funds were expended to acquire the monument, the court agreed that its placement on the Capitol grounds constituted the use of public property for the benefit of religion, emphasizing that the constitutional provision included the words “directly or indirectly.”

The court noted that the Legislature and Governor authorized the monument relying on the United States Supreme Court’s decision Van Orden v. Perry (2005), but noted that Van Orden was decided under the First Amendment’s Establishment Clause.  Here, the Oklahoma Supreme Court interpreted the broader and more precise language of the Oklahoma state constitution.  The Oklahoma Supreme Court’s opinion contained the requisite language insulating it from United States Supreme Court review under the adequate and independent state grounds doctrine so important to federalism:

“Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).”

Two justices dissented, without opinion. 

image Ten Commandments Austin, Texas, via


June 30, 2015 in Establishment Clause, Federalism, First Amendment, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0)

Saturday, May 23, 2015

Contraception Mandate Accommodation Opponents Rebuffed--Again

Federal appeals courts this week dealt two (more) blows to opponents of Obamacare's religious accommodation to the contraception mandate. A Seventh Circuit panel ruled that the accommodation did not violate the Religious Freedom Restoration Act as interpreted by the Supreme Court in Hobby Lobby, and the full D.C. Circuit declined to re-hear an earlier panel ruling against opponents.

Together the rulings should put an end to this chapter of challenges to Obamacare. But by now we've learned never to say never . . . .

The cases grow out of religious non-profits' opposition to the government-created religious accommodation to Obamacare's contraception mandate. The accommodation requires a religious non-profit to complete a form to notify its health insurer (or third-party administrator) that the non-profit objects to providing contraception as part of its health insurance plan. The law then requires the insurer or third-party administrator to provide contraception coverage directly to plan participants, free of charge.

Opponents say that the accommodation--the form that notifies the insurance company of the religious objection--itself violates the Religious Freedom Restoration Act, because it "triggers" the provision of contraception coverage to plan participants.

The Seventh Circuit categorically rejected that claim last February. But then the Supreme Court handed down Hobby Lobby, holding that the contraception mandate violated the RFRA as applied to a self-insured, closely-held, for-profit corporation, and requiring an accommodation. But Hobby Lobby also contained language suggesting that an accommodation of the type challenged by religious non-profits would skirt any RFRA problem. The Supreme Court then vacated the Seventh Circuit ruling and remanded for reconsideration in light of Hobby Lobby.

The Seventh Circuit panel this week again ruled against the challengers, citing the same problems in the original case (before Hobby Lobby)--under the law the non-profit doesn't act as a "conduit" for the provision of contraception (the law itself does this), and the case was under-developed at the trial level. As to Hobby Lobby, the panel said that the Supreme Court recognized the accommodation as valid, but that the Court "did leave open . . . the possibility that the accommodation sought and obtained there would not prevent religious beliefs or practices from being substantially burdened in some cases." But the Seventh Circuit said that those beliefs or practices weren't burdened here, by the accommodation. In particular, the court wrote that Notre Dame couldn't come up with any workable alternative to the accommodation that wouldn't "impede the receipt of [contraception] benefits," especially given the undeveloped factual record in the case.

The D.C. Circuit (also, and again) came to the same conclusion in denying a rehearing en banc. Its earlier panel ruling in Priests for Life came down after Hobby Lobby, so already considered any effects of that case.

The principal problem with the challenges is that, contrary to the challengers' claims, it's not the accommodation that triggers the provision of contraception; it's the law that does that. In the language of the Seventh Circuit, the non-profits don't act as a "conduit" for the provision of contraception, because the law itself requires insurers and administrators to provide contraception. And a mistaken interpretation of the law is not a burden on religion. Or, as Judge Pillard put it in her concurring opinion to the D.C. Circuit's denial of en banc review:

The dispute we resolved is legal, not religious. Under the ACA regulations, a woman who obtains health insurance coverage through her employer is no more entitled to contraceptive coverage if her employer submits the disputed notice than if it does not. The ACA obligation to provide contraceptive coverage to all insured women does not depend on that notice. Nothing in RFRA requires that we accept Plaintiffs' assertions to the contrary.


May 23, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2015

Supreme Court Hears Same-Sex Marriage Arguments in Obergefell v. Hodges

The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans.   There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.

For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents. 

For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.

The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-­sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:

It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time  until they would, in effect, be recognizing that within the State.


Donkey Hotey via

 The themes of the oral arguments held no surprising issues:

Is a same-sex marriage decision by the Court premature?  Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years." 

Should it be the Court or the states that should decide?  The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."

Is the race analogy apt?  Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and  "States' interest in linking children to their biological" parents.

Is there a slippery slope?  What about polygamous and incestuous marriages?  What about age of consent laws?

What about religious freedom?  How do we know that ministers won't be forced to perform "gay marriages"?

Should the case be resolved on Equal Protection or Due Process?  Justice Kennedy asked General Verrilli about Glucksberg,   Verrilli replied:

  1. GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

  2. JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?

  3. GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms

As an equal protection case, it is one about sexual orientation or sex discrimination?  One of the more interesting questions was posed by Chief Justice Roberts to Bursch:

Counsel, I'm ­­ I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

How is the state's interest in procreation related to the ban on same-sex marriage?  Justice Ginsburg, as well as others, posed questions about the elderly not being barred from marriage.
Is marriage a changing institution or is a constant for millennia?  Justice Ginsburg predictably noted that marriage was once "a dominant and a subordinate relationship," with women being subordinate, while Chief Justice Roberts disputed the fact that women's subordination (or coverture) was a universal aspect of marriage.
Does the Full Faith and Credit Clause, Article IV, guarantee a state will recognize another state's marriage?  Justice Scalia noted he was "glad" to be able to quote Article IV, "a portion of the Constitution that actually seems to be relevant," although there remained a lack of clarity in its applications.  Is a marriage a public act?  record?  judgment? 

The open question is whether the Court's opinion will be as predictable as the questions.

April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2015

Canadian Supreme Court Finds Opening Prayer at Town Meeting Unconstitutional

In a case with similarities to Town of Greece, NY v. Galloway decided by the United States Supreme Court last year, the Supreme Court of Canada today rendered its judgment in Mouvement laïque québécois v. Saguenay (City) finding that a prayer at a municipal council meeting violated the constitution.

MapleleafAs the Court explains the underlying facts:

S regularly attended the public meetings of the municipal council of the City of Saguenay [Quebec]. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying [translation] “in the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. When the mayor refused, S complained to the Commission des droits de la personne et des droits de la jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.

The original Tribunal found the practice unconstitutional, but the Court of Appeal held that the prayer "expressed universal values" and "could not be identified with any particular religion."  It also reasoned that the "religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality." According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion; any interference with S's beliefs was "trivial or insubstantial."

While some of the issues before the Supreme Court of Canada involved procedural ones regarding the appeal, the Court was clear that the municipality's practice was unconstitutional.  Similar to an analysis under the US Constitution's First Amendment, the Supreme Court of Canada grappled with issues such as hostility to religion and the "slippery slope" of other religious practices:

The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion. The attempt at accommodation provided for in the by‑law, namely giving those who preferred not to attend the recitation of the prayer the time they needed to re‑enter the council chamber, had the effect of exacerbating the discrimination. The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and religion was more than trivial or insubstantial were supported by solid evidence, and deference is owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.

  Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. Moreover, it has not been established in this case that the prayer is non‑denominational. The Tribunal’s findings of fact instead tend toward the opposite result. Be that as it may, the respondents themselves conceded at the hearing that the prayer is nonetheless a religious practice. Even if it is said to be inclusive, it may nevertheless exclude non-believers. As for the proposed analogy to the prayer recited by the Speaker of the House of Commons, in the absence of evidence concerning that prayer, it would be inappropriate to use it to support a finding that the City’s prayer is valid. Finally, the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble articulates the political theory on which the Charter’s protections are based. The express provisions of the Canadian Charter and of the Quebec Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This is necessary to ensure that those to whom these charters apply enjoy the full benefit of the rights and freedoms, and that the purpose of the charters is attained.

The Court explicitly linked the state's duty of neutrality - - - akin to the First Amendment's (anti-)Establishment Clause - - - to the maintenance of a free and democratic society. "This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs."  This principle may have special resonance when one considers the largely French (and Catholic) Quebec as compared to the other largely English (and Protestant) other provinces.


Unlike the United States Supreme Court's opinion in Town of Greece, the Supreme Court of Canada's judgment is not closely divided; only one Justice writes separately to discuss some of the procedural issues, but otherwise concurs.  For US ConLawProfs, City of Saguenay is well worth a comparative read.


April 15, 2015 in Comparative Constitutionalism, Establishment Clause, First Amendment, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2015

Indiana Governor Signs Controversial State RFRA Law

Governor Mike Pence of Indiana  in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law. 

Governor Mike Pence of Indiana via

Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity demonstrates that application of the burden to the person:
    (1) is in furtherance of a compelling governmental interest; and
    (2) is the least restrictive means of furthering that compelling governmental interest.

 The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding." 

For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons.  (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.)  Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:

“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."

Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.

March 26, 2015 in Current Affairs, Equal Protection, Free Exercise Clause, News, Religion | Permalink | Comments (3) | TrackBack (0)

Tuesday, January 20, 2015

Court Rules in Favor of Prisoner's Half-Inch Beard

In its unanimous opinion today in Holt (Muhammad) v. Hobbs the Court decided that the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, RLUIPA, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.

The Court's conclusion is predictable from the tenor of the oral arguments. Writing for the Court, Justice Alito found that Holt/Muhammad easily met his burden of showing that the beard ban substantially burdened his exercise of religion under RLUIPA, after which the burden shifted to the Department of Correction to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest” under RLUIPA."

The Court rejected the Department of Correction's beard ban as the least restrictive way of furthering prison safety and security including hiding contraband (an argument that was "hard to take seriously" in the context of the 1/2 inch beard) and concealing identities (an argument that suffered in comparison to other institutions and the allowance of 1/4 inch beards and mustaches). 

image via

Justice Alito's 16 page opinion for the Court is a model of clarity and concision.  It does beg the question, however, of why this was not the District Judge's opinion or the Eighth Circuit's opinion. As we previously discussed, the odds of this case getting before the Court were incredibly high, but the underlying pro se litigation exemplifies the difficulties of prison inmates vindicating their rights.

Indeed, Justice Sotomayor wrote separately to stress the role deference to prison administrators that should be afforded by courts.  Prison officials must offer a "plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them," rather than adopt policies based on "mere speculation."  Again, this begs the question of the reliance by the lower courts on the prison's arguments.

Finally, the very brief concurring opinion by Justice Ginsburg, and joined by Justice Sotomayor, distinguished the much more contentious Hobby Lobby:

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion.

Thus, Justice Ginsburg makes clear that she is not opposed to religious accommodation per se, even under the strict scrutiny standard, when the rights of others are not part of the analysis.

January 20, 2015 in First Amendment, Free Exercise Clause, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, January 8, 2015

Second Circuit Upholds NY's Vaccination Requirement

In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.

The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law.  Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.

VaccineThe religious exemption is most interesting in the context of this litigation.  For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief."  For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).

The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.

The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated.  For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:

"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.

Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.

[image via]

January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 17, 2014

Robson on Teaching the Religion Clauses

Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.

RobsonRobson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"

The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."

Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.

For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.

This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.

Check it out; give it a try; tell us how it works for you.

December 17, 2014 in Establishment Clause, Free Exercise Clause, News, Religion, Teaching Tips | Permalink | Comments (0) | TrackBack (0)