Constitutional Law Prof Blog

Daily Video: Dahlia Lithwick on Daily Show on Supreme Court

Worth a watch:

Dahlia Lithwick in conversation about McCullen v. Coakley (the abortion buffer zone case)

The Daily Show

The extended video is avaliable here.

 

Second Circuit Says Required Urine Test Substantially Burdens Religious Freedom

Steven D. Schwinn, John Marshall Law School

The Second Circuit ruled last week in Holland v. Goord that prison authorities substantially burdened a Muslim prisoner's free exercise of religion when they punished him for failing to complete a urine test within a three-hour window during fasting time for Ramadan.  The plaintiff couldn't complete the test because he refused to drink water during his fast.  (H/t to reader Jeff Wadsworth.)

The ruling means that the case goes back to the trial court to determine whether the prison authorities had a sufficient penalogical interest in requiring the urine test (and the water drinking, in order to facilitate the test) under Turner v. Safley.  But that doesn't look good for the state: the Second Circuit noted that there was no good reason why the authorities couldn't administer the test (and require the plaintiff to drink water) after sundown (indeed, the plaintiff suggested this option himself).  It also noted that the prison subsequently changed its own regulations to allow a religious accommodation to urine testing.

The Second Circuit rejected the plaintiff's invitation to disregard the "substantial burden" test from Employment Division v. Smith.  Instead, the court ruled that the urine test met that requirement, drawing on its own cases saying that the denial of a religious meal is a substantial burden on religion.

The court also rejected the trial court's conclusion that the urine test and water drinking were mere de minimis burdens (because the plaintiff could have made up a drink of water during the fast with one extra day of fasting).  The court said that the plaintiff sufficiently showed that this would have been a "grave sin," even if he could have made up for it.

Because the state changed its rules on urine testing to allow a religious accommodation, the court denied the plaintiff's request for injunctive relief under both his free exercise claim and his RLUIPA claim.  The court rejected other claims, too.  But it remanded the free exercise claim for determination whether the state had a sufficient penalogical interest in conducting the urine test the way that it did, and, if not (as is likely), for money damages.

Seventh Circuit Finds Indiana's Clergy-Only Marriage Solemnization Statute Violates the First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its 11 page opinion  today in Center for Inquiry v. Marion Circuit Court Clerk, a panel of the Seventh Circuit has held Indiana  Code §31-­11-­6-­1 violates the First Amendment.  The provision specifies who can solemnize a marriage and includes "religious officials designated by religious groups but omits equivalent officials of secular groups such as humanist societies."   The plaintiffs, a humanist group and a leader of the group deemed a "secular celebrant," were not allowed to solemnize a marriage unless they obtained clergy credentials or "called themselves a religion."

Judge Easterbrook, writing for the unanimous panel, stated that it is unconstitutional to make distinctions between "religious and secular beliefs that hold the same place in adherents’ lives," citing the well known conscientous objector cases of Welsh and Seeger, as well as Torasco v. Watkins, and the Seventh Circuit precedent regarding accommodations for atheists in prison.  There is not, Easterbrook wrote, an "ability to favor religions over non-­‐‑theistic groups that have moral stances that are equivalent to theistic ones except for non-­‐‑belief in God or unwillingness to call themselves religions."

The solemnisation of the marriage of Prince James Francis Edward Stuart and Princess Maria Clementina Sobieska (Montefiascone 1 September 1719) by Agostino Masucci via

 

As for Indiana's argument that the humanists were not actually being excluded from solemnizing marriages under the statute, the court had this to say:

Adherents to faiths with clergy can be married in two steps: first they obtain a license, Ind. Code §31-­11-­4-­1, and then they have the marriage solemnized by a priest or equivalent person in the list in §31-­11-­6-­1. (Plaintiffs do not challenge the licensure statute, because religion is irrelevant to that procedure.) Humanists could achieve the same result in three steps: first get a license, then have a humanist celebrant perform a public ceremony appropriate to their beliefs, and finally have a clerk of court or similar functionary solemnize the marriage. That’s true enough—but it just restates the discrimination of which plaintiffs complain. Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.

 Interestingly, the opinion also had something to say about the equal protection problems of the statutory scheme, noting that the distinctions between religions that have clergy and those that do not as well as "the state’s willingness to recognize marriages performed by hypocrites," violate the Equal Protection Clause:

It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-­declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.

The court found Indiana's reliance on the Supreme Court's most recent Establishment Clause decision, Town of Greece v. Galloway inapposite, easily distinguishing Galloway as not being about the regulation of private conduct as the Indiana solemnization statute was.

The decision could pave the way for other First Amendment challenges to solemnization statutes that provide a special status for religious clergy.

Stone on the Constitutionality of Religious Tests for Public Office

Geoff Stone (Chicago) writes over at Huffington Post that religious tests for public office, which are still around in eight state constitutions, may well be upheld by the Roberts Court, should they ever be tested.

Arkansas, Maryland, Mississippi, North Carolina, Pennsylvania, South Carolina, Tennessee, and Texas all have these provisions, though they go unenforced.  That's because the Court struck these tests in 1961 in Torcaso v. Watkins.  But Stone says if the issue were to return to this Court, testing one of the eight state constitutional provisions, the five conservative justices may well reverse Torcaso and uphold the religious test.

But why would they disagree with Torcaso?  After all, the reasoning of that unanimous decision seems clearly correct.  But the five conservative justices on the Court today clearly do not share the general constitutional understandings of the Court in 1961.  This is so across a range of issues, but perhaps most conspicuously in the realm of religion.  Indeed, the Court's five conservative justices have consistently taken positions that come out quite aggressively in support of the interests of religion.

Stone cites Hobby Lobby and Town of Greece as just two recent decisions supporting this conclusion.  Stone also argues that these five justices have already demonstrated their willingness to overturn well settled precedent.  See Citizens United; Heller; Gonzales v. Carhart.

Ninth Circuit Finds DACA Plaintiffs Entitled to Preliminary Injunction to Receive Drivers' Licenses in Arizona

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Ninth Circuit's opinion in Arizona Dream Act Coalition v. Brewer reversed the denial of a preliminary injunction finding that the plaintiffs had a substantial likelihood of success on their equal protection claim.

The plaintiffs challenged an Executive Order by Arizona Governor Jan Brewer that prohibits recipients of the federal program called the “Deferred Action for Childhood Arrivals” (DACA) from obtaining driver’s licenses by using Employment Authorization Documents as proof of their authorized presence in the United States.  The Ninth Circuit panel of judges - - - Harry Pregerson, Marsha S. Berzon, and Morgan Christen - - - in an opinion authored by Pregerson held that even under a rational basis standard of equal protection review, there was no  legitimate state interest that was rationally related to defendants’ decision to treat DACA recipients disparately from other noncitizens who were permitted to use their Employment Authorization Documents as proof of their authorized presence in the United States when applying for driver’s licenses. 

image via DACAinformation.com

 The major rationale proffered by Arizona for its disparate treatment between classes of noncitizens was that "it is rational to accept (c)(9) and (c)(10) Employment Authorization Documents as proof that the holder’s “presence . . . is authorized under federal law,” Ariz. Rev. Stat. Ann. § 28-3153(D), because persons with (c)(9) and (c)(10) documents “[are] on a path to lawful status,” while DACA recipients are not."  The court was "unconvinced" that Arizona  "defined 'a path to lawful status' in a meaningful wa," reasoning that "noncitizens’ applications for adjustment of status or cancellation of removal are often denied, so the supposed 'path' may lead to a dead end." 

But even so, the court - - - in what could be considered a back door preemption argument - - - noted that states, including Arizona, “enjoy no power with respect to the classification of aliens,” citing Plyler v. Doe, "so their attempt to distinguish between these noncitizens on the basis of an immigration classification that has no basis in federal law is not likely to withstand equal protection scrutiny."

The court likewise rejected the other four rationales raised by Arizona:

• that issuing driver’s licenses to DACA recipients might expose the Arizona Department of Transportation to legal liability “for issuing driver’s licenses to 80,000 unauthorized immigrants;”
• that issuing driver’s licenses to DACA recipients might allow DACA recipients to access state and federal benefits to which they are not entitled;
• that the DACA program might be canceled, requiring Arizona to revoke DACA recipients’ driver’s licenses;
• that DACA recipients may have their authorized presence revoked at any time, and thereafter may be quickly removed from the United States, leaving those they may have injured in automobile accidents with no financial recourse.

The district judge had similarly found these rationales were not persuasive, but had denied the preliminary injunction for failure to show sufficient irreparable harm.  The Ninth Circuit found there was such harm, faulting the district judge for seeking to "evaluate the severity of the harm to Plaintiffs, rather than simply determining whether the harm to Plaintiffs was irreparable."

The panel split on the viability of the plaintiffs' preemption claim, with Judge Christen concurring separately to contended that plaintiffs' also had a viable preemption claim.

This is an important case for state benefits including licenses that are being denied to DACA receipients, including licenses to practice law.

 

 

More on the Wheaton College Ruling

Tom Goldstein and Marty Lederman debated the impact of the Wheaton College ruling on contraception coverage for Wheaton College students and employees (and, by extension, other religious non-profits' employees) over at SCOTUSblog.  The back-and-forth provides a nice window into the more technical aspects of the somewhat mysterious ruling.

At the core of the debate: whether federal regs allow the government to treat Wheaton College's health insurer as a "plan administrator" under ERISA, even if Wheaton College doesn't file Form 700.  (Recall that the Court enjoined the government's use of Form 700 against Wheaton College and said that Wheaton College could instead file a letter stating its religious objections.  Wheaton College's health insurer is only required to provide free contraceptive coverage if it is a "plan administrator" under ERISA.)  Marty argues that it's complicated, and that without Form 700 there may be no regulatory trigger for the government to treat the insurer as a "plan administrator" and therefore to require it to provide free contraceptive coverage.  Tom argues that it's not so complicated: the regs allow the government to designate other forms (like the Court's letter) to treat an insurer as a "plan administrator."  All the government has to do is so designate the letter  (Underscoring Tom's interpretation: the Court wrote in its Order that "[n]othing in this order precludes the Government from relying on this notice [the letter by Wheaton], to the extent it considers it necessary, to facilitate the provision of full contraception coverage under the Act."  That seems to say that the Court sees its letter as potentially triggering the treatment of Wheaton College's insurer as a "plan administrator.")

In a separate post, Tom theorizes about Justice Breyer's position in the case.

Court Enjoins Religious Exemption for Contraception Mandate

Steven D. Schwinn, John Marshall Law School

The Supreme Court this week enjoined the exemption for religious non-profits from the requirement that employer group-health insurance plans include contraceptives.  That exemption allowed a religious nonprofit to notify its health insurer or third-party administrator (using "EBSA Form 700") that it had a religious objection to providing contraceptive coverage; at that point, the insurer or administrator would have to provide contraceptives directly to the organization's employees, free of charge.  This week's short, unsigned Order halted the use of EBSA Form 700 and said that petitioner Wheaton College, a religious college in Wheaton, Illinois, could instead write a letter to HHS informing the agency that it is a religious organization and that it has a religious objection to providing coverage for contraceptive services.

In short, the ruling replaced HHS's process for religious exemption (EBSA Form 700) with its own (a letter to HHS). 

The ruling strikes a second serious blow to the contraception requirement.  (The first came earlier this week in Hobby Lobby, which allowed closely-held, for-profit corporations to exempt themselves from certain contraceptives under the requirement, but almost certainly opened up a much wider hole in the requirement (and potentially in many other government regulations).)  The Court was careful to write that its ruling was not a conclusion on the merits.  But it's hard to read it any other way, particularly in light of the mertis discussion in the dissent, the fact that the Court drafted its own exemption procedure for religious non-profits (supplanting HHS's procedure), and the Court's suggestion that it'll take up the merits soon enough.

The ruling isn't clear on how religious non-profits' insurers or administrators will have to provide contraceptive coverage.  Here's the problem: The insurers or administrators only have to provide contraceptive coverage directly to employees upon learning that a religious non-profit objects, usually through receipt of the EBSA Form 700; but the Court's Order says that Wheaton College and by extension other religious non-profits don't have to complete that form.  This leaves it to HHS to figure out whether and how to require insurers and administrators to provide contraceptive coverage directly to the organization's employees.

The Order is strange on several levels.  For one, it replaced the HHS exemption (EBSA Form 700) with its own (a letter to HHS).  But it's not at all clear that the Court's exemption is any less intrusive on Wheaton College's freedom of religion (at least as the College has defined it in challenging EBSA Form 700): Why is writing a letter to HHS any less intrusive than filing Form 700 and sending it to the insurers and administrators?  Wheaton College claimed that the mere certification of its religious objection to the contraception requirement violated its religion (because it made Wheaton College complicit in someone else providing contraception), so why is the letter any better than the form? 

For another, it's also not clear why the Court would take such an aggressive action (essentially overruling a valid federal rule and replacing it with its own) at this stage of the litigation (on an application for an injunction), when the circuits are split on the issue (which, as the dissent points out, has been a basis for denying an injunction by some of the very justices who joined the Court in this Order (including Chief Justice Roberts)).  This hardly seems like a Court merely calling balls and strikes.

For yet another, the Order seems inconsistent with the Court's ruling just earlier this week in Hobby Lobby.  In that case, the majority pointed to HHS's exemption for religious non-profits (the exact same exemption at issue here) as evidence that the contraception requirement for closely held for-profits wasn't narrowly tailored--that is, that the exemption was a way that the government could achieve its interest in providing contraception while still giving closely held for-profits an out.  Yet in this later ruling, the Court stepped back from that exemption and replaced it with its own.

Finally, there's the strangeness that a government-created religious exemption could itself violate free religion.  This is the point that Judge Posner made so strongly in his opinion rejecting Notre Dame's challenge to the exemption.

Justice Sotomayor wrote a lengthy and vigorous dissent, joined by Justices Ginsburg and Kagan, covering everything from the extraordinary relief the Court granted under the very high standard of the All Writs Act to the merits.  She also distinguished the Little Sisters case, in which the Court also allowed a letter to replace the EBSA Form 700: Little Sister's third-party administrator was itself a church plan and exempt from the contraception requirement, so nobody's access to contraception was affected.  Here, the Court's injunction risks depriving employees of Wheaton College of contraception, because the insurer or the administrator only have to provide it upon receipt of the EBSA Form 700.  But under the Court's Order, they won't receive the EBSA Form 700.

As with Hobby Lobby, it's clear that this ruling will extend far beyond the facts of this particular case, likely even farther than the Court itself thought.  How far?  As with Hobby Lobby, only time will tell.

Equality at the Core of the Declaration

Danielle Allen's (Princeton) just pubished her new book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality right in time for your own annual reading of the Declaration--today, July the Fourth.

Allen's book is a meditation on the Declaration that starts with her own teaching of the document and moves through history, philosophy, culture, and, of course, a close reading of the text.  More importantly, it's an argument that equality is at the Declaration's core--a point often missed in today's liberty-laden reading of the document (and today's liberty-laden politics). 

[The Declaration] makes an argument about political equality. . . . [I]t makes a cogent philosophical case for political equality, a case that democratic citizens desperately need to understand. . . .

The purpose of democracy is to empower individual citizens and give them sufficient control over their lives to protect themselves from domination.  In their ideal form, democracies empower each and all such that none can dominate any of the others, nor any one group, another group of citizens. . . .

The point of political equality is not merely to secure spaces free from domination but also to engage all members of a community equally in the work of creating and constantly re-creating that community.  Political equality is equal political empowerment.

Allen was recently in the news for her argument that there's really no period after "Happiness" in the text, despite its inclusion in the official transcript of the document at NARA.  That's important, because without a period the link between the rights to "life, liberty, and happiness" and the purpose of government is even yet closer.  That is: without a period, it's even clearer that government is "instituted among men" in order to secure our rights to "life, liberty, and happiness." 

You can hear Allen on the Diane Rehm show yesterday.  Here's WaPo's book review.

Hobby Lobby Aftermath: Does "Person" in RFRA Include a Guantanamo Bay Detainee?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an emergency motion for a Temporary Restraining Order filed today in Hassan v. Obama in the District Court for the District of Columbia, the petitioner relies on Monday's controversial decision by the United States Supreme Court in Burwell v. Hobby Lobby.

Petitioner, Imad Abdullah Hassan, a detainee at Guantánamo Bay, invokes the Religious Freedom Restoration Act (RFRA) to prevent the federal government from depriving him of " the right to participate in communal prayers during the Islamic holy month of Ramadan," a tenet of his religious faith. 

 

As the motion outlines, the DC Circuit had previously held in Rasul v. Myers, 563 F.3d 527, 532-33 (D.C. Cir. 2009), that the Guantánamo Bay detainees are not protected “person[s]” within the meaning of the RFRA.  The court in Rasul "bypassed the dictionary definition of “person” and instead looked to prior case law prescribing the scope of the word “person” for purposes of the Fourth and Fifth Amendments— which did not, in the Rasul court’s view, apply to nonresident aliens." 

However, the motion argues this is a "dead letter" after the Court's decision in Hobby Lobby which "eviscerates the reasoning in Rasul and makes clear that Petitioner, as a flesh-and-blood human being, is among the 'person[s]' protected by the RFRA."  Indeed, the court in Rasul held that in RFRA Congress merely "intended to incorporate the standard governing free exercise claims that prevailed before the Supreme Court's 1990 decision in Employment Division v. Smith," and that such claims did not include resident noncitizens.  But in Hobby Lobby, the Justice Alito's opinion for the Court explicitly states:

the results would be absurd if RFRA merely restored this Court’s pre-Smith decisions in ossified form and did not allow a plaintiff to raise a RFRA claim unless that plaintiff fell within a category of plaintiffs one of whom had brought a free-exercise claim that this Court entertained in the years before Smith. For example, we are not aware of any pre-Smith case in which this Court entertained a free-exercise claim brought by a resident noncitizen. Are such persons also beyond RFRA’s protective reach simply because the Court never addressed their rights before Smith?

[Opinion at 33].

Thus, the motion argues that

a nonresident alien Guantánamo Bay detainee, who inarguably has constitutional rights in what is de facto sovereign U.S. territory, see Boumediene v. Bush, 553 U.S. 723 (2008), must also enjoy the protections extended by the RFRA.

****

Hobby Lobby leads inexorably to the conclusion that the nonresident alien detainees at Guantánamo Bay are “person[s]” protected by the RFRA. The Dictionary Act definition of “person” includes “individuals.” 1 U.S.C. § 1. The Dictionary Act does not confine “individuals” to U.S. citizens, just as it does not confine “corporations” to U.S. corporations; nor does it confine “individuals” to U.S. residents. The Guantánamo Bay detainees, as flesh-and- blood human beings, are surely “individuals,” and thus they are no less “person[s]” than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply. The fact that the detainees are at Guantánamo Bay changes nothing, for Hobby Lobby makes clear that a “person” whose religious free exercise is burdened under color of law need not be a U.S. citizen or resident in order to enjoy the RFRA’s protections.

The application of Hobby Lobby to "persons" who are detainees at Guantánamo Bay might be an unforeseen consequence of the decision, but the motion makes a convincing argument that it is a logical one grounded in the Court's holding and language.

 

New York's Highest Court Finds Cyberbullying Law Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in People v. Marquan M, the New York Court of Appeals (NY's highest court), found that Albany Local Law 11 (2010)  criminalizing cyberbullying was unconstitutional under the First Amendment. 

The local law for Albany County criminalized cyberbullying against any "minor or person" (with "person" interestingly defined as including corporations) with cyberbullying defined as:

any act of communicating or causing a communication to be sent by mechanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person.

The majority opinion, authored by Judge Victoria Graffeo for four additional judges over a two-judge dissent, found that the law was overbroad under the First Amendment: "the provision would criminalize a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." 

The defendant and his actions here - - - a 15 year old who used Facebook to anonymously post "photographs of high-school classmates and other adolescents, with detailed descriptions of their alleged sexual practices and predilections, sexual partners and other types of personal information," with "vulgar and offensive" "descriptive captions" - - -  were within the "cyberbullying" that the Local Law intended to proscribe.  But even Albany County agreed that the local law was overbroad.  However, the County argued that the severability clause of the local law should be employed to excise the word "person" so that the only covered victims were minors.  But the court found that even that would not "cure all of the law's constitutional ills."   The dissenters would have engaged in saving constructions.

In ruling that a local law intended to criminalize as a misdemeanor cyberbullying did not survive the First Amendment because it was overbroad, New York's highest court left open the possibility that a prohibition of cyberbullying could be more narrowly crafted to survive First Amendment review:  "the First Amendment does not give defendant the right to engage in these activities." 

However, the court's opinion offers little guidance about how such a law or policy should be drafted.  New York's Dignity for All Students Act  as amended in 2012 places the responsibility for developing "policies and procedures intended to create a school environment that is free from harassment, bullying and discrimination" on school boards.  While Albany's law was a general criminal statute, school boards will undoubtedly be considering Marquan M. as they review their current "cyberbullying" prohibitions in light of the First Amendment.  They may also be recalling the Third Circuit's unhelpful intervention in a pair of "My Space" cases in which principals were arguably "bullied. 

And undoubtedly, those interested in cyberbullying in and out of schools will be watching the "true threats on Facebook case," Elonis v. United States, to be heard by the United States Supreme Court next Term.

 [image via]

Louisiana Supremes Uphold Ban on Firearms for Ex-Felons

Steven D. Schwinn, John Marshall Law School

The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment.  The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."

Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:

The right of each citizen to keep and bear arms is fundamental and shall not be infringed.  Any restriction on this right shall be subject to strict scrutiny.

Article I, Section 11.  Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.)  The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person." 

The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny.  The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis).  The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.

The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application.  It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.

Eighth Circuit Upholds Constitutionality of University Civility Code

In an exceedingly brief per curiam opinion in Keating v. University of South Dakota, an Eighth Circuit panel reversed the conclusion of a district judge that the university's "civility code" was "impermissibly vague, in violation of the Due Process Clause of the Fourteenth Amendment.

The university provision at issue provided:

Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.

The plaintiff, a tenure-track physics professor, did not have his employment contract renewed because of a strained relationship with his supervisors, including becoming "quite angry" at a meeting, being the subject of a sexual harassment claim, and sending an email accusing his immediate supervisor of being a lying, back-stabbing sneak.

The panel held that although the "policy employs broad language, that alone does not necessarily prevent an ordinary person from recognizing that certain conduct will result in discharge or discipline."  Instead,

the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.

Moreover, the panel found as applied to Keating's conduct, the civility clause was not impermissibly vague.

The use of "civilty clauses" continues to be a contested issue on due process grounds as well as First Amendment grounds.  Here, the Eighth Circuit provides a definitive stamp of approval to such a policy.

 

After Hobby Lobby, What Now?

The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs.  (The only requirement: the reg has to pose a substantial burden on the belief.  But we saw in Hobby Lobby itself how easy it is to meet that standard.)  If so, those regs would be subject to RFRA's strict scrutiny test.  That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.

In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws.  The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches.  We can expect to a flurry of cases testing this.

So: What now?

ConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog.  Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.

You might say that these options are unfriendly to religions.  But Robson tells us why it's really the ruling itself that's religion-unfriendly.  Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations.  That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women.  (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners.  The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)

Robson's right.  And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc.  She concludes:

While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA.  Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA.  What Congress giveth, it can taketh away.  And it should.

Federal District Judge Declares Kentucky's Same-Sex Marriage Ban Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his opinion today in Love v. Beshear, Judge John Heyburn held that the Kentucky provisions prohibiting same-sex marriage violate the Equal Protection Clause of the Fourteenth Amendment, but stayed the issuance of an injunction pending a resolution by the Sixth Circuit.

Recall that in February, Judge Heyburn ruled in Bourke v. Beshear that Kentucky's statutory and state constitutional provisions defining marriage as limited to one man and one woman violate the Fourteenth Amendment's Equal Protection Clause when applied to same-sex spouses married in another state.

Today's opinion considers those same constitutional and statutory provisions - - - KY. CONST. § 233A; KY. REV. STAT. ANN. §§ 402.005, .020(1)(d) (West 2014) - - - but in the context of a right to marry under Kentucky law.  And, not surprisingly, today's opinion reaches similar conclusions to the earlier case of Bourke v. Beshear.

Judge Heyburn quickly concludes that Baker v. Nelson, 409 U.S. 810 (1972), in which the Supreme Court dismissed “for want of a substantial federal question” a challenge to a Minnesota Supreme Court ruling concluding that a same-sex couple did not have the right to marry under the federal Due Process or Equal Protection Clauses, is not precedential.  It "is difficult to take seriously the argument that Baker bars Plaintiffs’ challenge," given that the rule for the precedential value of a summary disposition includes the exception "unless doctrinal developments indicate that the Court would rule differently now."  As Judge Heyburn states: "Since 1972, a virtual tidal wave of pertinent doctrinal developments has swept across the constitutional landscape."

In considering these doctrinal developments and the applicable standard of scrutiny under Equal Protection doctrine, Judge Heyburn first considers the right at stake.  He analyzes whether the right to marry is a fundamental right, but concludes that this precise question is one that "neither the Supreme Court nor the Sixth Circuit has answered."  Heyburn declines to engage in "overreaching" on this issue, because the fundamental rights analysis is unnecessary given the analysis regarding sexual orientation classifications.

Judge Heyburn's conclusion on the level of scrutiny to be applied is intermediate scrutiny.  Note that this is a departure from his earlier decision in Bourke to apply rational basis.  Here, his conclusion - - - admittedly not supported by specific Supreme Court or Sixth Circuit precedent - -  is that "homosexual persons constitute a quasi-suspect class based on the weight of the factors and on analogy to the classifications recognized as suspect and quasi- suspect.” He reaches this conclusion by applying four factors:  historical discrimination;  the ability to contribute to society;  immutable defining characteristics; and  political powerlessness.  Thus, the opinion would ordinarily then apply the  intermediate scrutiny standard as articulated by the court: "“substantially related to an important governmental objective."

But Judge Heyburn takes a different path, similar to the one he took in Bourke v. Beshear:

Ultimately, Kentucky’s laws banning same-sex marriage cannot withstand constitutional review regardless of the standard. The Court will demonstrate this by analyzing Plaintiffs’ challenge under rational basis review.

In discussing Kentucky's profferred interests, Judge Heyburn writes that the state's "arguments are not those of serious people."  Moreover, he concludes that the means chosen are not rationally related:

Even assuming the state has a legitimate interest in promoting procreation, the Court fails to see, and Defendant never explains, how the exclusion of same-sex couples from marriage has any effect whatsoever on procreation among heterosexual spouses. Excluding same-sex couples from marriage does not change the number of heterosexual couples who choose to get married, the number who choose to have children, or the number of children they have.

Judge Heyburn's last section of the opinion addresses Kentuckians, but in a much more restrained manner than his earlier opinion in Bourke.  In Love v. Beshear, Judge Heyburn notes

Since this Court’s Bourke opinion [in February 2014], the legal landscape of same-sex marriage rights across the country has evolved considerably, with eight additional federal district courts and one circuit court invalidating state constitutional provisions and statutes that denied same-sex couples the right to marry.

Heyburn cites the Tenth Circuit's opinion in Kitchen v. Herbert, as well as the district court opinions in Baskin v. Bogan (Indiana); Wolf v. Walker (Wisconsin);   Whitewood v. Wolf (Pennsylvania); Geiger v. Kitzhaber (Oregon); Latta v. Otter  (Idaho); De Leon v. Perry (Texas);  DeBoer v. Snyder (Michigan); and  Bostic v. Rainey  (Virgina).

He adds that with "this opinion, this Court joins their company."

It remains to be seen, however, whether the Sixth Circuit will also join this increasingly large assembly.