Monday, March 3, 2014

Court Grants Certiorari in Bearded Prisoner Religious Freedom Case

The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:

The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”

455px-Meister_von_San_Vitale_in_Ravenna_013Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith  [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores.   RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases,  prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.

Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally.  For Muslim male inmates, the question of facial hair has been prominent.  While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.

The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages.  Here's the court's analysis:

we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).

The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising.  Fegans  is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.

The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.

[image via]

March 3, 2014 in Congressional Authority, Federalism, First Amendment, Religion, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Thursday, February 27, 2014

Ninth Circuit Orders "Innocence of Muslims" Video Taken Down

The intersection of First Amendment and copyright is not always well-marked and its certainly murky in the Ninth Circuit's divided opinion in Garcia v. Google, involving the controversial "Innocence of Muslims" video posted on YouTube (owned by Google, Inc.). 

Writing for the majority, Chief Judge Alex Kozinski sets the scene:

While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”

The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

The copyright issue seems to be whether an actor can copyright her performance and how issues such as fraud and work-for-hire fit into such an analysis.  Yet even if Garcia prevails in her copyright claim, a First Amendment issue arises with the relief - - - a preliminary injunction.  The majority gives short shrift to Google's First Amendment argument raising such an argument:

The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003). Because Garcia has demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright, Google’s argument fails. The balance of equities therefore clearly favors Garcia and, to the extent the public interest is implicated at all, it, too, tips in Garcia’s direction.

(Recall that the Court in Eldred upheld the Sonny Bono Copyright Term Extension Act and found copyright generally consistent with the First Amendment).

Dissenting, Judge N.R. Smith argued that the First Amendment should be weighed heavily as the public interest militating against a preliminary injunction - - - but only because he believes there is no statutory claim for copyright infringement:

The public’s interest in a robust First Amendment cannot be questioned. See Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). Opposite this vital public interest is Garcia’s allegation of copyright infringement. Properly enforcing the Copyright Act is also an important public interest. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1197 (9th Cir. 2011). Indeed, if Google were actually infringing Garcia’s copyright, the First Amendment could not shelter it. See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003).

But the case at bar does not present copyright infringement per se. Instead (in an unprecedented opinion), the majority concludes that Garcia may have a copyright interest in her acting performance. Maj. op. at 10. As a result, Google’s contention, that issuing a preliminary injunction on these facts may constitute a prior restraint of speech under the First Amendment, identifies an important public interest.

As Judge Kozinski's majority opinion notes, this is "a troubling case."  But while the majority is troubled by the deception of and possible harm to Garcia, others are more troubled by the First Amendment implications of ordering any material removed from YouTube.  YouTube has complied, but has availed itself of the oft-suggested remedy of "more speech" as in the image below:

Screen Shot 2014-02-27 at 12.17.45 PM

February 27, 2014 in Courts and Judging, Current Affairs, Film, First Amendment, Opinion Analysis, Religion, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, February 24, 2014

Harvard Conference on Religious Accommodation

Harvard Law will host a conference in early April, April 3 to April 5, titled Religious Accommodation in the Age of Civil Rights.  It includes a pretty amazing line-up.  Here's the description:

Current controversies over marriage equality, antidiscrimination law, and the Affordable Care Act's contraceptive mandate have raised conflicts between religious claims, on one hand, and LGBT equality and women's rights, on the other.  The conference seeks to deepen our understanding of the competing claims by bringing together nationally recognized scholars in the fields of sexuality, gender, and law and religion.

Click here for more information and registration.

February 24, 2014 in Conferences, News, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, February 21, 2014

Seventh Circuit Pulls Back Curtain on Notre Dame's Challenge to Contraception Mandate

In an opinion dripping with contempt for Notre Dame's litigation strategies and legal theories, the Seventh Circuit today affirmed the denial of a preliminary injunction for the university in its challenge against the contraception mandate in Obamacare.  The ruling in Notre Dame v. Sebelius sends the case back to the district court for full proceedings and denies Notre Dame interim relief.

It also pulls back the curtain on Notre Dame's claim, revealing just how far-fetched it is.

The issue in this case--whether the government's accommodation for religious nonprofits to exempt themselves from the contraception mandate itself violates religious freedom--is the same issue in Little Sisters, the case in which the Supreme Court recently allowed a religious nonprofit to sidestep the mandate and the accommodation pending its appeal on the merits to the Tenth Circuit.

Recall that the government crafted an accommodation to the Obamacare requirement that employers provide health-insurance options that include contraception for females.  The accommodation allowed religious nonprofits (like Little Sisters and Notre Dame) to shift the mandate to their insurers or third-party administrators (which then would have to provide contraception options to the insured employees and students free of charge) by completing a short form indicating that they have a religious objection to contraception. 

Notre Dame, Little Sisters, and other religious nonprofits sued, arguing that the accommodation itself violated the Religious Freedom Restoration Act and the First Amendment.

The Seventh Circuit's ruling addresses only whether Notre Dame qualifies for a preliminary injunction from the accommodation (and mandate) while its case proceeds to the merits.  But in answering that question, the court had to determine whether Notre Dame is likely to succeed on the merits.  And the court said that it wasn't.

Right out of the gate, the court practically mocked the university for asking for something that the court couldn't deliver--because of the university's litigation tactics.  In particular, the court noted that Notre Dame filed its case late, close to the mandate's (and the accommodation's) implementation date, so that it was forced to either file the form for the accommodation or incur fines under the Affordable Care Act.  Notre Dame filed the form, and its administrator notified Notre Dame employees that contraception was available to them.  With the cat out of the bag, the court wondered what relief does Notre Dame want?  Revoking the form would do nothing, because federal law requires the administrator (not Notre Dame) to provide contraception.  But the court can't order the administrator to stop providing contraception, because Notre Dame neglected to join the administrator in the case.

As to the merits, the court was equally dismissive.  In particular, the court rejected Notre Dame's "trigger" theory--that by signing the accommodation form, it triggers, or enables, contraception coverage by a third party, against its religious beliefs.  The court dismissed this out of hand:

The key word is "enable," and it's inaccurate.  Federal law, not the religious organization's signing and mailing the form, requires health-care insurers, along with third-party administrators or self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but [its insurance company and administrator] would still be required by federal law to provide the services to the university's students and employees unless and until their contractual relations with Notre Dame terminated.

The court wrote further,

The novelty of Notre Dame's claim--not for the exemption, which it has, but for the right to have it without having to ask for it--deserves emphasis. . . .  What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. . . . 

The process of claiming one's exemption from the duty to provide contraceptive coverage is the opposite of cumbersome.  It amounts to signing one's name and mailing the signed form to two addresses.  Notre Dame may consider the process a substantial burden, but substantiality--like compelling government interest--is for the court to decide.  Otherwise there would have been no need for Congress in the Religious Freedom Restoration Act to prefix "substantial" to "burden."

The court also held that Notre Dame was not likely to succeed on its Establishment Clause claim, that the Act treats religions differently than religious organizations for the purpose of exemption from the contraception mandate. 

The court did find potential merit in Notre Dame's claim that a regulation that forbids a religious nonprofit from interfering with a third-party administrator's arrangements to provide for contraceptive services violates free speech.  But the court said that the parties "failed to place the issue in focus," and so didn't rule on it.

Judge Flaum dissented, arguing that the court should have granted Notre Dame's motion to dismiss the appeal after three Notre Dame students joined the appeal to argue that Notre Dame's religious conviction was not sincere, and that Notre Dame showed a likelihood of success on the merits.

February 21, 2014 in Cases and Case Materials, Establishment Clause, News, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Sunday, February 9, 2014

The Town Hall Prayer Case in the Supreme Court - - - of Canada

Before the opening of each town hall meeting, the Mayor recites a prayer - - -

Almighty God, we thank You for the many favours that You have granted Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as members of the municipal council and help us to be well aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding that will enable us to preserve the advantages that our city enjoys, so that everyone can benefit from them and we can make wise decisions. Amen.

590px-Ville_saguenay_montage
Montage of the City of Saguenay, Quebec

Although a government official  - - - rather than someone selected by government officials - - - recites the prayer (in French), the similarties to Town of Greece v. Galloway, argued before the United States Supreme Court in November, are obvious.   However, the religious practice of the City of Saguenay in the province of Quebec, is going before the Supreme Court of Canada in Mouvement laïque québécois (MLQ)  v. City of Saguenay.   (Americans might analogize the Quebecois MLQ to American organizations such as Freedom from Religion). 

There's a terrific discussion of the case by Victor Yee over at "The Court," a blog from Osgoode Hall about the Supreme Court of Canada.

Any decision by the Supreme Court could have implications for Quebec's controversial attempt to regulate the wearing of "ostentatious" religious gear by public employees  and might draw on the Supreme Court of Canada's decision in R. v. N.S., involving the right of a witness in a criminal prosecution to wear a veil.   Although the challenge in City of Saguenay is akin to a US Constitutional "Establishment Clause" challenge and the Canadian doctrine of government religious neutrality.

[image via]

February 9, 2014 in Comparative Constitutionalism, Establishment Clause, First Amendment, Religion, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 4, 2014

Fourth Circuit Strikes Proof-of-Religion Requirement in Prison


The Fourth Circuit ruled in Wall v. Wade that a Virginia prison's requirement that inmates show physical indicia of their faith before participating in Ramadan violated the Free Exercise Clause.

The case arose when Wall, an inmate at the Red Onion State Prison, or ROSP, in Pound, Virginia, sought a religious accommodation to participate in Ramadan--special meals served before sunrise and after sunset.  But ROSP policy required prisoners to show "physical indicia" of their faith--such as a Quran, Kufi, prayer rug, or written religious materials obtains from the prison Chaplain's office--before receiving the accommodation.  Wall had none of these, because his "physical indicia" were lost when he was transferred to ROSP from another facility.  So officials denied his accommodation.

Wall nevertheless skipped breakfast and concealed a portion of his meal in his cell to save until after sunset.  ROSP staff discovered the food and threatened to charge Wall with possessing contraband.  As the court wrote, "Faced with choosing between starvation and sanctions, Wall ate during the day and violated his religious beliefs."

Wall filed formal complaints and later sued, arguing that ROSP policy as applied to him violated RLUIPA and the Free Exercise Clause.  The district court dismissed the case, but the Fourth Circuit reversed.

The court held that the policy violated the four-part test in Turner v. Safley:

First, demanding specific physical items as proof of faith will rarely be an acceptable means of achieving the prison's stated interest in reducing costs.  Strict application of such a rule fails even a rational connection requirement. . . .

[Second, i]t is clear that Wall was absolutely precluded from observing Ramadan because of the defendants' actions. . . .

[Third, w]e are not satisfied that the defendants have sufficiently explained how a less restrictive policy would have imposed a significant burden on prison resources. . . .

Finally, we are satisfied that there existed "easy[] [and] obvious alternatives" to the challenged regulation.

The court ruled that Wall's rights were "clearly established," and that ROSP officials therefore did not enjoy qualified immunity.

The court also rejected the claim that Wall's case was moot in light of the Prison's changed policy.  Applying the "voluntary cessation" doctrine, the court wrote,  "We have no difficulty concluding that the defendants failed to meet their "heavy burden" of establishing that it is not "absolutely clear" the 2010 Ramadan policy will not be reinstated." 

February 4, 2014 in Cases and Case Materials, Free Exercise Clause, Fundamental Rights, News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Is RFRA Unconstitutional?

RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and  Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners.  RFRA, 42 USC § 2000bb–1, provides that

(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

™(1) is in furtherance of a compelling governmental interest; and
™(2) is the least restrictive means of furthering that compelling governmental interest.

Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment.  RFRA's findings explicitly state that :

(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.

The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores.  Thus, RFRA cannot constitutionally be applied to state laws. 

So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but"  quickly added.  But RFRA still applies to the federal government.  Or so we assume?

That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton.  Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government.  The brief argues that the "plain language" of the statute

establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.

Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional

has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it.  The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.

Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States.  That may seem highly unlikely, but stranger things have happened.

 

January 30, 2014 in Executive Authority, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Court Offers Conditional, Temporary Relief from Contraception Mandate

The Supreme Court today ordered that the government exempt Little Sisters and like organizations from the contraception mandate in Obamacare if the non-profit organization states "in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services."

The ruling is a conditional, partial, and temporary victory for Little Sisters against the government's attempts to accommodate non-profit religious organizations under the contraception mandate. 

Recall that the Little Sisters organization challenged the accommodation procedure for the contraception mandate under the Religious Freedom Restoration Act.  That procedure requires organizations like Little Sisters--that is, non-profit religious organizations, but not religions--to certify to their third-party administrator that they have a religious objection to the contraception mandate in order to escape providing the coverage directly.  If Little Sisters so certified, its insurance administrator would have to provide contraception without direct cost or involvement of Little Sisters, thus building a fire wall between the organization and the contraception coverage.  But Little Sisters argued that the accommodation procedure itself (let alone the contraception mandate) violated its religious freedom, because the certification procedure amounted to authorizing a third party to provide contraception in violation of the group's religious beliefs.

The district court denied the claim.  Little Sisters appealed and filed for an injunction pending appeal.  The Tenth Circuit denied the injunction, but Justice Sotomayor, the Tenth Circuit Justice, issued a stay against the government.  The Court's order today represents the views of the full Court.

The order grants an injunction, but only conditionally, and only temporarily.  It says that Little Sisters has to certify to the Secretary of HHS that it's a non-profit and that it has a religious objection to the contraception mandate.  Moreover, it only grants an injunction "pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit"--that is, until the Tenth Circuit issues its final ruling.  (That's not to say that the injunction couldn't be renewed pending appeal to the Supreme Court.)

The effect of today's order is to allow Little Sisters to avoid the contraception mandate entirely (as compared to simply putting it on its third-party insurer or administrator, as under the government's certification accommodation) if they properly certify to the Secretary of HHS. 

The Court was careful to say that its ruling today isn't a sign how the Court feels about the merits.

Here's the entire text:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.  To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the government and need not send copies to third-party administrators.  The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court's views on the merits.

January 24, 2014 in Cases and Case Materials, News, Religion | Permalink | Comments (0) | TrackBack (0)

Thursday, January 23, 2014

The Supreme Court's Heavy First Amendment Docket this Term

Last Term, the United States Supreme Court's First Amendment docket was decidedly light.  This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.

Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here.  The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas).  The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.

FirstAmendmentText

 This Term, there is a bounty of First Amendment cases before the Court.

In alphabetical order, they include:

  • Conestoga Wood Specialties Corporation v. Sebelius &  Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act.  The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine.  Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.

  • Harris v. Quinn
    The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers.  Our extensive coverage of the issues is here.  Oral arguments were held January 21 and our analysis is here.

  • Lane v. Franks
    The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator.  Our discussion of the grant of certiorari January 17 is here
  • McCullen v. Coakley  
    This is a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.

  • McCutcheon v. Federal Election Commission
    This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees.  Oral arguments were held October 8, 2013 and our analysis is here.

  • Susan B Anthony List v. Driehaus 
    This case is a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.

  • Town of Greece v. Galloway  This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.  The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity."   The Solicitor General filed a brief supporting the town.  Oral arguments were held in early November and our analysis is here.

  • United States v. Apel  
    Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction.  At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.

  • Wood v. Moss
    Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue.  The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators.  Oral argument is scheduled for March 26, 2014.

ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term.  And First Amendment watchers, scholars, and practitioners may see some important changes.

January 23, 2014 in Association, First Amendment, Religion, Reproductive Rights, Speech, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Oklahoma's License Plate Survives Constitutional Challenge on Remand

Oklahoma District Judge Joe Heaton declined to find that the Oklahoma license plate violated the First Amendment or other constitutional rights of Keith Cressman in his  opinion in Cressman v. Thompson.

Recall that the Tenth Circuit, in a divided opinion in June 2013, held that Cressman had made plausible allegations that the symbol on the Oklahoma license plate - - - arguably the “Sacred Rain Arrow”  - - - could be the basis of a compelled speech claim, similar to the classic First Amendment case of Wooley v. Maynard.

But on remand, Judge Heaton found that the plate's image (pictured below and included as the final page on Judge Heaton's opinion) did not rise to the level of symbolic speech with a particularized message.  Although stating that there should be a broad interpretation, Judge Heaton nevertheless held:

Viewed by itself, all the disputed image involves is a depiction of a Native American shooting a bow and arrow. There is nothing about the image that suggests the man is praying or that the arrow he is shooting is sacred. There is nothing about the image that suggests he is worried about rain, or the lack thereof. There is nothing about the image that suggests he believes in one god, no god, or several. It simply depicts a Native American shooting a bow and arrow.

 

Houser
"Sacred Rain Arrow" sculpture by Allan Houser via

OK-Archer-Plate2Judge Heaton rejected the constitutional significance of the "other things" Cressman learned about the image through "research."  He opined that the "fact that additional research is necessary to know or identify the message of which plaintiff complains is itself “strong evidence” that the image, as such, is not subject to constitutional protection."  Further, the image on the license plate is "not an exact replica" of the "Sacred Rain Arrow” sculpture; the plate image has the arrow pointing at a 60 degree angle "a pose consistent with a variety of scenarios in which a bow and arrow might be used," while the sculpture "involves a Native American shooting his arrow almost vertically into the air, a pose which arguably is more suggestive of a spiritual motive or connection."

Additionally, Cressman did not object to the words "Native America" on the license plate, another distinction from Wooley v. Maynard's "Live Free or Die" New Hampshire license plate.

Judge Heaton's final paragraph expressed a lack of sympathy for Cressman along with a suggestion:

The absence of a constitutional violation does not, of course, mean that plaintiff lacks a practical solution to the problem as he sees it. Oklahoma provides a simple, inexpensive, and readily available alternative, in the form of a specialty plate, for those who object to any aspect of a standard plate, an option which plaintiff has exercised both before and since his concerns with the current standard license plate arose.

January 15, 2014 in Courts and Judging, Due Process (Substantive), Establishment Clause, First Amendment, Religion, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

Government Responds in Contraception Mandate Case

The government on Friday filed its response on the emergency application for an injunction pending appeal at the Supreme Court in the Little Sisters case.  That case tests whether the Obama administration's accommodation for non-profit, religious-affiliated organizations from the "contraception mandate" in Obamacare violates the Religious Freedom Restoration Act.  (This case is different than the Hobby Lobby case, testing whether the "contraception mandate" violates religious freedom of for-profit, non-religious companies.  That case is headed for the Supreme Court.)

We posted most recently on the issue (in another case) here.

Recall that the administration's accommodation allows religious-affiliated non-profits to escape the "contraception mandate" by certifying that they have a religious objection to the mandate.  Then their third-party administrator ordinarily must provide or arrange separate payments for contraception, costs to be reimbursed through an adjustment to federally faciliated exchange user fees.  This accommodation builds a kind of fire-wall between the organization and the third-party administrator's provision of contraception to the organization's employees.

Dozens or scores of organizations balked, however, claiming that the self-certification process violates their religious freedom--on the theory that self-certification is really just an authorization for another party to provide contraception, something that their religious beliefs forbid.  Lower courts are split on whether the accommodation violates the RFRA.

In the Little Sisters case, the district court concluded that the accommodation did not substantially burden the organization's religious liberties--in particular, that the self-certification requirement wasn't a burden, and that the organization's third-party administrator declined to provide coverage, anyway (see below).  The Tenth Circuit denied an injunction pending appeal, but Justice Sotomayor last week issued a stay, prompting DOJ to respond with its Friday filing.

This case is an especially bad test case, though.  That's because Little Sisters' third-party administrator is exempt from the contraception requirement (as a "church plan" under ERISA), and has said that it won't provide contraception.  In short: Little Sisters certifies, its third-party administrator declines to provide contraception (as it may), and no contraception is provided.  As the government explains:

In this case, however, as both of the lower courts again recognized, the third-party administrator of applicants' church plan says it will not provide contraceptive coverage.  As a result, a signed certification will discharge all employer-applicants' responsibilities under the contraceptive-coverage provision, and their employees will not receive such coverage from the third-party administrator.  Given these circumstances, applicants' concern that they are "authorizing others" to provide coverage lacks any foundation in the facts or the law.

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

Monday, December 30, 2013

Court Enjoins Government from Enforcing Contraception Certification

Judge Lee H. Rosenthal (S.D. Texas) on Friday enjoined the government from applying regulations that require "nonprofit religious organizations" to execute the self-certification forms that enable their health insurers to provide health insurance coverage for emergency contraception under Obamacare.

The ruling in East Texas Baptist University v. Sebelius says that the plaintiffs, "nonprofit religious organizations," have a substantial likelihood of success on the merits of their challenge to the regulations under the Religious Freedom Restoration Act.

The ruling is now at least the twelfth on the issue, and the cases are split.  Judge Rosenthal cites the cases in footnote 2, starting on page 2.  (These are different than the challenges to the contraception mandate by secular for-profit corporations, the case going to the Supreme Court.)

The challenged government regulations require "religious employers" that are not exempt from the contraception mandate to self-certify that they meet the criteria for "eligible organization" (opposes contraception coverage, is a nonprofit, and holds itself out as a religious organization) to their insurer or third-party administrator.  If the employer so certifies, the insurer or third-party administrator must expressly exclude contraception coverage from the group plan, but must also provide separate payments for contraception for plan participants.  (The issuer must segregate premium revenue collected from the eligible organization from the monies used to make payments for contraception services.) 

The regs attempt to build a firewall between an eligible organization and contraception provided by the insurer or third-party administrator. They were designed as a compromise for these organizations that aren't churches (on the one hand) or for-profit corporations (on the other, whose challenge to the contraception mandate is going to the Supreme Court), but organizations that have a religious dimension.

Still, many of these organizations have balked at the certification requirement.  And here (and elsewhere), they've won.

Judge Rosenthal ruled that the RFRA uses a subjective standard, from the perspective of the organization, to determine whether the government regs create a substantial burden:

But under RFRA case law, if the plaintiffs are themselves compelled or pressured by threat of punitive fines to: 1) themselves take or forbear from an action; and 2) it is their own action or forbearance that they find religiously offensive, there is a substantial burden.

Op. at 36.

Here he said there was a substantial burden--the self-certification process:

The plaintiffs have demonstrated that the mandate and accomodation will compel them to engage in an affirmative act and that they find this act--their own act--to be religiously offensive.  That act is completing and providing to their issuer or TPA the self-certification forms.  The act of self-certification does more than simply state the organization's religious objection to covering or paying for its employees to get emergency contraception.  The self-certification act designates the organization's TPA as the TPA for contraception coverage.  The act tells the TPA or issuer that it must provide the organization's employees coverage that gives those employees free access to emergency contraceptive devices and products.  That act tells the TPA or issuer that it must notify the employees of that benefit.

. . .

But the self-certification form requires the organizations to do much more than simply protest or object.  The purpose of the form is to enable the provision of the very contraceptive services to the organization's employees that the organization finds abhorrent. . . .  The purpose and effect of the form is to accomplish what the organization finds religiously forbidden and protests.  If the organizations do not act in the way the accomodation requires, they face onerous fines.

. . .

But under the accommodation, the plaintiffs' employees would obtain coverage and no-cost-sharing payments for emergency contraception only because the employees are otherwise covered by the plaintiffs' group health plan.  The government has taken significant steps to separate this payment from the group health plan.  But the coverage and payment for employees to obtain emergency contraceptive products and devices is because those employees are covered by the group health plan that the plaintiff put into place.

Op. at 36-39.

Having determined that there was a substantial burden, Judge Rosenthal proceeded to apply strict scrutiny.  As to the fit under strict scrutiny, the court said that the government didn't satisfy the least-restrictive-means test, because there were other ways for the government to achieve its interests:

The courts have identified several "less restrictive means" of serving the interests the government has identified [in promoting public health and ensuring equal access by women to health care services] than a total denial of the religious exemption request.  One is to have the government provide the contraceptive services or coverage directly to those who want them but cannot get them from their religious-organization employers. . . .  Another alternative would be to have the government work with third parties to provide emergency contraception without requiring the plaintiffs' active participation.  Still another alternative could be to have the employee self-certify on an as-needed basis that their employer is a religious nonprofit that does not provide coverage for such services.

Op. at 43.

The ruling now adds to the body of lower-court case law.  With the growing split, this is surely yet another issue (in addition to the question whether the contraception mandate violates the religious rights of secular for-profits) headed for the Supreme Court.

December 30, 2013 in Cases and Case Materials, Free Exercise Clause, News, Religion | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

Survey of Recent Commentaries on the Religious Rights of Corporations in the Context of the ACA

With Hobby Lobby (and Conestoga Wood) headed to the United States Supreme Court, there's more and more commentary on the issue of whether a for-profit secular corporation, or its "owners" has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause sufficient to be exempted from compliance with the ACA's so-called contraception mandate requiring most employers to provide employees with health insurance that includes contraception.

Interestingly, after the grant of certiorari, some news reports headlined the religiousity of corporations aspect while others headlined the ACA contraception provision. 

The issue has generated many commentaries which often take very polarized positions.  Here's a round-up:

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*     Garrett Epps' Hobby Lobby and the New 'Alienable' Rights in The Atlantic argues that "market triumphalism" is at the heart - - - and will determine - - - cases such as Hobby Lobby.  “In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder.”   The abstract “inalienable” framework of rights in the Constitution has been transformed into rights as  “assets”  that can be treated as property and owned by corporations, especially those that are assumed to “create” the jobs encompassing the rights being asserted by the individuals.  "The employees have no right to complain; they sold their rights on the free market."

*    Richard Garnett's The Righteousness in Hobby Lobby’s Cause in the LA Times argues that Hobby Lobby should be praised for maintaining and supporting responsible corporate ethics through religious commitment. "Like millions of religious believers and groups," these corporations "reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work."  At  "the heart"  of these cases "is the straightforward argument that federal law does not require us to 'check our faith at the door' when we pursue vocations in business and commerce."

*     Linda Greenhouse's  Doesn’t Eat, Doesn’t Pray and Doesn’t Love, in NY Times contends that the conflict is not really over religion but part of the continuing culture war surround sex.  “To the extent that the “contraceptive project” changes anything on the American reproductive landscape, it will be to reduce the rate of unintended pregnancy and abortion. The objection, then, has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby. While most Americans surely share this view, given the personal choices they make in their own lives, many nonetheless find it uncomfortable to acknowledge.”

 *    Dahlia Lithwick's Un-People over at Slate argues that the "conservative crusade to declare everything a “person”—corporations, fertilized eggs—will have disastrous consequences."  Lithwick notes the extension from Citizens United: "Corporate Personhood is back! And this time, it’s got God on its side.”  She predicts the consequences: "If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah's Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws."

*    David Catron's SCOTUS, Hobby Lobby, and Media Practice over at The American Spectator argues against the "mainstream media" characterizations:  “Those Americans still naïve enough to rely on establishment news outlets for information on current events are being told that Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius are part of a sinister conspiracy to restrict access to birth control, endow corporations with religious rights, and escalate the 'war on women.'" Instead, the main question should be this: "Can the government strip individuals of their religious liberties simply because they own a controlling interest in a corporation?"

*    Sally Cohn's When Religion and Liberty Collide over at the Daily Beast draws on originalist interpretations of the First Amendment's religion clauses that  "freedom *from* religion" is central.  She contends that "the settlers who came to America wanted to express their own religious beliefs, but an equal if not greater motivation was escaping the reality of religious tyranny embedded in government," and to "put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us."

*    David Skeel's Corporations and Religious Freedom in WSJ argues that even if corporate religious rights are recognized, that doesn't mean there will be a flood of cases.  Corporations will need to meet the sincerity requirement "and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not."

*    Clarence Page's Law Protects All Faiths, Not All Behavior Op-Ed in The Chicago Tribune discusses the legal landscape in accessible terms, ultimately relying upon the belief/practice distinction as articulated  "in the 1878 test case of the bigamy conviction of George Reynolds, the personal secretary to Mormon leader Brigham Young."

*     Angelo Young's The Same Religious Conviction That Has Hobby Lobby Challenging Obamacare is Also Why Its Full Timers Start at $14 an Hour with Evenings (and Thanksgiving Off)  in International Business Times argues exactly what its title captures.  Focusing on Hobby Lobby, the article has an interview with David Green, the 73-year-old founder, including Green's comments about salary increases because "Our idea is that we should care about our people. It’s just a basic Christian do-unto-others idea."

*    Amanda Marcotte's Christian Conservatives Have Perfected Playing the Victim Card in Salon (via alternet) argues that by the controversy is fueled by conservatives "redefining “religious freedom” to mean its opposite."  She says  the "hope is that by repeatedly using the term “religious freedom” when they mean “giving the Christian right power to impose their faith on others,” they can eventually drain the phrase of all its meaning and finally, after decades of fighting secularism, make it easier for the religious right to strip away individual protections for religion.”

*    Megan McArdle's A Fight Over Contraception Won’t Help Obamacare Op-Ed in Bloomberg contends that the Obama Administration should "pick its battles carefully."  She argues that if the ACA is to be " viable for the long term" it will "need the support of folks like Hobby Lobby."  

We previously discussed
Ruthann Robson's Puzzling Corporations: The Affordable Care Act and Contraception Mandate originally published over at Jurist, and
Marci Hamilton's Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible, originally published over at Justia.

[image via]

ADDITIONS:

Bill Keller, Conscience of a Corporation, Op-Ed Column in NYT (February 13, 2013).

 

 

 

Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpufwere discussed on conlawprof previously

December 13, 2013 in Cases and Case Materials, Current Affairs, First Amendment, Free Exercise Clause, Gender, Interpretation, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Saturday, December 7, 2013

Religious Right Not To Bake a Cake for a Same-Sex Wedding Rejected by ALJ

Wedding-blue-fond-bows-273x300In Craig and Mullins v. Masterpiece Cakeshop, Inc., the subject is not the ACA ("Obamacare") as in the cases recently granted certiorari by the United States Supreme Court, or even a UK hotel or wedding photographs, both of which we discussed here, but a cake.  But all these cases raise a similar question: can a secular for-profit corporation, or its owners, be exempted from a law by reason of a religious belief? 

The 14 page opinion  of the Administrative Law Judge (ALJ) in Masterpiece Cakeshop firmly rejects the arguments of the Cakeshop, reasoning that to accept its position would be to "allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage."  The ALJ was not persuaded by the fact that Colorado, where the cakeshop is located, does not recognize same-sex weddings, because the cakeshop owner admitted he would feel similarly if it were a same-sex commitment ceremony or civil union, neither of which is forbidden by state law.  Indeed, nothing compels the cakeshop or its owner "to recognize the legality of a same-sex wedding or to endorse such weddings," only, like "other actors in the marketplace serve same-sex couples in exactly the same way they would serve heterosexual ones."

The ALJ rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of  "same-sex and heterosexual couples equally is the equivalent of forcing"  adherence to “an ideological point of view.”  The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'"

As to the free exercise claim, the ALJ noted that the regulation at issue distinctly regulated conduct rather than belief.  The ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.  The ALJ also rejected the argument "because the public accommodation law not only restricts their free exercise of religion, but also restricts their freedom of speech and amounts to an unconstitutional “taking” of their property without just compensation in violation of the Fifth and Fourteenth Amendments"  a hybrid right meriting strict scrutiny was involved.  For the ALJ, the "mere incantation" of other constitutional rights does not a hybrid claim create.

The remedy was a cease and desist order rather than damages. 

[image: one of the cakes advertised on the Masterpiece Cakeshop website]

 

 

December 7, 2013 in First Amendment, Food and Drink, Free Exercise Clause, Opinion Analysis, Religion, Sexual Orientation, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, December 1, 2013

Sunday Dress: Protesting "Obamacare" Wearing a Guy Fawkes Mask

Fawkes maskWhile the Guy Fawkes mask is identified with the Occupy movement and with "Anonymous," it has reportedly been adopted by at least one protestor against health care reform - a Florida protestor who was also a police officer carrying a hand gun.

As we've previously discussed, First Amendment challenges to the criminalization of wearing a mask have not been very successful, but there are definitely valid constitutional arguments.  

For ConLaw Profs drafting exam questions, this could be an interesting issue, especially if it were integrated into the other challenges to the PPACA, such as the recent grant of certiorari in Hobby Lobby and Conestoga Wood,  including Judge Rovner's hypotheticals.

More about the arrest and Florida statutory scheme is here. 

December 1, 2013 in Current Affairs, First Amendment, Religion, Speech, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 26, 2013

United States Supreme Court Grants Certiorari on Religious Claims of Secular For-Profit Corporation

As widely expected, United States Supreme Court has granted the petitions for writ of certiorari to the Tenth Circuit's divided en banc opinion in Hobby Lobby v. Sebelius as well as to the Third Circuit's divided opinion in Conestoga Wood Specialties Corporation v. Secretary of Department of Health and Human Services.  

SCOTUS
Supreme Court Justices by Donkey Hotey

 

In lengthy opinions, the Tenth Circuit en banc in Hobby Lobby  essentially divided 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees. 

The majority of the Third Circuit panel opinion in Conestoga Wood Specialities Corporation, articulated the two possible theories under which a for-profit secular corporation might possess Free Exercise rights and rejected both.  First, the majority rejected the notion that the Conestoga Wood Specialties Corporation could "directly" exercise religion in accord with Citizens United v. Fed. Election Comm’n (2010), distinguishing free speech from free exercise of religion.  Second, the majority rejected the so-called "pass through" theory in which for-profit corporations can assert the free exercise rights of their owners, and concluded that the PPACA did not actually require the persons who are owners to "do" anything.

For ConLaw Profs, here are some useful links:  A discussion of the most recent circuit case, decided earlier in November by the Seventh Circuit, is here;  a digest of the previous circuit court cases and some discussion of the controversy is here, some interesting hypotheticals (good for teaching and exam purposes) as posed by Seventh Circuit Judge Rovner are here,  ConLawProf Marci Hamilton's discussion is here, a critique of the sincerity of claims in Eden Foods is here,  a discussion of the district judge's opinion in Hobby Lobby is here,  a discussion of the Tenth Circuit en banc opinion in Hobby Lobby is here, and the SCOTUSblog page with briefs is here.

[image: Supreme Court Justices by Donkey Hotey via]

~Ruthann Robson

November 26, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Family, First Amendment, Free Exercise Clause, Gender, Religion, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, November 24, 2013

Federal District Judge Rules Exemption of Housing as Clergy Income Violates Establishment Clause

Judge_Barbara_CrabbJudge Barbara Crabb (pictured) of the Western District of Wisconsin concluded in her  opinion in Freedom from Religion Foundation v. Lew that 26 U.S.C. § 107(2) violates the establishment clause of the First Amendment to the United States Constitution.

The statute at issue provides that:

In the case of a minister of the gospel, gross income does not include—
 (1) the rental value of a home furnished to him as part of his compensation; or
(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.
 
Judge Crabb's opinion on the merits focuses on the issue of the exemption being granted solely to religious persons.  Following the parties' reliance on a "modified version" of the Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1971), she also gives great weight to Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989), "the only case in which the Supreme Court has addressed the constitutionality of a tax exemption granted solely to religious persons."  The plurality in Texas Monthly  found that the statute exempting from the state sales tax “periodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith” was unconstitutional under the Establishment Clause.  
 
Judge Crabb noted that the defendants did not distinguish Texas Monthly, but instead argued that other cases were controlling, such as the 1970 case of Walz v. Tax Commission of City of New York, although in Texas Monthly the plurality distinguished Walz as being permissible as a broad tax exemption that was not confined to religious institutions or persons.  Judge Crabb also rejected the tax exemption/ tax subsidy distinction argued by the defendants. 
 
Perhaps most interestingly, Judge Crabb rejected the argument by the defendants that §107 was not limited to religious persons.  She wrote:
 

I am not aware of any decision in which a majority of the Supreme Court considered whether a claim under the establishment clause would be defeated if the particular benefit at issue were granted to atheists, but still excluded secular groups. At least in the context of this case, there is a plausible argument that the claim would survive. . . .

Regardless, to the extent defendants mean to argue that § 107(2) is constitutional because of an abstract possibility that an atheist could qualify as a minister of the gospel, I disagree. . . .

In this case, no reasonable construction of § 107 would include atheists. In the concurring opinion in Texas Monthly that defendants cite, Justice Blackmun rejected as “facially implausible” an argument that atheistic literature could be included as part of “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.” Texas Monthly, 489 U.S. at 29 (Blackmun, J., concurring in the judgment). Defendants do not explain why they believe interpreting § 107 to include atheists is any more plausible. Hearings Before the H. Comm. on Ways & Means, 83rd Cong. at 1574-75 (sponsor of § 107(2) stating that purpose of law was to help ministers who are “fight[ing] against” a “godless and anti-religious world movement”).

The issue of whether §107 would plausibly cover atheists was also important to Judge Crabb's conclusion that the plaintiff organization and individual plaintiffs had standing.

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Archbishop's House Chicago

Judge Crabb's opinion centers the exclusion of nonbelievers as well as the Lemon test in a way that some current Establishment Clause litigation fails to do, such as the recent oral argument in Town of Greece v. Galloway.  The constitutionality of government preference for religion over "irreligion" is an unsettled contention at the heart of Establishment Clause jurisprudence.  It ensures the decision will be appealed to the Seventh Circuit.

[image via]

November 24, 2013 in First Amendment, Opinion Analysis, Religion | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

Religious Freedom for Corporations: Hypotheticals from Seventh Circuit Judge Rovner

The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one.  Here's an overview of (and  reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.

RovnerFor those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals.  [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].

Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.

In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS.  The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.

In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."

In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views.  One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement.  The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.

These hypotheticals would make a terrific in class discussion.  They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.

 

Continue reading

November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Saturday, November 9, 2013

Federal Judge Upholds New Jersey's Prohibition of Sexual Conversion Therapy

Federal district judge Freda Wolfson has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie. 

Brain painting

Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”), argued that the statute violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression,  and that the statute survived rational basis scrutiny.

Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:

  “shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”

(emphasis in opinion).  She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE.  She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:

there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.

She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge."  (footnote 22).  Not surprisingly, she finds this standard easily satisfied.  Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.

As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression.  Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.

In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents.  On the other hand, the judge granted intervernor status to Garden State Equality.

The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion. 

The plaintiffs filed a Notice of Appeal  immediately, so the matter is already on its way to the Third Circuit.

[image: Diagram of the Brain circa 1300 via]

November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, November 8, 2013

Seventh Circuit on Corporations as Possessing Religious Freedom and ACA's Contraception Mandate

In its opinions in excess of 150 pages in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, a divided panel of the Seventh Circuit has (again) entered the fray regarding the claim of secular for-profit corporations that rights of religious freedom have been infringed by the (PP)ACA's so-called contraception mandate.  We've discussed the complicated landscape here, and specific cases such as the divided DC Circuit's opinion in Gilardi v. HHS, by the Sixth Circuit in  Eden Foods v. Sebelius and Autocam Corp. v. Sebelius by the divided Third Circuit in Conestoga Wood Specialties Corp. v. Secretary of HHS and, of course, in the divided en banc opinion of the Tenth Circuit in Hobby Lobby, presently before the United States Supreme Court on a petition for writ of certiorari.

In this consolidated opinion in Korte and Grote, the majority of the Seventh Circuit panel - - - in an opinion authored by Judge Diane Sykes and joined by Judge Joel Flaum - - - reiterated its previous views and its previous divide - - - with Judge Ilana Diamond Rovner again dissenting - - - now that the  "appeals have now been briefed and argued and are ready for decision."   

These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substan- tially burdens their religious-exercise rights.  We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious- exercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protect- ing the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.

(emphasis in original). 

Belleville WRF 3
a Korte construction site

Korte & Luite Johan Contractors, Inc., is general contractor in Illinois, employing about 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan, and 87% of the stock is owned by Cyril and Jane Korte, who describe themselves as devout Roman Catholics.  Interestingly, as the opinion relates, in August 2012, the

Kortes discovered that their then-existing health plan covered sterilization and contraception—coverage that they did not realize they were carrying. Because providing this coverage conflicts with their religious convictions, they began to investigate alternative health-care plans with the intention of terminating their existing plan and substituting one that conforms to the requirements of their faith.

But, they now argue, the ACA's contraception mandate stands in their way.  Also interestingly, although not in the court's opinion, the Korte company has been awarded the contract to renovate the Illinois Supreme Court building, in a contract for more than 7 million dollars.

The Grotes include six individual plaintiffs who own and manage Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Indiana, having 1,148 full-time employees at various locations, including 464 in the United States, and providing a health-care plan that is self-insured. 

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The opinions and analysis are extensive, but they provide little that is different from their previous opinions or from other courts' opinions, with the exception of dissenting Judge Rovner's hypotheticals discussed below.  The majority's analysis on the individual plaintiffs focuses on standing and there is no resort to the "pass through" test that some other courts have used.  Regarding RFRA, the majority relies on the Dictionary Act's definition of "person," and concludes that covering corporations within RFRA is not a "poor fit," indeed,

A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations—religious nonprofits—have religious-exercise rights under both RFRA and the Free-Exercise Clause.

The majority uses a series of First Amendment Free Exercise Clause cases, including Sherbert v. Verner, the Seventh Day Adventist employee seeking workers' compensation benefits, and Braunfeld v. Brown, the "Jewish merchants" challenging a Sunday-closing law, to conclude that such" cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test."

Dissenting, Judge Rovner contends that while her "esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights," she believes that the majority's  "holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise," because the majority "extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship."  She continues regarding the substantial burden - - - or what she sees as a lack therefof - - - and  notes that the majority "permits the plaintiffs to invoke their free exercise rights offensively rather than defensively, in a way that circumscribes the rights Congress has given to employees, by permitting the corporate employers to rewrite the terms of the statutorily- mandated health plans they provide to their employees."

Judge Rovner's opinion is most provocative - - - and probably most useful for Constitutional Law Professors - - - in providing three hypotheticals worth considering. [Update: discussion of hypotheticals here].

November 8, 2013 in First Amendment, Opinion Analysis, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)