Constitutional Law Prof Blog

Trump Administration Rule Providing "Conscience Protections" for Health-Care Providers

Here's the Trump Administration's new rule, rolled out in its final version last week, providing religious "conscience protections" for health-care providers who, because of their religious beliefs, decline to provide abortion-related services and training, sterilization, and assisted-suicide related services, among others. The rule provides that health-care institutions could lose federal funding if they fail to enforce the protections.

While the precise impact is now unknowable, the rule will likely affect access to these services and health-care access for the LBGTQ community.

Third Circuit Upholds Philadelphia's Refusal to Refer Foster Children to Organizations that Discriminates on Basis of Sexual Orientation

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

In its opinion in Fulton v. City of Philadelphia, a unanimous panel of the Third Circuit affirmed the district court's denial of a preliminary injunction against Philadelphia for stopping its referral of foster children to organizations that discriminate on the basis of sexual orientation in their certification of foster parents.

Much of the litigation centers on Catholic Social Services (CSS) which will not certify same-sex couples, even those who are legally married to each other, as foster parents.  Once Philadelphia became aware of the CSS policy, through investigative reporting, the city eventually suspended foster care referrals to CSS in accordance with the city's nondiscrimination policy which includes sexual orientation.  The plaintiffs, including individuals about whom the Third Circuit had standing doubts, sued for a preliminary injunction, which the district judge denied after a three day hearing.  On appeal, the Third Circuit agreed that the plaintiffs had not demonstrated a likelihood of success on their First Amendment claims under the Free Exercise Clause, as well as the Establishment Clause and the Speech Clause.

Writing for the panel, Judge Thomas Ambro wrote that the Free Exercise Clause does not relieve one from compliance with a neutral law of general applicability, which the court found the nondiscrimination law to be.  Unlike Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission  and Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), there was no hostility towards religion evinced in the case.  As the court stated:

CSS’s theme devolves to this: the City is targeting CSS because it discriminates against same-sex couples; CSS is discriminating against same-sex couples because of its religious beliefs; therefore the City is targeting CSS for its religious beliefs. But this syllogism is as flawed as it is dangerous. It runs directly counter to the premise of  [Employment Division v. ] Smith that, while religious belief is always protected, religiously motivated conduct enjoys no special protections or exemption from general, neutrally applied legal requirements. That CSS’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that the City’s desire to regulate that conduct springs from antipathy to those beliefs. If all comment on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against the religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well. As the Intervenors rightly state, the “fact that CSS’s non- compliance with the City’s non-discrimination requirements is based on its religious beliefs does not mean that the City’s enforcement of its requirements constitutes anti-religious hostility.”

On the Establishment Clause, Judge Ambro briefly concluded that there was no evidence that Philadelphia was attempting to impose its preferred version of Catholic teaching on CSS.

And in a similarly brief discussion of the free speech claim, Judge Ambro's opinion found there was no viable compelled speech claim or retaliation claim.

Finally, the Third Circuit opinion considered whether there was a possibly successful claim under Pennsylvania's RFRA statute and found that there was little chance of success on the merits, even given the higher standard of review.

This litigation has attracted much interest, with intervenors and amici, and the plaintiffs filed an emergency application to the Supreme Court for an injunction pending appeal or an immediate grant of certiorari in 2018, which was denied.  Another certiorari petition is almost sure to follow the Third Circuit's decision.

 

 

Fourth Circuit Rebuffs Rastafarian-Prisoner's Claim for Communal Feasts

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit ruled today that a Rastafarian prisoner in North Carolina couldn't show that prison officials denied his religious-exercise rights when they rejected his request to celebrate Rastafarian holy days through communal feasts and gatherings. 

The case, Wright v. Lassiter, arose when a Rastafarian prisoner asked for communal feasts as part of his religious practice. When officials declined, he sued, arguing that officials violated his free-exercise rights under RLUIPA and the Free Exercise Clause.

But according to the court there was one problem: The plaintiff was the only Rastafarian, and the only prisoner who would attend the communal feasts and gatherings, in the prison. This meant that the officials didn't cause or impose a substantial burden on his religious exercise (the trigger for both RLUIPA and free exercise claims); instead, the absence of any other Rastafarian did:

Wright's causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument tha the was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings. To put it in the negative, if other inmates would not join in his gatherings, then the prison's restrictive policies would not be a factual cause of the burden he claims to have experienced.

Absent causation, the court said, it didn't even need to evaluate under strict scrutiny (under RLUIPA) or rational basis review (under the Free Exercise Clause). 

SCOTUS Hears Oral Argument in 40 Foot Cross Case and Establishment Clause

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

In oral argument in The American Legion v. American Humanist Association, consolidated with Maryland-National Park and Planning Commission v. American Humanist Association, the Court considered whether a 40 foot "Latin Cross" situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md., erected to honor the dead of World War I, violates the Establishment Clause.

Recall that a divided panel of the Fourth Circuit held that the cross violated the Establishment Clause, applying Lemon v. Kurtzman (1971) as a "useful guidepost" augmented by the plurality in Van Orden v. Perry (2005) regarding passive monuments.

Michael Carvin, arguing for the American Legion, proposed replacing the Lemon test with a very broad standard that made all sectarian symbols erected or maintained by governments presumptively constitutional, except in "the rare case in which they've been misused to proselytize."  Carvin's argument would essentially vitiate the Establishment Clause and the Justices did not seem inclined to go that far.  However, there was much discussion regarding whether the endorsement inquiry under Lemon — or any portion of Lemon — was appropriate or workable. 

In considering whether the Latin cross was exclusionary of non-Christians, Neal Katyal, arguing for the Maryland state government party, stated that "factually, one of the main proponents for fundraisers of this particular cross was J. Moses Eldovich, who himself was a Jewish veteran."  Later in the argument, Chief Justice Roberts returned to this point in a colloquy with Monica Miller (pictured right) arguing on behalf of the American Humanist Association:

CJ ROBERTS: Well, but that’s one of the main criticisms of the - - - of the Lemon test - - - that different people are going to process that [the relationship between Christianity and citizenship virtues]  in different ways. 
I mean, you heard from one of your friends on the other side that one of the major fund-raisers of this was a Jewish individual. So he was obviously observing it or anticipating it in a different way.

MILLER: Well, Your Honor, I think that we cannot take one person's example, again, someone who is probably one of maybe the only Jewish people in that county at a time when there was an active clan [Klan] burning crosses, burning Jewish buildings or Jewish, you know, businesses at a time when atheists couldn't run for office, Jews had to swear that they believed in an after-life in order to qualify, I mean —

Justice Kagan, attempted to ask a question, “why does it even matter?” But Justice Alito, overriding Kagan, pointed out that there were 12 African-American soldiers’ names on the cross, and then asked Ms. Miller:  

JUSTICE ALITO: And do you think that the -- that the situation of -- of African Americans in Prince George's County at that time was worse -- was better than the situation for Jews?

Ms. Miller responded by stating that it was unclear how the names actually were chosen to be on the cross and that not all of them were from Prince George’s county.

While predictions from oral argument are always fraught, the majority of the Court seems poised to depart from Lemon and rather than articulate a new standard, stress the longstanding nature of the "monument" as in Van Orden.

 

Check it Out: Litman on the Substance of the Supreme Court's Procedure

Check out Leah Litman's piece at Take Care on the Court's orders last week in June Medical (granting a stay of the Fifth Circuit's rejection of a challenge to Louisiana's admitting-privileges requirement for doctors who perform abortion) and Dunn v. Ray (granting a stay of the Eleventh Circuit's stay of execution for an inmate who was denied an imam to attend his execution). Litman argues that these rulings "are not really about the district court's general role as fact-finders. They are, instead, about the factual, procedural, and equitable standards that courts hold different kinds of plaintiffs to--who they indulge, and who they hold to increasingly insurmountable or prohibitively difficult standards."

Another Court Halts Administration's Final Rules on Contraception Mandate

Judge Wendy Bettlestone (E.D. Pa.) yesterday issued a preliminary injunction halting the government's final rules that provide sweeping exemptions to the contraception mandate under the Affordable Care Act.

Judge Bettlestone's ruling is the second in two days halting the rules. But unlike Sunday's ruling, which applied just to the plaintiffs, Judge Bettlestone's injunction applies nationwide. The ruling strikes yet another significant blow against the administration's efforts to eviscerate the contraception mandate and means that the government can't enforce its new rules unless and until it successfully appeals or wins a stay. The second ruling also makes it more likely that the issue will sooner-or-later end up at the Supreme Court.

The court held that the religious and moral exemptions violated the Administrative Procedure Act, for both procedural and substantive reasons. As to procedure, the court held that the government's earlier failure to apply APA procedures to the interim rules "infected" its adoption of the final rules. As to substance, the court ruled that the final rules "exceed the Agencies' authority under the ACA" and cannot be justified by the Religious Freedom Restoration Act.

The court recognized the controversies around nationwide injunctions, but wrote that a nationwide injunction was justified here for three reasons:

For one, anything short of a nation-wide injunction would likely fail to provide the States "complete relief." . . .

Second, it is far from clear how burdensome a nation-wide injunction would be on Defendants, given that when "agency regulations are unlawful, the ordinary result is that the rules are vacated--not that their application to the individual petitioners is proscribed." 

Third, one of the risks associated with a nation-wide injunction--namely, "foreclosing adjudication by a number of different courts"--is not necessarily present here, as the parallel litigation in the Ninth Circuit evidences. 

Fundamentally, given the harms to the States should the Final Rules be enforced--numerous citizens losing contraceptive coverage, resulting in "significant, direct and proprietary harm: to the States in the form of increased use of state-funded contraceptive services, as well as increased costs associated with unintended pregnancies--a nation-wide injunction is required to ensure complete relief to the States.

Court (again) Halts Trump Exemptions to ACA's Contraception Requirement

Judge Haywood S. Gilliam, Jr., issued a preliminary injunction yesterday that halts the government's implementation of its sweeping exemptions to Obamacare's contraception requirement in the plaintiff states.

The ruling is a blow to the administration's attempts to allow organizations to opt-out of the contraception requirement on their own say-so, and without informing the government.

Recall that just last month the Ninth Circuit affirmed an injunction barring the government from enforcing interim exemptions, but limited the injunction to plaintiff states.

Yesterday's ruling halts the final rules (not the interim ones). But as Judge Gilliam noted, they're more or less the same, except that the final rules went through notice-and-comment procedures under the Administrative Procedure Act. Those rules include a religious exemption and a moral exemption that permit any organization that has a religious or moral objection to unilaterally opt-out of the contraception requirement, without filing an exemption or even noting an objection to the government. 

The court ruled that the religious exemption likely violated the APA, because it's contrary to the ACA's contraception mandate. (The court rejected the government's position that the ACA's mandate is really just a suggestion.) The court also held that the government's final rule isn't required by the Religious Freedom Restoration Act, because no authority says that simply informing the government of a religious objection (by writing a letter, for example) is a substantial burden. The court noted that there's much work to be done on these issues, however, when the case goes forward.

The court also ruled that the moral exemption likely violated the APA, also because it's contrary to the ACA. Among other problems, the court noted that the Senate rejected a statutory moral exemption when it passed the ACA. 

The ruling temporarily halts enforcement of the government's new final rules in the plaintiff states--California, Delaware, Maryland, New York, Virginia, Connecticut, Hawaii, Illinois, Minnesota, North Carolina, Rhode Island, Vermont, and Washington, and Washington, D.C. 

SCOTUS Grants Certiorari in Establishment Clause Challenge to Maryland's 40 foot "Latin Cross"

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

The Court has granted certiorari in Maryland-Capital Park and Planning Commission v. American Humanist Association centered on the constitutionality of a 40 foot "Latin Cross," owned and maintained by the state of Maryland and situated on a traffic island taking up one-third of an acre at the busy intersection of Maryland Route 450 and U.S. Route 1 in Bladensburg, Md. 

Recall our earlier discussion regarding the divided decision in which the Fourth Circuit concluded that the government cross violated the First Amendment's Establishment Clause, reversing the district judge. In essence, the majority found that while there may be a legitimate secular purpose to the cross, considering that it was erected to local soldiers who died in World War I, the cross is specifically Christian and "the sectarian elements easily overwhelm the secular ones" in the display. A "reasonable observer" most likely viewing the 40 foot cross from the highway would fairly understand the Cross to have the primary effect of endorsing religion and entangles the State with religion.

 

 

D.C. Circuit Denies Injunction Against Transit Rule Banning Religious Content

Steven D. Schwinn, John Marshall Law School

The D.C. Circuit ruled yesterday in Archdiocese of Washington v. WMATA that the Washington Metro Area Transit Authority rule that bans religious content advertising on buses did not likely violate free speech. The court denied the Archdiocese's motion for a preliminary injunction.

Judge Kavanaugh was an original member of the panel, but recused himself from the ruling.

The ruling sides with the government on a key free-speech question: Is religious content necessarily a viewpoint? The court said no.

The case involves WMATA's Guideline 12, which closes the public-transit authority's advertising space to issue-oriented ads, including political, religious, and advocacy ads. (Importantly, the Guideline banned by pro- and con- ads on each topic.) When WMATA, acting pursuant to the Guideline, rejected the Archdiocese's request to place religious ads on buses, the Archdiocese sued, arguing that the denial violated free speech, the Free Exercise Clause, and RFRA, among others. The Archdiocese moved for a preliminary injunction, but yesterday the D.C. Circuit rejected that request.

The court ruled that the Archdiocese was unlikely to succeed on its free speech claim, because buses are a non-public forum, and Guideline 12 permissibly discriminates based on the content, not viewpoint, of the message.

The court rejected the Archdiocese's argument that any content restriction on religious speech was necessarily a viewpoint based restriction on speech because there's a religious viewpoint on any matter. "Notably, there is no principled limit to the Archdiocese's conflation of subject-matter restrictions with viewpoint-based restrictions as concerns religion. Were the Archdiocese to prevail, WMATA (and other transit systems) would have to accept all types of advertisements to maintain viewpoint neutrality, including ads criticizing and disparaging religion and religious tenets or practices."

The court distinguished Rosenberger, Lamb's Chapel, and Good News Club--all of which struck government bans on religious speech as viewpoint-based discrimination. The court said that those cases involved religious-viewpoint discrimination within a defined content of speech. But here, the government simply banned the content of all religious speech, again, both pro- and con- (or otherwise). 

[F]ar from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court's viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA's in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.

The court also said that the Archdiocese didn't demonstrate a likelihood of success on its other claims. As to Free Exercise, the court said that Guideline 12 was merely a religiously-neutral rule of general applicability, with no evidence of religious animus, and therefore valid under rational basis review.

Closely Divided SCOTUS Finds Trump "Travel Ban" Constitutional

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

In its opinion in Trump v. Hawaii, a closely divided United States Supreme Court found that the so-called "travel ban" or "Muslim ban" did not violate the Establishment Clause. 

Recall that the Court granted certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as E.O 3, or Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act.  The Court also took certiorari on the Establishment Clause issue. There were also constitutional issues involving standing.

The Court's majority opinion, authored by Chief Justice Roberts, spends substantial space on the statutory issue, ultimately concluding that the Proclamation is within the President's authority under 8 U.S.C. §1182, a provision of the Immigration and Nationality Act.

On the constitutional issues, Chief Justice Roberts writing for the majority finds there is standing, but concludes that the Proclamation does not violate the Establishment Clause. The Court rehearses some of the President's statements regarding a "Muslim ban," but — in a passage which will be oft-quoted — states that

the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself.

In making this assessment, the majority, finds the statements essentially insignificant. The Court applies the rational basis standard derived from Kleindienst v. Mandel (1972) which the majority stated applies "across different contexts and constitutional claims" when considering Executive authority. Thus, according to the majority, as long as the Executive act "can reasonably be understood to result from a justification independent of unconstitutional grounds" it will be upheld. The majority briefly considered its equal protection cases involving animus (interestingly, the majority does not discuss McCreary County v. ACLU of Kentucky (2005), an Establishment Clause case involving intent),  but rejected the equal protection cases' applicability:

The Proclamation does not fit this pattern. It cannot be said that it is impossible to “discern a relationship to legitimate state interests” or that the policy is “inexplicable by anything but animus.”

Instead, the majority states that the Proclamation results from a worldwide review process (echoing the opening words of the Solicitor General at oral argument), and three "additional features" including removal of three nations since the first ban, significant exceptions, and a waiver process. 

Noteworthy in the majority is also its disavowal and essential overruling of Korematsu v. United States (1944), one of the so-called Japanese internment cases, and states that it is "wholly inapt to liken that morally repugnant order [in Korematsu] to a facially neutral policy denying certain foreign nationals the privilege of admission."

Four Justices dissented.  The dissenting opinion by Breyer, joined by Kagan, argues that the Proclamation's "elaborate system of exemptions and waivers" points to the conclusion that "religious animus" played a significant role in the Proclamation. Breyer recommended that the issue be remanded for further factfinding, but on balance, the evidence of antireligious bias was now sufficient to find the Proclamation unconstitutional.

The dissenting opinion by Sotomayor, joined by Ginsburg, devotes itself entirely to the Establishment Clause issue and concludes that the Proclamation, which "masquerades behind a facade of national-security concerns," is nevertheless motivated by anti-Muslim bias and "runs afoul of the Establishment Clause's guarantee of religious neutrality." Sotomyor's opinion critiques the majority for providing a "highly abridged account" of the President's public statements regarding Muslims that does not "tell even half the story," and provides almost seven pages of statements, tweets, and retweets, and also notes that "despite several opportunities to do so, President Trump has never disavowed any of his prior statements about Islam."

In addition to comparing this situation with Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993, in which the Court found unconstitutional the city's prohibition of animal sacrifice as motivated by bias against the Santeria religion, and Korematsu v. United States (1944), as discussed above,  Sotomayor's dissenting opinion stated:

Just weeks ago, the Court rendered its decision in Mas­terpiece Cakeshop,  which applied the bed­ rock principles of religious neutrality and tolerance in considering a First Amendment challenge to government action.  (“The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state inter­ vention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures’” (quoting Lukumi); Masterpiece(KAGAN, J., concurring) (“[S]tate actors cannot show hostility to religious views; rather, they must give those views ‘neutral and respectful consideration’ ”). Those principles should apply equally here. In both instances, the question is whether a gov­ernment actor exhibited tolerance and neutrality in reach­ing a decision that affects individuals’ fundamental reli­gious freedom. But unlike in Masterpiece, where a state civil rights commission was found to have acted without “the neutrality that the Free Exercise Clause requires,”  the government actors in this case will not be held accountable for breaching the First Amendment’s guarantee of religious neutrality and toler­ance. Unlike in Masterpiece, where the majority consid­ered the state commissioners’ statements about religion to be persuasive evidence of unconstitutional government action, the majority here completely sets aside the President’s charged statements about Muslims as irrelevant. That holding erodes the foundational principles of religious tolerance that the Court elsewhere has so emphatically protected, and it tells members of minority religions in our country “‘that they are outsiders, not full members of the political commu­nity.’ ”

[citations omitted].

The majority did not cite Masterpiece. Neither did Kennedy's brief concurring opinion which closed with what seemed to an  attempt at an admonition:

An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.

 

SCOTUS Remands Arlene's Flowers on Same-Sex Wedding Refusal

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

The Court, without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n.

Recall that in 2017 the Washington Supreme Court unanimously upheld the Washington Law Against Discrimination including sexual orientation as applied to a business that refused to provide wedding flowers for a same-sex wedding. Artlene's Flowers had several First Amendment claims and on the Free Exercise claim, the court rejected Arlene's Flowers' argument that the Washington ant-discrimination law was not a neutral one of general applicability and should therefore warrant strict scrutiny.  Instead, the court applied the rational basis standard of Employment Division, Department of Human Resources of Oregon v. Smith, which the Washington anti-discrimination easily passed. 

Shortly after the Court's decision in Masterpiece Cakeshop, in which the Court found that the Colorado  Civil Rights Commission’s treatment of the case had "some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection," the florist in Arlene's Flowers, Baronnelle Stutzman, filed a Supplemental Brief seeking "at least" remand and alleging:

in ruling against Barronelle, the state trial court—at the urging of Washington’s attorney general—compared Barronelle to a racist “owner of a 7-Eleven store” who had “a policy” of refusing “to serve any black[]” customers. Pet. App. 107a–109a & 108a n.16 (emphasis added). The state, in short, has treated Barronelle with neither tolerance nor respect.

Thus the Washington Supreme Court is now tasked with determining whether there was hostility towards the Arlene's Flowers woner's religion, and if so, applying strict scrutiny.

Relatedly, in a challenge to Arizona's non-discrimination statute by a company, Brush & Nib, that sells "pre-fabricated and design artwork for home décor, weddings, and special events," an Arizona Court of Appeals found that there would be no Free Exercise claim in its opinion in Brush & Nib Studio v. City of Phoenix. Yet because Brush & Nib was a pre-enforcement challenge, the emphasis was on the statute rather than on Brush & Nib's actions.

 

 

Check it out: Winkler on Masterpiece Cakeshop and Corporate Religious Rights

Check out Adam Winkler's piece on Masterpiece Cakeshop over at Slate. Winkler argues that the case may not be so narrow, after all--but for a different reason: it may (his emphasis) "enable future businesses to assert that they too have been victims of religious discrimination." (You might ask, didn't this already happen in Hobby Lobby? Answer: No, that case was statutory (RFRA), not constitutional.)

SCOTUS Finds Colorado Civil Rights Commission Hostile to Religion in Masterpiece Cakeshop

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

In its opinion today authored by Justice Kennedy in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court found that the cakeshop owner's First Amendment Free Exercise Clause right was infringed upon by the Colorado Civil Rights Commission. Recall that the Civil Rights Commission had found the cakemaker violated the state equal accommodations statute protection on the basis of sexual orientation when the cakemaker refused to be employed for a same-sex wedding cake.

Justice Kennedy's opinion decides the controversy on the basis of Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), in which the Court found that the City of Hialeah's prohibition of killing animals was aimed at the religion of Santeria, especially given the numerous exceptions in the ordinance. Here, Kennedy's opinion for the Court rejects the ALJ's conclusion that the Colorado anti-discrimination statute was a neutral law of general applicability (and thus should be evaluated under a rational basis test), finding instead that the Colorado Civil Rights Commission in its adjudication of this case was not neutral but expressed hostility:  "The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his [the cakemaker's] objection."

These expressions of hostility surfaced in the oral argument as we noted in a specific statement from Kennedy  quoting one of the civil rights commissioners ( "freedom of religion used to justify discrimination is a despicable piece of rhetoric") which Kennedy asked counsel to disavow. This foreshadowed the opinion's quotation of the commissioner  "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The opinion then stated:

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare [cakemaker] Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti- discrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

With the decision based on this, the Court admittedly sidesteps the more contentious issues and widespread issues of the case:

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

Perhaps another limiting factor is that the Court observes that the cakebaker's refusal occurred before Obergefell v. Hodges (2015) when Colorado law did not authorize same-sex marriages. However, the Court also pointed to language in Obergefell that religious objections to same-sex marriage are protected by the First Amendment.

Yet there is also the issue of arguably inconsistent rulings from the civil rights commission.

Justice Kagan, in a brief concurring opinion joined by Justice Breyer, stressed the fault found with the Civil Rights Commission that did not give the cakemaker's religious views “neutral and respectful consideration.” She argued that any "inconsistent" rulings could be explained: the cakemakers in other cases objected to placing words on the cakes that they found offensive; in Masterpiece, the cakemaker objected to the customers who were purchasing sentiments he would provide for others.

In dissent, Justice Ginsburg, joined by Justice Sotomayor, concluded that there was not sufficient evidence of "hostility" neither in the arguably inconsistent rulings nor in the statements.  As to the statements,

Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected the determinations of the adjudicators in the case before and after the Commission?

For Ginsburg, then, this was "far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council."

Certainly, the Court's opinion rests on narrow grounds, perhaps unique to this case. But it nevertheless represents the Court chipping away at equality on the basis of sexual orientation.

 

 

 

 

Massachusetts High Court on Public Funding of Churches and the State Anti-Aid Amendment

Steven D. Schwinn, John Marshall Law School

The Supreme Judicial Court of Massachusetts ruled last week on the constitutionality of local grants going to church improvements under the state Anti-Aid Amendment. The ruling balances the interests behind the Anti-Aid Amendment, on the one hand, and the Free Exercise Clause under Trinity Lutheran, on the other, and comes out with a cautious thumb on the scale in favor of anti-aid.

The case, Caplan v. Town of Acton, arose when a local church applied for and received two grants of public funds for church improvements--one for a "Master Plan for Historic Preservation," covering several renovation and preservation projects on the facilities, and one for restoration and preservation of the church's religious-themed stained-glass windows. Taxpayers sued under the state private-attorney-general provision, arguing that the grants violated the state constitutional Anti-Aid Amendment. That Amendment prohibits the "grant, appropriation or use of public money . . . for the purpose of founding, maintaining or aiding any church, religious denomination or society."

Two questions came to the court. First, does the Anti-Aid Amendment categorically bar the grants, or are the grants subject to a three-factor test that the state uses for a companion provision in the Amendment? (A categorical bar would prohibit the grants without further inquiry, whereas the three-factor test could permit the grants if they met certain factors.) Next, if the three-factor test applies, do the grants satisfy it?

The court ruled that the Anti-Aid Amendment isn't categorical, and is instead subject to its three-factor test. (That test looks to whether a motivating purpose of each grant was to aid the church; whether the grant would have the effect of substantially aiding the church; and whether the grant avoid the risks of the political and economic abuses that prompted the passage of the Amendment.) The court gave three reasons: (1) because the three-factor test applies to a companion provision in the Amendment, it made sense to apply it to this provision, too; (2) the Amendment by its own terms requires a case-by-case analysis, which is consistent with a three-factor test (but not a categorical approach); and (3) a categorical approach "invites the risk of infringing on the free exercise of religion" under Trinity Lutheran. As to that last reason, the court said that the three-factor test allowed it to account for the Amendment without violating free exercise, Trinity Lutheran style.

As to the application of the test, the court ruled that the plaintiffs were likely to succeed in their challenge to the stained-glass window grant, but remanded the case on the "Master Plan" grant.

Two justices concurred, and one dissented, arguing in different ways how the Amendment and the grants stacked up against Trinity Lutheran.

Fourth Circuit En Banc Affirms Injunction Against Trump's Travel Ban 3.0

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

In its 285 page opinions in IRAP v. Trump, the Fourth Circuit en banc majority has found that the so-called Travel Ban 3.0,  Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, is essentially intended as a Muslim Ban and thus there is a likelihood of success on the merits of the First Amendment Establishment Clause challenge meriting a preliminary injunction. 

The majority is composed of nine judges, with four judges (including a Senior Judge) dissenting. Some judges in the majority also wrote concurring opinions that would also grant relief on the statutory claims.

Recall that in October, Maryland District Judge Theodore Chuang has issued a nationwide injunction against the so-called "Muslim Ban 3.0" in an almost 100 page opinion, shortly after Hawai'i District Judge Derrick Watson had issued a nationwide injunction based largely on statutory grounds, which the Ninth Circuit affirmed. 

Recall also that SCOTUS granted certiorari to the Ninth Circuit's opinion, adding the Establishment Clause issue to the questions to be considered.  Most likely this case will be added to the SCOTUS docket.

The majority opinion by Chief Judge Gregory, after setting out the litigation history and preliminary injunction standard, delves into the Establishment Clause issue. Chief Judge Gregory begins by finding both that there is standing and that the case is ripe.

On the merits, Chief Judge Gregory's opinion first considers whether the proffered reason for the government act is "facially legitimate and bona fide" under Kleindienst v. Mandel (1972). The court assumes without deciding that the reason is facially legitimate, but holds that it is not bona fide:

here the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.

The President’s own words—publicly stating a constitutionally impermissible reason for the Proclamation—distinguish this case from those in which courts have found that the Government had satisfied Mandel’s “bona fide” prong.

Chief Judge Gregory then found that the Travel Ban 3.0 failed the Lemon v. Kurtzman (1971) test which requires the government to show that its challenged action has a primary secular legislative purpose, and then, even if it does that its principal or primary effect neither advances nor inhibits religion and which does not foster ‘an excessive government entanglement with religion. Chief Judge Gregory's majority opinion concludes that Travel Ban 3.0 did not have a primary secular purpose but, like its previous incarnations, was motivated by anti-Muslim bias. Chief Judge Gregory noted the government's argument to disregard the President's pre-election statements was a difficult one to make, but stated it did not need to rely on any campaign statements "because the President’s inauguration did not herald a new day."

Among the incidents Chief Judge Gregory recounts is this one from November 28, 2017 (after the Travel Ban 3.0 September 24, 2017 Proclamation):

President Trump retweeted three disturbing anti-Muslim videos entitled: “Muslim Destroys a Statue of Virgin Mary!” “Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” The three videos were originally tweeted by an extremist political party whose mission is to oppose “all alien and destructive politic or religious doctrines, including . . . Islam.” When asked about the three videos, President Trump’s deputy press secretary Raj Shah responded by saying that the “President has been talking about these security issues for years now, from the campaign trail to the White House” and “the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation.” The Government does not—and, indeed, cannot—dispute that the President made these statements.

 Thus, the question of how long a "taint" of impermissible motive should persist was acknowledged and then quickly dispatched: "President Trump could have removed the taint of his prior troubling statements; for a start he could have ceased publicly disparaging Muslims." Moreover, the government initially relied on the months-long agency review to remove the taint, but

chose not to make the review publicly available and so provided a reasonable observer no basis to rely on the review. Perhaps in recognition of this, at oral argument before us the Government expressly disavowed any claim that the review could save the Proclamation. Instead, the Government conceded that the Proclamation rises and falls on its own four corners.

For the majority, then,

The contradiction between what the Proclamation says—that it merely reflects the results of a religion-neutral review—and what it does “raises serious doubts” about the Proclamation’s proffered purpose, and undermines the Government’s argument that its multi-agency review cured any earlier impermissible religious purpose.

Chief Judge Gregory's majority opinion summed up its reasoning:

Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Finally, on the scope of the injunction, the majority opinion arguably broadened it:

To the extent that the district court held that IRAP, HIAS, and similar organizations categorically lack a qualifying bona fide relationship with their clients, we conclude that this would be an abuse of discretion. We see no need to read more into the Supreme Court’s grant of a stay than what it held: that refugees with formal assurances do not categorically enjoy a bona fide relationship with a U.S. entity. Instead, IRAP, HIAS, and other organizations that work with refugees or take on clients are subject to the same requirements as all other entities under the Supreme Court’s bona fide relationship standard: a relationship that is “formal, documented, and formed in the ordinary course, rather than for the purpose” of evading the travel restrictions imposed by the Proclamation.

Nevertheless, the Fourth Circuit stayed its decision, in light of the Supreme Court’s order staying the district judge's injunction pending “disposition of the Government’s petition for a writ of certiorari, if such writ is sought."

 

SCOTUS to Hear Trump v. Hawai'i on Travel Ban 3.0

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

The United States Supreme Court has granted the Trump Administration's petition for certiorari to the Ninth Circuit's opinion in Hawai'i v. Trump regarding Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of  September 24, 2017, also known as Travel Ban 3.0, or Muslim Ban 3.0. The Ninth Circuit, affirming a district judge, found Travel Ban 3.0 unlawful under the Immigration and Nationality Act. 

The United States Supreme Court will also be considering the Establishment Clause issue. Recall that the Ninth Circuit did not reach the Establishment Clause issue. However, the United States Supreme Court's grant of certiorari states that the parties are directed to brief and argue Question 3 presented by the opposition brief of Hawai'i.  That question presented is simply phrased: "Whether Proclamation 9645 violates the Establishment Clause."

Recall that the United States Supreme Court previously granted certiorari in Hawai'i v. Trump, as well as IRAP v. Trump from the Fourth Circuit regarding Travel Ban 2.0, but then remanded the cases to be dismissed as moot when that Executive Order was replaced by the current incarnation.

One important issue in the Establishment Clause litigation is whether the travel ban "targets" a particular religion. Somewhat similarly, an important issue under the Immigration and Nationality Act is whether the travel ban constitutes "nationality discrimination."

These issues have involved consideration of whether the "taint" of statements from candidate Trump and President Trump during the earliest days of the Administration would continue to be viable to this third iteration of the travel ban. It is also likely that much more recent statements allegedly made by the President regarding immigration will be raised.

 

 

 

Ninth Circuit Finds Presidential Travel Ban 3.0 Unlawful

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

In the latest installment in the continuing saga of President Trump's various efforts to promulgate a travel ban, often called a Muslim Ban, the Ninth Circuit opinion in Hawai'i v. Trump has largely affirmed the preliminary injunction issued by District Judge Derrick Watson enjoining the Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.

Recall that the United States Supreme Court, over the stated disagreement of Justices Ginsburg and Sotomayor, issued a stay of the district judge's opinion earlier this month, as well as a stay in the related proceedings in the Fourth Circuit in IRAP v. Trump. 

The unanimous Ninth Circuit panel does not disturb the status quo: "In light of the Supreme Court’s order staying this injunction pending 'disposition of the Government’s petition for a writ of certiorari, if such writ is sought,' we stay our decision today pending Supreme Court review."   The Ninth Circuit does, however, narrow the district judge's injunction, to "give relief only to those with a credible bona fide relationship with the United States."

On the merits, the Ninth Circuit does not reach the constitutional claims including the Establishment Clause, unlike the Fourth Circuit in IRAP v. Trump, because it finds that the plaintiffs' statutory claims are sufficient to grant relief.

Yet the complex statutory framework of the Immigration and Nationality Act, INA, does implicitly invoke the scope of executive powers.  In short, the Ninth Circuit finds that the Presidential Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas and therefore (in likelihood sufficient for the preliminary injunction) run afoul of 8 U.S.C. § 1152(a)(1)(A)’s prohibition on nationality-based discrimination. As the Ninth Circuit opinion observes:

the Proclamation functions as an executive override of broad swaths of immigration laws that Congress has used its considered judgment to enact. If the Proclamation is—as the Government contends—authorized under [8 U.S.C.] § 1182(f), then § 1182(f) upends the normal functioning of separation of powers. Even Congress is prohibited from enabling “unilateral Presidential action that either repeals or amends parts of duly enacted statutes.” Clinton v. City of New York, 524 U.S. 417, 439 (1998). This is true even when the executive actions respond to issues of “first importance,” issues that potentially place the country’s “Constitution and its survival in peril.” Id. at 449 (Kennedy, J., concurring). In addressing such critical issues, the political branches still do not “have a somewhat free hand to reallocate their own authority,” as the “Constitution’s structure requires a stability which transcends the convenience of the moment” and was crafted in recognition that “[c]oncentration of power in the hands of a single branch is a threat to liberty.” Id. at 449–50.

And the Proclamation’s sweeping assertion of authority is fundamentally legislative in nature. . . .

Recall that a few months ago, after granting certiorari in Hawai'i v. Trump, the United States Supreme Court instructed the Ninth Circuit to dismiss as moot the challenge to Travel Ban 2.0.  It looks as if the Court will now have its chance to consider version 3.o.

 

 

Masterpiece Cake Oral Argument

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

 The Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission with extensive arguments from the attorney for the cakeshop (Kristen Waggoner),  the Solicitor General, the Colorado Solicitor General, and the attorney for the would-be customers (David Cole).

As predictable, the oral argument was filled with the expansiveness or limits of any doctrine that would permit the cakemaker to refuse to bake a cake for the same-sex wedding reception. Early on, Justices Ginsburg and Kagan asked Waggoner about florists and invitation designers, who Waggoner stated would be engaging in speech, but said "absolutely not" for the hair stylist. Drawing the line - - - what about the chef? the sandwich artist? - - - preoccupied this initial portion of the argument.  However, another limitation that permeated the case was whether the cakemaker's refusal could apply to racial or other identities as well as sexual orientation, or perhaps, whether it was based on identity at all.  For Kennedy, the issue could be that "there's basically an ability to boycott gay marriage." 

Also for Kennedy, however, the question is whether Colorado had been "tolerant" or "respectful" of the cakemaker's religious beliefs.  This invocation of the Free Exercise Clause was given heft by a statement by one of the Commissioners of the Colorado Civil Rights Commission as quoted by Kennedy that "freedom of religion used to justify discrimination is a despicable piece of rhetoric."  Kennedy asks the Colorado Solicitor General to "disavow or disapprove" of that statement.  Kennedy characterizes the statement as expressing a hostility to religion and later lectures the Colorado attorney:

Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it's mutual.
It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.

In Waggoner's rebuttal, Justice Sotomayor proffered a different view:

Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
It's not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.

While it's always perilous to predict the outcome of a decision based n oral argument, if Justice Kennedy is the deciding vote, his attention to the religious aspects of the challenge could make the free speech argument less consequential.

 

Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

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

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.   A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.

On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.

No Surprise: SCOTUS Vacates Trump v. Hawai'i Travel Ban Certiorari

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

In an Order today the Court brought the litigation in Hawai'i v. Trump on Muslim Ban/Travel ban 2.0 to a close. The Order provides:

We granted certiorari in this case to resolve a challenge to the temporary suspension of entry of aliens and refugees under Section 2(c) and Section 6 of Executive Order No. 13,780. Because those provisions of the Order have “expired by [their] own terms,” the appeal no longer presents a “live case or controversy.” Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.

This Order replicates the Court's previous dismissal in IRAP v. Trump on October 10.

This does not end litigation on the issues.

Recall that so-called Muslim Ban/Travel Ban 2.0 has been replaced by so-called Muslim Ban/Travel Ban 3.0, Presidential Proclamation 9645, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”of September 24, 2017.  Like the previous iterations, this has been enjoined by federal judges in Hawai'i (Hawai'i v. Trump) and in Maryland (IRAP v. Trump).