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)
Friday, July 12, 2013
A three-judge panel of the Fourth Circuit upheld the employer mandate in the Affordable Care Act. The ruling in Liberty University v. Lew deals a significant blow to challengers of the Act's requirement that large employers provide affordable health care coverage to full-time employees and dependents or pay a fine. Unless and until it's appealed to the full Fourth Circuit and the Supreme Court--and unless and until one or the other reverses--the ruling upholds the employer mandate.
The ruling is notable, because it says that Congress had authority under the Commerce Clause to enact the employer mandate. (Recall that five Justices on the Supreme Court said last summer in National Federation of Independent Business v. Sebelius that Congress exceeded its authority under the Commerce Clause to enact the individual mandate.) What's the difference? See below.
The case is a hold-over from the Supreme Court's ruling last summer in National Federation of Independent Business v. Sebelius. Recall that the Court in that case held that the Anti-Injunction Act did not bar a the suit challenging the individual mandate, and that the individual mandate was a valid exercise of Congress's taxing power. The Court also remanded Liberty University to the Fourth Circuit for a ruling consistent with NFIB. (The Fourth Circuit previously held that the Anti-Injunction Act deprived it of jurisdiction to rule on the merits and dismissed the case.)
The Fourth Circuit followed NFIB's lead and ruled that the employer mandate (like the individual mandate in NFIB) was not a "tax" for purposes of the Anti-Injunction Act. (The court also ruled that Liberty University had standing to lodge its pre-enforcement challenge of the employer mandate, and that the individual named plaintiffs had standing to challenge the individual mandate.)
On the merits, the court ruled that the employer mandate is a valid exercise of Congress's Commerce Clause authority. (Recall that five members of the Supreme Court in NFIB said that the individual mandate exceeded Congress's Commerce Clause authority, even if it fell within Congress's taxation power.) What's the difference between the employer mandate and the individual mandate? In short, unlike individuals who have not purchased health insurance, employers operate in interstate commerce, and health insurance is part of their employees' compensation package, which itself is regulable under the Commerce Clause. The Fourth Circuit explained:
To begin, we note that unlike the individual mandate . . . the employer mandate does not seek to create commerce in order to regulate it. In contrast to individuals, all employers are, by their very nature, engaged in economic activity. All employers are in the market for labor. And to the extent that the employer mandate compels employers in interstate commerce to do something, it does not compel them to "become active in commerce," [NFIB, emphasis in original]; it merely "regulate[s] existing commercial activity," id., i.e., the compensation of employees . . . .
Further, contrary to Liberty's assertion, the employer mandate does not require employers to "purchase an unwanted product." . . . Although some employers may have to increase employee compensation (by offering new or modified health insurance coverage), employers are free to self-insure, and many do.
(Interestingly, the court dropped a footnote, note 7, that says, "We express no opinion as to whether the limitation on the commerce power announced by five justices in NFIB constitutes a holding of the Court." We covered that topic here.)
Following NFIB, the court also upheld the individual mandate under Congress's taxing power, and applied that ruling to uphold the employer mandate under Congress's taxing power.
The court also rejected the plaintiffs' religion claims--based on the First and Fifth Amendments (equal protection) and the Religious Freedom Restoration Act.
July 12, 2013 in Cases and Case Materials, Commerce Clause, Congressional Authority, Establishment Clause, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Friday, June 28, 2013
Tenth Circuit Recognizes For-Profit Corporations as Having Religious Freedom and Free Exercise Rights
In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.
Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees. We've previously discussed the issue and the circuit split here.
The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states. The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust. Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."
The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges. But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment. The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits.
Judge Timothy Tymkovich's more than 65 page opinion for the majority concluded that
Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.
Only a plurality of judges would have resolved the other two preliminary injunction factors - - - balance of equities and public interest - - - in Hobby Lobby and Mardel’s favor, thus the remand.
The majority, however, held
as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.
(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment. However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands. First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim). Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).
It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)." The majority found this distinction to be one that cannot be supported by First Amendment doctrine. It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights:
The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.
Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.
While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy.
Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point
nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”
The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested. This may certainly be going (back) to the United States Supreme Court.
June 28, 2013 in Campaign Finance, Congressional Authority, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Privacy, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)
Monday, April 15, 2013
The Roberts Court majority is avoiding taxes: not the income taxes revealed by the returns due today, April 15, but the constitutional scrutiny that taxes deserve.
Law Prof Linda Sugin (pictured left), in her article The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, draft available on ssrn, analyzes two cases that are not typically paired.
First, she considers National Federation of Independent Business v. Sebelius, in which, as she describes it, Justice Roberts' "newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause."
Second, she examines Arizona Christian Schools v. Winn, in which, as dhe describes it, the majority "adopted a novel judicial approach to targeted tax benefits" and denied standing in an Establishment Clause challenge.
Sugin argues that these two cases, taken together, "challenge the revenue-raising role of the tax law, and give it tremendous potential to overcome constitutional obstacles that legislatures face," including state legislatures. She contends that the cases "introduce confusion into the law of taxation by incentivizing the adoption of more non-revenue policy in the tax law, and blurring the conceptual structure of taxation." She claims that "these decisions undermine the important work on tax reform and fiscal responsibility that other branches of government are doing." Ultimately, she argues that these decisions portend that "policies administered through the tax law" will be deemed constitutional "even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending."
Worth a read and not only on "tax day."
Tuesday, April 9, 2013
A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.
The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission. The dolls were said to have the weight and size of a 12-week-old fetus. Relentless members apparently distributed them to educate fellow students and to protest abortion. But that message only backfired:
Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck. Dolls were used to plug toilets.
Op. at 7-8. And on and on.
The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers. (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)
So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.
The Tenth Circuit rejected each of these claims. As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own. Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption." Op. at 16. The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square. Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how. The court said that the plaintiffs failed to show any arbitrary enforcement.
As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions." As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.
Wednesday, April 3, 2013
North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause. The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.
But the bill doesn't just take aim at the Establishment Clause. It also challenges federal supremacy and takes on federal judicial review. Here are some of the whereases:
Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .
Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and
Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and
Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .
Here's the punch-line:
Section 1. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.
Section 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivision of the State from making laws respecting an establishment of religion.
Monday, April 1, 2013
In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.
Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints. The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed. Batts dispatched this argument with a rehearsal of the causal connections:
But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.
She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.
The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.
In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971). The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion. Judge Batts found it important that
there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.
She disagreed that the size of the cross was determinative. First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall. Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."
As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review. The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history. The museum has the choice whether or not to include atheistic symbols.
Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful. It looks as if the September 11 Museum will include the seventeen foot cross.
Friday, March 1, 2013
The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.
The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center. The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene. The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused. So the Foundation asked the Mayor to include its sign in the display; the sign read:
At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, No heaven or hell. There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.
The Mayor declined. He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment. The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech. The Sixth Circuit rejected the claims.
The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally. (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling." Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.)
The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech. The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.