May 21, 2012 - LAW AND RELIGION FORUM

The text of the complaint is here. A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa). A few thoughts about this complaint:

The leading cause of action is RFRA (beginning at paragraph 202). This makes sense as it is the strongest legal claim.
On the free exercise claim, have a look at paragraph 235. ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim. It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.” That technically is a claim about general applicability. A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment. But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
Also look at paragraph 236. ND is not only making a claim about the lack of general application. It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs. That knowledge is in turn made the basis for a claim of “targeting” of religion. This claim, if accepted, implicates the “neutrality” component of the Smith test. This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g., the law of conspiracy).
ND is also making an “excessive entanglement” claim which implicates the Establishment Clause. “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision. This sort of claim is also raised at paragraph 270 and following.

Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.

Another legislative prayer case, this time from Delaware. For several years, the Sussex County Council has opened its weekly meetings with the Lord’s Prayer. In December, plaintiffs represented by Americans United for Separation of Church and State brought suit to enjoin the practice, arguing that it violated the Establishment Clause. Last week, a federal district court agreed. Although Marsh v. Chambers allows legislative prayers, Judge Stark explained, the prayers must be nonsectarian, in order to avoid the implication that government endorses any particular religion. The Lord’s Prayer was undeniably a Christian, and thus sectarian, prayer; in fact, the version the Council used was a recognizably Protestant version of the prayer. (Comparative religion buffs take note: Jesus Seminar scholar John Dominic Crossan testified in the case that the Lord’s Prayer is not, in fact, exclusively Christian, an assertion Judge Stark dismissed). “The fact that the Lord’s Prayer has been the only prayer recited at the beginning of Council meetings for over six years,” Judge Stark argued, suggests that “the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.” Judge Stark, sua sponte, stayed his injunction for a period of one month’s time in order to give the Council a chance to adopt a practice of nonsectarian prayers that would satisfy the Establishment Clause. The case is Mullin v. Sussex County (D. Del.) (May 15, 2012).