Thursday, September 11, 2014
Third Circuit Upholds New Jersey's Ban on Sexual Conversion Therapy Against First Amendment Challenge
The Third Circuit has upheld the constitutionality of New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in its unanimous 74 page opinion in King v. Christie, Governor of New Jersey.
The Third Circuit affirmed the district judge's extensive opinion from last November and reached the same conclusion as the Ninth Circuit did when reviewing a very similar California statute in Pickup v. Brown, albeit on different grounds.
The Third Circuit's opinion by Judge D. Brooks Smith (and joined by Judges Vanaskie and Sloviter), specifically disagrees with the Ninth Circuit's conclusion that SOCE is "conduct" rather than speech, a conclusion the New Jersey district judge essentially adopted. The Third Circuit credits some of the reasoning of Ninth Circuit Judge O'Scannlain's "spirited dissent" from en banc review in Pickup as well the Supreme Court's Holder v. Humanitarian Law Project. The Third Circuit rejected the principle that there is a sustainable line between utterances that are speech and those that are treatment:
consider a sophomore psychology major who tells a fellow student that he can reduce same- sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely this advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct” when the speaker is a licensed counselor.” . . . . As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.
Yet, the court concludes that although such utterances are speech, they are not "fully protected by the First Amendment" because they occur in a professional context. In speech that occurs pursuant to the practice of a licensed profession - - - including fortune-tellers, a case on which the court relies - - - the speech is entitled to less protection.
Precisely, it is entitled to the same level of protection as commercial speech, although importantly the Third Circuit is careful not to hold that this professional speech is commercial speech. In applying the intermediate scrutiny type standard derived from commercial speech, the court finds that the statute "directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”
The court's distinction between professional and nonprofessional speech, however, may suffer from the same lack of bright lines that it finds with the conduct/speech distinction. The court stresses that professional speech occurs in the context of "personalized services to client based on the professional's expert knowledge and judgement." But in rejecting an argument that the New Jersey statute makes a viewpoint distinction, the court states that the statute
allows Plaintiffs to express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a very specific way—by actually rendering the professional services that they believe to be effective and beneficial.
The Third Circuit's opinion also considered the challenge that the statute was vague and overbroad, noting that the Plaintiffs themselves claim to specialize in the very practice they argue is not sufficiently defined. Similarly, the Third Circuit rejected the Free Exercise Clause claim, affirmed the district judge's conclusion on lack of standing to raise the claims of the minor clients (with some disagreement as to reasoning), and also affirmed on the intervention of an organization.
However, it is the free speech claim that it is the center of this controversy, with the Third Circuit carving out a "professional speech" category, in a disagreement with the Ninth Circuit (and on similar issues with other circuits as it notes), but clearly upholding the statute.
[images from "Ten Days in a Mad House, Nellie Bly, via]
Thursday, August 28, 2014
In a brief Memorandum and Judgment in Brown v Herbert federal district judge Clark Waddoups has finalized his conclusion - - - and made appealable - - - his previous decision that Utah's anti-bigamy statute is partially unconstitutional.
Recall that the Utah provision at issue criminalized bigamy as defined as including when a married person "purports to marry another person or cohabits with another person."
The challengers to the statute, the Browns, are famous from the reality program Sister Wives and the accompanying book. The show includes "commitment ceremonies" between Cody brown and subsequent wives. They are represented by ConLawProf Jonathan Turley who blogs about this judgment, including the possibilities of appeal, here.
It does seem that given the breadth of the statutory proscription on "bigamy" that includes cohabitation, an appeal might be ill-advised. A strict enforcement of the statute would mean that anyone whose divorce was not final and who cohabited with another person might be guilty of bigamy.
Wednesday, August 27, 2014
Sixth Circuit Rejects First Amendment Challenge by "Bible Believers" Excluded From "Arab International Festival"
A divided Sixth Circuit considered the problem of the hecklers' veto, as well as free exercise and equal protection claims, in its opinion today in Bible Believers v. Dearborn County, with the majority of the panel finding that the district judge's grant of summary judgment in favor of the government should be affirmed.
The controversy arose when a group known as the "Bible Believers," Evangelical Christians, came to the Arab International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - - to "preach." Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g., "Islam Is A Religion of Blood and Murder"), a "severed pig's head on a stick" (intended to protect the Bible Believers by repelling observers who feared it), statements through a megaphone castigating the following of a "pedophile prophet" and warning of "God's impending judgment." A crowd gathered, seemingly mostly of children, who yelled back and threw items at the preachers. A law enforcement asked the Bible Believers to leave, and - when pressed - saying they would be cited for disorderly conduct: "You need to leave. If you don’t leave, we’re going to cite you for disorderly. You’re creating a disturbance. I mean, look at your people here. This is crazy!” They were eventually escorted out.
On the free speech claim, the opinion written by Judge Bernice Donald found there was little disagreement that the Bible Believers "engaged in protected speech" and "that the Festival constituted a traditional public forum."
More contentious, however, was whether the government's actions were "content neutral." The court first concluded that the operations plan was to "ensure safety and keep the peace" and thus to be evaluated under the standard of Ward v. Rock Against Racism. But the court also extensively analyzed whether the heckler's veto principle was operative: "[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” citing Forsyth Cnty. v. Nationalist Movement (1992). Yet raising listener "reactions" circles back to the issue of whether the speech was protected and the court discussed two Supreme Court cases from the mid-twentieth century—Terminiello v. City of Chicago, 337 U.S. 1 (1949), and Feiner v. New York, 340 U.S. 315 (1951)— as providing "some initial boundaries for the heckler’s veto doctrine." In applying these cases, as well as Cantwell v. Connecticut, 310 U.S. 296 (1940) (as Sixth Circuit precedent), the court, referencing a video from Festival incident, found that there was actual violence and that law enforcement was simply discharging their duty to maintain the peace and removing the speakers for their own protection.
For Judge Eric Clay, dissenting, "law enforcement is principally required to protect lawful speakers over and above law-breakers." Judge Clay also notes that it was the government that moved for summary judgment and that reliance on a video is problematical:
The key fact in our case, by contrast, is the question of Plaintiffs’ intent. That is not a fact shown on the videotape—it is an idea that existed in the mind of the speakers. Jurors might conceivably find an intent to incite based on inferences drawn from Plaintiffs’ sermonizing. We judges are prohibited from doing so.
While there are free exercise, equal protection, and municipal liability isses, the majority treats these summarily, and clearly the central issue is speech that provokes - - - and may be intended to provoke - - - a violent reaction from a crowd.
Monday, August 18, 2014
Reversing the district judge's decision rendered more than 18 months ago which we discussed here, the Second Circuit's opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment's Free Exercise Clause.
The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision. The Second Circuit's unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law. [*]
The opening of the court's opinion is telling:
In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).
Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the
Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.
Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is "simpler to address" than was true in Lukumi "in light of the Department’s own admission that metzitzah b’peh 'prompted' § 181.21 and that metzitzah b’peh is 'the only presently known conduct' covered by the Regulation."
The court notes that "the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims."
The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.
The court remanded, but denied the request for a stay of the enforcement of the regulation. The district judge's original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.
[*] updated: The Second Circuit did not reach the compelled speech argument; h/t Josh Blackman.
Friday, August 1, 2014
Affirming the opinion of United States District Judge Deborah Batts, the Second Circuit's opinion in American Atheists v. Port of Authority of NY and NJ held that there is no Establishment Clause violation when the National Museum at the former World Trade Center towers destroyed on September 11, often colloquially known as the "Ground Zero" Museum or the September 11 Museum, chose to display a large Latin cross.
Importantly, the cross is placed in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” as part of the September 11 historical narrative. On appeal, the American Atheists seemingly narrowed the original challenge and argued that the defendants "impermissibly promote Christianity in violation of the Establishment Clause and deny atheists equal protection of the laws by displaying The Cross at Ground Zero in the Museum unaccompanied by some item acknowledging that atheists were among the victims and rescuers on September 11."
The unanimous panel's 42 page opinion applies Lemon v. Kurtzman to the Establishment Clause issue and much more briefly considers the equal protection argument.
Here's the court's summary of its conclusion:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
It would be doubtful if this case goes any further; the cross at the museum looks as if it is there to stay.
Monday, July 14, 2014
The Second Circuit ruled last week in Holland v. Goord that prison authorities substantially burdened a Muslim prisoner's free exercise of religion when they punished him for failing to complete a urine test within a three-hour window during fasting time for Ramadan. The plaintiff couldn't complete the test because he refused to drink water during his fast. (H/t to reader Jeff Wadsworth.)
The ruling means that the case goes back to the trial court to determine whether the prison authorities had a sufficient penalogical interest in requiring the urine test (and the water drinking, in order to facilitate the test) under Turner v. Safley. But that doesn't look good for the state: the Second Circuit noted that there was no good reason why the authorities couldn't administer the test (and require the plaintiff to drink water) after sundown (indeed, the plaintiff suggested this option himself). It also noted that the prison subsequently changed its own regulations to allow a religious accommodation to urine testing.
The Second Circuit rejected the plaintiff's invitation to disregard the "substantial burden" test from Employment Division v. Smith. Instead, the court ruled that the urine test met that requirement, drawing on its own cases saying that the denial of a religious meal is a substantial burden on religion.
The court also rejected the trial court's conclusion that the urine test and water drinking were mere de minimis burdens (because the plaintiff could have made up a drink of water during the fast with one extra day of fasting). The court said that the plaintiff sufficiently showed that this would have been a "grave sin," even if he could have made up for it.
Because the state changed its rules on urine testing to allow a religious accommodation, the court denied the plaintiff's request for injunctive relief under both his free exercise claim and his RLUIPA claim. The court rejected other claims, too. But it remanded the free exercise claim for determination whether the state had a sufficient penalogical interest in conducting the urine test the way that it did, and, if not (as is likely), for money damages.
Seventh Circuit Finds Indiana's Clergy-Only Marriage Solemnization Statute Violates the First Amendment
In its 11 page opinion today in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana Code §31-11-6-1 violates the First Amendment. The provision specifies who can solemnize a marriage and includes "religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies." The plaintiffs, a humanist group and a leader of the group deemed a "secular celebrant," were not allowed to solemnize a marriage unless they obtained clergy credentials or "called themselves a religion."
Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between "religious and secular beliefs that hold the same place in adherents’ lives," citing the well known conscientous objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison. There is not, Easterbrook wrote, an "ability to favor religions over non-‐‑theistic groups that have moral stances that are equivalent to theistic ones except for non-‐‑belief in God or unwillingness to call themselves religions."
As for Indiana's argument that the humanists were not actually being excluded from solemnizing marriages under the statute, the court had this to say:
Adherents to faiths with clergy can be married in two steps: first they obtain a license, Ind. Code §31-11-4-1, and then they have the marriage solemnized by a priest or equivalent person in the list in §31-11-6-1. (Plaintiffs do not challenge the licensure statute, because religion is irrelevant to that procedure.) Humanists could achieve the same result in three steps: first get a license, then have a humanist celebrant perform a public ceremony appropriate to their beliefs, and finally have a clerk of court or similar functionary solemnize the marriage. That’s true enough—but it just restates the discrimination of which plaintiffs complain. Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.
Interestingly, the opinion also had something to say about the equal protection problems of the statutory scheme, noting that the distinctions between religions that have clergy and those that do not as well as "the state’s willingness to recognize marriages performed by hypocrites," violate the Equal Protection Clause:
It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.
The court found Indiana's reliance on the Supreme Court's most recent Establishment Clause decision, Town of Greece v. Galloway inapposite, easily distinguishing Galloway as not being about the regulation of private conduct as the Indiana solemnization statute was.
The decision could pave the way for other First Amendment challenges to solemnization statutes that provide a special status for religious clergy.
Geoff Stone (Chicago) writes over at Huffington Post that religious tests for public office, which are still around in eight state constitutions, may well be upheld by the Roberts Court, should they ever be tested.
Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas all have these provisions, though they go unenforced. That's because the Court struck these tests in 1961 in Torcaso v. Watkins. But Stone says if the issue were to return to this Court, testing one of the eight state constitutional provisions, the five conservative justices may well reverse Torcaso and uphold the religious test.
But why would they disagree with Torcaso? After all, the reasoning of that unanimous decision seems clearly correct. But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court in 1961. This is so across a range of issues, but perhaps most conspicuously in the realm of religion. Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.
Stone cites Hobby Lobby and Town of Greece as just two recent decisions supporting this conclusion. Stone also argues that these five justices have already demonstrated their willingness to overturn well settled precedent. See Citizens United; Heller; Gonzales v. Carhart.
Monday, July 7, 2014
Tom Goldstein and Marty Lederman debated the impact of the Wheaton College ruling on contraception coverage for Wheaton College students and employees (and, by extension, other religious non-profits' employees) over at SCOTUSblog. The back-and-forth provides a nice window into the more technical aspects of the somewhat mysterious ruling.
At the core of the debate: whether federal regs allow the government to treat Wheaton College's health insurer as a "plan administrator" under ERISA, even if Wheaton College doesn't file Form 700. (Recall that the Court enjoined the government's use of Form 700 against Wheaton College and said that Wheaton College could instead file a letter stating its religious objections. Wheaton College's health insurer is only required to provide free contraceptive coverage if it is a "plan administrator" under ERISA.) Marty argues that it's complicated, and that without Form 700 there may be no regulatory trigger for the government to treat the insurer as a "plan administrator" and therefore to require it to provide free contraceptive coverage. Tom argues that it's not so complicated: the regs allow the government to designate other forms (like the Court's letter) to treat an insurer as a "plan administrator." All the government has to do is so designate the letter (Underscoring Tom's interpretation: the Court wrote in its Order that "[n]othing in this order precludes the Government from relying on this notice [the letter by Wheaton], to the extent it considers it necessary, to facilitate the provision of full contraception coverage under the Act." That seems to say that the Court sees its letter as potentially triggering the treatment of Wheaton College's insurer as a "plan administrator.")
In a separate post, Tom theorizes about Justice Breyer's position in the case.
Saturday, July 5, 2014
The Supreme Court this week enjoined the exemption for religious non-profits from the requirement that employer group-health insurance plans include contraceptives. That exemption allowed a religious nonprofit to notify its health insurer or third-party administrator (using "EBSA Form 700") that it had a religious objection to providing contraceptive coverage; at that point, the insurer or administrator would have to provide contraceptives directly to the organization's employees, free of charge. This week's short, unsigned Order halted the use of EBSA Form 700 and said that petitioner Wheaton College, a religious college in Wheaton, Illinois, could instead write a letter to HHS informing the agency that it is a religious organization and that it has a religious objection to providing coverage for contraceptive services.
In short, the ruling replaced HHS's process for religious exemption (EBSA Form 700) with its own (a letter to HHS).
The ruling strikes a second serious blow to the contraception requirement. (The first came earlier this week in Hobby Lobby, which allowed closely-held, for-profit corporations to exempt themselves from certain contraceptives under the requirement, but almost certainly opened up a much wider hole in the requirement (and potentially in many other government regulations).) The Court was careful to write that its ruling was not a conclusion on the merits. But it's hard to read it any other way, particularly in light of the mertis discussion in the dissent, the fact that the Court drafted its own exemption procedure for religious non-profits (supplanting HHS's procedure), and the Court's suggestion that it'll take up the merits soon enough.
The ruling isn't clear on how religious non-profits' insurers or administrators will have to provide contraceptive coverage. Here's the problem: The insurers or administrators only have to provide contraceptive coverage directly to employees upon learning that a religious non-profit objects, usually through receipt of the EBSA Form 700; but the Court's Order says that Wheaton College and by extension other religious non-profits don't have to complete that form. This leaves it to HHS to figure out whether and how to require insurers and administrators to provide contraceptive coverage directly to the organization's employees.
The Order is strange on several levels. For one, it replaced the HHS exemption (EBSA Form 700) with its own (a letter to HHS). But it's not at all clear that the Court's exemption is any less intrusive on Wheaton College's freedom of religion (at least as the College has defined it in challenging EBSA Form 700): Why is writing a letter to HHS any less intrusive than filing Form 700 and sending it to the insurers and administrators? Wheaton College claimed that the mere certification of its religious objection to the contraception requirement violated its religion (because it made Wheaton College complicit in someone else providing contraception), so why is the letter any better than the form?
For another, it's also not clear why the Court would take such an aggressive action (essentially overruling a valid federal rule and replacing it with its own) at this stage of the litigation (on an application for an injunction), when the circuits are split on the issue (which, as the dissent points out, has been a basis for denying an injunction by some of the very justices who joined the Court in this Order (including Chief Justice Roberts)). This hardly seems like a Court merely calling balls and strikes.
For yet another, the Order seems inconsistent with the Court's ruling just earlier this week in Hobby Lobby. In that case, the majority pointed to HHS's exemption for religious non-profits (the exact same exemption at issue here) as evidence that the contraception requirement for closely held for-profits wasn't narrowly tailored--that is, that the exemption was a way that the government could achieve its interest in providing contraception while still giving closely held for-profits an out. Yet in this later ruling, the Court stepped back from that exemption and replaced it with its own.
Finally, there's the strangeness that a government-created religious exemption could itself violate free religion. This is the point that Judge Posner made so strongly in his opinion rejecting Notre Dame's challenge to the exemption.
Justice Sotomayor wrote a lengthy and vigorous dissent, joined by Justices Ginsburg and Kagan, covering everything from the extraordinary relief the Court granted under the very high standard of the All Writs Act to the merits. She also distinguished the Little Sisters case, in which the Court also allowed a letter to replace the EBSA Form 700: Little Sister's third-party administrator was itself a church plan and exempt from the contraception requirement, so nobody's access to contraception was affected. Here, the Court's injunction risks depriving employees of Wheaton College of contraception, because the insurer or the administrator only have to provide it upon receipt of the EBSA Form 700. But under the Court's Order, they won't receive the EBSA Form 700.
As with Hobby Lobby, it's clear that this ruling will extend far beyond the facts of this particular case, likely even farther than the Court itself thought. How far? As with Hobby Lobby, only time will tell.
Thursday, July 3, 2014
In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.
Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith.
As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA. The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens."
However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA." Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens. But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:
the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?
[Opinion at 33].
Thus, the motion argues that
a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.
Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.
The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.
Wednesday, July 2, 2014
The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs. (The only requirement: the reg has to pose a substantial burden on the belief. But we saw in Hobby Lobby itself how easy it is to meet that standard.) If so, those regs would be subject to RFRA's strict scrutiny test. That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.
In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws. The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches. We can expect to a flurry of cases testing this.
So: What now?
ConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog. Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.
You might say that these options are unfriendly to religions. But Robson tells us why it's really the ruling itself that's religion-unfriendly. Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations. That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women. (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners. The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)
Robson's right. And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc. She concludes:
While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA. Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA. What Congress giveth, it can taketh away. And it should.
Monday, June 30, 2014
Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"
On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act) to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? Here's our primer on the issues for more detail. Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results.
The oral arguments in March were contentious and so too are the opinions in this 5-4 decision.
The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim. The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.
The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.
Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong. However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.
Justice Kennedy writes a brief concurring opinion. As we discussed, Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.
The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg, joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons). The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal.
[citations and footnotes omitted].
Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."
However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.
June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)
Friday, June 27, 2014
Here's the problem:
In August 2008, a municipality erected a sign "Bible Baptist Church Welcomes You!," with a directional arrow and “1 BLOCK” written on it, and depicting a gold cross and a white Bible, on a right of way bordering a property owner's property. The property owner engaged in a bit of her own speech, on her own property, posting a sign of her own directly in front of the church sign which read "This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!” The municipality threatened the property owner with sanctions for her sign, which she removed. The propery owner filed a complaint pursuant to 42 USC §1983 in federal court in November 2012 alleging constitutional violations by the municipality based on the church sign, which remains standing, and her own offending sign, which she had removed. The state statute of limitations for tort claims is two years.
The Third Circuit's opinion in Tearpock-Martini v. Borough of Shickshinny addressed exactly this problem. The complaint alleged that the "church sign" violated the Establishment Clause, while the threats to prosecute plaintiff for erecting her own sign violated both the Equal Protection Clause and the First Amendment. Generally, because §1983 does not have a statute of limitations, state law provides the applicable time limitations. The district judge dismissed the complaint based on the statute of limitations because the actions occurred more than two years prior to the filing of the complaint. Reversing on the Establishment Clause claim only, the Third Circuit found that the state statute of limitations did not bar the claim.
The plaintiff's attorney argued that the two year statute of limitations for the church sign should be viewed as a "continuing violation." As the court noted, this is more often part of a statute of limitations inquiry in an employment discrimination case: "where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern." But here, the court accepted the municipality's argument that the continuing violation doctrine does not apply because the sign "is merely an effect" of the action - - - erecting the sign - - -that was within the statute of limitations.
But the Third Circuit found that the state's two year statute of limitations was inapplicable because although §1983 does not have a statute of limitations and state law provides the pertinent time limitations, this is true only "if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261 (1985). The Court found that Establishment Clause rights are very important and that while other constitutional rights are also important
what further distinguishes Tearpock-Martini’s claim, and Establishment Clause claims in general, is that the traditional rationales justifying a limitations period—“to protect defendants against stale or unduly delayed claims,” “facilitat[e] the administration of claims,” and “promot[e] judicial efficiency,” [citation omitted] —simply have no persuasive force in this context. Tearpock-Martini’s challenge is to a still- existing monument that communicates anew an allegedly unconstitutional endorsement of religion by the government each time it is viewed. Strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display.
Moreover, the Third Circuit noted that it could not find any precedent for finding an Establishment Clause challenge time-barred in a passive monument case, and indeed the cases were the opposite, citing, most persuasively, Van Orden v. Perry, 545 U.S. 677 (2005) (display of Ten Commandments challenged 40 years after installation).
The Third Circuit's conclusion seems exactly right: how can there be a statute of limitations on an Establishment Clause violation of a passive monument? However, in this case, because this particular plaintiff knew about the sign, and even objected to it, one could have expected her to act more quickly. Yet the very notion of an Establishment Clause violation caused by a still existing monument or even sign is that it is a continuing one.
Tuesday, June 17, 2014
Over a dissent from Justice Scalia, joined by Thomas, the United States Supreme Court decided not to review the closely watched Elmbrook School District v. Doe. The case was relisted by the Court at least ten times before the petition for certiorari was finally denied.
Recall as we discussed almost two years ago, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church. Justice Scalia's dissent contended that because the Seventh Circuit's opinion is now "fundamentally inconsistent" with a "number of points" "made clear" by Town of Greece v. Galloway - - - this Term's controversial 5-4 decision upholding town council's prayer - - - "the Court ought, at a minimum, to grant certiorari, vacate the judgment, and remand for reconsideration (GVR)."
Yet Scalia's dissent might be most noteworthy for its casual evisceration of the Establishment Clause:
Some there are—many, perhaps—who are offended by public displays of religion. Religion, they believe, is a personal matter; if it must be given external manifestation, that should not occur in public places where others may be offended. I can understand that attitude: It parallels my own toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.
My own aversion cannot be imposed by law because of the First Amendment. See Ward v. Rock Against Racism, 491 U. S. 781, 790 (1989); Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975). Certain of this Court’s cases, however, have allowed the aversion to religious displays to be enforced directly through the First Amendment, at least in public facilities and with respect to public ceremonies—this despite the fact that the First Amendment explicitly favors religion and is, so to speak, agnostic about music.
(emphasis in original).
However, with the denial of certiorari in Elmbrook School District, the line between adult activities such as legislative meetings and "school" activities such as graduations persists in Establishment Clause doctrine.
Wednesday, June 11, 2014
The Sixth Circuit today denied a preliminary injunction to a group of religious employers and religious nonprofits challenging the exemption from and the accommodation to the contraception mandate in the Affordable Care Act. The ruling is just the latest in a line of challenges to the accommodation. We posted most recently here. (These cases are different than the Hobby Lobby case now before the Supreme Court: these cases involve religious nonprofits that take issue with the accommodation to the contraception mandate, where the Hobby Lobby case involves a corporation's challenge to the mandate itself.)
The cases are unusual, even surprising, in that the plaintiffs challenge the government's attempt to accommodate their religious beliefs as itself a violation of their religious rights.
The organizations challenged the exemption from and the accommodation to the mandate under the Religious Freedom Restoration Act and the First Amendment (speech and religion clauses). The court ruled that they failed to demonstrate a likelihood of success on the merits and thus affirmed the lower court's denial of a preliminary injunction.
The court noted that some of the plaintiffs were religious employers who qualified for the exemption from the mandate. Because the exemption exempts them, and because it does not require any particular act on the part of the organizations, the court said that the exemption didn't violate the organizations' speech or religious rights.
As to the religious non-profits, the court said that they qualify for the accommodation by simply certifying that they object to the mandate--and that this didn't interfere with their religious or free speech rights. The court rejected the plaintiffs' arguments that the certification itself somehow implicated the organizations in providing contraception in violation of their religious rights or free speech rights. In language shy of, but no less certain than, the almost hostile ruling by Judge Posner in the Seventh Circuit rejecting a similar claim the court said,
The appellants are not required to "provide" contraceptive coverage. . . . The appellants are not required to "pay for" contraceptive coverage. . . . Moreover, the appellants are not required to "facilitate access to" contraceptive coverage. . . . Submitting the self-certification form to the insurance issuer or third-party administrator does not "trigger" contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.
The D.C. Circuit this week rejected a variety of claims by Guantanamo detainees for mistreatment by government officials and guards even after they had been cleared for release by the Combat Status Review Tribunal. The court also rejected the plaintiffs' request to remand the case to amend their complaint.
The case, Allaithi v. Rumsfeld, involved detainee claims of "forced grooming, solitary confinement, sleep deprivation, forced medication, transport in 'shackles and chains, blackened goggles, and ear coverings,' and the disruption of . . . religious practices," even after some of the plaintiffs were cleared for release by the CSRT. The plaintiffs brought claims against government officials and Guantanamo guards under the Alien Tort Statute, the Geneva Convention, the Vienna Convention on Consular Relations, the First Amendment, the Due Process Clause, and the Religious Freedom Restoration Act.
As to the ATS, the court held that the defendants were acting within the scope of their employment, which, under the Westfall Act, transforms their ATS claim into a Federal Tort Claims Act claim against the government. But the plaintiffs didn't pursue administrative remedies under the FTCA, so their case was dismissed.
As to the Vienna Convention, the court said that the Convention confers a private right of action.
As to the other, Bivens claims, the court held, citing its second Rasul ruling, that the defendants enjoyed qualified immunity, or, alternatively, that the case raised special factors counseling against a Bivens remedy.
June 11, 2014 in Cases and Case Materials, Due Process (Substantive), First Amendment, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Thursday, June 5, 2014
In her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.
Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.
It is a phenomenon Katz labels "fanciful precedent." She contends it was operative in last Term's controversial Shelby County v. Holder.
She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown.
Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March.
Friday, May 23, 2014
Lithwick highlights the Supreme Court's recent decision in Town of Greece v. Galloway upholding the constitutionality of Christian prayers at a town board meeting and the upcoming decision in Hobby Lobby on the claims of a for-profit corporation to an exemption from the federal requirement that employer insurance coverage include contraception benefits.
She is very complimentary of the biography:
In Bruce Allen Murphy, Scalia has met a timely and unintimidated biographer ready to probe. A professor of civil rights at Lafayette College, Murphy refuses to be daunted by the silence that surrounds most discussions about religion and the Court. In his view, understanding one of the most dazzling and polarizing jurists on the Supreme Court entails, above all, examining the inevitably murky relationship between judicial decision making and religious devotion.
Indeed, she writes
Murphy does not shrink from adjudicating Scalia’s dueling public claims: that separating faith from public life is impossible and, at the same time, that he himself has done just that on the Court.
From Lithwick's review, A Court of One is a must-read this summer. But Lithwick's review is also a must-read; she conjectures that "Murphy misses the moral of his own story."
Tuesday, May 13, 2014
The Supreme Judicial Court of Massachusetts ruled last week that the daily recitation in school classrooms of the Pledge of Allegiance, with the words "under God," did not violate the state constitutional equal rights amendment. The case, Doe v. Acton-Boxborough Regional School District, was brought by a group of atheist and Humanist students, who claimed that the words "under God" alienated them and caused them to become outsiders because of their religion. (The plaintiffs only argued equal protection; they did not bring a religion clause claim.)
The Massachusetts high court rejected the argument. It said that the Pledge was voluntary; that reciting the Pledge was a "patriotic exercise," not a "religious exercise," even with the words "under God"; and that in any event the plaintiffs didn't show that they had been treated differently because of their religion. On that last point, the court said that the practice or reciting the Pledge treated all students the same: each student, regardless of religion, could say it along with the rest of the class, or not. Here's the court:
Where the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religion rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion. [Citing Harris v. McRae and San Antonio v. Rodriguez.] Where the program or activity is applied equally to all students, and where those who object to it are not required to participate, or may choose to participate in all parts of it that they do not find objectionable, the feeling of "stigma" caused by seeing or hearing the program being provided to others is not legally cognizable for purposes of the equal rights amendment. Any claim that, by conducting the program or activity for others who do not choose to participate, the school has publicly repudiated a plaintiff's beliefs and thereby rendered him or her a "second-class citizen" or "outsider" is not tenable, and we decline to apply [state constitutional equal protection] in this fashion.