Thursday, February 2, 2017
There were some questions whether the seemingly hasty release late Friday afternoon of the Executive Order, Protecting the Nation From Foreign Terrorist Entry Into the United States, popularly called a "Muslim Ban," had been presented to the Office of Legal Counsel (OLC) as required by law.
Pursuant to a FOIA request, an OLC Memo has been released. It's seemingly a boilerplate memo, simply repeating the content of the EO and concluding "The proposed Order is approved with respect to form and legality."
It's a quick read at a bit over one page, with the EO appended afterwards. There is no legal analysis.
For comparison, the recent anti-nepotism OLC Memo, concluding that the President could appoint his son-in-law to a White House position runs about 14 single spaced pages.
Monday, January 30, 2017
In a complaint filed today in Sarsour v. Trump, attorneys with CAIR, the Council on American-Islamic Relations, have challenged the constitutionality of President Trump's late Friday EO, Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here. Recall that the EO was fairly quickly subject to a partial stay by a federal judge and encountered "judicial resistance" as Jonathan Hafetz over at Balkinization observes. There are now several cases pending; a very helpful updated post with litigation documents from Qunita Juresic is over at Lawfare here. In addition to litigation, the EO has sparked nationwide protests, as well as criticism from other Republicans and 16 State Attorney Generals.
In Sarsour, the complaint acknowledges that the text of the EO does not contain the words "Islam" or "Muslim," but argues in its Introduction that:
the Executive Order has already gained national and international media attention and nationwide protests, and has been dubbed uniformly as the “Muslim Ban” because its apparent and true purpose and underlying motive—which is to ban Muslims from certain Muslim‐majority countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) (hereinafter the “Muslim majority countries”)—has been broadcast to the general public by the Trump Administration
and that the EO is a
fulfillment of President Trump’s longstanding promise and boasted intent to enact a federal policy that overtly discriminates against Muslims and officially broadcasts a message that the federal government disfavors the religion of Islam, preferring all other religions instead.
The complaint has three constitutional claims, as well as a a fourth count alleging violations of the Administrative Procedure Act.
Front and center are the First Amendment Religion Clauses claims. The first count is labeled an Establishment Clause violation, but also argues that Islam is being singled out for disfavored treatment as "uniquely threatening and dangerous." A discussion of the Establishment Clause arguments from David Cole, Legal Director of the ACLU, is over at Just Security here. In the second count, the claim is a violation of the Free Exercise Clause as it relates to the John and Jane Doe plaintiffs who are residents but non-citizens originating from the Muslim-majority countries at issue in the EO. Interestingly, there is not a statutory Religious Freedom Restoration Act (RFRA) claim; there would seem to a good argument that RFRA's "persons" includes noncitizens as well as corporations as the Court held in Hobby Lobby.[Update: In Ruiz-Diaz v. United States, the Ninth Circuit applied RFRA to non-citizen in the United States on five-year religious worker visas, ultimately concluding RFRA was not violated].
In addition to the First Amendment counts, the complaint includes a Fifth Amendment Equal Protection claim on behalf of the John and Jane Doe plaintiffs, contending that by preventing the non-citizen lawful resident Muslims originating from these specific Muslim-majority nations "from engaging in international travel and returning home in the United States" and from "applying for immigration benefits" under the federal statute and international human rights law including political asylum, the EO is unconstitutional. We've previously discussed the Equal Protection issues involved in the EO here.
The EO is certainly going to attract additional judicial challenges, as well as legislative ones.
Saturday, January 28, 2017
President Trump issued an Executive Order (EO) late Friday afternoon entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States.” (The text is not yet on Whitehouse.gov; it is reproduced in the New York Times here].
Is it constitutional, specifically on the basis of equal protection?
The preliminary question is whether equal protection is an applicable doctrine. Despite being in the Fourteenth Amendment governing state action, the principle of equal protection has long been held to constrain actions by the federal government. In Bolling v. Sharpe (1954), for example, a companion case to Brown to Board of Education, the Court essentially held that the equal protection principles of Brown would apply to the D.C. schools of Bolling through the Fifth Amendment's Due Process Clause. One of the precedents on which the Court in Bolling relied was Hirabayashi v. United States (1943), in which the Court phrased the issue regarding the constitutionality of federal military orders regarding Japanese internment as:
The questions for our decision are whether the particular restriction violated, namely, that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment.
In Hirabayashi, the Court famously pronounced
Distinctions between citizens solely because of their ancestry are, by their very, nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.
The support for this principle in Hirabayashi was Yick Wo v. Hopkins (1886), which involved state action that affected Chinese nationals in California, excluded from citizenship by federal law. In Yick Wo, the Court was clear that "any person" in the text of the Fourteenth Amendment was "universal in their application to all persons" without regard to any differences of nationality.
But Yick Wo does not mean that equal protection or other constitutional rights apply globally. The question of what "subject to the jurisdiction" of the state or federal government as applied to noncitizens means is a vexing one. For example, in Boumediene v. Bush (2008) involving the habeas corpus rights of noncitizens detained in Guantanamo Bay, Cuba, the Court rehearsed the "extraterritorality cases" and ultimately concluded that the Suspension Clause (generally prohibiting the suspension of habeas corpus), in Article One, Section 9, clause 2, applied to noncitizens detained at Guantanamo Bay. Unlike the "enemy combatants" in Boumediene, however, the "noncitizens" subject to the President's Executive Order (EO) often have substantial links to the United States. Although the language of the EO lacks clarity on the question, a government spokesperson today has stated that the EO applies to permanent legal residents, often known as "green card" holders. Thus, all "aliens" are not the same. Instead, there is a sliding scale of rights, greatest in a naturalized citizen and least in a non-resident non-citizen without any immigration status, but in between there are numerous other categories including those who are permanent legal residents, including those who have "rights" that are "more extensive and secure" because the person has made "preliminary declaration of intention to become a citizen," Johnson v. Eisentrager (1950). Moreover, the question of territoriality is also cloudy. As the EO went into effect, some people were landing in the United States, and thus "in" the country, and for "permanent residents" who may have been traveling briefly abroad and have no other home, their domicile may be in the United States.
Assuming the Equal Protection Clause applies, the EO on its face makes classifications based on national origin and religious identity. The national origin classification is clear and by reference, the EO applies to 7 nations: Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. These nations are Muslim-majority nations, and a provision of the EO regarding refugee status directs priority to "refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. "
Generally, classifications based on national origin, as well as religious identity, would receive strict scrutiny, as derived from the famous footnote four of United States v. Carolene Products Company, although religious identities are more rarely litigated under Equal Protection (one example is here), given the robust First Amendment protections.
When the federal power over immigration is involved, it may be argued that the otherwise applicable level of scrutiny is less appropriate, or even if it does apply, its application includes greater deference to the national government. But in cases such as Nyguen v. INS (2001), involving a Fifth Amendment equal protection challenge to a federal gender classification with differing rules for unwed mothers and for unwed fathers in their ability to confer derivative citizenship, the Court carefully considered the usual level of scrutiny. And in a similar recently-argued case, Lynch v. Morales-Santana, there was little indication that simplistic deference to the national government was appropriate; the Second Circuit had held that the gender differential violated equal protection.
If strict scrutiny applied to this national origin and religious classifications, it would require a compelling government interest with the means chosen being narrowly tailored. National security is oft-considered a compelling interest, and the EO repeatedly cites "September 11." Yet, even accepting that this would be compelling, there are serious problems proving the narrowly tailored prong. If one accepts the "September 11" rationale, the link to an event more than 15 years ago is tenuous. Additionally, even if there was such a link, there is no overlap in the nationality of those involved in the September 11 attacks and those targeted in the EO.
Not only is there a mismatch between the nationalities of September 11 attackers and the nationalities of those targeted in the EO, there is the odd coincidence that President Trump has no business connections in the nations targeted while having such business interests in the nations excluded. This might lead to an argument that stated national security interest is not the President's genuine interest, similar to the Court's rejection of the "racial purity" interest in Loving v. Virginia and its conclusion that the "real" interest was White Supremacy. There could be an argument that the President's "real" interest in the EO is one of personal profit, an interest that coincides with the recently filed Emoluments Clause challenge. Or there might be an argument that the President's "real" interest relates to Russia, an interest that would coincide with ongoing investigations into the Trump-Putin connections. Finally, there is an argument that the targeting of Muslims is based on animus and the bare desire to harm a politically unpopular group, an interest that the Court has repeatedly found to not even satisfy the lowest level of scrutiny requiring a mere legitimate interest, in cases such as Moreno v. USDA (1973).
There are certainly other issues in addition to equal protection; the just-filed ACLU complaint's first claims rest on procedural due process, although there is also an equal protection claim. [Update here].
Nevertheless, equality arguments will loom large in the "Muslim ban" challenges.
Monday, November 28, 2016
A complaint alleging violations of the First and Fourth Amendments by North Dakota officials has been filed on behalf of "water protectors" at the Dakota Access Pipeline (DAPL) protest at Standing Rock. The plaintiffs in Dundon v. Kirchmeier have also filed a motion and memo for a Temporary Restraining Order "enjoining Defendants from curtailing their First and Fourth Amendment rights by using highly dangerous weaponry, including Specialty Impact Munitions (SIM, also known as Kinetic Impact Projectiles or KIP), explosive “blast” grenades, other chemical agent devices, and a water cannon and water hoses in freezing temperatures, to quell protests and prayer ceremonies associated with opposition to the Dakota Access Pipeline (DAPL).
As to the First Amendment, the plaintiffs allege that the defendants have sought to eliminate protected First Amendment activity in a public forum. Additionally, even if there were an "unlawful assembly" not protected by the First Amendment, the defendants violated the Fourth Amendment's prohibition of excessive force. Moreover, the plaintiffs claim that the activities of the government officials have become a custom warranting government liability.
The factual claims in the complaint and memo supporting the TRO are troubling; some of the accounts will be familiar from reporting, but the legal documents compare the use of force at Standing Rock to other situations.
For example, on the water cannon:
The use of water cannons in riot control contexts also can lead to injury or death. Potential health effects include hypothermia and frostbite, particularly if appropriate medical and warming services are not easily accessible. High-pressure water can cause both direct and indirect injuries. Direct injuries may include trauma directly to the body or internal injuries from the force of the water stream. Eye damage resulting in blindness as well as facial bone fractures and serious head injuries have been documented. Ex. V at 59; Anna Feifenbaum, White-washing the water cannon: salesmen, scientific experts and human rights abuses, Open Democracy (Feb. 25, 2014); https://www.opendemocracy.net/opensecurity/anna-feigenbaum/white-washingwater-cannon-salesmen-scientific-experts-and-human-rights; https://web.archive.org/web/20070221053037/http://newzimbabwe.com/pages/mdc44.15976.html (fatalities reported in Zimbabwe in 2007, when water cannons were used on peaceful crowd, causing panic); http://www.hurriyetdailynews.com/Default.aspx?pageID=238&nid=49009 (fatalities reported in Turkey in 2013, when water cannon water was mixed with teargas); https://www.kyivpost.com/article/content/ukraine-politics/activist-watered-by-police-diedbecause-of-pneumonia-335885.html (fatality reported in Ukraine in 2014, when businessman Bogdan Kalynyak died from pneumonia after being sprayed by water cannon in freezing temperatures). There is no current caselaw on the use of water cannons against protesters in the United States because, along with attack dogs, such use effectively ended in the U.S. in the 1960s amidst national outcry over the use of these tactics on nonviolent civil rights protesters.
Thursday, November 17, 2016
The Tenth Circuit ruled last week in Felix v. City of Bloomfield that the city's monument to the Ten Commandments violated the Establishment Clause, even though the overall display included other, later-erected secular monuments.
The case arose when a city council member obtained council permission to place a Ten Commandments monument in front of city hall, along with other monuments that would celebrate the city's "history of law and government." The council member raised private money for the Ten Commandments monument (from churches, among other sources), and, after some fits and starts, placed the massive monument (over five feet tall, 3,400 pounds, sunk 14 inches into the ground) right in front of city hall. The city held an unveiling ceremony, which included religious references, statements, and the like, and some secular ones, too.
After this suit was filed, arguing that the Ten Commandments monument violated the Establishment Clause, the council member arranged for other monuments at city hall, including one for the Declaration of Independence, one for the Gettysburg Address, and one for the Bill of Rights.
The Tenth Circuit ruled that the Ten Commandments monument violated the Establishment Clause. The court wrote that an objective observer, reasonably informed about the monument, would have concluded that the city was endorsing religion. The court said that the text on the monument, its prominent location, the religious circumstances surrounding its financing and unveiling, and the timing of this lawsuit (just seven months after the monument's unveiling) all pointed toward endorsement.
The court recognized the city's effort to secularize the display with later, secular monuments, but said that this wasn't enough to scrub the religious history behind it.
Tuesday, October 4, 2016
In the continuing - - - yet seemingly concluding - - - saga of challenges to the constitutionality of California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit's opinion today in Welch v. Brown revisited its August opinion upholding the law. Today's opinion announces that the Ninth Circuit will not rehear the case en banc - - - "no judge of the court" having requested a vote on the petition for rehearing en banc - - - and issues an amended opinion.
The change from the August opinion is slight, adding an example in the opinion's description of the challengers' argument in one paragraph:
Plaintiffs first argue that, under the Establishment Clause, SB 1172 excessively entangles the State with religion. Their argument rests on a misconception of the scope of SB 1172. For example, Plaintiffs assert that Dr. Welch may not “offer certain prayers or quote certain Scriptures to young people” even “while working as a minister for Skyline Church” within “the four walls of the church . . ., while engaging in those religious activities.” The premise of this Establishment Clause argument is mistaken, and the argument fails, because SB 1172 regulates conduct only within the confines of the counselor-client relationship.
[Added language underlined; italics in both opinions].
With such a small revision, it would seem there was little contention about the case. Recall that Welch itself is a sequel to Pickup v. Brown, in which the Ninth Circuit declined en banc review (albeit more divisively), to other First Amendment challenges to the California statute. Meanwhile, the Third Circuit in King v. Christie rejected a challenge to New Jersey's similar SOCE-ban statute. The United States Supreme Court has denied certiorari in both Pickup and King, making prospects for a grant of certiorari in Welch v. Brown rather slim, especially for an eight Justice Court.
October 4, 2016 in Family, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0)
Monday, September 26, 2016
The United States Supreme Court hears only small fraction of cases: The Court hears about 80 cases a year, of the approximately 8,000 requests for review filed with the Court each year, flowing from the approximately 60, 000 circuit court of appeals decisions and many more thousands of state appellate court opinions. And of this small fraction, generally about half involve constitutional issues, including constitutional criminal procedure issues.
Not surprisingly then, with the new Term starting October 3, the traditional first Monday in October, there are only a handful of constitutional law cases included among the less than 30 the Court has already accepted.
The Court is set to hear two racial gerrymandering cases, both of which involve the tensions between the Voting Rights Act and the Equal Protection Clause with underlying political contentions that Republican state legislators acted to reduce the strength of Black voters; both are appeals from divided opinions from three-judge courts. In Bethune-Hill v. Virginia State Board of Elections, the challenge is to the three-judge court’s decision and order holding that a number of Virginia House of Delegates districts did not constitute unlawful racial gerrymanders in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Virginia concededly did consider race in the redistricting, but the more precise issue is an interpretation under current doctrine regarding whether race was the predominant (and thus unconstitutional) consideration. The three-judge lower court is faulted for requiring an “actual” conflict between the traditional redistricting criteria and race. The petitioners argue that “where a legislature intentionally assigns voters to districts according to a fixed, nonnegotiable racial threshold, “strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race.” If it were other-wise, they argue, even the most egregious race-based districting schemes would escape constitutional scrutiny. In McCrory v. Harris, a racial gerrymandering case involving North Carolina, the challenge is to a three-judge court’s decision finding a constitutional Equal Protection Clause violation. The plaintiff originally argued that the congressional map drawn by the NC Assembly in 2011 violated the Equal Protection Clause in two districts by making race a predominant factor and by not narrowly tailoring the districts to any compelling interest. North Carolina argues that the conclusion of racial predominance is incorrect and that it need not show that racial considerations were “actually necessary” as opposed to “having good reasons” under the Voting Rights Act. The North Carolina districts have been long controversial; a good timeline is here.
In another Equal Protection Clause case, the classification is sex rather than race. In Lynch v. Morales-Santana, the underlying problem is differential requirements regarding US presence for unwed fathers and unwed mothers to transmit citizenship to their child; the Second Circuit held that the sex discrimination was unconstitutional, subjecting it to intermediate scrutiny under equal protection as included in the Fifth Amendment. The United States argues that because the context is citizenship, only rational basis scrutiny is appropriate. This issue has been before the Court before. The last time was 2011 in Flores-Villar v. United States when the Court's per curiam affirmance by an "equally divided Court" upheld the Ninth Circuit’s finding that the differential residency requirement satisfied equal protection. In Flores-Villar, Kagan was recused. The Court hearing Morales-Santana, scheduled for oral argument November 9, will also seemingly be only eight Justices, but this time including Kagan.
Trinity Lutheran Church of Columbia, Mo. v. Pauley also includes an Equal Protection issue, but the major tension is between the Free Exercise of Religion Clause of the First Amendment and principles of anti-Establishment of Religion. Like several other states, Missouri has a so-called Blaine Amendment in its state constitution which prohibits any state monies being used in aid of any religious entity. It is concededly more expansive/restrictive than the US Constitution’s Establishment Clause in the First Amendment as the United States Supreme Court has interpreted it. Missouri had a program for state funds to be awarded to resurface playgrounds with used tires; the state denied the Trinity Lutheran Church preschool’s application based on the state constitutional provision. Trinity Lutheran argues that the Blaine Amendment violates both the Free Exercise Clause and the Equal Protection Clause, with the Eighth Circuit siding with the state of Missouri.
There are also several cases involving the criminal procedure protections in the Constitution. Pena-Rodriguez v. Colorado involves a claim of racial bias on a jury in a criminal case. The Colorado Supreme Court resolved the tension between the “secrecy of jury deliberations” and the Sixth Amendment right to an impartial jury in favor of the former interest. The court found that the state evidence rule, 606(B) (similar to the federal rule), prohibiting juror testimony with some exceptions was not unconstitutional applied to exclude evidence of racial bias on the part of a juror. Bravo-Fernandez v. United States involves the protection against “double jeopardy” and the effect of a vacated (unconstitutional) conviction. It will be argued in the first week of October. Moore v. Texas is based on the Eighth Amendment’s prohibition of cruel and unusual punishment, with specific attention to capital punishment and the execution of the mentally disabled. In short: what are the proper standards for states to make a determination of mental disability?
Finally - - - at least for now - - - the Court will also be hearing a constitutional property dispute. Murr v. Wisconsin involves the Fifth Amendment’s “Taking Clause,” providing that private property cannot be “taken” for public use without just compensation. At issue in Murr is regulatory taking. The Court granted certiorari to a Wisconsin appellate court decision regarding two parcels of land that the Murrs owned since 1995; one lot had previously been owned by their parents. Under state and local law, the two lots merged. The Murrs sought a variance to sell off one of the lots as a buildable lot, which was denied. The Murrs now claim that the denial of the variance is an unconstitutional regulatory taking. The Wisconsin courts viewed the two lots as the “property” and concluded that there was no regulatory taking.
We will be updating this post as the Court adds more cases to its docket.
UPDATE September 29, 2016: The Court granted certiorari to two important First Amendment cases.
September 26, 2016 in Cases and Case Materials, Courts and Judging, Criminal Procedure, Current Affairs, Elections and Voting, Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Race, Religion, Sixth Amendment, Takings Clause | Permalink | Comments (0)
Monday, September 19, 2016
In its divided opinion in Lund v. Rowan County, North Carolina, the Fourth Circuit has held that the identity of the person leading a prayer opening the county Board of Commissioners meeting is irrelevant - - - even a prayer led by a Board member is within the ambit of Town of Greece v. Galloway (2014) and without a First Amendment Establishment Clause problem.
As the majority opinion, authored by Judge Steven Agee and joined by Judge Dennis Shedd, describes it:
At most Board meetings, the chairperson would call the meeting to order and invite the Board and audience to stand for the ceremonial opening. A designated commissioner would then deliver an invocation of his or her choosing followed by the pledge of allegiance. The content of each invocation was entirely in the discretion of the respective commissioner; the Board, as a Board, had no role in prayer selection or content. The overwhelming majority of the prayers offered by the commissioners invoked the Christian faith in some form. For example, prayers frequently included references to “Jesus,” “Christ,” and “Lord.” It was also typical for the invocation to begin with some variant of “let us pray” or “please pray with me.” Id. Although not required to do so, the audience largely joined the commissioners in standing and bowing their heads during the prayer and remained standing for the pledge of allegiance.
The litigation was begun before the United States Supreme Court issued its sharply divided opinion in Town of Greece v. Galloway upholding the practice of the town beginning its meetings with invited religious leaders providing prayers. The Court essentially extended Marsh v. Chambers (1983), regarding legislative prayer in the Nebraska legislature, to town meetings despite their quasi-legislative and quasi-adjudicative function. The Fourth Circuit extends Town of Greece to prayers by the elected officials (and arguably adjudicators) themselves: "the Supreme Court attached no significance to the speakers' identities in its analysis" of either Town of Greece or Marsh. Indeed, as the Fourth Circuit majority notes, Justice Kennedy writing for the plurality in Town of Greece averred that the "principal audience" for the prayers is not the public but "lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing." The Fourth Circuit therefore found that the district judge's conclusion that legislative prayer led by a legislator violates the Establishment Clause.
Judge Agee's opinion for the Fourth Circuit majority then took up the question of whether "some other facet" of the Board of Commissioner's praying practice took it "outside the protective umbrella of legislative prayer." These four "guideposts" included the selection of the legislative prayer, the content of the prayer, selection of the prayer-giver, and the effect of the prayer "over time" as advancing a particular religion. Judge Agee's opinion rejected each of these concerns. First, the selection of the legislative prayer was not done by the "Board as a whole," but each of the five commissioners was in effect "a free agent." Second, the majority found the content not objectionable because it did not cross the line into proselytizing: "There is no prayer in the record asking those who may hear it to convert to the prayer-giver’s faith or belittling those who believe differently. And even if there were, it is the practice as a whole -- not a few isolated incidents -- which controls." Third, the selection of the prayer-givers was not problematic, even though it was limited to the five commissioners. The majority opinion here comes close to requiring a type of specific motive: "Absent proof the Board restricted the prayer opportunity among the commissioners as part of an effort to promote only Christianity, we must view its decision to rely on lawmaker-led prayer as constitutionally insignificant." Fourth and last, the majority found no problem based on its analogies to Town of Greece and Marsh, in which the prayers were overwhelmingly Christian.
For Judge J. Harvie Wilkinson III, dissenting, the prayer practices of the Rowan County Commissioners crossed the constitutional line into a violation of the Establishment Clause. Wilkinson, whose forthcoming book argues that the 1960s were damaging "to our need for the sustenance of faith," here concludes that Rowan County is not welcoming to various faiths. He does not argue that the commissioner as prayer-leader is determinative, but it is one of the factors that distinguishes the Rowan County practice from Town of Greece, that makes it "a conceptual world apart." For Wilkinson:
I have seen nothing like it. This combination of legislators as the sole prayer-givers, official invitation for audience participation, consistently sectarian prayers referencing but a single faith, and the intimacy of a local governmental setting exceeds even a broad reading of Town of Greece. That case in no way sought to dictate the outcome of every legislative prayer case.
Wilkinson's opinion provides several examples that the plaintiffs, all non-Christians, found "overtly sectarian," including:
Our Heavenly Father, we will never, ever forget that we are not alive unless your life is in us. We are the recipients of your immeasurable grace. We can’t be defeated, we can’t be destroyed, and we won’t be denied, because of our salvation through the Lord Jesus Christ. I ask you to be with us as we conduct the business of Rowan County this evening, and continue to bless everyone in this room, our families, our friends, and our homes. I ask all these things in the name of Jesus, Amen.”
Judge Wilkinson noted that the "closed universe" of prayer-givers - - - the five Commissioners - - - over a period of years had led to a constriction in the religious identities represented that could communicate a message of non-belonging to citizens coming before the Board. But Wilkinson's concern also extended into a concern about representative secular democracy itself:
Entrenching this single faith reality takes us one step closer to a de facto religious litmus test for public office. When delivering the same sectarian prayers becomes embedded legislative custom, voters may wonder what kind of prayer a candidate of a minority religious persuasion would select if elected. Failure to pray in the name of the prevailing faith risks becoming a campaign issue or a tacit political debit, which in turn deters those of minority faiths from seeking office. It should not be so.
The United States Supreme Court's now-eight Justices may not be eager to welcome another government prayer case into the docket so soon after the 5-4 decision Town of Greece, especially one that might result in a 4-4 split, affirming the Fourth Circuit's opinion. And yet? Perhaps the Rowan County Board of Commissioners prayer practices might be a step too far for one of the Justices who joined the Court's majority in Town of Greece? Or perhaps for the Fourth Circuit en banc?
Wednesday, August 24, 2016
Ninth Circuit Upholds Upholds California Ban on Sexual Orientation Conversion Therapy Against Religion Clauses Challenge
In a sequel to the Ninth Circuit's 2013 decision in Pickup v. Brown upholding California's SB 1172, prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18, the Ninth Circuit upheld the same law against a facial challenge based upon the First Amendment's Religion Clauses in its relatively brief opinion in Welch v. Brown.
The panel in Welsh - - - the same panel as in Pickup - - - held that the SB 1172 violated neither the Establishment Clause nor the Free Exercise Clause. The panel rejected the challengers' interpretation of the law as applying to members of the clergy because the law specifically exempts religious clergy "as long as they do not hold themselves out as operating pursuant" to any therapist licenses.
The panel also rejected the contention that the law has the primary effect of inhibiting religion. That some minors who seek sexual orientation conversion may have religious motivations does not rise to the level of an inhibition of religion, especially given that the law was not targeted at religious motivated conduct. The panel noted that the law's legislative findings focused on "social stigmatization" and "family rejection" rather than religiosity. The panel likewise rejected the Free Exercise Clause claim that the law was not neutral as to religion based on the same rationales and cited the Third Circuit's similar conclusion regarding New Jersey's prohibition of sexual conversion therapy in King v. Christie.
The court also reiterated its rejection of any "privacy" claim based on its previous analysis in Pickup.
So far, challenges to state prohibitions of sexual conversion therapy for minors have had little success.
August 24, 2016 in Courts and Judging, Disability, Due Process (Substantive), Establishment Clause, Family, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Religion, Sexual Orientation | Permalink | Comments (0)
Thursday, August 18, 2016
In his opinion and order in EEOC v. R.G. & G.R. Harris Funeral Homes, United States District Judge Sean Cox of the Eastern District of Michigan, the judge held that the funeral home is "entitled to a RFRA exemption from Title VII and the body of sex-stereotyping case law that has developed under it."
The funeral home, a for-profit closely-held corporation, relied upon the United States Supreme Court's closely-divided and controversial decision in Burwell v. Hobby Lobby (2014) which allowed a religious exemption under RFRA (the Religious Freedom Restoration Act) to a federal requirement in the Affordable Care Act (ACA or Obamacare) that employers provide health insurance to employees that includes contraceptive coverage.
Rather than contraception, the issue in Harris Funeral Homes is the funeral home's sex-specific dress code and its termination of Stephens, an employee transitioning from male to female for failure to wear the mandated male-specific clothing. The primary shareholder of the funeral home, Thomas Rost, stated his beliefs that the Bible teaches "that a person's sex is an immutable God-given gift" and "that is wrong for a biological male to deny his sex by dressing as a woman." More importantly for his RFRA claim, Rost stated that he himself “would be violating God’s commands” if he were to permit one of the Funeral Home’s biologically-male-born funeral directors to wear the skirt-suit uniform for female directors while at work, because Rost “would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.”
Recall that under RFRA, a threshold question is whether the person's religious belief are sincerely held. Hobby Lobby having determined that a company's major shareholder's belief is the relevant one, the EEOC conceded that the "Funeral Home's religious beliefs are sincerely held." The next question is whether the neutral law of general applicability - - - here, Title VII - - - is a substantial burden on the person's religious beliefs. The district judge found that allowing an employee to wear a skirt would impose a substantial burden on the ability of Rost to conduct his business in accordance with his sincerely held religious beliefs and that the economic consequences of back pay would be "severe." The burden then shifts in RFRA to the government to satisfy strict scrutiny as well as a least restrictive means requirement. Recall that the stated purpose of Congress in passing RFRA was to "restore the compelling interest test as set forth in Sherbert v. Verner" (1964), which Congress believed the Court had departed from in Employment Division v. Smith (1990), although Congress also added the "least restrictive means" language.
And in his Harris Funeral Homes decision, Judge Cox ultimately relied on the least restrictive means requirement. However, first Judge Cox treated the traditional strict scrutiny questions. Judge Cox assumed "without deciding" that the EEOC had a compelling governmental interest, although Judge Cox expressed doubts whether this was true. Indeed, Judge Cox interpreted the passage in Hobby Lobby stating that the decision provided "no such shield" to equal employment laws (and thus refuting a claim made by the dissent) as essentially dicta:
This Court does not read that paragraph as indicating that a RFRA defense can never prevail as a defense to Title VII or that Title VII is exempt from the focused analysis set forth by the majority. If that were the case, the majority would presumably have said so. It did not.
Moreover, Judge Cox relied on Hobby Lobby to contend that a general interest in ending employment discrimination is not sufficient, it must be focused on the particular person burdened: "even if the Government can show that the law is in furtherance of a generalized or broad compelling interest, it must still demonstrate the compelling interest is satisfied through application of the law to the Funeral Home under the facts of this case." (italics in original). Although Judge Cox wrote that he "fails to see how the EEOC has met its requisite 'to the person'-focused showing," he nevertheless stated he would assume it was met.
As to the least restrictive means, Judge Cox's solution is a gender-neutral dress code:
Yet the EEOC has not challenged the Funeral Home’s sex-specific dress code, that requires female employees to wear a skirt-suit and requires male employees to wear a suit with pants and a neck tie, in this action. If the EEOC were truly interested in eliminating gender stereotypes as to clothing in the workplace, it presumably would have attempted to do so.
Rather than challenge the sex-specific dress code, the EEOC takes the position that Stephens has the right, under Title VII, to “dress as a woman” or wear “female clothing” while working at the Funeral Home. That is, the EEOC wants Stephens to be permitted to dress in a stereotypical feminine manner (wearing a skirt-suit), in order to express Stephens’s gender identity.
If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here? Both women and men wear professional-looking pants and pants-suits in the workplace in this country, and do so across virtually all professions.
Of course, the courts have not ruled favorably on challenges to sex-specific dress and grooming codes in the employment context.
Interestingly, Judge Cox also rejected the EEOC's gender discrimination claim based on the funeral home company's clothing allowance policy: there is a monetary clothing allowance to male employees but not female employees. Judge Cox found that this issue was not properly brought by the EEOC.
The EEOC is sure to appeal. If individual employers can claim exemptions to Title VII under RFRA, it could have widespread consequences.
Although it is also possible that a new Congress could amend RFRA.
Monday, August 15, 2016
A court would likely conclude that a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain as you describe is sufficiently similar to the facts in Galloway such that the practice does not violate the Establishment Clause.
Galloway is the United States Supreme Court's sharply divided 2014 opinion in Town of Greece v. Galloway which involved a town board meeting. Justice Kennedy's opinion for the Court in Galloway repeated referred to the issue as whether the "legislative prayer" approved by the Court in Marsh v. Chambers (1983) as part of a historical practice extended to a local legislature, despite the fact that some non-legislative functions occurred at the town board. In the dissent for four Justices, Justice Kagan essentially argued that a prayer at the beginning of a trial was clearly unconstitutional. Indeed, in his separate concurring opinion, Justice Alito seemingly agreed:
I am troubled by the message that some readers may take from the principal dissent’s rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today’s decision leads—to a country in which religious minorities are denied the equal benefits of citizenship.
Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.
At least for Attorney General Ken Paxton, Justice Kagan's hypothetical was not as "highly imaginative" as Justice Alito averred. Paxton's opinion recognizes that the only United States Circuit court opinion to directly consider the issue, North Carolina Civil Liberties Union Legal Found. v. Constangy (4th Cir. 1991), found opening court with prayers unconstitutional, but Paxton opines "other courts deciding the issue may disagree with Constangy that prayer in judicial settings lacks historical foundation." Thus, Paxton states that "a Justice of the Peace's practice of opening daily court proceedings with a prayer by a volunteer chaplain," would not violate the Establishment Clause.
[image: Henry VIII at prayer with Black Book of the Garter via ]
Friday, July 1, 2016
Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination
In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.
The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.
Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago. In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.
Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."
On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:
The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.
Judge Reeves also found that the law would have a discriminatory effect. Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest." But concluded that the interest is "not one with any rational relationship to HB 1523." Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."
On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:
The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.
Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.
Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.
July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)
Saturday, June 4, 2016
In Clay, the Court reversed Ali's conviction for "willful refusal to submit to induction into the armed forces."
The Department of Justice had asserted that Ali's claim for conscientious objector status did not meet the "religious" requirement, even as it had previously been expanded in the now-classic cases of United States v. Seeger (1965) and Welsh v. United States (1970). The Department of Justice had stated:
‘It seems clear that the teachings of the Nation of Islam preclude fighting for the United States not because of objections to participation in war in any form but rather because of political and racial objections to policies of the United States as interpreted by Elijah Muhammad. * * * It is therefore our conclusion that registrant's claimed objections to participation in war insofar as they are based upon the teachings of the Nation of Islam, rest on grounds which primarily are political and racial.’
However, the Department of Justice abandoned that argument before the United States Supreme Court:
In this Court the Government has now fully conceded that the petitioner's beliefs are based upon ‘religious training and belief,’ as defined in United States v. Seeger, ‘There is no dispute that petitioner's professed beliefs were founded on basic tenets of the Muslim religion, as he understood them, and derived in substantial part from his devotion to Allah as the Supreme Being. Thus, under this Court's decision in United States v. Seeger, his claim unquestionably was within the ‘religious training and belief’ clause of the exemption provision.' [quoting the DOJ Brief]. This concession is clearly correct. For the record shows that the petitioner's beliefs are founded on tenets of the Muslim religion as he understands them. They are surely no less religiously based than those of the three registrants before this Court in Seeger. See also Welsh v. United States.
[citations and footnote omitted]
A unanimous Supreme Court thus reversed the conviction in a per curiam opinion. (Thurgood Marshall, who had been Solicitor General, recused himself).
Justice William Douglas, in his inimitable style, concurred separately with a discourse on the Koran and the meaning of “jihad.” Douglas concluded:"What Clay's testimony adds up to is that he believes only in war as sanctioned by the Koran, that is to say, a religious war against nonbelievers. All other wars are unjust."
Monday, May 16, 2016
The Supreme Court today issued a per curiam opinion in Zubik v. Burwell, dodging the question whether the government's accommodation to its contraception mandate under the ACA violates the Religious Freedom Restoration Act, and remanding the case to give the parties a chance to settle in a way that would satisfy everybody's interests. Here's our last post on the case.
The ruling means that religious nonprofits and the government will have a chance to work out their differences and arrive at an accommodation that would both (1) "accommodate petitioners' religious exercise" and (2) "ensur[e] that women covered by petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'" But the parties will do this separately in the Third, Fifth, Tenth, and D.C. Circuits, leading to the possibility that the results will be different, and possibly come back to the Supreme Court next Term.
Whatever happens in the lower courts, however, today's ruling virtual ensures that the issue won't resurface for a ruling at the Supreme Court before the fall elections.
Today's result came about after the Court asked the parties, post-argument, to brief whether "contraceptive coverage could be provided to petitioners' employees, through petitioners' insurance companies, without any such notice from petitioners." Both parties said this could happen. In particular, the non-profits said that their religious freedom wouldn't be infringed if they didn't have to do anything "more than contract for a plan that does not include coverage for some or all forms of contraception," even if their employees would receive free contraception coverage from the same insurance company. The government, for its part, said that it could modify its accommodation and still ensure that women get seamless contraceptive coverage.
The Court was quite careful to say that this is not a ruling on the merits.
Justice Sotomayor, joined by Justice Ginsburg, concurred, underscoring that this isn't a ruling on the merits--or even a signal on the merits--and that lower courts would be wrong to interpret it as such. She also underscored the Court's statements that the parties could fashion an accommodation seamlessly--that is, without establishing a new, separate policy for contraception.
The ruling sends the cases back to the lower courts, gives everyone a chance to figure out how to accommodate everyone's interests, and puts the issue off until after the fall elections (at least).
Tuesday, April 12, 2016
The Tenth Circuit has ruled that the Browns - - - of Sister Wives reality television fame - - - cannot challenge Utah's ban on polygamous cohabitation and marriage under Article III judicial power constraints. In its opinion in Brown v. Buhman, the unanimous three judge panel found that the matter was moot.
Recall that federal district judge Clark Waddoups finalized his conclusion from his previous opinion that Utah's anti-bigamy statute is partially unconstitutional. The statute, Utah Code Ann. § 76-7-101, provides:
- (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
- (2) Bigamy is a felony of the third degree.
- (3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.
[emphasis added]. Judge Waddoups concluded that the "the cohabitation prong does not survive rational basis review under the substantive due process analysis." This analysis implicitly imported a type of equal protection analysis, with the judge concluding:
Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however, is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage.
On appeal, the Tenth Circuit panel held that the district judge should not have addressed the constitutional claims because the case was moot. Even assuming the Browns had standing when the complaint was filed, any credible threat of prosecution was made moot by a Utah County Attorney's Office (UCAO) 2012 policy which stated that "the UCAO will prosecute only those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse." The opinion stated that nothing "in the record" suggested that Browns fit into this category and additionally, there was an affirmation from the defendant that "the UCAO had 'determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of the date of this declaration. ' ”
The opinion found that the "voluntary cessation" exception to mootness was not applicable because that was intended to prevent gamesmanship: a government actor could simply reenact the challenged policy after the litigation is dismissed.
Yet the problem, of course, is that the statute remains "on the books" and the policy is simply not to enforce it except in limited cases. The court rejected all of the Browns' arguments that the UCAO statement did not moot the challenge to the constitutionality of the statute including a precedential one; the possibility that a new Utah County Attorney could enforce the statute; the failure of defendant, the present Utah County Attorney, to renounce the statute's constitutionality; and the tactical motives of the defendant, the present Utah County Attorney, in adopting the policy. The court stated:
The first point misreads the case law, the second is speculative, the third is minimally relevant, and the fourth may actually assure compliance with the UCAO Policy because any steps to reconsider would almost certainly provoke a new lawsuit against him. Such steps also would damage Mr. Buhman’s credibility as a public official and might even expose him to prosecution for perjury and contempt of federal court for violating his declaration. Assessing the veracity of the UCAO Policy must account for all relevant factors, which together show no credible threat of prosecution of the Browns.
Thus, like other criminal statutes that are said to have fallen into "desuetude," the statute seems immune from constitutional challenge.
In a very brief section, the court does note that the plaintiffs no longer live in Utah, but have moved to Nevada, another rationale supporting mootness. The Nevada move is discussed in the video below featuring some of the children involved.
April 12, 2016 in Courts and Judging, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Mootness, Opinion Analysis, Religion, Sexuality, Standing, Television | Permalink | Comments (1)
Thursday, March 24, 2016
The Supreme Court heard oral arguments yesterday in Zubik v. Burwell, the case testing whether the government's accommodation to the contraceptive requirement for religious nonprofits violates the Religious Freedom Restoration Act. Our preview is here.
The big news is, well, that there's no big news. Nothing new came out in oral arguments, and the justices' questions seemed only to put their positions on public display or to help them write their mostly-already-decided decisions. The Court spent plenty of time on how the accommodation works (and therefore whether it's a substantial burden), and whether there are other ways the government can achieve its interests (and therefore whether the accommodation is narrowly tailored). The number and types of exceptions already built into the requirement will clearly play a part in the decisions (because they show, or don't, how the accommodation isn't narrowly tailored, depending on your view). The question where the government does, or can, draw the line between religious nonprofits and churches will also be important (for the same reason). But none of this is really new.
The justices seemed to divide four-four, traditional progressives for the government and traditional conservatives for the nonprofits. Justice Kennedy may have left himself a small (very small) opening to go with the progressives; but if he does, it'll be on narrowly tailoring. (Justice Kennedy bought the nonprofits' theory that the government accommodation "hijacked" their insurance coverage--"hijack" being the word of the day for the nonprofits and the conservatives--and therefore created a substantial burden on their religious practice.)
If there's a four-four split, the lower courts' decisions will stand. This means, without some other action by the Court, that the accommodation will be invalid only in the Eighth Circuit--the only one to rule for the nonprofits so far--and valid in the rest of the country.
Wednesday, March 23, 2016
Argument Preview: Does the Accommodation to the Contraception Requirement Violate Religious Freedom?
The Court will hear oral arguments tomorrow in, Zubik v. Burwell, the case challenging the government's accommodation to the Affordable Care Act's contraception requirement under the Religious Freedom Restoration Act. Here's my preview of the case for the ABA Preview of U.S. Supreme Court Cases, with permission:
Does the federal accommodation to the contraceptive-coverage requirement for religious nonprofits substantially burden their religious practices, and, if so, is the accommodation the least restrictive way to promote a compelling government interest?
The Patient Protection and Affordable Care Act (the “Act,” “Affordable Care Act,” or sometimes called “Obamacare”) requires health insurers and employer-sponsored group health plans to provide certain preventive services to their customers without imposing copayments, deductibles, or other cost-sharing charges. Congress included this requirement in order to encourage individuals to get appropriate preventive care and, as a result, to improve public health. But the Act did not specify the exact preventive services to be covered; instead, Congress provided for coverage of services according to recommendations of medical experts.
The requirement included preventive services specific to women’s health. Congress included these gender-specific services in order to remedy a particular problem—that women pay significantly more for preventive care and thus often fail to seek preventive services. As with the more general preventive services, the Act did not specify the exact gender-specific preventive services to be covered; instead, Congress left this task to the experts, providing for coverage of “preventive care and screenings” specified in “comprehensive guidelines support by the Health Resources and Services Administration” (or “HRSA”), a component of the U.S. Department of Health and Human Services (“HHS”).
In developing the guidelines, HRSA relied on recommendations from the Institute of Medicine (“IOM”), a part of the National Academy of Sciences. IOM recommended including the full range of contraceptive methods approved by the Food and Drug Administration (“FDA”), including oral contraceptive pills, diaphragms, injections and implants, emergency contraceptive drugs, and intrauterine devices. IOM based this recommendation on extensive medical literature establishing that contraceptives greatly decrease the risk of unintended pregnancies and negative health outcomes. IOM cited the deterrent effect of copayments on the use of contraception, and concluded that “[t]he elimination of cost sharing for contraception therefore could greatly increase its use, including the more effective and longer-acting methods.”
HRSA adopted IOM’s recommendations and included all FDA-approved prescription contraceptive methods in its guidelines. The relevant federal agencies (HHS, the U.S. Department of Labor, and the U.S. Department of the Treasury) incorporated the HRSA guidelines in their regulations.
The Act’s preventive-services requirement applies to individual health insurance plans and employer-sponsored group plans. (The Act exempts a small and declining percentage of plans from certain reforms, including the preventive-services requirement. About 25 percent of plans were exempt in 2015.) The requirement is enforced against health insurers by state insurance regulators and HHS; it is enforced against employer-sponsored group health plans through the Employee Retirement Income Security Act (“ERISA”) and a tax penalty on employers with noncompliant plans.
Recognizing that some employers have religious objections to contraceptives, but at the same time that their employees should receive the same access to FDA-approved contraceptives as other individuals in employer-sponsored plans, the relevant departments created an accommodation. This accommodation applied specifically to religious nonprofits that opposed covering contraceptive services on religious grounds. The regulations allowed an objecting employer to opt out of any requirement by sending a simple form (EBSA Form 700) to the plan’s health insurer or third-party administrator (for self-insured plans), or by providing written notification to the Secretary of HHS. (The government adopted the latter procedure in light of the Court’s ruling in Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). In that case, the Court granted an injunction pending appeal to Wheaton College, halting the use of the form, but requiring the plaintiff to inform HHS in writing that it satisfied the requirements for the accommodation. The latter procedure (the letter) is simply an extension of this procedure to all religious nonprofits.) Either method (EBSA Form 700, or written notification to the Secretary) requires an objecting employer to provide only essential information—the basis for its accommodation, the type of plan it offers, and contact information for the plan’s insurer or third-party administrator.
If an objecting employer opts out of the contraceptive-coverage requirement, either the employer’s insurer (for insured plans) or third-party administrator (for self-insured plans) must provide contraceptive coverage to the employer’s employees directly, independently of the objecting employer, and without additional cost to the employees. (Health insurers have to provide contraceptive services, anyway. But the accommodation requires them to provide those services under a plan that is separate and distinct from the objecting employer’s plan. As to third-party administrators to objecting employers: the Act gives them sole legal responsibility for providing contraceptive coverage under ERISA.)
A good number of religious nonprofits have taken advantage of the accommodation. In 2014, HHS provided user-fee reductions to compensate TPAs for making contraceptive coverage available to over 600,000 employees and beneficiaries. In 2015, more than 10 percent of all nonprofit organizations with 1,000 or more employees took advantage of the accommodation.
At the same time, however, more than two-dozen nonprofits objected. These included religious colleges and universities, other religious nonprofits (like Little Sisters), and three Catholic dioceses. (The Catholic dioceses are automatically exempt from the contraceptive-coverage requirement as houses of worship.) They brought nine separate suits in various federal courts around the country, arguing that the accommodation violated the federal Religious Freedom Restoration Act, or “RFRA.” The U.S. Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits rejected these claims. (The U.S. Courts of Appeals for the Second, Sixth, and Seventh Circuits agreed, although those cases are not part of this consolidated appeal.) Only the Eighth Circuit ruled for the plaintiffs.
The federal RFRA says that the government cannot “substantially burden a person’s exercise of religion” unless the burden is “the least restrictive means of furthering [a] compelling government interest.” 42 U.S.C. Sec. 2000bb-1(a) and (b)(2). The Act thus has two prongs: the “substantial burden” prong, and (2) the “fitness” prong, which requires a close fit between the means (here, the accommodation) and the government interest. The courts only consider the fitness prong if the plaintiffs can satisfy the substantial burden prong.
All the lower courts (with the sole exception of the Eighth Circuit) have ruled that the accommodation is not a “substantial burden” under RFRA. As a result, those courts have not even considered whether the accommodation is the least restrictive means to further a compelling interest. Here, the parties argue both.
The plaintiffs argue first that the accommodation is a substantial burden on their religious exercise, because it implicates them in the provision of contraception, contrary to their religious beliefs. In particular, the plaintiffs claim that the accommodation requires them to submit a document that authorizes their own insurance companies or TPAs to provide contraceptive coverage to their own employees and students, in violation of their religious beliefs. They say that the accommodation then requires them to maintain an ongoing relationship with an insurer or TPA that continues to provide contraceptive coverage, again in violation of their religious beliefs. The plaintiffs contend that the accommodation violates their sincerely held religious belief, and that the Court should defer to them on this question.
The plaintiffs argue next that the accommodation is not the least restrictive way that the government can further a compelling government interest. They claim that the government has already granted a number of exemptions from the contraceptive-coverage requirement, leaving out millions of people, for both religious and other, less important, and nonreligious reasons. They say that this shows that the government’s interest in applying the requirement to them (even with the accommodation) cannot be compelling. Moreover, they contend that the government has other ways to provide contraceptive coverage. For example, they claim that the government could provide contraceptive coverage through insurance exchanges, certain existing federal programs, or tax subsidies. Because the government has no compelling interest, and because it has alternative ways to provide contraceptive coverage, the accommodation fails the second prong of the RFRA test.
The government argues first that the accommodation is not a substantial burden on the plaintiffs’ religious beliefs. The government claims that the accommodation allows the plaintiffs to entirely opt out of the contraceptive-coverage requirement, and that the government itself then directly requires insurers or TPAs to provide contraceptive coverage, completely independently and separately from the coverage provided by the plaintiffs. (In this way, according to the government, the accommodation doesn’t force the plaintiffs to authorize the coverage; instead, the law itself requires coverage.) Moreover, the government contends that the plaintiffs’ sincere objections to the government’s independent requirement of third parties (the insurers and TPAs) cannot constitute a substantial burden under the RFRA. If it were otherwise, any religious accommodation could subject countless government programs to RFRA’s stringent second prong and “profoundly impair the government’s ability to accommodate religious objections.”
The government argues next that even if the accommodation amounts to a substantial burden, the accommodation serves a compelling government interest. In particular, the government says that it has a compelling interest in protecting the health of female employees, and that contraceptive coverage advances that interest. The government claims that the plaintiffs are wrong to argue that other exemptions mean that the government lacks a serious compelling interest. After all, it says, most laws have exceptions, and they don’t take away from a law’s purposes. Moreover, the government contends that other exemptions to the contraceptive mandate do not undermine its core purpose and compelling interest. Finally, the government argues that the accommodation serves its interest in the least restrictive way, because it ensures that female employees can automatically receive contraceptive coverage and that they can receive contraceptive services through their regular medical care, without having to sign up for a new and different plan or program (which does not currently exist in federal law).
This is a strange case to wrap one’s head around. That’s because the plaintiffs are not complaining that the contraceptive coverage requirement itself violates their religious freedom. That claim might be understandable. And it would probably be an easy case, in light of the Court’s decision just two Terms ago in Burwell v. Hobby Lobby, holding that the contraceptive-coverage requirement violated the Religious Freedom Restoration Act as to a closely-held for-profit corporation.
But instead, the plaintiffs claim that the government’s effort to exempt them from the contraceptive-coverage mandate violates their religious beliefs. More particularly, they claim that the accommodation violates their religious beliefs, because it triggers the offending government policy. On the face of it, this kind of claim seems to turn the idea of an accommodation on its head. And moreover, as the government argues, it potentially subjects other religious accommodations in other policy areas to similar religious freedom challenges. This could put the government between the Scylla of a policy that might burden a religious practice and the Charybdis of an accommodation to that policy—with a result of forcing the government ship in the future to turn away from a policy altogether. It seems strange and surprising that the RFRA could frustrate this and other government policies this way.
Still, the question is open. The Supreme Court in Hobby Lobby identified the accommodation (the very one at issue here) as an example of how the government might exempt a closely-held, for-profit corporation from the contraceptive-coverage requirement. (The Court used this to show that the government had other, less restrictive ways to further its purpose under the fitness prong of RFRA.) But the Court consciously declined to say whether the accommodation violated the RFRA. As a result, the Court seemed to sanction the accommodation, even as it also seemed to invite this challenge to it.
And speaking of challenges, this is the fourth challenge to the ACA to reach the Court. The first involved challenges to the individual coverage requirement and Medicaid expansion. The Court in NFIB v. Sebelius, 567 U.S. __ (2012), upheld those provisions, with one caveat: the government could not withhold a state’s entire Medicaid budget if the state declined to expand Medicaid (although the government could withhold additional funding for the expansion itself). The second involved a challenge to the contraceptive coverage requirement. The Court in Hobby Lobby ruled that the requirement violated the First Amendment as applied to closely-held, for-profit corporations, although the government could create an accommodation. The most recent challenge involved the subsidies to help lower-income individuals purchase health insurance on the government exchanges. The Court in King v. Burwell, 576 U.S. __ (2015), upheld those subsidies. As a result, ACA challengers have gone 0 and 3, even as they have forced some important changes to implementation of the Act along the way.
There are more challenges in the pipeline, however. One of those involves a challenge to the tax penalty that enforces the individual coverage requirement. Challengers argue that the ACA did not originate in the House of Representatives (as the Constitution requires for revenue-raising bills), and thus the tax penalty is unconstitutional. Another involves a challenge to the government’s subsidies to health insurers to offset their costs in providing certain benefits under the Act. Challengers in the House of Representatives argue that the government spent money for this program without a congressional appropriation. There are others, too.
None of these (including the present case) is likely to threaten the Act in its entirety. But each one (again, including the present case) has the potential to chip away at, or significantly alter, a portion.
Friday, March 4, 2016
The Supreme Court of Alabama has issued its opinions- - - totaling 170 pages typescript - - - in Ex parte State of Alabama ex rel. Alabama Policy Institute, Alabama Citizens Action Program, and John E. Enslen, in his official capacity as Judge of Probate for Elmore County dismissing all pending petitions and motions that seek relief from having to issue marriage licenses. And yet, the lengthy concurring opinions in the case contradict rather than support this dismissal.
Recall that in January, controversial Chief Justice of the Alabama Supreme Court Roy Moore issued an Administrative Order forbidding probate judges from issuing same-sex marriage licenses "contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act" since those laws "remain in full force and effect." Earlier, after an Alabama federal judge issued an opinion finding the denial of same-sex marriage unconstitutional, Justice Moore argued that the Alabama was not bound by the federal courts on the same-sex marriage issue. In a March 2015 opinion in this same case - - - Ex parte State of Alabama ex rel. Alabama Policy Institute - - - known as API, the court, without Justice Moore and over a dissent by Justice Shaw held that the Sanctity of Marriage Amendment, art. I, § 36.03, Ala. Const. 1901, and the Alabama Marriage Protection Act, § 30-1-9, Ala. Code 1975, are constitutional. Recall that the United States Supreme Court declined to stay the federal judge's judgment. A few months later, the United States Supreme Court decided Obergefell v. Hodges holding that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.
In today's opinions, Chief Justice Moore is center-stage and plays a confusing part.
First, he provides a "statement of nonrecusal." He discusses his own participation in various aspects of this continuing litigation and concludes he is not reviewing his own Administrative Order but instead "the effect of Obergefell."
Second, in his own "specially concurring" opinion, his ultimately conclusion is that Obergefell is incorrectly decided and that the Alabama Supreme Court is under no duty to obey it. He writes quite personally:
I took my first oath to support the Constitution of the United States in 1965 at the United States Military Academy on the banks of the Hudson River at West Point, New York. On this very site General George Washington defended the northwest territory against British invasion during the Revolutionary War. I repeated that oath many times during my military service in Western Europe, Vietnam, and locations in the continental United States. Following my military service and upon graduation from the University of Alabama School of Law, I again took an oath to "uphold and support" the United States Constitution. As a private practitioner, deputy district attorney, circuit judge, and Chief Justice of the Alabama Supreme Court on two separate occasions, I took that oath and have administered it to other Judges, Justices, Governors, and State and local officials. In both civilian and military life the oath of loyalty to the Constitution is of paramount importance. **** The oath I took as a cadet at the United States Military Academy at West
Point stated, in part, "that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice." 57 Bugle Notes, at 5 (1965) (emphasis added). Later, as a company commander in Vietnam, I knew the importance of following orders. The success or failure of a mission and the lives of others depended on strict adherence to the chain of command. The principle of obedience to superior orders is also crucial to the proper functioning of a court system. Nevertheless, the principle of obedience to superior officers is based on the premise that the order given is a lawful one.
He then discusses "Lt. William Calley, a unit commander at My Lai in Vietnam who was convicted of killing 22 innocent civilians," to support his "military analogy" that one should not simply "follow orders" when the orders are immoral.
Third, Chief Justice Moore's opinion is the major, if not majority opinion.
The opinion garnering the most Justices - - - three - - - is by Justice Stuart and is quite short, but speaks volumes. It reads in full:
Motions and petitions are dismissed without explanation by this Court for numerous reasons as a matter of routine. When a Justice issues a writing concurring in or dissenting from an order summarily dismissing a pending motion or petition the writing expresses the explanation for the vote of only the Justice who issues the writing and of any Justice who joins the writing. Attributing the reasoning and explanation in a special concurrence or a dissent to a Justice who did not issue or join the writing is erroneous and unjust.
Justice Greg Shaw also concurs specially, but his is the opinion that supports the conclusion. Justice Shaw had dissented from the March 2015 Order. He now concludes that given Obergefell, the March 2015 Order "no longer has a field of operation or any legal effect."
It is the accepted legal doctrine and the historic legal practice in the United States to follow the decisions of the Supreme Court as authoritative on the meaning of federal law and the federal Constitution. Arguments have been put forth suggesting that this doctrine and this practice are incorrect. Those arguments generally have not been accepted by the courts in this country. For example, in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court of the United States rejected the argument by certain state officials that they were not bound by that Court's decisions.
The idea that decisions of the Supreme Court of the United States are to be followed is not something new or strange. Thus, the members of this Court who would follow the Obergefell decision would not, as either Chief Justice Moore or Justice Parker suggests, be "bow[ing their] knee[s] to the self-established judicial despots of America," "blindly follow[ing] the unsubstantiated opinion of 'five lawyers,'" "'shrink[ing] from the discharge'" of duty, "betray[ing]" their oaths, "blatantly disregard[ing] the Constitution," standing "idly by to watch our liberties destroyed and our Constitution violated," participating in the "conversion of our republican form of government into an aristocracy of nine lawyers," or be adhering to a perceived "evil." They would, quite frankly, be doing what the vast majority of past and present judges and lawyers in this country have always assumed the Constitution requires, notwithstanding the unconvincing arguments found in the requests before us and in the specially concurring opinion of Chief Justice Moore. I charitably say the arguments are "unconvincing" because virtually no one has ever agreed with their rationales.
Justice Shaw certainly seems to have the better view and the citation of Cooper v. Aaron is exactly on point. But given the result, it does not seem as if the National Guard will be marching into Montgomery any time soon.
Could this part of the saga be concluded?
March 4, 2016 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fundamental Rights, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Supremacy Clause, Supreme Court (US) | Permalink | Comments (4)
Saturday, January 16, 2016
United States Supreme Court Grants Certiorari in Free Exercise State Funding Case: Trinity Lutheran Church of Columbia, Mo.
The United States Supreme Court has granted certiorari in Trinity Lutheran Church of Columbia, Mo. v. Pauley regarding a Free Exercise and Equal Protection challenge to a denial of state funding that was based on a state constitutional provision prohibiting state funds be given to religious organizations.
As the Eighth Circuit opinion ruling for the state, had phrased it, "Trinity Church seeks an unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church." The Eighth Circuit relied in part on Locke v. Davey, 540 U.S. 712 (2004), in which "the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology." For the Eighth Circuit, "while there is active academic and judicial debate about the breadth of the decision, we conclude that Locke" supported circuit precedent that foreclosed the challenge to the Missouri state constitutional provision.
There are actually two Missouri constitutional provisions, Art. I §7 and Art. IX §8, which as the Eighth Circuit noted, are "not only more explicit but more restrictive than the Establishment Clause of the United States Constitution,” quoting a Missouri Supreme Court decision. The provisions were initially adopted in 1870 and 1875, and re-adopted in the Missouri Constitution of 1945, the current constitution. The first provision is the one at the heart of this dispute. Placed in the state constitution's "Bill of Rights," Art. I §7 provides:
That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect, or creed of religion, or any form of religious faith or worship.
It was in reliance on this state constitutional provision that the state Department of Natural Resources denied the grant application of Trinity Lutheran Church for funds to purchase of recycled tires to resurface its preschool playground. To supply such funds, the state officials decided, would violate the state constitution.
Trinity Lutheran Church articulated the issue in its petition for certiorari as
Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.
It argues that the Eighth Circuit's decision was not "faithful" to Locke v. Davey because the playground resurfacing program was purely secular in nature, unlike in Locke. But this might mean that the state constitutional provisions defining their own boundaries regarding "establishment" of religion are unconstitutional.
Friday, January 15, 2016
New York State Appellate Court Rejects First Amendment Claim in Same-Sex Wedding Discrimination Case
In its opinion in Gifford v. McCarthy, an appellate court in New York upheld the decision of the State Division of Human Rights that the owners of Liberty Ridge Farm, a wedding venue, were guilty of an unlawful discriminatory practice based upon sexual orientation when they refused to provide services for a same-sex wedding. Writing for the unanimous five judge panel, Presiding Justice Karen Peters concluded that the venue was clearly a place of public accommodation within the anti-discrimination law and that discrimination based upon sexual orientation clearly occurred.
On the constitutional issues, Justice Peters found the arguments under both the First Amendment and New York's similar provisions without merit. Regarding the First Amendment Free Exercise of religion claim, Justice Peters concluded that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes (or proscribes)," citing Employment Div., Dept. of Human Resources of Ore. v Smith (1990). She noted that the "fact that some religious organizations and educational facilities are exempt from the [state] statute's public accommodation provision does not, as petitioners claim, demonstrate that it is not neutral or generally applicable."
Applying New York's Free Exercise provision under which the infringement is balanced against the state interests, and Justice Peters wrote:
While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination."
Thus the court rejected the free exercise claims. Similarly, the court rejected the free speech claims of compelled speech and free association. On compelled speech, Justice Peters' opinion for the court concluded that the provision of a wedding venue was not expressive:
Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage. Like all other owners of public accommodations who provide services to the general public, the Giffords must comply with the statutory mandate prohibiting discrimination against customers on the basis of sexual orientation or any other protected characteristic. Under such circumstances, there is no real likelihood that the Giffords would be perceived as endorsing the values or lifestyle of the individuals renting their facilities as opposed to merely complying with anti-discrimination laws.
The court also held that Liberty Farms was not an "expressive association" but a business with the "purpose of making a profit through service contracts with customers." However, the court added that even if Liberty Ridge were to be deemed an expressive enterprise, "a customer's association with a business for the limited purposes of obtaining goods and services – as opposed to becoming part of the business itself – does not trigger" expressive association.
In upholding the application of the anti-discrimination law against First Amendment challenges, the New York appellate opinion joins other courts that have reached the same conclusion: the New Mexico courts in Elane Photography to which the United States Supreme Court denied certiorar and the Colorado courts in Masterpiece Cakeshop. The UK Supreme Court's decision in Bull v. Hall is also consistent with this trend. Nevertheless, the issue is far from settled and more decisions likely.
UPDATE: The owners of Liberty Ridge will reportedly not appeal.
January 15, 2016 in Association, Cases and Case Materials, Current Affairs, Family, First Amendment, Fundamental Rights, Opinion Analysis, Recent Cases, Religion, Speech, State Constitutional Law, Supreme Court (US) | Permalink | Comments (1)