Tuesday, September 1, 2015
District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"
In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer. While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.
Judge Leon applied rational basis review, but declared that
Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!
Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.” This not only oversimpliﬁes the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation. For the following reasons, I conclude that it most assuredly is.
In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:
HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of human life. HHS may be correct that this objection is common among religiously-affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not.
In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection. Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny.
Interestingly, Judge Leon states that "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.” Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.
In his application of RFRA, Judge Leon's opinion is on more well-plowed ground. He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds." This brings the case within the purview of Hobby Lobby. As Judge Leon phrases it:
The ﬁnal question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!
While Judge Leon dismissed the free exercise claim, based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).
When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.
September 1, 2015 in Abortion, Courts and Judging, Current Affairs, Equal Protection, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0)
Tuesday, August 18, 2015
A few months after the United States Supreme Court issued its decision in Obergefell v. Hodges, reversing the Sixth Circuit's opinion, and declaring that the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples, the issue of same-sex marriage is again reaching the Sixth Circuit.
This time, however, the issue is whether a government employee, a court clerk in Kentucky, can refuse to issue same-sex marriage licenses - - - or any marriage licenses - - - based upon a claim of free exercise of religion. The claim of religious exemptions from state clerks is not new (consider events in New York in 2011); neither are objections to implementing the Court's decision in Obergefell (consider events in Alabama this summer). Nevertheless, this controversy has become particularly focused.
United States District Judge David Bunning's Opinion and Order last week in Miller v. Davis issued a preliminary injunction in favor of April Miller and Karen Roberts, enjoining Rowan County Clerk Kim Davis from applying the "no marriage licenses" policy. The Judge rejected Davis' First Amendment claims. First, Judge Bunning found that Governor Beshear's directive to county clerks to issue same-sex marriage licenses was a general law of neutral applicability that "likely does not infringe on Davis' free exercise rights." Second, Judge Bunning further found that the issuance of the marriage license did not implicate Davis' free speech rights: the issuance of the license, even with the clerk's certification, is not an endorsement and furthermore is quite possibly government rather than individual speech, citing the Court's decision in Walker v. Sons of Confederate Veterans from last Term. Judge Bunning also rejected Davis' third - and perhaps the most interesting - claim based upon Article VI §3 prohibiting a "religious Test" as a qualification for public office. Davis argued that this prohibition meant that her religious beliefs must be accommodated. Even as he rejected this interpretation, Judge Bunning drew attention to the "first half" of Article VI §3 requiring state officials to take an oath to defend the United States Constitution.
Davis predictably sought a stay of the preliminary injunction. In an Order late yesterday, Judge Bunning denied the stay, including in his 7 page opinion an extensive quote from Obergefell regarding the relationship of religious freedom to same-sex marriage. Yet Judge Bunning did stay the order denying the stay:
in recognition of the constitutional issues involved, and realizing that emotions are running high on both sides of the debate, the Court finds it appropriate to temporarily stay this Order pending review of Defendant Davis’ Motion to Stay (Doc. # 45) by the Sixth Circuit Court of Appeals.
While decisions to stay and to issue preliminary injunctions involve equitable and other factors, of central prominence is the probable outcome on the merits. Thus, the Sixth Circuit is again poised to consider, albeit less directly, the issue of same-sex marriage.
Saturday, August 8, 2015
The Second Circuit this week became the latest court to reject religious organizations' challenge to the religious accommodation to the ACA's contraception mandate. The Second Circuit joined six other circuits in rejecting the surprising claim that a barely burdensome religious accommodation itself violates the Religious Freedom Restoration Act.
With seven circuits now rejecting the novel claim (with no circuit accepting it), and with the accommodation designed around a Supreme Court order, one might reasonably wonder why plaintiffs keep bringing and appealing these cases. Surely they have better things to do with their time and money than to bring such transparently harassing and abusive claims. (Indeed, one might wonder: At what point should a court consider Rule 11 sanctions?) Still . . . .
The Second Circuit ruling is comprehensive and well analyzed, concluding that the accommodation (to simply notify HHS, either by form, or by letter) isn't substantially burdensome. But after 47 pages, here's the gist:
The burden that the accommodation places on Plaintiffs is merely one notification, equivalent to the burden historically placed on draft registrants to indicate their conscientious objections to military service. Once Plaintiffs avail themselves of the simple, non-burdensome means of opting out, the regulations do not require them to play any role in the provision of contraceptive coverage or to suffer punishments for not doing so. To the contrary, the accommodation relieves them of providing contraceptive coverage, and instead enlists third-party administrators to provide such coverage. If a regulatory scheme that might otherwise violate an objecting individual's rights under RFRA allows the objector to exempt himself from compliance via a simple, non-burdensome act of notification, there is no substantial burden. Furthermore, subsequent regulation of non-objecting parties in a manner that an objecting party finds offensive does not transform the act of opting out into a cognizable substantial burden. The rights conferred by the First Amendment and RFRA do not include a right to have the government or third parties behave in a manner that comports with an individual's religious beliefs.
Tuesday, July 14, 2015
The Tenth Circuit today rejected statutory and First Amendment challenges to HHS's religious accommodation to its contraception mandate under the Affordable Care Act. We most recently posted on the issue, in the Notre Dame case in the Seventh Circuit, here.
The plaintiffs in the case--Little Sisters of the Poor, Southern Nazarene, and Reaching Souls--argued that the HHS requirement that they notify their health insurance providers, third party insurers, or HHS (with a simple letter) in order to get out from under the contraception mandate violated the Religious Freedom Restoration Act, free exercise and establishment of religion, and free speech.
The Tenth Circuit rejected the claims. In a lengthy opinion that comes with its own glossary and table of contents, the court ruled that it wasn't the plaintiffs' accommodation (the notification of their objection) that triggered the provision of contraceptions; it was the law. (Judge Posner arrived at the same conclusion with more colorful language in the Notre Dame case.) Given this, there was no substantial burden on religion under RFRA. Moreover, the court said that the accommodation met rational basis review under the Free Exercise Clause, that it didn't discriminate between religions and religious organizations in violation of the Establishment Clause, and that the accommodation didn't amount to compelled speech under the First Amendment.
Monday, July 6, 2015
Judge Posner explained (yet again) last week why HHS's contraception mandate under the Affordable Care Act doesn't violate religious freedom, in particular, the Religious Freedom Restoration Act. His previous explanation in the Notre Dame case is perhaps the best statement why the accommodation to the mandate doesn't violate religious freedom; his ruling in the continuing, and up-and-down, Wheaton College case is next best.
Wheaton College, a nondenominational evangelical college in Wheaton, Illinois, challenged HHS's accommodation to its requirement that colleges provide contraception as part of their health-insurance policies. Wheaton College doesn't object to all the contraception required under the mandate, only those that it considers abortifacients.Still, the College apparently wasn't satisfied with the Supreme Court's instruction to simply inform the government of its objections (at which point the government would tell the insurers to provide the contraception to Wheaton students and employees free of charge, reimbursed by the government)--a religious accommodation. The College argued that this accommodation itself meant that the government would take over its insurance plan, interfere with its contractual relationship with its insurer, and force it to be complicit in its insurer's provision of contraception. The College sought a preliminary injunction. But the Seventh Circuit rejected the motion.
Judge Posner explained why the accommodation (the requirement to tell the government of its religious objections to contraception) didn't violate RFRA:
Wheaton's antipathy is to having any contractual relations with insurers who provide emergency contraception to members of the Wheaton College community. Because they are "its" insurers, someone not in the know might think it "complicit" in the insurers' provision of a type of coverage that offends Wheaton's religious views. But where's the complicity?
In any event, termination of the [insurance] contracts would give Wheaton only temporary relief, since the government would notify any new insurers hired by Wheaton of their legal obligation to provide emergency-contraceptive coverage.
In short: It's the government, not Wheaton College, that mandates contraception coverage; and the accommodation only requires Wheaton to inform the government of its objection. How can you get an accommodation if you can't inform the government of your objection?
Thursday, July 2, 2015
After the United States Supreme Court's opinion in Obergefell v. Hodges on June 26 declaring that states are required by the Fourteenth Amendment to issue same-sex marriage licenses, a few state officials have not only voiced objections to the decision, but have voiced resistance to complying with the Court's declaration.
The situations in Alabama and Texas have been the most contentious.
ALABAMA: Recall that earlier this year when federal District Judge Callie V.S. Granade entered an injunction against the enforcement of the state's constitutional amendment and statutes banning same-sex marriage, the reaction of Alabama Supreme Court's controversial Chief Judge Roy Moore was an unusual letter to the Governor objecting to the federal judge's opinion on the basis that federal courts have no power in this Biblical area. This was followed by an opinion of the Alabama Supreme Court ordering judges not to issue same-sex marriage licenses. The Eleventh Circuit, and then the United States Supreme Court denied a stay of the district judge's opinion.
When the Court took certiorari in Obergefell, however, Judge Granade stayed her order.
However, after the Court decided Obergefell, the Alabama Supreme Court's "corrected order" stated that because the US Supreme Court rules allow parties 25 days to file a petition for rehearing, the parties in the case - - - including two conservative Alabama organizations - - - were invited to submit briefs on the effect of Obergefell. Federal District Judge Callie Granade issued a one-page Order on July 1, referenced her earlier stay and then stated:
The United States Supreme Court issued its ruling on June 26, 2015. Obergefell v. Hodges, 576 U.S. ____ (2015). Accordingly, by the language set forth in the [previous] order, the preliminary injunction is now in effect and binding on all members of the Defendant Class.
Thus, the officials of Alabama are subject to a direct order by a federal judge.
TEXAS: The Attorney General of Texas, Ken Paxton, who is reportedly facing criminal charges on unrelated matters, issued a six page opinion letter a few days after Obergefell which stressed the individual religious rights of county clerks and their employees, as well as justices of the peace and clergy, regarding their participation in same-sex marriages. Paxton's opinion was widely reported and concluded that county clerks retain religious freedoms that "may allow" accommodations depending "on the particular facts of each case." Paxton relied on the First Amendment as well as Texas's Religious Freedom Restoration Act (RFRA), essentially similar to the federal RFRA at issue in the Court's decision in Hobby Lobby. This is not unique: the possibility of claims by individual public employees in clerk's offices was also raised after New York passed its Marriage Equality Act in 2011 and as that act made clear - - - as is generally understood - - - that religious officers have complete discretion in agreeing or refusing to solemnize marriages.
The Fifth Circuit issued a very brief opinion on July 1, noting that "both sides now agree" that the the injunction appealed from, originally issued in early 2014 by federal district judge Orlando Garcia in DeLeon v. Perry [now Abbott], "is correct in light of Obergefell," the Fifth Circuit ruled that the preliminary injunction is affirmed.
The Fifth Circuit's opinion makes clear - - - seemingly with state agreement - - - that Texas is bound by Obergefell, but does not mention individual religious accommodations.
In both the Alabama and Texas situations, there are echoes of resistance to the Supreme Court's opinion in Brown v. Board of Education; The Supremacy Clause and the Court's opinion in Cooper v. Aaron seem to answer the question of whether state officials simply may disagree with the Court's interpretation of the Constitution. This is true despite the dissenting opinions in Obergefell itself which argued that the Court should leave the resolution of same-sex marriage to individual states. The question of religious accommodations may be a closer one, but what seems clear is that if there is indeed an individual right to be accommodated - - - again, that itself is unclear - - - it cannot be a right of a government entity. While Hobby Lobby may have held that corporations have religious freedoms, it is hard to conceive of government entities having free exercise rights in a manner that does not violate the Establishment Clause.
July 2, 2015 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0)
Tuesday, June 30, 2015
Oklahoma Supreme Court Declares Ten Commandments Monument at State Capitol Unconstitutional Under State Constitution
In a relatively brief opinion today in Prescott v. Oklahoma Capitol Preservation Commission, Oklahoma's highest court found that a Ten Commandments monument on the Oklahoma Capitol grounds violated the state constitution, Article 2, Section 5, which provides:
No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.
While the monument was a gift and no public funds were expended to acquire the monument, the court agreed that its placement on the Capitol grounds constituted the use of public property for the benefit of religion, emphasizing that the constitutional provision included the words “directly or indirectly.”
The court noted that the Legislature and Governor authorized the monument relying on the United States Supreme Court’s decision Van Orden v. Perry (2005), but noted that Van Orden was decided under the First Amendment’s Establishment Clause. Here, the Oklahoma Supreme Court interpreted the broader and more precise language of the Oklahoma state constitution. The Oklahoma Supreme Court’s opinion contained the requisite language insulating it from United States Supreme Court review under the adequate and independent state grounds doctrine so important to federalism:
“Our opinion rests solely on the Oklahoma Constitution with no regard for federal jurisprudence. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).”
Two justices dissented, without opinion.
Saturday, May 23, 2015
Federal appeals courts this week dealt two (more) blows to opponents of Obamacare's religious accommodation to the contraception mandate. A Seventh Circuit panel ruled that the accommodation did not violate the Religious Freedom Restoration Act as interpreted by the Supreme Court in Hobby Lobby, and the full D.C. Circuit declined to re-hear an earlier panel ruling against opponents.
Together the rulings should put an end to this chapter of challenges to Obamacare. But by now we've learned never to say never . . . .
The cases grow out of religious non-profits' opposition to the government-created religious accommodation to Obamacare's contraception mandate. The accommodation requires a religious non-profit to complete a form to notify its health insurer (or third-party administrator) that the non-profit objects to providing contraception as part of its health insurance plan. The law then requires the insurer or third-party administrator to provide contraception coverage directly to plan participants, free of charge.
Opponents say that the accommodation--the form that notifies the insurance company of the religious objection--itself violates the Religious Freedom Restoration Act, because it "triggers" the provision of contraception coverage to plan participants.
The Seventh Circuit categorically rejected that claim last February. But then the Supreme Court handed down Hobby Lobby, holding that the contraception mandate violated the RFRA as applied to a self-insured, closely-held, for-profit corporation, and requiring an accommodation. But Hobby Lobby also contained language suggesting that an accommodation of the type challenged by religious non-profits would skirt any RFRA problem. The Supreme Court then vacated the Seventh Circuit ruling and remanded for reconsideration in light of Hobby Lobby.
The Seventh Circuit panel this week again ruled against the challengers, citing the same problems in the original case (before Hobby Lobby)--under the law the non-profit doesn't act as a "conduit" for the provision of contraception (the law itself does this), and the case was under-developed at the trial level. As to Hobby Lobby, the panel said that the Supreme Court recognized the accommodation as valid, but that the Court "did leave open . . . the possibility that the accommodation sought and obtained there would not prevent religious beliefs or practices from being substantially burdened in some cases." But the Seventh Circuit said that those beliefs or practices weren't burdened here, by the accommodation. In particular, the court wrote that Notre Dame couldn't come up with any workable alternative to the accommodation that wouldn't "impede the receipt of [contraception] benefits," especially given the undeveloped factual record in the case.
The D.C. Circuit (also, and again) came to the same conclusion in denying a rehearing en banc. Its earlier panel ruling in Priests for Life came down after Hobby Lobby, so already considered any effects of that case.
The principal problem with the challenges is that, contrary to the challengers' claims, it's not the accommodation that triggers the provision of contraception; it's the law that does that. In the language of the Seventh Circuit, the non-profits don't act as a "conduit" for the provision of contraception, because the law itself requires insurers and administrators to provide contraception. And a mistaken interpretation of the law is not a burden on religion. Or, as Judge Pillard put it in her concurring opinion to the D.C. Circuit's denial of en banc review:
The dispute we resolved is legal, not religious. Under the ACA regulations, a woman who obtains health insurance coverage through her employer is no more entitled to contraceptive coverage if her employer submits the disputed notice than if it does not. The ACA obligation to provide contraceptive coverage to all insured women does not depend on that notice. Nothing in RFRA requires that we accept Plaintiffs' assertions to the contrary.
Tuesday, April 28, 2015
The Court today heard oral arguments in two parts in the consolidated cases of Obergefell v. Hodges on certiorari from the Sixth Circuit opinion which had created a split in the circuits on the issue of the constitutionality of same-sex marriage bans. There have been a record number of amicus briefs filed in the cases highlighting the interest in the case.
For oral argument on the first certified question - - -does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? - - - Mary Bonauto argued for the Petitioners; Solicitor Donald Verrilli argued for the United States as amicus curiae supporting Petitioners; and John Bursh, as Special Assistant Attorney for Michigan argued for Respondents.
For oral argument on the second certified question - - - does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state? - - -Douglas Hallward-Driemeier argued for Petitioners and Joseph Whalen, Associate Solicitor General of Tennessee, argued for Respondents.
The Court and the advocates acknowledged that the second question is only reached if the first question is answered in the negative: Justice Ginsburg and Justice Kagan both posited this principle with Hallward-Driemeier and Whalen, respectively, agreeing. Chief Justice Roberts noted that" we only get to the second question if you've lost on that point already, if we've said States do not have to recognize same-sex marriage as a marriage," and later raised the issue of whether the second question made practical sense:
It certainly undermines the State interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere. It'd simply be a matter of time until they would, in effect, be recognizing that within the State.
The themes of the oral arguments held no surprising issues:
Is a same-sex marriage decision by the Court premature? Interestingly, Justice Kennedy pointed out that it is "about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years."
Should it be the Court or the states that should decide? The question of the proper role of judicial review has long preoccupied the courts in the context of same-sex marriage. Justice Scalia raised this issue several times, but when John Bursh raised it on behalf of Michigan, Justice Kagan responded that "we don't live in a pure democracy; we live in a constitutional democracy."
Is the race analogy apt? Bursch distinguished Loving (as well as Turner v. Safley and Zablocki v. Redhail) because previous cases involved man-woman marriage and "States' interest in linking children to their biological" parents.
Is there a slippery slope? What about polygamous and incestuous marriages? What about age of consent laws?
What about religious freedom? How do we know that ministers won't be forced to perform "gay marriages"?
Should the case be resolved on Equal Protection or Due Process? Justice Kennedy asked General Verrilli about Glucksberg, Verrilli replied:
GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.
JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental argument?
GENERAL VERRILLI: Well, because we think well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice's question, that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that's why we think of it in equalprotection terms
Counsel, I'm I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?
The open question is whether the Court's opinion will be as predictable as the questions.
April 28, 2015 in Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Full Faith and Credit Clause, Fundamental Rights, Oral Argument Analysis, Religion | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 15, 2015
In a case with similarities to Town of Greece, NY v. Galloway decided by the United States Supreme Court last year, the Supreme Court of Canada today rendered its judgment in Mouvement laïque québécois v. Saguenay (City) finding that a prayer at a municipal council meeting violated the constitution.
S regularly attended the public meetings of the municipal council of the City of Saguenay [Quebec]. At the start of each meeting, the mayor would recite a prayer after making the sign of the cross while saying [translation] “in the name of the Father, the Son and the Holy Spirit”. The prayer also ended with the sign of the cross and the same words. Other councillors and City officials would cross themselves at the beginning and end of the prayer as well. In one of the council chambers, there was a Sacred Heart statue fitted with a red electric votive light. In another, there was a crucifix hanging on the wall. S, who considers himself an atheist, felt uncomfortable with this display, which he considered religious, and asked the mayor to stop the practice. When the mayor refused, S complained to the Commission des droits de la personne et des droits de la jeunesse. He argued that his freedom of conscience and religion was being infringed, contrary to ss. 3 and 10 of the Quebec Charter, and asked that the recitation of the prayer cease and that all religious symbols be removed from council chambers.
The original Tribunal found the practice unconstitutional, but the Court of Appeal held that the prayer "expressed universal values" and "could not be identified with any particular religion." It also reasoned that the "religious symbols were works of art that were devoid of religious connotation and did not affect the state’s neutrality." According to the Court of Appeal, S had not been discriminated against on the ground of freedom of conscience and religion; any interference with S's beliefs was "trivial or insubstantial."
While some of the issues before the Supreme Court of Canada involved procedural ones regarding the appeal, the Court was clear that the municipality's practice was unconstitutional. Similar to an analysis under the US Constitution's First Amendment, the Supreme Court of Canada grappled with issues such as hostility to religion and the "slippery slope" of other religious practices:
The prayer recited by the municipal council in breach of the state’s duty of neutrality resulted in a distinction, exclusion and preference based on religion — that is, based on S’s sincere atheism — which, in combination with the circumstances in which the prayer was recited, turned the meetings into a preferential space for people with theistic beliefs. The latter could participate in municipal democracy in an environment favourable to the expression of their beliefs. Although non‑believers could also participate, the price for doing so was isolation, exclusion and stigmatization. This impaired S’s right to exercise his freedom of conscience and religion. The attempt at accommodation provided for in the by‑law, namely giving those who preferred not to attend the recitation of the prayer the time they needed to re‑enter the council chamber, had the effect of exacerbating the discrimination. The Tribunal’s findings to the effect that the interference with S’s freedom of conscience and religion was more than trivial or insubstantial were supported by solid evidence, and deference is owed to the Tribunal’s assessment of the effect of the prayer on S’s freedom of conscience and religion.
Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another. Moreover, it has not been established in this case that the prayer is non‑denominational. The Tribunal’s findings of fact instead tend toward the opposite result. Be that as it may, the respondents themselves conceded at the hearing that the prayer is nonetheless a religious practice. Even if it is said to be inclusive, it may nevertheless exclude non-believers. As for the proposed analogy to the prayer recited by the Speaker of the House of Commons, in the absence of evidence concerning that prayer, it would be inappropriate to use it to support a finding that the City’s prayer is valid. Finally, the reference to the supremacy of God in the preamble to the Canadian Charter cannot lead to an interpretation of freedom of conscience and religion that authorizes the state to consciously profess a theistic faith. The preamble articulates the political theory on which the Charter’s protections are based. The express provisions of the Canadian Charter and of the Quebec Charter, such as those regarding freedom of conscience and religion, must be given a generous and expansive interpretation. This is necessary to ensure that those to whom these charters apply enjoy the full benefit of the rights and freedoms, and that the purpose of the charters is attained.
The Court explicitly linked the state's duty of neutrality - - - akin to the First Amendment's (anti-)Establishment Clause - - - to the maintenance of a free and democratic society. "This pursuit requires the state to encourage everyone to participate freely in public life regardless of their beliefs." This principle may have special resonance when one considers the largely French (and Catholic) Quebec as compared to the other largely English (and Protestant) other provinces.
Unlike the United States Supreme Court's opinion in Town of Greece, the Supreme Court of Canada's judgment is not closely divided; only one Justice writes separately to discuss some of the procedural issues, but otherwise concurs. For US ConLawProfs, City of Saguenay is well worth a comparative read.
Thursday, March 26, 2015
Governor Mike Pence of Indiana in a "private ceremony," signed the controversial Senate Act 101, a state RFRA, into law.
Like the federal RFRA - - - the basis for the majority opinion of the United States Supreme Court in Hobby Lobby v. Burwell finding that the so-called "contraceptive mandate" of "Obamacare" was invalid - - - the Indiana RFRA provides in section 8:
(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability.
(b) A governmental entity may substantially burden a person's exercise of religion only if the governmental entity 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.
The Indiana statute makes clear that a if a person's exercise of religion "is likely to be substantially burdened," the person may "assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding."
For many, this signals a religious exemption from anti-discrimination laws protecting LGBTQ persons. (Although Indiana does not include sexuality or gender identity in its discrimination laws, some localities and institutions do.) Governor Pence alluded to this argument, even as he interestingly (and some might say misleadingly) highlighted the "government action" requirement in his signing statement:
“This bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it. In fact, it does not even apply to disputes between private parties unless government action is involved. For more than twenty years, the federal Religious Freedom Restoration Act has never undermined our nation’s anti-discrimination laws, and it will not in Indiana."
Nevertheless some companies are already reacting to a perception that Indiana has now sanctioned LGBTQ discrimination.
Tuesday, January 20, 2015
In its unanimous opinion today in Holt (Muhammad) v. Hobbs the Court decided that the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, RLUIPA, 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.
The Court's conclusion is predictable from the tenor of the oral arguments. Writing for the Court, Justice Alito found that Holt/Muhammad easily met his burden of showing that the beard ban substantially burdened his exercise of religion under RLUIPA, after which the burden shifted to the Department of Correction to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling governmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental interest” under RLUIPA."
The Court rejected the Department of Correction's beard ban as the least restrictive way of furthering prison safety and security including hiding contraband (an argument that was "hard to take seriously" in the context of the 1/2 inch beard) and concealing identities (an argument that suffered in comparison to other institutions and the allowance of 1/4 inch beards and mustaches).
Justice Alito's 16 page opinion for the Court is a model of clarity and concision. It does beg the question, however, of why this was not the District Judge's opinion or the Eighth Circuit's opinion. As we previously discussed, the odds of this case getting before the Court were incredibly high, but the underlying pro se litigation exemplifies the difficulties of prison inmates vindicating their rights.
Indeed, Justice Sotomayor wrote separately to stress the role deference to prison administrators that should be afforded by courts. Prison officials must offer a "plausible explanation for their chosen policy that is supported by whatever evidence is reasonably available to them," rather than adopt policies based on "mere speculation." Again, this begs the question of the reliance by the lower courts on the prison's arguments.
Finally, the very brief concurring opinion by Justice Ginsburg, and joined by Justice Sotomayor, distinguished the much more contentious Hobby Lobby:
Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion.
Thus, Justice Ginsburg makes clear that she is not opposed to religious accommodation per se, even under the strict scrutiny standard, when the rights of others are not part of the analysis.
Thursday, January 8, 2015
In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.
The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law. Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.
The religious exemption is most interesting in the context of this litigation. For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief." For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).
The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.
The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated. For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:
"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.
Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.
January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 17, 2014
Check out ConLawProfBlog's own Prof. Ruthann Robson's (CUNY) piece about her innovative and engaging approach to teaching the Religion Clauses in the Fall 2014 Law Teacher. (Robson's piece begins on page 49.) In it, Robson gives a step-by-step for a replicable, pervasive method that promises huge pedagogical payoffs--exactly the kind of thing we need more of in the Con Law world.
Robson, a leader in innovative and effective teaching who was featured in What the Best Law Teachers Do (Harvard), starts her First Amendment class by requiring students to develop and adopt a role in one of three categories: a recognized religion, a quasi-religion, and a non-religion. Robson then conducts her Religion Clause classes with her students in role, for example: "What do you think of this outcome, Student X, as a Rastafarian?"
The approach comes with distinct benefits and allows the class better to critically assess and analyze Religion Clause cases. Robson: "This role pervasiveness often illuminates the subjectivity of the Court's recitation of facts, as well as the reasoning, doctrine, theoretical perspectives, and the invocations of history."
Robson uses role pervasiveness for problems, too, assigning students to traditional legal roles (attorneys, judges, clerks, and the like) while still maintaining their assigned religion.
For example, Student Y, as a Sikh, now also takes on the role of a law clerk to a judge considering the constitutionality of the seventeen foot "Latin cross" at the National September 11 museum. Or Student Z, as a Secular Humanist, is writing an opinion as an administrative law judge in a sexual orientation discrimination case against a baker who refused to make a wedding cake for a same-sex couple.
This not only enhances students' understanding of the Religion Clauses, but it also allows Robson to explore issues of professional identity.
Check it out; give it a try; tell us how it works for you.
Friday, November 14, 2014
The D.C. Circuit today upheld HHS accommodations to religious nonprofits that object to complying with contraception requirements under agency regs and the ACA. The ruling aligns with earlier rulings from the Sixth and Seventh Circuits and means that the accommodations stay on the books. (The case is not governed by Hobby Lobby, because the plaintiffs here challenge the accommodation, not the "contraception mandate" itself. Hobby Lobby had no accommodation option.)
The case represents yet another judicial attack against the ACA and its implementation. And this issue may eventually work its way (back) to the Supreme Court. (Notre Dame filed a cert. petition in October, after losing in the Seventh Circuit.)
The case is the latest challenge to HHS regulations that allow religious nonprofits to opt-out of the "contraception mandate" by filing a form with their insurer or a letter with HHS stating their religious objection to providing contraception. (The letter to HHS is the agency's regulatory answer to the Supreme Court's action this summer that enjoined the form and held that a religious nonprofit could instead file a letter with HHS.) Plaintiffs (religious nonprofits) argue that the accommodation itself violates the RFRA (among other things), because the accommodation "triggers" the provision of contraception by third parties.
The D.C. Circuit flatly--and quite thoroughly--rejected this claim. In sum:
We conclude that the challenged regulations do not impose a substantial burden on Plaintiffs' religious exercise under RFRA. All plaintiffs must do to opt out is express what they beleive and seek what they want via a letter or two-page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state. Religious nonprofits that opt out are excused from playing any role in the provision of contraceptive services, and they remain free to condemn contraception in the clearest terms. The ACA shifts to health insurers and administrators the obligation to pay for and provide contraceptive coverage for insured persons who would otherwise lose it as a result of the religious accommodation.
The court held that the accommodation was merely a de minimis requirement and not a substantial burden--and therefore not subject to RFRA's strict scrutiny. "In sum, both opt-out mechanisms let eligible organizations extricate themselves fully from the burden of providing contraceptive coverage to employees, pay nothing toward such coverage, and have the providers tell the employees that their employers play no role and in no way should be seen to endorse the coverage." The court emphasized that RFRA "does not grant Plaintiffs a religious veto against plan providers' compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties."
The court said that even if the accommodation were a substantial burden, the court would uphold it under RFRA's strict scrutiny. That's because "[a] confluence of compelling interests supports maintaining seamless application of contraceptive coverage to insured individuals even as Plaintiffs are excused from providing it." Examples: the benefits of planning for healthy births and avoiding unwanted pregnancy, and the promotion of equal preventive care for women. "The accommodation requires as little as it can from the objectors while still serving the government's compelling interests."
The court also clarified some important aspects of the way the accommodation works. For one, exercising the accommodation doesn't "trigger" anything; instead, it works to take the religious nonprofit entirely out of the contraception-provision business. For another, religious nonprofits' contracts with providers don't authorize or facilitate contraceptive coverage; the federal regs do. Finally, exercising the accommodation doesn't turn a religious nonprofit's plan into a "conduit for contraceptive coverage"; instead, it takes the the religious nonprofit out of the contraceptive business entirely.
Tuesday, October 7, 2014
In today's oral argument in Holt (Muhammad) v. Hobbs, the Court considered the question on which it granted certiorari: 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.
ConLawProf's own Steven Schwinn has penned a terrific preview for the ABA. The case occurs under the RLUIPA statute, of course, rather than the First Amendment, because RLUIPA provides greater protections as we previously explained, in the same manner that the RFRA statute at issue in last Term's Burwell v. Hobby Lobby Stores, Inc.
As I argue over in The Guardian, the issue of grooming raises larger issues, which the Justices mostly skirted, but the Justices clearly struggled with the argument that Arkansas had a compelling governmental interest served by prohibiting short beards. This discussion was marked by the vast majority of other states that allow prisoners to have beards (40) and the fact that Arkansas allows a medical exemption. Counsel for the Arkansas Department of Corrections explained that Arkansas had a different system of incarceration than other states (preferring barracks) and had an interesting doctrinal explanation for accommodating the medical condition but not the religious one:
The doctor's prescriptions invariably are get a clipper shave. And that brings a second point up, Your Honor, is that the policy's rationale was follow doctor's orders. And we think that is fundamentally of a different nature than a religious reason, because the Eighth Amendment law of deliberate indifference and the like admits a no countervailing security interest that come into play. Our policy is we follow doctor's orders and that's the end of the matter.
There was some discussion of the slippery slope variety, with Justice Kagan asking:
So whether it's a full beard or whether it's long hair or whether it's a turban, there will be some ability to say, even though it's just teeny tiny, there is some increase in prison security that results from disallowing this practice. And I guess I want to know, and this really fits in with several of the other questions that have been asked here, is how do we think about that question in the context of this statute?
Or as Chief Justice Roberts stated it:
But I mean, you're really just making your case too easy. I mean, one of the difficult issues in a case like this is where to draw the line. And you just say, well, we want to draw the line at half inch because that lets us win.
And the next day someone's going to be here with one inch. And maybe it'll be you. And then, you know, two inches.
It seems to me you can't avoid the legal difficulty just by saying, all we want is half an inch.
As ConLawProf Douglas Laycock appointed to argue on behalf of Holt/Muhammad, noted, Holt/Muhammad
made a pro se decision to limit his request. The Court expressly limited the question presented. So this case is only about half an inch.
That Holt/Mohammad's case is before the Court is one of statistical improbability. Kali Borkoski over at SCOTUSBlog has a terrific audio slideshow that demonstrates some of the difficulties of litigating RLUIPA claims. In Holt/Muhammad, the petition for certiorari was pro se from a negative Eighth Circuit decision; the vast majority of the 20,000 or so pro se petitions filed in federal courts each year do not reach the appellate level. Interestingly, the Eighth Circuit specifically ruled that the dismissal of the case "does not count as a “strike” for purposes of 28 U.S.C. § 1915(g)" the Prison Litigation Reform Act which limits pro se prison petitions to "three strikes." Later in the Term in Coleman-Bey v. Tollefson, the Court will be considering a construction of the three strikes limit; but perhaps Holt/Muhammad points to a larger issue with the limitation.
Tuesday, September 16, 2014
Senior Judge David Sam (C.D. Utah) ruled last week that the Religious Freedom Restoration Act prevented the court from compelling a FLDS Church member from answering questions related to a Labor Department investigation into child labor violations.
The ruling does not necessarily end the Labor Department investigation, though. Indeed, as Judge Sam wrote, DOL may be able to get the information from other sources.
The case arose when DOL sought an order compelling a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, or FLDS, to answer questions in the course of an investigation over the use of child labor in harvest activities at a pecan ranch in Hurricane, Utah. The FLDS member, Vernon Steed, invoked the First Amendment (free exercise), objecting to DOL's questions about the internal affairs of the FLDS Church. Judge Sam wrote that the claim sounded more like a Religious Freedom Restoration Act claim, and applied the higher level of scrutiny under the RFRA.
Judge Sam wrote first that a court order would substantially burden Steed's religious beliefs, because Steed said that he made a vow "not to discuss matters related to the internal affairs or organization of the [FLDS]," and that giving testimony would violate that vow. DOL challenged the sincerity of this belief, but Judge Sam, citing Hobby Lobby, didn't question it.
Judge Sam then wrote that DOL failed to satisfy the RFRA standard (again citing Hobby Lobby) because it had other ways to get the information it sought. For example, DOL could get information from the corporation or individuals who contracted to manage the ranch.
The ruling may not shut down the investigation, because DOL may, indeed, be able to get the information it needs from these other sources. But even if it can, the ruling underscores the heightened, strict scrutiny standard under the RFRA (over the lower, rational basis standard in Smith) , and illustrates its reach.
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.