Saturday, December 7, 2013
In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake. But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief?
The 14 page opinion of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage." The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law. Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."
The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"
As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief. The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test. The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments" a hybrid right meriting strict scrutiny was involved. For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.
The remedy was a cease and desist order rather than damages.
[image: one of the cakes advertised on the Masterpiece Cakeshop website]
Sunday, December 1, 2013
While the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.
As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.
For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood, including Judge Rovner's hypotheticals.
More about the arrest and Florida statutory scheme is here.
Tuesday, November 26, 2013
As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.
In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause. The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.
The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both. First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion. Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.
For ConLaw Profs, here are some useful links: A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here; a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here, ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here, a discussion of the district judge's opinion in Hobby Lobby is here, a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.
[image: Supreme Court Justices by Donkey Hotey via]
November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Sunday, November 24, 2013
Judge Barbara Crabb (pictured) of the Western District of Wisconsin concluded in her opinion in Freedom from Religion Foundation v. Lew that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.
The statute at issue provides that:
In the case of a minister of the gospel, gross income does not include—(1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.
I am not aware of any decision in which a majority of the Supreme Court considered whether a claim under the establishment clause would be defeated if the particular benefit at issue were granted to atheists, but still excluded secular groups. At least in the context of this case, there is a plausible argument that the claim would survive. . . .
Regardless, to the extent defendants mean to argue that § 107(2) is constitutional because of an abstract possibility that an atheist could qualify as a minister of the gospel, I disagree. . . .
In this case, no reasonable construction of § 107 would include atheists. In the concurring opinion in Texas Monthly that defendants cite, Justice Blackmun rejected as “facially implausible” an argument that atheistic literature could be included as part of “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Texas Monthly, 489 U.S. at 29 (Blackmun, J., concurring in the judgment). Defendants do not explain why they believe interpreting § 107 to include atheists is any more plausible. Hearings Before the H. Comm. on Ways & Means, 83rd Cong. at 1574-75 (sponsor of § 107(2) stating that purpose of law was to help ministers who are “fight[ing] against” a “godless and anti-religious world movement”).
The issue of whether §107 would plausibly cover atheists was also important to Judge Crabb's conclusion that the plaintiff organization and individual plaintiffs had standing.
Judge Crabb's opinion centers the exclusion of nonbelievers as well as the Lemon test in a way that some current Establishment Clause litigation fails to do, such as the recent oral argument in Town of Greece v. Galloway. The constitutionality of government preference for religion over "irreligion" is an unsettled contention at the heart of Establishment Clause jurisprudence. It ensures the decision will be appealed to the Seventh Circuit.
Sunday, November 17, 2013
The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one. Here's an overview of (and reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.
For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals. [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].
Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.
In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."
In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views. One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement. The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.
These hypotheticals would make a terrific in class discussion. They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.
November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Saturday, November 9, 2013
Federal district judge Freda Wolfson has upheld the constitutionality of New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie.
Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”), argued that the statute violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.
The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression, and that the statute survived rational basis scrutiny.
Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:
“shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”
(emphasis in opinion). She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE. She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:
there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.
She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge." (footnote 22). Not surprisingly, she finds this standard easily satisfied. Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.
As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression. Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.
In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents. On the other hand, the judge granted intervernor status to Garden State Equality.
The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion.
The plaintiffs filed a Notice of Appeal immediately, so the matter is already on its way to the Third Circuit.
[image: Diagram of the Brain circa 1300 via]
November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)
Friday, November 8, 2013
In its opinions in excess of 150 pages in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, a divided panel of the Seventh Circuit has (again) entered the fray regarding the claim of secular for-profit corporations that rights of religious freedom have been infringed by the (PP)ACA's so-called contraception mandate. We've discussed the complicated landscape here, and specific cases such as the divided DC Circuit's opinion in Gilardi v. HHS, by the Sixth Circuit in Eden Foods v. Sebelius and Autocam Corp. v. Sebelius, by the divided Third Circuit in Conestoga Wood Specialties Corp. v. Secretary of HHS, and, of course, in the divided en banc opinion of the Tenth Circuit in Hobby Lobby, presently before the United States Supreme Court on a petition for writ of certiorari.
In this consolidated opinion in Korte and Grote, the majority of the Seventh Circuit panel - - - in an opinion authored by Judge Diane Sykes and joined by Judge Joel Flaum - - - reiterated its previous views and its previous divide - - - with Judge Ilana Diamond Rovner again dissenting - - - now that the "appeals have now been briefed and argued and are ready for decision."
These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substan- tially burdens their religious-exercise rights. We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious- exercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protect- ing the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.
(emphasis in original).
Korte & Luite Johan Contractors, Inc., is general contractor in Illinois, employing about 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan, and 87% of the stock is owned by Cyril and Jane Korte, who describe themselves as devout Roman Catholics. Interestingly, as the opinion relates, in August 2012, the
Kortes discovered that their then-existing health plan covered sterilization and contraception—coverage that they did not realize they were carrying. Because providing this coverage conflicts with their religious convictions, they began to investigate alternative health-care plans with the intention of terminating their existing plan and substituting one that conforms to the requirements of their faith.
But, they now argue, the ACA's contraception mandate stands in their way. Also interestingly, although not in the court's opinion, the Korte company has been awarded the contract to renovate the Illinois Supreme Court building, in a contract for more than 7 million dollars.
The Grotes include six individual plaintiffs who own and manage Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Indiana, having 1,148 full-time employees at various locations, including 464 in the United States, and providing a health-care plan that is self-insured.
The opinions and analysis are extensive, but they provide little that is different from their previous opinions or from other courts' opinions, with the exception of dissenting Judge Rovner's hypotheticals discussed below. The majority's analysis on the individual plaintiffs focuses on standing and there is no resort to the "pass through" test that some other courts have used. Regarding RFRA, the majority relies on the Dictionary Act's definition of "person," and concludes that covering corporations within RFRA is not a "poor fit," indeed,
A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations—religious nonprofits—have religious-exercise rights under both RFRA and the Free-Exercise Clause.
The majority uses a series of First Amendment Free Exercise Clause cases, including Sherbert v. Verner, the Seventh Day Adventist employee seeking workers' compensation benefits, and Braunfeld v. Brown, the "Jewish merchants" challenging a Sunday-closing law, to conclude that such" cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test."
Dissenting, Judge Rovner contends that while her "esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights," she believes that the majority's "holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise," because the majority "extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship." She continues regarding the substantial burden - - - or what she sees as a lack therefof - - - and notes that the majority "permits the plaintiffs to invoke their free exercise rights offensively rather than defensively, in a way that circumscribes the rights Congress has given to employees, by permitting the corporate employers to rewrite the terms of the statutorily- mandated health plans they provide to their employees."
Judge Rovner's opinion is most provocative - - - and probably most useful for Constitutional Law Professors - - - in providing three hypotheticals worth considering. [Update: discussion of hypotheticals here].
Wednesday, November 6, 2013
ConLawProfBlog's own Ruthann Robson (CUNY) just posted her thoughtful take on the several oddities that arise when courts consider whether corporations are religious persons in Puzzling Corporations: The Affordable Care Act and Contraception Mandate over at Jurist.org. Robson exposes the inconsistencies, the hypocrisies, and the unintended consequences in the on-going cases and debates over whether a for-profit corporation is a religious-rights-bearing entity that can skirt the ACA's contraception mandate.
Robson has covered the issue--whether the ACA's contraception mandate violates a corporation's religious liberties (and the included issue whether a corporation can even have religious liberties)--here (Gilardi v. HHS), here (Eden Foods v. Sebelius), here (Autocam Corp. v. Sebelius), here (Conestoga Wood Specialties Corp. v. Secretary of HHS), and, of course, here (Hobby Lobby).
Robson argues that the question whether a corporation can have religious liberties has several problems. First, the profit: historically, religious entities that enjoyed religious liberties (like those in Gonzalez v. O Centro Espirita and Church of the Lukumi Bablu Aye, Inc. v. Hialeah) were nonprofits. But the Tenth Circuit ruled in Hobby Lobby that "sincerely religious persons could find a connection between the exercise of religion and the pursuit of profit." Next, "the secular shape of many corporations . . . is ill-suited to sectarianism. There is little, if anything, to alert a consumer or a job applicant that one is engaging with a religious entity." Finally, there's a slippery slope: treating a for-profit corporation as a religious-rights-bearing person could lead to exemptions for that corporation from all manner of federal requirements that interfere with the corporation's "beliefs."
Robson also shows why attributing the free exercise claims of shareholders to a corporation, or pass-through, is a problem. "In asserting religious rights, corporations seek to pierce their own corporate veils for the purposes of some sectarian principles such as contraception coverage for employees, but presumably to keep their protective masks in place regarding personal liability."
Treating all these claims as sincerely held religious beliefs probably gives them too much credit, though. As Robson reminds us, Eden Food's founder's case wasn't really a religious objection to the contraception mandate. Instead, it was a "laissez-faire, anti-government screed" (the Sixth Circuit's phrase, not Robson's), with decidedly "sexist and anti-worker" overtones (Robson's phrase, not the Sixth Circuit's). So Robson asks, "If a corporation can have a religion, is it coincidence that its most deeply held and sincere beleifs are in opposition to equality and democracy?"
Friday, November 1, 2013
In a divided opinion including two senior judges, the Court of Appeals for the District of Columbia Circuit in Gilardi v. HHS entered the fray regarding corporate rights under RFRA and the First Amendment regarding the requirement that an employer include contraceptive coverage in its health care insurance. Recall that just last week, the Sixth Circuit denied the claim of Eden Foods, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act. This is contrary to the holding of the divided en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius.
In Gilardi, the divisions by the DC Circuit judges - - - Janice Rogers Brown, Harry Edwards, and A. Raymond Randolph - - - reflect the divisions expressed in the other opinions. Judge Brown's main opinion is joined in various parts by only one of the other two judges, both of whom wrote separate opinions. Judge Randolph's opinion is a few pages, while Judge Edwards' opinion, concurring in part and dissenting in part is longer than the majority opinion.
The case involves Francis and Philip Gilardi, adherents of Catholicism, who oppose contraception for women. They are owners of Freshway Foods and Freshway Logistics, closely-held corporations that employ approximately 400 employees. Important for the analysis, the corporations "have elected to be taxed under Subchapter S of the Internal Revenue Code." Judge Randolph's brief opinion has a good explication of the relevance of Subchapter S.
The judges, excepting Randolph, first decide that the corporations do not possess a right of religious freedom. The majority finds that RFRA's "person" language does not solve the issue, and turns to First Amendment doctrine. The court notes that perhaps the "constitutional arithmetic" of "Citizens United plus the Free Exercise Clause equal a corporate free exercise right" might "ultimately prevail, but "for now" there is "no basis for concluding a secular organization can exercise religion," thus agreeing with cases such as Eden Foods. In the brief concurring opinion, Judge Randolph states this issue need not have been addressed.
This "leaves the Gilardis," as the court phrases it, and finds that they suffer an injury "separate and distinct" from the corporation. The majority - - this time without the agreement of Judge Edwards - - - finds that the religious freedoms of the individual men are burdened under RFRA. It applies strict scrutiny, as required by RFRA, but interestingly quoting from Fisher, last Term's equal protection case involving racial classifications in affirmative action programs at the the University of Texas. The majority then rejects as compelling the government interests in safeguarding public health, protecting women's autonomy, or promoting gender equality, finding these interests both too broadly formulated and even if satisfactory, not being served by the least restrictive means. In short, the majority concludes, even without the contraceptive mandate, the "statutory scheme will not go to pieces."
Judge Edwards' lengthy opinion finds that while the Gilardis may be sincere, the legal claim that the mandate imposes a substantial burden on their individual rights of free exercise of religion because "their companies are required to provide health insurance that includes contraceptive services" is "specious." Judge Edwards argues that while the individuals may have Article II standing to pursue their claim, this does not mean that they have a valid one. Judge Edwards extensively rehearses the Supreme Court's free exercise doctrine, intertwined with RFRA, and discusses the burden on the Gilardis. In a paragraph that captures the disagreement over whether individuals are burdened by the acts of corporations, he argues:
Amici also contend that the difference between the Mandate and paying wages is akin to the difference between a person who opposes the death penalty being required to pay taxes that fund executions, and being required to “purchase the drugs for a lethal injection and personally deliver them to the facility where the execution will take place.” Br. of 28 Catholic Theologians and Ethicists at 19. The problem with this rather extraordinary example is that the Mandate does not require the Gilardis to have nearly this degree of personal involvement in providing contraceptives. The Mandate does not require the Gilardis to transfer funds from Freshway’s accounts directly to the manufacturers or retailers of contraception. Nor are the companies required to deliver or distribute contraception to employees. Under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(d)(1), Freshway is a distinct legal entity from its self-insured group health plan. The plan is operated by a third-party administrator, and, pursuant to health privacy regulations, the Gilardis are actually prohibited from being informed whether individual employees purchase contraceptive products, or about any other information regarding employees’ health care decisions. See Br. of Americans United for Separation of Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508; 45 C.F.R. § 164.510). Moreover, the Gilardis are free to procure Mandate-compliant coverage for their employees through an entirely independent, third-party insurance carrier, rather than administering their own group health plan. Id. This is a far cry from personally purchasing contraceptives and delivering them to employees.
Further, Judge Edwards would find that even if there were a substantial burden, there are compelling governmental interests supporting the contraceptive mandate provisions, including "promoting public health, welfare, and gender equality." He would find the exemptions narrow and, analogizing to the Social Security tax upheld by the United States Supreme Court, the scheme cannot function if persons are allowed to opt-out because money is being spent in a manner that violates their religious beliefs.
Because the district court found as a matter of law that the Gilardis did not have a substantial likelihood of prevailing on the merits, it denied the prelimiary injunction. Having reversed that conclusion of law, the majority remands for a determination of the other considerations for a preliminary injunction.
But most certainly the Gilardis case - - - or this issue - - - will not simply end there. It may be determined by what the Court does in Hobby Lobby, even as Freshway Foods is distinguished by being a different type of corporation.
Tuesday, October 29, 2013
The Eternal World Television Network, a Catholic media corporation, and the State of Alabama filed suit against the government yesterday, seeking to halt the contraception mandate in the Affordable Care Act.
EWTN argues that the mandate violates the Religious Freedom Restoration Act and the religion clauses, among other claims. Alabama says that the mandate intrudes on its "sovereign prerogative to regulate the insurance market in accordance with its own law and policy, without being contradicted by unlawful federal regulations."
The case is just the latest religious-based challenge against the contraception mandate. We posted most recently just yesterday, on the Sixth Circuit's ruling in Eden Foods. If Eden Foods seemed more political than religious-based--the plaintiff's "deeply held religious beliefs" "more resembled a laissez-faire, anti-government screed," according to the court--this case seems more political than religious-based for a different reason: EWTN is exempt under HHS regs, and if the mandate is valid Alabama simply has no claim. In other words: the plaintiffs don't seem to have much to complain about. We posted on the government's proposed regs exempting religious employers here; and we posted on the then-developing circuit split on the issue here.
EWTN says this about its accommodation under the regs:
This is a mere fig leaf. It would still require EWTN to play a central role in the government's scheme by "designating" a fiduciary to pay for the objectionable services on EWTN's behalf. This would do nothing to assuage EWTN's objections to the mandate.
The so-called "accommodation" also continues to treat EWTN as a second-class religious organization, not entitled to the same religious freedom rights as the Church it exists to serve. It also creates administrative hurdles and other difficulties for EWTN, forcing it to seek out and contract with companies willing to provide the very drugs and services that EWTN speaks out against.
As to Alabama, the State apparently seeks to protect itself and its citizens from the "immediate and continuing burdens" of the mandate. The State points out that its law expressly says that insurers do not have to provide contraception coverage in their plans. The claim sounds in federalism, but the complaint doesn't say why or how the federal mandate violates federalism principles. (Maybe that's because it doesn't.)
The plaintiffs also raise free speech, due process, and APA claims.
October 29, 2013 in Cases and Case Materials, Congressional Authority, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)
Monday, October 28, 2013
The continuing question of whether a for-profit secular corporation can assert a religious belief against contraception sufficient to exempt it from the ACA's provision requiring an employer to include contraceptive coverage in its health care insurance was again addressed by the Sixth Circuit in its opinion in Eden Foods v. Sebelius.
Interestingly, a footnote in the opinion cast doubt on whether Eden Foods and its founder and sole shareholder Michael Potter could past the requirement of having a sincerely held religious belief:
Potter’s “deeply held religious beliefs,” see Complaint ¶ 83, more resembled a laissez-faire, anti-government screed. Potter stated to Carmon [in an article in salon.com] “I’ve got more interest in good quality long underwear than I have in birth control pills.” Carmon then asked the Eden Foods chairman why he didn’t seem to care about birth control when he had taken the step to file a lawsuit over the contraceptive mandate. Potter responded, “Because I’m a man, number one[,] and it’s really none of my business what women do.” The article continued:
So, then, why bother suing? “Because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” He added, “I’m not trying to get birth control out of Rite Aid or Wal-Mart, but don’t tell me I gotta pay for it.”
But the panel opinion rested on different grounds, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act.
This is contrary to the holding of the divided en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius, the Secretary of Health and Human Services. In its response brief filed October 21, 2013, Hobby Lobby agrees that the Court should grant the writ and hear the case. With the split in the circuits, numerous district court cases in litigation, and both parties contending it is a matter of great public importance, odds are that the Court will grant certiorari for the current Term.
Friday, October 4, 2013
The United States Supreme Court will consider the constitutionality of "legislative prayer" in Town of Greece v. Galloway this Term, with oral arguments scheduled for November 6, 2013. As we discussed previously, the Obama Administration has filed a brief supporting the Town of Greece. Recall also that the Second Circuit found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity" and thus violated the Establishment Clause.
This video from PBS provides a great overview (in 7 minutes) of the case, and a transcript is also available.
This could be a great video to show in class as a prelude to discussion of the arguments.
Monday, September 30, 2013
Yesterday we wrote about the latest case in Kansas challenging evolution in the classroom. In a comment, reader Eli Bortman gave us the heads-up that yesterday's NYT included an article on the same issue in Texas. (Thanks, Eli.)
Here's a bit from the Times piece that helps explain the edu-ese and pseudo-scientific language in COPE's complaint in the Kansas case:
By questioning the science--often getting down to very technical details--the evolution challengers in Texas are following a strategy increasingly deployed by others around the country.
There is little open talk of creationism. Instead they borrow buzzwords common in education, "critical thinking," saying there is simply not enough evidence to prove evolution.
COPE went even further, though, arguing that the Kansas standards (with (secular) evolution as a centerpiece) themselves represent a kind of religious orthodoxy, and that Kansas in imposing this orthodoxy, without balancing it with "origin science," violated the religion clauses, free speech, and the Eqaul Protection Clause. In doing so, COPE adopts the language and legal claims of opponents of creationism and tries to create an equivalence between its position and the position of science--putting itself on par with science, both on the "science" and in its legal positions in relation to science, and casting science as a kind of religion. Then, after creating this topsy-turvey world where religion is science and science is religion, COPE asks the question: If "origin scientists" have an equal claim to the truth, doesn't it violate equality, speech, and religious principles to exclude their position from the curriculum?
This isn't new, but as the COPE complaint and NYT piece suggest, creationism advocates may be getting a little better at clothing their positions in official- and technical-sounding langauge, and in turning the same constitutional claims that proponents of a curriculum based on science have used against creationism right back on them, in support of creationism. The strategy is designed to frame the debate as one scientific theory against another scientific theory, not science against religion, and to put the competing policy and constitutional claims on par in order to gain traction under the religion clauses, free speech, and equal protection.
Sunday, September 29, 2013
Citizens for Objective Public Education, or COPE, last week filed suit in federal court against the Kansas State Board of Education for adopting a science standards that include evolution as a fundamental concept. COPE argued that the standards, The Next Generation Science Standards and A K-12 Framework for Science Education, "will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview" in violation of the religion and speech clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
The complaint alleges that the curriculum indoctrinates impressionable young students by using a concealed "Orthodoxy" known as "methodological naturalism" or "scientific materialism." The Orthodoxy "holds that explanations of the cause and nature of natural phenomena may only use natural, material or mechanistic causes, and must assume that supernatural and teleological or design conceptions of nature are invalid."
The complaint asks the court to enjoin the implementation of the standards, or, alternatively, to order the schools to tell students that science doesn't have all the answers and to give "origins science" equal time.
Tuesday, September 17, 2013
May a defendant in a crminal case wear a niqab, a full face veil, to testify? That's the question a UK judge answered largely in the negative, although making some accomodations in his opinion in Queen v. D.
Recall that the U.K. does not have a First Amendment free exercise of religion- - - as Judge Murphy explains in his opinion:
The jurisdiction of England and Wales is essentially (though not formally) a secular democracy. I recognise that the jurisdiction is in the rather odd position that part of it (England) has an established church, while the other part (Wales) does not. But in neither part does the church interfere with the working of the courts.
Indeed, as a BBC analysis notes about the case in "The Crown Court at Blackfriars," "faith has long been part of the fabric of the state - so much so that the court at the heart of the veil case is named after a medieval religious order."
Nevertheless, the UK is bound by the European Convention on Human Rights, including Article 9, section 2 of which provides:
Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
The judge balanced the freedom to manifest religion against the interests of public order (and fair trial), finding that the defendant must remove her niqab in order to testify, although she need not testify in open court and her image would not be disseminated.
For further analysis of the case, see Dressing Constitutionally Blog here.
Wednesday, September 11, 2013
Relying on the Tenth Circuit's decision in Hobby Lobby v. Sebelius, Senior Judge Wiley Daniel enjoined the enforcement of the ACA's preventative health mandate regarding certain contraceptive methods for employees in his opinion in Briscoe v. Sebelius.
As the judge states, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.
Given the precedent of Hobby Lobby, the district judge spent little analysis on the underlying issues, but did analyze the requirements for a preliminary injunction. This included finding that the 200 persons employed by the plaintiff companies were much less than the "millions of others" persons exempted under other provisions.
Thursday, September 5, 2013
Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America
Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.
The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read. For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism." As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."
The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.
The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013. Info and rsvp here.
Tuesday, August 27, 2013
The Feminism and Legal Theory Project at 30: A Workshop on Sex and Reproduction: From Privacy and Choice to Resilience and Opportunity?
EMORY UNIVERSITY SCHOOL OF LAW
November 15-16, 2013
more information here
Friday, November, 15th
3-4 pm RECEPTION IN MACMILLAN LAW LIBRARY (location TBA)
Celebrating the formal opening of the Catherine G. Roraback (pictured in watercolor left) Archive at Emory Law School .The workshop will be dedicated to Katie and her pioneering work on behalf of reproductive rights and justice.
Amy Kesselman (SUNY New Paltz), Vanessa King (Emory University School of Law)
4:30 - 6:30 pm History of Sex and Reproduction
Bleeding Across Time: First Principles of US Population Policy | Rickie Solinger
Women versus Connecticut: Insights from the Pre-Roe Abortion Battles | Amy Kesselman (SUNY New Paltz)
Sex, Drugs, Rock and Roe: Ammi Rogers and the Legal History of Anti-Abortion Norms | Lolita Buckner Inniss (Hamilton College, Cleveland Marshall College of Law)
6:30 - 8 pm DINNER
Saturday, November 16th
8:30 - 9:00 am CONTINENTAL BREAKFAST
9:00 - 11:30 am Discourses Surrounding Sex and Reproduction Issues: Law, Religion and Medicine
Medical, Scientific, and Public Health Evidence in Supreme Court Jurisprudence: Reimagining the Feminist Health Movement | Aziza Ahmed (Northeastern University School of Law)
Abortion Law and Medical Practices | Sheelagh McGuinness (School of Law, University of Birmingham) and Michael Thomson (School of Law, University of Leeds)
The Role of 'Nature' in Debates about Sex and Reproduction | Sean Coyle (School of Law, University of Birmingham)
Abortion Liberalization Policies around the World: Hidden Differences in the Diffusion Process | Elizabeth Heger Boyle (University of Minnesota), Minzee Kim (Ewha Women's University, South Korea), and Wesley Longhofer (Goizueta Business School, Emory University)
(University of Florida)
11:30 am - 12:30 pm LUNCH
12:30 - 2:45 pm Feminist Discourses: Sex, Reproduction and Choice
Infertility, Adoption, Alternative Reproduction, and Contemporary Legal Theory | April L. Cherry (Cleveland-Marshall School of Law)
Reproductive Rights and the Right to Reproduce: Is there a Place for the Non-Marital Mother? | Twila L. Perry (Rutgers University School of Law-Newark)
Choices Under the Shadow of Population Policy: Compuslory motherhood Challenged and Remade in Taiwan (1970s-2000s) | Chao-ju Chen (National Taiwan University)
Testing Sex: Non-invasive Prenatal Genetic Testing and Sex Selection | Rachel Rebouche (University of Florida, Levin College of Law)
3:00 - 5:15 pm Regulating Sex and Reproduction
Markets and Motives for Sex and Reproduction | Mary Ann Case (University of Chicago Law School)
A Fiduciary Theory of Health Entitlements | Margaux Hall (Columbia Law School)
Schrodinger's Child: Identity and Non-Identity in Reproductive Decision-Making | Jennifer S. Hendricks (University of Colorado Law School)
Procreative Pluralism | Kimberley Mutcherson (Rutgers Law School, Camden)
Thursday, August 15, 2013
District Judge Vicki Miles-LaGrange (W.D.Okl.) today permanently enjoined the Oklahoma state constitutional amendment that would forbid Oklahoma courts from considering Sharia law, international law, or "the legal precepts of other nations or cultures." The court ruled that the amendment violated the Establishment Clause. The ACLU posted its press release here.
The permanent injunction comes in round two of the litigation. In the earlier first round, the Tenth Circuit affirmed the district court's temporary injunction against the amendment.
Judge Miles-LaGrange adopted the Tenth Circuit's reasoning in concluding that the amendment violates the Establishment Clause. In particular, Judge Miles-LaGrange held that strict scrutiny applied under Larson v. Valente (1982) because the amendment discriminates among religions, and that Oklahoma couldn't provide a compelling government interest in enacting the provision. Quoting the Tenth Circuit:
[Defendants] do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses had resulted in concrete problems in Oklahoma.
Op. at 7.
Judge Miles-LaGrange also held that the anti-Sharia portion of the amendment couldn't be severed, because, she said, the whole purpose in adopting the provision was to forbid the use of Sharia law, and the amendment wouldn't have passed without the anti-Sharia provision.
This ruling is surely not the end of the case. But given the Tenth Circuit's earlier ruling, the result will almost surely be the same on appeal.
Monday, July 29, 2013
opinion, a panel of the Third Circuit in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services has held that a private for-profit secular corporation, in this case making wood cabinetry and employing almost one thousand people, does not meet the threshold for raising a claim that the ACA's requirement that its health insurance include contraceptive coverage for its employees.
Writing for the majority, Judge Robert Cowen, joined by Thomas Vanaskie, acknowledged in a footnote the contrary decision of a majority of the Tenth Circuit en banc in Hobby Lobby Stores, Inc. v. Sebelius, but simply stated it respectfully disagreed. Instead, affirming the district judge, the majority skillfully articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.
First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010). The majority noted that Citizens United was grounded in the notion that the Court has a long history of protecting corporations' rights to free speech and that there was no similar history regarding corporations' religious rights:
In fact, we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.
The majority distinguished religious organizations, such as those involved in Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006) or Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), because these are not "secular, for-profit corporations."
Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners. The majority noted that the Hahn family own 100 percent of the voting shares of Conestoga and that the Hahns practice the Mennonite religion. However, it rejected the theory that had been applied by the Ninth Circuit in two non-ACA mandate cases, stating the theory "rests on erroneous assumptions regarding the very nature of the corporate form." For the majority, it is a "fundamental principle" that "incorporation‘s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation." Rather, "by incorporating their business, the Hahns themselves created a distinct legal entity that has legally distinct rights and responsibilities from the Hahns, as the owners of the corporation." Moreover, because
Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. All responsibility for complying with the Mandate falls on Conestoga.
(emphasis in original).
The majority's RFRA analysis is exceedingly brief, simply stated that since the corporation cannot exercise a religion it cannot assert a statutory RFRA claim.
In a 66 page dissent that is twice as long as the majority opinion, Judge Kent Jordan criticizes the majority for concluding that the "Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit." Judge Jordan's dissent is clearly deeply felt, stating that
the government claims the right to force Conestoga and its owners to facilitate the purchase and use of contraceptive drugs and devices, including abortifacients, all the while telling them that they do not even have a basis to speak up in opposition. Remarkable.
I reject that power grab and would hold that Conestoga may invoke the right to religious liberty on its own behalf.
Indeed, Judge Jordan's dissent demonstrates how deeply the divisions abide on this issue. Coupled with the similarly split opinions in Hobby Lobby, in which the majority agrees with Judge Jordan, it's clear that if - - - and most likely when - - - this issue reaches the United States Supreme Court, it will be very contentious.
July 29, 2013 in Cases and Case Materials, Congressional Authority, Current Affairs, First Amendment, Gender, Interpretation, Opinion Analysis, Religion, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)