Monday, July 14, 2014

Second Circuit Says Required Urine Test Substantially Burdens Religious Freedom

The Second Circuit ruled last week in Holland v. Goord that prison authorities substantially burdened a Muslim prisoner's free exercise of religion when they punished him for failing to complete a urine test within a three-hour window during fasting time for Ramadan.  The plaintiff couldn't complete the test because he refused to drink water during his fast.  (H/t to reader Jeff Wadsworth.)

The ruling means that the case goes back to the trial court to determine whether the prison authorities had a sufficient penalogical interest in requiring the urine test (and the water drinking, in order to facilitate the test) under Turner v. Safley.  But that doesn't look good for the state: the Second Circuit noted that there was no good reason why the authorities couldn't administer the test (and require the plaintiff to drink water) after sundown (indeed, the plaintiff suggested this option himself).  It also noted that the prison subsequently changed its own regulations to allow a religious accommodation to urine testing.

The Second Circuit rejected the plaintiff's invitation to disregard the "substantial burden" test from Employment Division v. Smith.  Instead, the court ruled that the urine test met that requirement, drawing on its own cases saying that the denial of a religious meal is a substantial burden on religion.

The court also rejected the trial court's conclusion that the urine test and water drinking were mere de minimis burdens (because the plaintiff could have made up a drink of water during the fast with one extra day of fasting).  The court said that the plaintiff sufficiently showed that this would have been a "grave sin," even if he could have made up for it.

Because the state changed its rules on urine testing to allow a religious accommodation, the court denied the plaintiff's request for injunctive relief under both his free exercise claim and his RLUIPA claim.  The court rejected other claims, too.  But it remanded the free exercise claim for determination whether the state had a sufficient penalogical interest in conducting the urine test the way that it did, and, if not (as is likely), for money damages.

July 14, 2014 in Cases and Case Materials, First Amendment, Free Exercise Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Finds Indiana's Clergy-Only Marriage Solemnization Statute Violates the First Amendment

In its 11 page opinion  today in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana  Code §31-­11-­6-­1 violates the First Amendment.  The provision specifies who can solemnize a marriage and includes "religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies."   The plaintiffs, a humanist group and a leader of the group deemed a "secular celebrant," were not allowed to solemnize a marriage unless they obtained clergy credentials or "called themselves a religion."

Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between "religious and secular beliefs that hold the same place in adherents’ lives," citing the well known conscientous objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison.  There is not, Easterbrook wrote, an "ability to favor religions over non-­‐‑theistic groups that have moral stances that are equivalent to theistic ones except for non-­‐‑belief in God or unwillingness to call themselves religions."

The_solemnisation_of_the_marriage_of_Prince_James_Francis_Edward_Stuart_and_Princess_Maria_Clementina_Sobieska_(Montefiascone_1_September_1719)_by_Agostino_Masucci
The solemnisation of the marriage of Prince James Francis Edward Stuart and Princess Maria Clementina Sobieska (Montefiascone 1 September 1719) by Agostino Masucci via
 

As for Indiana's argument that the humanists were not actually being excluded from solemnizing marriages under the statute, the court had this to say:

Adherents to faiths with clergy can be married in two steps: first they obtain a license, Ind. Code §31-­11-­4-­1, and then they have the marriage solemnized by a priest or equivalent person in the list in §31-­11-­6-­1. (Plaintiffs do not challenge the licensure statute, because religion is irrelevant to that procedure.) Humanists could achieve the same result in three steps: first get a license, then have a humanist celebrant perform a public ceremony appropriate to their beliefs, and finally have a clerk of court or similar functionary solemnize the marriage. That’s true enough—but it just restates the discrimination of which plaintiffs complain. Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.

 Interestingly, the opinion also had something to say about the equal protection problems of the statutory scheme, noting that the distinctions between religions that have clergy and those that do not as well as "the state’s willingness to recognize marriages performed by hypocrites," violate the Equal Protection Clause:

It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-­declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.

The court found Indiana's reliance on the Supreme Court's most recent Establishment Clause decision, Town of Greece v. Galloway inapposite, easily distinguishing Galloway as not being about the regulation of private conduct as the Indiana solemnization statute was.

The decision could pave the way for other First Amendment challenges to solemnization statutes that provide a special status for religious clergy.

July 14, 2014 in Equal Protection, Family, First Amendment, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Stone on the Constitutionality of Religious Tests for Public Office

Geoff Stone (Chicago) writes over at Huffington Post that religious tests for public office, which are still around in eight state constitutions, may well be upheld by the Roberts Court, should they ever be tested.

Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas all have these provisions, though they go unenforced.  That's because the Court struck these tests in 1961 in Torcaso v. Watkins.  But Stone says if the issue were to return to this Court, testing one of the eight state constitutional provisions, the five conservative justices may well reverse Torcaso and uphold the religious test.

But why would they disagree with Torcaso?  After all, the reasoning of that unanimous decision seems clearly correct.  But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court in 1961.  This is so across a range of issues, but perhaps most conspicuously in the realm of religion.  Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.

Stone cites Hobby Lobby and Town of Greece as just two recent decisions supporting this conclusion.  Stone also argues that these five justices have already demonstrated their willingness to overturn well settled precedent.  See Citizens United; Heller; Gonzales v. Carhart.

July 14, 2014 in Courts and Judging, Establishment Clause, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, July 7, 2014

More on the Wheaton College Ruling

Tom Goldstein and Marty Lederman debated the impact of the Wheaton College ruling on contraception coverage for Wheaton College students and employees (and, by extension, other religious non-profits' employees) over at SCOTUSblog.  The back-and-forth provides a nice window into the more technical aspects of the somewhat mysterious ruling.

At the core of the debate: whether federal regs allow the government to treat Wheaton College's health insurer as a "plan administrator" under ERISA, even if Wheaton College doesn't file Form 700.  (Recall that the Court enjoined the government's use of Form 700 against Wheaton College and said that Wheaton College could instead file a letter stating its religious objections.  Wheaton College's health insurer is only required to provide free contraceptive coverage if it is a "plan administrator" under ERISA.)  Marty argues that it's complicated, and that without Form 700 there may be no regulatory trigger for the government to treat the insurer as a "plan administrator" and therefore to require it to provide free contraceptive coverage.  Tom argues that it's not so complicated: the regs allow the government to designate other forms (like the Court's letter) to treat an insurer as a "plan administrator."  All the government has to do is so designate the letter  (Underscoring Tom's interpretation: the Court wrote in its Order that "[n]othing in this order precludes the Government from relying on this notice [the letter by Wheaton], to the extent it considers it necessary, to facilitate the provision of full contraception coverage under the Act."  That seems to say that the Court sees its letter as potentially triggering the treatment of Wheaton College's insurer as a "plan administrator.")

In a separate post, Tom theorizes about Justice Breyer's position in the case.

July 7, 2014 in Cases and Case Materials, News, Religion | Permalink | Comments (0) | TrackBack (0)

Saturday, July 5, 2014

Court Enjoins Religious Exemption for Contraception Mandate

The Supreme Court this week enjoined the exemption for religious non-profits from the requirement that employer group-health insurance plans include contraceptives.  That exemption allowed a religious nonprofit to notify its health insurer or third-party administrator (using "EBSA Form 700") that it had a religious objection to providing contraceptive coverage; at that point, the insurer or administrator would have to provide contraceptives directly to the organization's employees, free of charge.  This week's short, unsigned Order halted the use of EBSA Form 700 and said that petitioner Wheaton College, a religious college in Wheaton, Illinois, could instead write a letter to HHS informing the agency that it is a religious organization and that it has a religious objection to providing coverage for contraceptive services.

In short, the ruling replaced HHS's process for religious exemption (EBSA Form 700) with its own (a letter to HHS). 

The ruling strikes a second serious blow to the contraception requirement.  (The first came earlier this week in Hobby Lobby, which allowed closely-held, for-profit corporations to exempt themselves from certain contraceptives under the requirement, but almost certainly opened up a much wider hole in the requirement (and potentially in many other government regulations).)  The Court was careful to write that its ruling was not a conclusion on the merits.  But it's hard to read it any other way, particularly in light of the mertis discussion in the dissent, the fact that the Court drafted its own exemption procedure for religious non-profits (supplanting HHS's procedure), and the Court's suggestion that it'll take up the merits soon enough.

The ruling isn't clear on how religious non-profits' insurers or administrators will have to provide contraceptive coverage.  Here's the problem: The insurers or administrators only have to provide contraceptive coverage directly to employees upon learning that a religious non-profit objects, usually through receipt of the EBSA Form 700; but the Court's Order says that Wheaton College and by extension other religious non-profits don't have to complete that form.  This leaves it to HHS to figure out whether and how to require insurers and administrators to provide contraceptive coverage directly to the organization's employees.

The Order is strange on several levels.  For one, it replaced the HHS exemption (EBSA Form 700) with its own (a letter to HHS).  But it's not at all clear that the Court's exemption is any less intrusive on Wheaton College's freedom of religion (at least as the College has defined it in challenging EBSA Form 700): Why is writing a letter to HHS any less intrusive than filing Form 700 and sending it to the insurers and administrators?  Wheaton College claimed that the mere certification of its religious objection to the contraception requirement violated its religion (because it made Wheaton College complicit in someone else providing contraception), so why is the letter any better than the form? 

For another, it's also not clear why the Court would take such an aggressive action (essentially overruling a valid federal rule and replacing it with its own) at this stage of the litigation (on an application for an injunction), when the circuits are split on the issue (which, as the dissent points out, has been a basis for denying an injunction by some of the very justices who joined the Court in this Order (including Chief Justice Roberts)).  This hardly seems like a Court merely calling balls and strikes.

For yet another, the Order seems inconsistent with the Court's ruling just earlier this week in Hobby Lobby.  In that case, the majority pointed to HHS's exemption for religious non-profits (the exact same exemption at issue here) as evidence that the contraception requirement for closely held for-profits wasn't narrowly tailored--that is, that the exemption was a way that the government could achieve its interest in providing contraception while still giving closely held for-profits an out.  Yet in this later ruling, the Court stepped back from that exemption and replaced it with its own.

Finally, there's the strangeness that a government-created religious exemption could itself violate free religion.  This is the point that Judge Posner made so strongly in his opinion rejecting Notre Dame's challenge to the exemption.

Justice Sotomayor wrote a lengthy and vigorous dissent, joined by Justices Ginsburg and Kagan, covering everything from the extraordinary relief the Court granted under the very high standard of the All Writs Act to the merits.  She also distinguished the Little Sisters case, in which the Court also allowed a letter to replace the EBSA Form 700: Little Sister's third-party administrator was itself a church plan and exempt from the contraception requirement, so nobody's access to contraception was affected.  Here, the Court's injunction risks depriving employees of Wheaton College of contraception, because the insurer or the administrator only have to provide it upon receipt of the EBSA Form 700.  But under the Court's Order, they won't receive the EBSA Form 700.

As with Hobby Lobby, it's clear that this ruling will extend far beyond the facts of this particular case, likely even farther than the Court itself thought.  How far?  As with Hobby Lobby, only time will tell.

July 5, 2014 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, July 3, 2014

Hobby Lobby Aftermath: Does "Person" in RFRA Include a Guantanamo Bay Detainee?

In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.

Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith. 

Hobby-lobby-top
599px-Camp_x-ray_detainees

 

As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA.  The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens." 

However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA."  Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens.  But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:

the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?

[Opinion at 33].

Thus, the motion argues that

a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.

****

Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.

The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.

 

July 3, 2014 in Courts and Judging, Current Affairs, First Amendment, Free Exercise Clause, Recent Cases, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 2, 2014

After Hobby Lobby, What Now?

The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs.  (The only requirement: the reg has to pose a substantial burden on the belief.  But we saw in Hobby Lobby itself how easy it is to meet that standard.)  If so, those regs would be subject to RFRA's strict scrutiny test.  That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.

In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws.  The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches.  We can expect to a flurry of cases testing this.

So: What now?

RobsonConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog.  Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.

You might say that these options are unfriendly to religions.  But Robson tells us why it's really the ruling itself that's religion-unfriendly.  Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations.  That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women.  (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners.  The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)

Robson's right.  And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc.  She concludes:

While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA.  Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA.  What Congress giveth, it can taketh away.  And it should.

July 2, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, News, Opinion Analysis, Religion, Reproductive Rights | Permalink | Comments (1) | 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)

Friday, June 27, 2014

Third Circuit on Statute of Limitations in Establishment Clause Challenges

Here's the problem:

In August 2008, a municipality erected a sign "Bible Baptist Church Welcomes You!," with a directional arrow and “1 BLOCK” written on it, and depicting a gold cross and a white Bible, on a right of way bordering a property owner's property.  The property owner engaged in a bit of her own speech, on her own property, posting a sign of her own directly in front of the church sign which read "This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!”  The municipality threatened the property owner with sanctions for her sign, which she removed.  The propery owner filed a complaint pursuant to 42 USC §1983 in federal court in November 2012 alleging constitutional violations by the municipality based on the church sign, which remains standing, and her own offending sign, which she had removed.  The state statute of limitations for tort claims is two years.

800px-Shickshinny
Downtown Shickshinny, Pennsylvania via

The Third Circuit's opinion in Tearpock-Martini v. Borough of Shickshinny addressed exactly this problem.  The complaint alleged that the "church sign" violated the Establishment Clause, while the threats to prosecute plaintiff for erecting her own sign violated both the Equal Protection Clause and the First Amendment.   Generally, because §1983 does not have a statute of limitations,  state law provides the applicable time limitations.  The district judge dismissed the complaint based on the statute of limitations because the actions occurred more than two years prior to the filing of the complaint.  Reversing on the Establishment Clause claim only, the Third Circuit found that the state statute of limitations did not bar the claim.

The plaintiff's attorney argued that the two year statute of limitations for the church sign should be viewed as a "continuing violation."  As the court noted, this is more often part of a statute of limitations inquiry in an employment discrimination case: "where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern."  But here, the court accepted the municipality's argument that the continuing violation doctrine does not apply because the sign "is merely an effect" of the action  - - - erecting the sign - - -that was within the statute of limitations.

But the Third Circuit found that the state's two year statute of limitations was inapplicable because although §1983 does not have a statute of limitations and state law provides the pertinent time limitations, this is true only "if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261 (1985).  The Court found that Establishment Clause rights are very important and that while other constitutional rights are also important

what further distinguishes Tearpock-Martini’s claim, and Establishment Clause claims in general, is that the traditional rationales justifying a limitations period—“to protect defendants against stale or unduly delayed claims,” “facilitat[e] the administration of claims,” and “promot[e] judicial efficiency,” [citation omitted] —simply have no persuasive force in this context. Tearpock-Martini’s challenge is to a still- existing monument that communicates anew an allegedly unconstitutional endorsement of religion by the government each time it is viewed. Strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display.

Moreover, the Third Circuit noted that it could not find any precedent for finding an Establishment Clause challenge time-barred in a passive monument case, and indeed the cases were the opposite, citing, most persuasively, Van Orden v. Perry, 545 U.S. 677 (2005) (display of Ten Commandments challenged 40 years after installation).

 The Third Circuit's conclusion seems exactly right: how can there be a statute of limitations on an Establishment Clause violation of a passive monument?  However, in this case, because this particular plaintiff knew about the sign, and even objected to it, one could have expected her to act more quickly.  Yet the very notion of an Establishment Clause violation caused by a still existing monument or even sign is that it is a continuing one.

June 27, 2014 in Courts and Judging, Establishment Clause, First Amendment, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2014

Supreme Court Denies Certiorari in Elmbrook School District: The "Graduation in a Church" Case

Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe.  The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.

Recall as we discussed almost two years ago,  the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.  Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway  - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."

640px-Arnstein_(Lower_Franconia)_Maria_Sondheim_60156
image via

Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:

Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.

(emphasis in original).

However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.

 

June 17, 2014 in Courts and Judging, Establishment Clause, First Amendment, History, Religion, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 11, 2014

Sixth Circuit Rejects Challenge to Contraception Mandate Accommodation

The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act.  The ruling is just the latest in a line of challenges to the accommodation.  We posted most recently here.  (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.) 

The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.

The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses).  The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.

The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate.  Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.

As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights.  The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights.  In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,

The appellants are not required to "provide" contraceptive coverage. . . .  The appellants are not required to "pay for" contraceptive coverage. . . .  Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . .  Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.

June 11, 2014 in Cases and Case Materials, Establishment Clause, First Amendment, Free Exercise Clause, News, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Rejects Guantanamo Detainees' Mistreatment Claims

The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal.  The court also rejected the plaintiffs' request to remand the case to amend their complaint.

The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT.  The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.

As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government.  But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.

As to the Vienna Convention, the court said that the Convention confers a private right of action.

As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.

June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2014

Daily Read: Ellen Katz on Hobby Lobby and Citizens United

Image_facbioIn her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.

Katz contends:

Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.

It is a phenomenon Katz labels "fanciful precedent."  She contends it was operative in last Term's controversial Shelby County v. Holder.

She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown

Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March. 

June 5, 2014 in Campaign Finance, Courts and Judging, Elections and Voting, First Amendment, Interpretation, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2014

Daily Read: Lithwick on Murphy on Scalia

Scalia bookDahlia Lithwick highlights the problematics of religion in her review in The Atlantic of the new biography of Justice Antonin Scalia, Scalia: A Court of One, by Bruce Allen Murphy. 

Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of  Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits. 

She is very complimentary of the biography:

In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.

Indeed, she writes

Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.

From Lithwick's review, A Court of One is  a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."

May 23, 2014 in Books, Courts and Judging, First Amendment, Interpretation, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2014

Massachusetts High Court Says Pledge Does Not Violate Equal Protection

The Supreme Judicial Court of Massachusetts ruled last week that the daily recitation in school classrooms of the Pledge of Allegiance, with the words "under God," did not violate the state constitutional equal rights amendment.   The case, Doe v. Acton-Boxborough Regional School District, was brought by a group of atheist and Humanist students, who claimed that the words "under God" alienated them and caused them to become outsiders because of their religion.  (The plaintiffs only argued equal protection; they did not bring a religion clause claim.)

The Massachusetts high court rejected the argument.  It said that the Pledge was voluntary; that reciting the Pledge was a "patriotic exercise," not a "religious exercise," even with the words "under God"; and that in any event the plaintiffs didn't show that they had been treated differently because of their religion.  On that last point, the court said that the practice or reciting the Pledge treated all students the same: each student, regardless of religion, could say it along with the rest of the class, or not.  Here's the court:

Where the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religion rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion.  [Citing Harris v. McRae and San Antonio v. Rodriguez.]  Where the program or activity is applied equally to all students, and where those who object to it are not required to participate, or may choose to participate in all parts of it that they do not find objectionable, the feeling of "stigma" caused by seeing or hearing the program being provided to others is not legally cognizable for purposes of the equal rights amendment.  Any claim that, by conducting the program or activity for others who do not choose to participate, the school has publicly repudiated a plaintiff's beliefs and thereby rendered him or her a "second-class citizen" or "outsider" is not tenable, and we decline to apply [state constitutional equal protection] in this fashion.

May 13, 2014 in Cases and Case Materials, Comparative Constitutionalism, Equal Protection, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Obamacare Challenges in the D.C. Circuit

Jessica Mason Pieklo writes over at RH Reality Check about the pair of challenges to the Affordable Care Act set for oral argument next month (on May 8) in the D.C. Circuit.  One of those cases challenges the government's accommodation to the so-called contraception mandate for religious nonprofits--the same issue in the Little  Sisters case and, more recently, Notre Dame's case at the Seventh Circuit.  (Those rulings were on injunctions against the accommodation pending appeal.  Recall that the Supreme Court issued an order in the Little Sisters case, allowing the organization simply to write a letter to the HHS Secretary stating its religious objection to the contraception mandate, pending appeal on the merits to the Tenth Circuit.  In contrast, the Seventh Circuit denied Notre Dame's request for an injunction pending appeal.  The difference between the two cases: Notre Dame had already complied with the government's accommodation (and the court couldn't undo its compliance), whereas Little Sisters had not.) 

The other case, Sissel v. HHS, is less well known.  It challenges the universal coverage provision, or the so-called individual mandate.  Plaintiffs in the case argue that as a tax (recall the Court's ruling in the ACA case) the provision had to originate in the House of Representatives under the Origination Clause.  But it originated in the Senate.  Plaintiffs say it's therefore invalid.

Pieklo writes that President Obama's recent appointees will have an impact on the court, and on these cases.  That's because the panel that will hear arguments in these cases next month includes Judge Nina Pillard and Judge Robert Wilkins, the recent Obama appointees that were held up in the Senate but then confirmed after Senate Democrats used the nuclear option and disallowed a filibuster of federal court nominees (except Supreme Court nominees).  Judge Rogers is also on the panel.

April 9, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

The Constitutionality of Anti-LGBT Discrimination Laws: US and UK Comparisons Continued

Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?" 

The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.  The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today. 

491px-Henry_VIII_Art_Gallery_of_Ontario
King Henry VIII, an important figure
in the "Church of England"

Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights,"  posting her written remarks on the UK Supreme Court site.  Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws?  Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without."  She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself: 

Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.

This leads her to proclaim:

If you go into the market place you cannot pick and choose which laws you will obey and which you will not.

This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.

Another difference: The arguments before the UK Supreme Court are televised live.

April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Daily Read: Mother Jones on Hobby Lobby's Investments (in Contraception)

Last week's oral arguments in Hobby Lobby v. Sebelius and the companion case of Conestoga Wood Specialities Corp. v. Sebelius saw discussions about the substantial burden on the companies regarding providing contraceptive coverage and included Chief Justice Roberts noting that Hobby Lobby's religious beliefs included the provision of health insurance and Justice Kennedy specifically asking about why the company could not simply pay any fines or taxes. 

220px-Mother_Jones_1902-11-04
Mary Harris "Mother" Jones via

According to an article by Molly Redden in Mother Jones magazine today, Hobby Lobby does not exercise its religion in quite the same way when in comes to its 401(K) retirement plans.  Based on corporate disclosures, three-quarters of the funds (73 million) have holdings that "clashed" with the owners of Hobby Lobby's stated religious principles.  The corporation apparently did not avail itself of the faith-based investing that is often available. 

Under First Amendment free exercise doctrine as well as the Religious Freedom Restoration Act (RFRA), questioning sincerity is difficult and adherents to a religious belief need not be consistent in their beliefs.  Seemingly the only case in which a "contraceptive mandate" challenge suffered on these grounds is Eden Foods v. Sebelius. 

Nevertheless, this scenario could have served as the basis of an interesting hypothetical regarding the "substantial burden" on its religious beliefs the company and owners claim.

 

April 1, 2014 in Abortion, Current Affairs, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

March 25, 2014 in Abortion, Courts and Judging, First Amendment, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

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)