Posted on by Mark Movsesian

Sixth Circuit Rules Plaintiff Lacks Standing to Challenge Government’s Bailout of Firm Selling Sharia-Compliant Financial Products

In a recent contribution for a symposium CLR hosted here at St. John’s, Steve Smith argued that the Supreme Court’s restrictive standing doctrine in Establishment Clause cases has helpfully kept many disputes out of court. A Sixth Circuit case handed down on Friday provides a good example. Plaintiff challenged the U.S. Treasury’s provision of $70 billion to American International Group (AIG), which, through its subsidiaries, sells Sharia-compliant financial products, for example, products that avoid returns from “pork, alcohol, interest, gambling, or pornography.” Treasury disbursed the money pursuant to TARP, the Troubled Asset Relief Program, which Treasury established pursuant to the Emergency Economic Stabilization Act of 2008 (EESA). Plaintiff argued that the disbursement amounted to a promotion of Islam in violation of the Establishment Clause and claimed standing as a federal taxpayer.

The Sixth Circuit disagreed. Relying principally on the  Supreme Court’s 2007 holding in Hein v. Freedom from Religion Foundation, the court held that plaintiff lacked standing. Under Hein, the court explained, “a taxpayer-plaintiff has standing to challenge an executive-branch disbursement of funds only if the appropriating statute expressly contemplates the disbursement of federal funds to support religious groups or activities.” EESA did not; Treasury had made the decision to fund AIG on its own. “Neither . . . EESA nor any reasonable inference from its historical context suggest that Congress knew, or much less intended, that TARP funds might support the marketing and sale of” Sharia-compliant products, the court wrote. “It was only through executive discretion that TARP funds were transferred to AIG.”  The case is Murray v. U.S. Dept. of Treasury (6th Cir., June 1, 2012).

Posted on by Mark Movsesian

The National Day of Prayer

Today, by federal statute, is the National Day of Prayer. Many of our foreign readers will find it odd, but the U.S. Code requires that the President issue an annual proclamation designating the first Thursday in May as a day on which Americans “may turn to God in prayer and meditation at churches, in groups, and as individuals.” Note the phrasing. The President is not to direct people to pray — that would be unconstitutional, obviously — or even to request that they pray. He is required only to designate the day as one on which Americans may pray. And meditate. But not “pray or meditate.”  Lots of lawyers’ hours must have gone into all this.

Anyway. Although the statute only dates from the 1950s, the practice of declaring national days of prayer goes back to President Washington. Consistent with the American tradition of public religion, the prayers have tended to be non-sectarian. In fact, a group calling itself the “National Day of Prayer Task Force,” which promotes observance of the day around the country, highlights its  “Judeo-Christian” character. On Monday, President Obama issued this year’s proclamation, which invites Americans to pray and “give thanks for our democracy that . . . protects the religious freedom of all people to pray, worship, or abstain according to the dictates of their conscience.”

That’s about as inclusive as you can get in a National Day of Prayer proclamation, but not everyone is satisfied. The Freedom from Religion Foundation brought suit a while ago to declare the National Day of Prayer unconstitutional. The Seventh Circuit dismissed the case on standing grounds (no injury). This year, the American Humanist Association has declared a “National Day of Reason” to compete with the “National Day of Prayer.” I suppose reasonable theists can observe both.

Posted on by Mark Movsesian

Chicago-Kent Law Review to Publish Symposium on Neutrality

The Chicago-Kent Law Review will publish a symposium, “The Future of the Establishment Clause: Neutrality, Religion, or Avoidance?”, next month. Edited by Bruce Ledewitz (Duquesne), the symposium will discuss

the future of the Establishment Clause, confronting three interrelated questions: 1) If the Court is to reaffirm government neutrality toward religion, can such neutrality coexist with resurgent popular religious belief at the same time that it serves the needs of a growing national secularism?; 2) Conversely, if the Court is to permit government embrace of religion, can it do so without alienating the large numbers of  nontheistic believers and nonbelievers?; and 3) How far can the Court take the turn to standing before it undermines noneconomic approaches to injury-in-fact in all of constitutional law and before it renders even classic violations of the Establishment Clause essentially unchallengeable?

Contributors include Richard Albert (Boston College), Christopher Lund (Wayne State), Samuel Levine (Touro), Zachary Calo (Valparaiso), and Mark Rahdert (Temple). For more information, please contact Editor in Chief Maggie Master at the Chicago-Kent Law Review.

Posted on by Marc O. DeGirolami

Awarding Government Contracts to Catholic Organizations Violates the Establishment Clause

I blogged about this issue back in October.  During the Bush Administration years, HHS had awarded a contract to the United States Conference of Catholic Bishops for providing services to victims of human trafficking.  But the Obama Administration, in keeping with the general approach of its HHS, chose not to renew the contract, awarding it to another organization.  Just before that, the ACLU sued HHS claiming that its decision to award the contract to the Bishops violated the Establishment Clause.

And now Judge Richard Stearns (D. Mass.) has pronounced that awarding a government contract to a Catholic organization for the provision of services to victims of human trafficking, when that organization declines to refer victims for abortion services or to distribute contraceptives, violates the Establishment Clause.  There were standing issues involved here, but the merits determination apparently comes down to the judge’s belief that allowing the placement of restrictions on the implementation of the contract amounts to an endorsement of Catholicism, as well as an impermissible delegation of governmental functions to a religious entity (see, e.g., Larkin v. Grendel’s Den and Kiryas Joel).  On the latter point, Judge Stearns claims that the awarding of a government contract to the USCCB provides a “significant symbolic benefit to religion.”  I am not persuaded by this argument.  Even though I think the decision in Kiryas Joel is wrongly decided, I fail to see how the situation in Grendel’s Den is analogous to this case.  Grendel’s Den involved the delegation of a kind of blanket veto power to religious institutions as to liquor licenses within a certain distance from the institution.  The benefit there was hardly symbolic.  The benefit here is to much more attenuated, much more symbolic, and of different orders of substantiality.  The judge also saw fit to include long tracts of Justice Black’s separationist spiel in Everson, notwithstanding the fact that the current Supreme Court has largely abandoned the separationist view of the Establishment Clause.

At all events, the Obama Administration could not have gotten a more favorable outcome for its interests, it seems to me.  Its own decision to withdraw the contract from the USCCB has now been declared the only constitutionally viable option.

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Bickers on Standing and Establishment Clause Jurisprudence

John M. Bickers (Northern Kentucky University – Salmon P. Chase College of Law) has posted a very interesting piece, Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause.  The abstract follows.

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. Read more

Posted on by Marc O. DeGirolami

Obama Administration Files Motion to Dismiss in Contraception Mandate Case

Back in November, Belmont Abbey College sued Secretary of Health and Human Services Kathleen Sebelius after the Obama Administration announced the original HHS mandate — the one in which religious entities like the Catholic Church would be compelled to list and pay for contraceptive and abortifacient products right under the terms of their employee health plan.  That mandate, and not whatever modification the President suggested on February 10, now has the force of law.  The Obama Administration itself made the original mandate the final rule.

The Department of Justice has now filed a motion to dismiss.  DOJ takes no position in this motion on the constitutionality of the mandate, or on its permissibility under the Religious Freedom Restoration Act.  It further admits that the original mandate, and not the February 10 proposed modification, has the force of law (see p.6).  Instead, DOJ says that Belmont Abbey College (A) might have its health plan grandfathered; (B) can’t demonstrate that it will suffer an imminent injury (because it will not be subject to the mandate until 2014); and (C) has not shown that the case is “ripe” for review under the justiciability doctrine of ripeness.

I am not familiar enough with which health plans get grandfathered-in to know whether (A) is a plausible ground for the motion.  (B) seems puzzling.  After all, the health care mandate which is itself the subject of the Affordable Care Act litigation is being litigated right now, with arguments scheduled before the Supreme Court at the end of March.  Yet that mandate to purchase insurance does not go into effect until 2014 either.

I am not a standing scholar, but (C) seems to me the least plausible ground for the motion.  The original contraception mandate now has the force of law.  Whatever may happen after the election with respect to the proposed  February 10 modification, the original mandate is now final — nothing “informal or tentative” about it.  Abbott Laboratories v. Gardner (1967).  Any hypothetical future modifications — bracketing the issue of whether they would work any appreciable change — are entirely speculative.  I’d appreciate illumination from readers who are expert in standing doctrine, however.

Posted on by Marc O. DeGirolami

Constitutional Pressure Points

Here’s a series of events I found interesting.  This story reports that in 2006, the United States Conference of Catholic Bishops had been awarded a government contract for the provision of assistance to victims of human trafficking.  These contracts are awarded pursuant to the William Wilberforce Trafficking Victims Protection Act of 2000.  Earlier this October, the contract with the USCCB was not renewed by the government and it was awarded to three other non-profit organizations.  There is some speculation in the story that the reason the contract was not extended was the USCCB’s unwillingness to refer victims to abortion providers or supply birth control, but the government did not explain its decision.

In related news, in 2009, the ACLU of Massachusetts filed a federal action in the District of Massachusetts against the federal government alleging that its decision to award this contract to the USCCB violated the Establishment Clause.  Read more