ContractsProf Blog

Contracts v. the First Amendment: Pro Se Version

The Supreme Court has invited the weaponization of religion in innumerable contexts.  How far can one go in claiming one's religious beliefs as a source for an exemption to contractual obligations?  One answer comes from the District Court for the Western District of Wisconsin in Joseph v. Becerra. 

Plaintiff Mark Joseph is a combat veteran and former employee of the U.S. Postal Service.  He claimed that state and federal agencies' indoor masking requirements during the COVID pandemic burdened his religious beliefs and sought to establish a state "scientist" and "collectivist" religion.  Mr. Joseph alleged that, as a result of his refusal to wear a mask, he was: was suspended from his job; denied access to medical facilities; denied public benefits; and excluded from public activities ranging from public hearings to jury duty.  Mr. Joseph, acting pro se, brought numerous claims, sounding in the First, Fifth, and Thirteenth(!) Amendments, Bivens, the Religious Freedom Restoration Act (RFRA), and Wisconsin Law.  He alleged that the government is covertly imposing its own "scientist" and "collectivist" religion while disparaging his individualist beliefs, which he claims are religious in origin.

The court carefully considers and rejects each of Mr. Joseph's claims, some on rather technical grounds.  For example, he cannot state a Bivens claim, among other reasons, because he has sued the defendants in their official rather than their personal capacities.  The heart of the opinion is the court's rejection of Mr. Joseph's claim that his objections to the government's policies sound in religion.  

Although couched in religious terms, therefore, plaintiff’s Establishment Clause claims boil down to defendants allegedly making policy decisions based on evolving scientific data to which not all experts necessarily agree, not establishing a religion. Admittedly, the governing case law does not precisely define the contours of what constitutes “religion,” but “courts are well-equipped to weed out spurious Establishment Clause ‘religions’ on grounds of common sense.” Sevier v. Lowenthal, 302 F. Supp. 3d 312, 320-21 (D.D.C. 2018). Thus, plaintiff’s proposed amended complaints provide no basis to infer that masking requirements advance any religious belief as opposed to science-based health policy, even if an implied cause of action were cognizable under Bivens.

The court could have stopped there.  Mr. Joseph has not really identified himself as a practitioner of any particular religion; rather, he just has beliefs.  Instead, the court proceeded along lines that I'm not sure are consistent with SCOTUS's views of the scope of Free Exercise Clause protections as articulated in the past few terms.

For example, the court notes that the challenged making policies are neutral and do not target religion.  That used to matter, but Fulton indicates that neutrality is not enough if there are exceptions.  Mr. Joseph points out that mask mandates allow exceptions for "secular activities" such as eating.  The court rejects this argument, noting that it is simply impossible to eat while masked.  I'm not sure SCOTUS cares about impossibility.*  It didn't care that the agency challenged in Fulton had never exercised its discretion to waive its policy prohibiting discrimination based on sexual orientation.  

The court also noted that the government needs only a rational basis to impose neutral policies such as mask mandates, but here, the court says, citing over one million deaths in the United States from COVID, the government has not only a rational basis for regulation but a compelling interest in doing so.  But SCOTUS did not find California's interest in preventing the spread of COVID through congregation in houses of worship compelling.  The court also cited that same compelling interest in rejecting Mr. Joseph's RFRA claim.  

Alas, while Mr. Joseph alleged that his rights were violated when his employment with the U.S. Postal Service was suspended because of his refusal to wear a mask, he apparently did not make any specific claims against the Postal Service relating to his employment.  If he had, we could have had the showdown between the contractual rights of the employer to place conditions on continued employment and Free Exercise rights.  Working out that clash of rights and interests will have to await another case.  

Meanwhile, in related non-contractual developments, Jewish, Muslim, and pagan plaintiffs have won a preliminary injunction of Indiana's sweeping post-Dobbs abortion restrictions on the ground that their religious beliefs prioritize the health and welfare of pregnant people over that of the fetus.  That law is already enjoined, at least until a hearing pending before Indiana's Supreme Court in January.  The Free Exercise challenge to the law will have to get in line.  These abortion cases, which have sprouted up in multiple jurisdictions, suggest that liberals have caught on to the wonders one can effect through the Free Exercise Clause.  Will SCOTUS back off on promoting the weaponization of the First Amendment, or will we continue down the path of being one nation, divisible, under God?

*ADDENDUM: Listening to the Strict Scrutiny podcast yesterday, I heard clips during the latest United States v. Texas oral arguments indicating that Chief Justice Roberts indeed sees impossibility as irrelevant to legal decision-making.  The context was Chief Justice Roberts' insistence that the United States could not simply tell the Court that enforcement of immigration laws would be impossible if the Court ruled that "shall" means "shall" and the government cannot exercise discretion in connection with decisions regarding which immigrants should be the focus of the government's attention.

The Other Shadow Docket: Hidden Contracts Issues in Fulton v. Philly

If you want a readable explanation for why so much of our constitutional jurisprudence makes no sense, I highly recommend Jamal Greene's How Rights Went Wrong.  One of Professor Greene's key points is that our jurisprudence elevates certain rights as "fundamental," and courts protect those rights zealously through heightened scrutiny.  Other rights, since 1937 or thereabouts, have been left nearly entirely unprotected.  Greene illustrates the phenomenon and the damage it has done to our social fabric with myriad examples, but he did not discuss Fulton v. City of Philadelphia, perhaps because it was decided after his book was published.

Philadelphia's Department of Human Services  (DHS) takes custody of children who cannot remain in their homes.  DHS then contracts with private entities, including Catholic Social Services (CSS) to place those children in foster homes.  The first step of placement is certifying the foster family as eligible to receive foster children.  Because CSS believes that “marriage is a sacred bond between a man and a woman," it announced in 2018 that it would refuse to certify unmarried couples or same-sex couples as foster parents. DHS responded by announcing that it would no longer contract with CSS, citing a non-discrimination provision in CSS's contract with the City, as well as the non-discrimination requirements of the city's Fair Practices Ordinance.  CSS sued, alleging that Philadelphia's refusal to continue to partner with CSS violated its Free Exercise rights.

Fulton is an important Free Exercise case.  Because the Court cares deeply about freedom of religious exercise and very little about freedom of contract -- at least as a constitutionally protected right-- there has been very little discussion of the  contract at the heart of the controversy.  Rather, the issue was whether the contract's non-discrimination provision is a neutral law of general applicability under Employment Division v. Smith, in which case CSS's claim was unlikely to succeed.

This is where Jamal Greene's ideas come into play, and apologies to Professor Greene if I mangle his approach.  Our courts engage in rights absolutism.  CSS claims that its beliefs require that it not endorse same-sex marriage.  It also claims that even certifying same-sex foster couples would be an impermissible endorsement.  Somehow, single gays and lesbians can serve as foster parents.  Apparently gay people's sex lives are none of CSS's business unless they decide to marry.  Well, half right. 

Chief Justice Roberts, writing for the Court, holds in Fulton that Smith does not apply, because the contract at issue is not a neutral law of general applicability.  Rather, the contract gives DHS's Commissioner "sole discretion" to provide exemptions from its non-discrimination policy.  The Court focuses on the Commissioner's refusal to waive that provision to benefit CSS rather than on the fact that it has never waived the policy in any case (and likely never would).  The Court treats another provision of the contract, which likewise prohibits discrimination based on sexual orientation and allows for no exceptions, as irrelevant.  The Court will not read one contract provision as annulling another.  

The Court thus dodges the need to overrule Smith but creates an exception that will be almost as good as eliminating Smith altogether.  Even so, three Justices concurred to call for Smith to be overturned but worried about its replacement, and three other Justices concurred separately to lament the missed opportunity to overrule Smith.  The result will likely be to require that courts recognize religious exemptions to neutral laws of general application unless the government regulation is necessary to achieve a compelling government interest.  Such religious exemptions will be granted whenever a regulation burdens religious practice in any way.  It is not for the courts to weigh the centrality of the burdened right to one's religious belief.  And “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”

Jamal Greene's alternative is to have courts engage in rights mediation rather than rights adjudication.  And it may be that if courts did so generally, courts could in far more cases leave it to other parties or institutions to work things out on their own.  So instead of treating CSS's Free Exercise rights as trumping all other rights, courts could recognize that right but also recognize DHS's right to choose what entities with which it contracts and allow that to be informed by the city's general policy of preferring not to contract with parties that discriminate. 

If the various rights and interests are considered in this case, it seems obvious to me (but perhaps that's just me) that the case comes out differently.  After all, DHS is absolutely not asking CSS to endorse same-sex marriage.  It is offering CSS a choice.  It can refuse to endorse same-sex marriage, but then it cannot contract with the city.  That may hamper its ability to engage in the important work it does placing children in foster families, but there are twenty other agencies that do so.  And CSS is then free to find other partners for whom it can provide its services while continuing to discriminate against same-sex couples.

Ultimately, rights mediation would force CSS to make a choice between two components of its mission.  Helping children find foster homes is one part of that mission; not endorsing same-sex marriage is another.  Which is more important to CSS?  Courts don't need to decide that for CSS.  CSS can decide on its own.  Note that the Court does not allow DHS the same freedom of choice.  It too wants to help children find foster homes, but it wants to do so on a non-discriminatory basis.  One can only understand the Court's decision to indulge CSS's discriminatory policies while paying no mind to contract terms and a city ordinance if one buys in to our uniquely American system of rights absolutism. 

Contracts Issues in Shtisel, Season 3, Part I

I am a big fan of the Israeli television series Shtisel.  I was thrilled when Netflix made Season 3 available but also a bit apprehensive, because I just didn't think the writers could maintain the intensity of their dramedy without drifting into formulaic schtick or melodrama.  Season 3 begins with a grieving widower, an orthodox woman unable to bear children, and a school principal facing removal from his position as a punishment for some pretty brutal corporal punishment caught on a smart phone.  The season was tipping towards melodrama.  But the show sustains its remarkable balancing act, revealing unexpected depths in its characters, brought out through fabulous acting, inventive plot twists that don't overtax the viewers' indulgence, and brilliant pacing and editorial interweaving of different threads. 

I just watched an episode in which the main character from Seasons 1 & 2, Akiva Shtisel (Michael Aloni) did not appear at all.   I didn't miss him, even thought I am very intrigued by his journey in Season 3, because I was so caught up with what was going on with the other characters.  The show is especially fun for me, because it provides just the life-support needed to sustain my dwindling recollection of Hebrew and Yiddish.  In addition, the show depicts strong-willed, even stubborn, characters constrained by fervent religious belief.  They constantly collide with one another while stuck between a rock and a hard place. The show's women are remarkably practical, creative, and determined, but also vulnerable and thus inevitably brittle; its men are deeply flawed and often shrewdly self-interested but also passionate and sometimes endowed with a softness and compassion that the women cannot always afford -- or don't think they can risk.

Contracts, formal and informal, and negotiation pervade the series.  I am only halfway through the season, and I don't want to provide too many spoilers, but here are some of the contractual/transactional interactions that arise:

• Has a school principal been effectively terminated from employment if he has been informed of his termination but does not agree to it?  If he responds by setting up a rival school and sets out to poach his former employer's students, has he breached any obligations absent a covenant not to compete?
• If an art collector agrees to exchange paintings she has purchased from a gallery for new paintings by the same artist of equal quality, is that a subjective condition of satisfaction or a an illusory promise, given that the collector seems to have total discretion to determine whether the substitute paintings are of equal quality?
• Can a young man get out of an arranged marriage when: the prospective bride and groom have no real connection, and the groom has fallen for another woman; and the bride's family has asked for additional consideration above the amount agreed upon at the start of the arrangement?
• If an orthodox Jew providing catering services for a secular tv producer promises to supply orthodox Jews who will perform as extras on demand, has he breached when he substitutes hipsters for the orthodox Jews?

I expect I will add a Part II to this post once I finish the season.

Weekend Frivolity: Sunday Celebration

It is important in these times to remember all that we have to be grateful for.  In this case, I'm grateful for talented, snarky young people who can celebrate and parody this uniquely American fusion of patriotism, religiosity, and sports.  Also, I can't get the song out of my head.

 

Deciding insubordination isn't the same as judging spiritual leadership

I just blogged about the ministerial exception of the First Amendment, and now here's another case discussing it! This recent case out of California, Sumner v. Simpson University, C077302, was a dispute over Sumner's dismissal for insubordination. Sumner sued for breach of her employment contract. Simpson argued that the ministerial exception of the First Amendment protected its contractual decision from judicial examination. The court agreed that Simpson was a religious group and also found that Sumner was a ministerial employee even though she wasn't technically titled a minister. Her job duties at the university required her to have a doctorate in ministry or a related field and included promoting the university through preaching appearances. 

However, the court still permitted Sumner's breach of contract claim to go forward, based on the fact that the ministerial exception should not bar all contract actions involving a religious group and its ministerial employees. Rather, it should only operate to bar those causes of action that would require the court to decide religious matters. Sumner was purportedly terminated for insubordination, which was defined by the faculty handbook incorporated into Sumner's contract. The alleged insubordination involved Sumner's violation of the university's written protocol. Sumner, however, alleged that she was never provided with the written protocol and so her conduct could not be found to be insubordinate. Resolving this dispute would not require "wad[ing] into doctrinal waters," because Sumner's religious qualifications weren't at issue and the dispute didn't concern Simpson's religious autonomy. 

Court refuses to judge what adequate spiritual leadership looks like

A recent case out of the Third Circuit, Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, No. 17-3086, applies the ministerial exception of the First Amendment and refuses to entangle the court in a breach of contract dispute between a pastor and his former church. The parties had entered into a contract providing that Lee would serve as the Church's pastor for a twenty-year term. The contract provided for termination if its terms were breached. The Church terminated Lee's employment and alleged that he had failed to provide adequate spiritual leadership, as he was required to do by the terms of the contract. Lee disputed this, but the court refused to get involved, citing the ministerial exception. Courts aren't supposed to get entangled in "religious governance and doctrine," and asking the court to judge the quality of Lee's spiritual leadership under the contract would be just such an entanglement. 

 

You can listen to the oral arguments here. Some press coverage of the district court's decision can be found here. 

Beware Insurance Policy Exclusions: Liquid Nitrogen Cocktails and Precious Metal Air Conditioning Units Edition

A pair of cases, Evanston Ins. Co. v. Haven South Beach, out of the Southern District of Florida, and Celebration Church v. United National Insurance Co., out of the Eastern District of Louisiana, reminds us that insurance policies can be tricky things. 

In Evanston, Barbara Kaufman went to the Ninth Annual Taste of the Garden at the Miami Beach Botanical Garden. Haven South Beach, one of the vendors there, sold her a drink containing liquid nitrogen. Mrs. Kaufman became ill after consuming the drink and sued Haven. Haven, in turn, tried to involve Evanston under its insurance policy. However, the insurance policy contained a clause stating that it didn't apply to situations involving the "dispersal" of "pollutants." So the debate, of course, was over whether the presence of the liquid nitrogen in the drink, added to give the drink a "smoking" appearance, was the introduction of a pollutant that disqualified the insurance policy from applying. The policy described a "pollutant" as, among other things, an "irritant," and the court concluded that the liquid nitrogen was an irritant, as a dangerous and hazardous chemical likely to cause at least some irritation. Therefore, its dispersal into the drink was a circumstance that excluded Mrs. Kaufman's injury from insurance coverage under the policy. 

In Celebration Church, the insurance policy in question excluded coverage for theft of precious metals. Celebration Church had a number of rooftop air conditioning units whose condensers were stolen. The condensers each contained coils made of one of the precious metals excluded from the insurance policy. Therefore, the insurance company refused to pay out under the policy. The court found the insurance company was justified in its reading of the contract. Although the theft of the air conditioning units extended to thievery beyond just a "precious metal," the court concluded that the only common sense reading of the clause was that the insurance policy did not apply to any damage caused by a theft of precious metals, and the court further concluded that the theft of the air conditioning condensers was to obtain the precious metal inside, so their entire theft was excluded. 

The lesson is clear: Those insurance policy exclusions can really come back to haunt you. 

(Also, avoid liquid nitrogen in your cocktails, I think.)

Tenured Political Science Professor Fired for Statements about God

Recently, Stacey blogged here about whether tenure is a contract. Yesterday, the news broke that a tenured associate political science professor at Wheaton College, a private Christian university, may soon get to test that theory.

Shortly after the San Bernadino, California, shooting massacre, Professor Larycia Hawkins stated on her Facebook account (which listed her profession and employer) that she “stand[s] in religious solidarity with Muslims because they, like me, a Christian, are people of the book. And as Pope Francis stated last week, we worship the same God." She elaborated that “we are formed of the same primordial clay, descendants of the same cradle of humankind--a cave in Sterkfontein, South Africa that I had the privilege to descend into to plumb the depths of our common humanity in 2014.” She also wore a hijab in “embodied solidarity” with Muslim women.

The response by the College is, for now, the equivalent of “You’re fired.” The College placed Professor Hawkins on administrative leave in December "to explore significant questions regarding the theological implications of her recent public statements, including but not limited to those indicating the relationship of Christianity to Islam."  Further, "Wheaton College faculty and staff make a commitment to accept and model our institution's faith foundations with integrity, compassion and theological clarity. As they participate in various causes, it is essential that faculty and staff engage in and speak about public issues in ways that faithfully represent the college's evangelical Statement of Faith." According to Wheaton College President Ryken, however, the College also “support[s] the protection of all Americans including the right to the free exercise of religion, as guaranteed by the Constitution of the United States." Professor Hawkins’ legal team is, according to televised news statements on 1/6, exploring the possibility of a lawsuit should the professor’s preferred solution – mediation and an amicable solution – turn out to be impossible.

This case raises serious questions about the academic freedom of tenured professors – even untenured ones - with which we as law professors are also very familiar. This is perhaps even more so in the cases of private colleges. It seems to me that with a message along the lines of what even Pope Francis uttered along with a reasoned (meta)physical explanation of her views and the College’s self-professed acceptance of freedom of religion, Professor Hawkins did not act in a way that should, under notions of academic freedom, get her fired. If we as law professors do not agree with or wish to challenge certain traditional or even untraditional legal views, are we not allowed to do so because the institutions we work for or the majority of our colleagues hold another view? One would hope so. Most of us can probably agree that academic freedom is exactly all about being able to, within reason at least, provoke deeper thought in relation to what we teach. Note that Dr. Hawkins did not teach religious studies, but political science. With the current embittered debate about Muslims and terrorism around the world, Dr. Hawkins arguably raised some interesting points even if one does not agree with her statements from a Christian point of view.

Stay tuned for more news on this case!

Porn, Perry and the Pope

You cannot say that we are boring you this week.  Our blogs have included considerations on advertising on porn sites and having one’s illicit affairs forgotten contractually. Add to that the news that this week, Roman Catholic nuns, the archdiocese of Los Angeles, the formerly Jesuit student turned California Governor Brown and Pope Francis all had something to say about contracting about major and, admittedly, some minor issues.

To start with the important: Pope Francis famously issued his Encyclical Letter Laudato Si’ “On Care for our Common Home.”  In it, he critiques “cap and trade agreements,” which by some are considered to be a mere euphemism for contractual permits to pollute and not the required ultimate solution to CO2 emissions. In the Pope’s opinion, “The strategy of buying and selling carbon credits can lead to a new form of speculation which would not help reduce the emission of polluting gases worldwide. This system seems to provide a quick and easy solution under the guise of a certain commitment to the environment, but in no way does it allow for the radical change which present circumstances require. Rather, it may simply become a ploy which permits maintaining the excessive consumption of some countries and sectors.” Well said.

Governor Brown, however, disagrees: Brown shrugged off Francis' comments. "There's a lot of different ways," he told reporters, "that cap and trade can be part of a very imaginative and aggressive program."  Brown, however, does agree with the Pope that we are “dealing with the biggest threat of our time. If you discount nuclear annihilation, this is the next one. If we don’t annihilate ourselves with nuclear bombs then it's climate change. It’s a big deal and he’s on it.”

In less significant contractual news, Roar, Firework, and I Kissed a Girl and I Liked It singer Katy Perry is interested in buying a convent owned by two Sisters of the Most Holy and Immaculate Heart of the Blessed Virgin. Why? Take a look at these pictures. The only problem is who actually has the right to sell the convent to begin with: the Sisters or the archdiocese. When two of the sisters found out the identity of the potential buyer (Perry), they became uninterested in selling to her because of her “public image.” They now prefer selling to a local restaurateur whereas the archdiocese prefers to complete the sale to Perry, although she bid less ($14.5 million) on the property than the restaurateur ($15.5 million). Perry may be about to learn that image is indeed everything in California, even when it comes to the Divine. Perry is no stranger to religion herself as she was, ironically, raised in a Christian home by two pastor parents. 

First Circuit Dismisses as Moot Contracts Case with Constitutional Implicatons

In 2006, the U.S. Department of Health and Human Services (HHS) recieved funds under the federal Trafficking Victims Protection Act (TVPA) and contracted with the United States Conference of Catholic Bishops (the Conference) to provide services to trafficking victims.  It did so after issuing a request for proposals (RFP) and receiving submissions only from the Conference and the Salvation Army, both of which are religiously affiliated.  

The Conference insisted that the contract provide that neither the Conference nor any of its sub-contracts would use the TVPA funds to counsel or provide abortions or contraceptive services and prescriptions to trafficking victims.  The panel that reviewed the RFP's deducted points from the Conference's submission because of that condition, but it still rated the Conference's RFP far more favorably than that of the Salvation Army.

The Conference did not provide any direct services to trafficking victims.  Rather, it subcontracted with hundreds of other organizations, which provided services to over 2200 victims over a four-year period.  The Conference entered into agreements with its sub-contractors prohibiting them from using TVPA for any purposes relating to contraception or abortion, but the sub-contractors were not prohibited from using their own funds for those purposes.  

In 2009, the American Civil Liberties Union of Massachusetts (ACLUM) brought suit alleging that the contract violated the First Amendment's Establishment Clause.  The contract expired in 2011, and HHS replaced its program run through the Conferece with a grant program in which the Conference as not involved.  The District Court nonetheless granted ACLUM's motion for summary judgment in March 2012, finding that the claim was not moot because the "voluntary cessation" exception to the mootness doctrine applied.

On January 15, 2013, the First Circuit issued its opinion in American Civil Liberites Union of Massachusetts v. United States Conference of Catholic Bishops, and it reversed.  It remanded the case to the Distrcit Court for an entry of an order of dismissal because the case is rendered moot by the expiration of the contract at issue.  In so doing, the First Circuit noted that the voluntary cessation doctrine has no application where the cessation is unrelated to the litigation.  The exception exists to deter strategic behavior in which a party ceases the challenged behavior only to avoid further litigation and may reasonably be expected to resume the behavior once the threat of litigation has subsided.  There is no likelihood that a contract will be awarded to the Conference in the foreseeable future, as HHS has locked itself into three-year agreements with other organizations under its new grant program.

As long as our first lady has ba-ba-ba-bangs [relevant "analysis" starts about a minute into the video], it seems unlikely that HHS will be contracting with the Conference and that, it seems, is enough to render ACLUM's challenge moot.

[JT]

Some Spy Suits Are Justiciable

We have reported previously on the fact that the Totten doctrine bars suits against the United States by people who enter into espionage contracts with the government.  But what if you are engaged in espionage for the Church of Scientology?

As reported here in the Tampa Bay Times, Paul Marrick and Greg Arnold are suing the Church of Scientology for breach of contract.  The two men claim that David Miscavige, the Church's leader, hired them to spy on the Church’s rivals, especially Pat Broeker, who was ousted during a power struggle in 1986, and whom it was believed still constituted a threat to Miscavige’s power over the church.  The theory was that Broeker had misappropriated $1.8 million in Church funds and that he was in possession of invaluable records entrusted to him by Church founder L. Ron Hubbard (pictured).

Marrick and Arnold allege that the Church has been paying them up to $500,000 a year since 1988 to keep the Church informed of the comings and goings of Broeker, among others, including Indiana governor Mitch Daniels when he was with Eli Lilly, and promised that their positions were permanent.  However, they allege that the Church stopped paying them two earlier this year, and they have now filed suit.

Marrick and Arnold claim that, while no written agreement existed, the assurances given to them by the church constitute a verbal agreement that the church breached when it stopped paying them.  Statute of Frauds much?  They claim to have kept ample records detailing their work, and according to the Tampa Bay Times, when they suggested that they would share that information with the newspaper, the Church initiated settlement talks in a suit it characterized as a "shakedown."  The Church acknowledges that the two men worked for them, providing "various services" as "independent contractors."  

[Christina Phillips and JT]

More on Morals Clauses

Frank touched on the issue of morals clauses in a post earlier this week.  The case on which Frank commented involved a professional athlete, and most most morals clause cases that we have addressed here involve celebrities and often celebrity endorsements.  But today we report on a morals cause case that invovles an ordinary working Joe (well, Jane actually).

According to abcnews.go.com, Heritage Christian Academy in Rockwall, Texas fired teacher and coach, Cathy Samford, for getting pregnant out of wedlock.  The school claims that Samford violated the “moral clause” in her contract.  Samford and her fiancé had plans to marry at the end of the summer, but a series of events delayed the wedding.  Shockingly marital relations were not similarly delayed.  The school informed Samford that she was to be terminated, even though Samford and her fiancé offered to marry immediately, as that was the plan regardless. Samford has filed a charge of gender and pregnancy discrimination with the U.S. Equal Employment Opportunity Commission and is preparing a lawsuit against the school.

Samford maintains that she did not violate her contract in any way and that the morals clause is vague and unenforceable, as it merely calls on employees to be “Christian role models.”  Samford’s attorney, Colin Walsh, explained to ABCNews.com that “It’s against the law to fire someone for them taking a pregnancy leave and you can’t preventatively fire someone.  You can’t contract around anti-discrimination laws. . . ." 

The school’s headmaster, Dr. Ron Taylor, told ABC News that “the issue is that Samford is an unmarried mother, and everything the school stands for says and they want their teachers, who are considered to be in the ministry, to model what a Christian man or woman should be”.  Taylor further intimated that “[the school] had the feeling that because kids on [Samford’s] volleyball team and kids in her classes knew she was pregnant, her getting married would not change the fact that her behavior was out of wedlock.”  The language of ministry is significant, since the Supreme Court recently held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.  Samford's attorney contends that the school cannot invoke this ministerial exception for all of its employees just because it is a Christian institution.

[JT and Christina Phillips]

Solution to the Problem of Men Who Are Hard to Get: A Beth Din Approved Pre-Nup

Don't know what a Get is?  We recommend The Sopranos: Season 1, Episode 3.  Or you could read this report in Saturday's New York Times.  Basically, a Get is a document that effects the religious divorce of a Jewish married couple.  Even though a couple might be legally divorced, the woman needs the Get before she can marry again in the Jewish faith.  Some observant Jews would consider illegitimate the children of a woman who remarries without a Get.

The problem: some men are hard to Get.  They don't want to be married, but they seek to extract money from the wife or her family in order to agree to the Get.  That's where Tony Soprano comes in.  But the wise guy solution is not always practical, as the Times notes by referencing this criminal complait from New Jersey.  It turns out that paying someone to kidnap and assault your ex-husband is a criminal act.  

The solution: according to the Times, the Beth Din of America, a leading orthoox Jewish adjudicatory body, has created a pre-nuptial agreement that is consistent with Jewish law (halakhah).  Among other things, this kosher pre-nup provides that the husband will pay $150 (adjusted for inflation) for every day during which the couple is separated but not religiously divorced.  The effect is to force the husband to support the wife until he agrees to give her a Get.

According to the Times, about 70% of rabbis now either require or encourage the parties to sign the Halakhic pre-nup before stepping under the chuppah (pictured).  A new documentary, "Women Unchained" explores the topic in further detail.

[JT]

A Passover Retreat: Good or Service?

It is time to get into the Passover spirit by revisiting Fallsview Glatt Kosher Caterers v. Rosenfeld, 7 Misc.3d 557 (Civ. Ct. Kings County, NY, 2005), which gave us the opportunity to pause and consider: is a “Passover retreat” predominantly a good or service under the UCC?  (Which, also came to be known as an added, fifth question for the youngest child at the seder).

Plaintiff Fallsview operated a retreat during Passover at Kutscher’s Country Club. (A Jewishy resort in the Catskills where, as a young child, I spent all of my grandmother’s laundry quarters on Ms. Pac-Man).  For those that did not grow up going to B’nai Brith conventions in “The Country” (that’s what the NYC Jews called it), see this video, which comports with my memory. 

Fallsview’s “retreat” included accommodations, entertainment and kosher food service.  Willie Rosenfeld allegedly reserved spaces for 15 members of his family and agreed to pay $24,050 for the retreat.  Fallsview made necessary arrangements, but Rosenfeld failed to appear at the hotel and did not remit the payment.  Fallsview sued Rosenfeld for breach of contract.

Rosenfeld moved to dismiss, pointing to the statute of frauds.  Rosenfeld argued that there was no agreement and, even if there was, it was oral and did not satisfy UCC 2-201, which requires that contracts for the sale of goods for the price of $500 or more be in writing.  Fallsview’s response: the UCC does not apply because the Passover retreat is a service, not a good.

Because the alleged contract called for accommodations, entertainment and food, it was a hybrid transaction, and the court looked to whether goods or services predominated.  Rosenfeld argued that the retreat was about food, a conclusion that he argued was “compelled by the very nature of the Passover holiday”:

The essential religious obligation during this eight day period- and the principal reason why people attend events similar to the Program sponsored by plaintiff- is in order to facilitate their fulfillment of the requirement to eat only food which is prepared in strict accordance with the mandate of Jewish law for Passover, i.e., food which is ‘Kosher for Passover’. It is the desire to obtain these ‘goods'-and not the urge for ‘entertainment’ or ‘accommodations'-that motivates customers to subscribe to such ‘Programs.’

But the court noted all of the possible daily activities at the retreat included “tennis, racquetball, swimming, Swedish massage, ‘make over face lift show,’ ‘trivia time,’ aerobics, bingo, ice skating, dancing, ‘showtime,’ ‘power walk,’ arts and crafts, day camp, ping-pong, Yiddish theater, board games, horse racing, horseback riding, wine tasting, and indoor bocci-and that is only through Wednesday.”  There were also “ traditional and Orthodox religious services, lectures on religious and other subjects (presumably with a religious or cultural perspective), and a series of activities that are clearly designed to be of interest to families of observant Jews during a highly significant period in their calendar. “  The all-inclusive price covered these activities, as well as accommodations and food.

The court (Battaglia, J., who coincidentally, used to teach at my home institution), sided with Fallsview and decided the essence of the retreat was a “family and communal ‘experience’” and, therefore, was defined primarily by services and not by goods.  Rodenfeld’s motion to dismiss was denied.

Chag Smaech!

[Meredith R. Miller]

 

Should the Mets Leave the Concession Stands at CitiField to an “Even Higher Authority”?

The owners of the Mets have a $300 million Madoff problem, but that hasn’t distracted them from attempting to ban a kosher concession stand from selling food at CitiField during the Sabbath. 

Kosher Sports has a 10-year contract to sell hot dogs at the stadium and it sued the Mets last summer after being told it could not operate on Friday nights and Saturdays.  In August, Judge Jack Weinstein ordered the Mets to stop banning the company’s sale of food during the Sabbath.  At the time, he said with a smile, “I cannot get involved in (a dispute) over rabbinical law.”

Perhaps that is why the case ended up before Magistrate Judge Andrew Carter.  But, he recused himself earlier this week because a Kosher Sports lawyer spotted him wearing a Mets hat outside the courthouse.

I imagine that this is a dispute about what the word “kosher” means in the 10-year contract.  The Mets say the food isn’t “kosher” if the stand operates during the Sabbath.  Kosher Sports begs to differ, and (likely) adds that the contract does not expressly restrict Sabbath sales.  What’s the answer?  What’s “kosher”?  Apparently, whether a purveyor can sell food on the Sabbath and retain kashrut status is very complicated under Jewish Law.  Some won’t allow it at all; some will allow it with particular conventions followed (conventions which are difficult to follow in a stadium on a Saturday because they require proper supervision and the qualified supervisors are prevented from stopping by on the Sabbath).

No wonder Judge Weinstein did not want to get involved, there’s an even higher authority involved in this dispute:

Certainly, this could be handled with more precise contract drafting in the future.  Though, the inability to operate a concession stand on Friday nights and Saturdays (when, I imagine, the stadium has the highest turnout for games), could make it a losing proposition.  Which, in the end, could mean no kosher option at all (whatever that means).

[Meredith R. Miller]

Aquinas and liberalism

The Lumen Christi Institute and the University of Chicago's Department of Political Science will be hosting the 2010 Yves Simon Memorial Lecture this Wednesday, November 17.  The speaker is Paul Sigmund, an authority on political theory and Latin American politics.  Here's the description of the lecture:

Given a renewed interest in the political thought of Thomas Aquinas, many 20th century political philosophers (e.g. Yves Simon, Jacques Maritain, and Alasdair MacIntyre) have brought Aquinas’ thought to bear on questions within contemporary liberal democracies. This lecture will consider this Thomistic renewal and its influence in both European and Latin American Christian Democratic parties. 

The event is at 4:30 pm in the Swift Hall Commons Room, 1025 East 58th St., Chicago.  A buffet dinner will follow.

FGS