The Best Legal Argument For Protection of For-Profits Under RFRA

Several people have asked me about the issue of the protection of for-profit corporations in the ongoing HHS contraceptives mandate controversy.  Generally, skeptics of such protection are apt to jump immediately to policy arguments — for example, “doesn’t giving religious liberty protection to for-profits threaten the rule of law?”

Set those policy arguments, which are certainly worth taking seriously, aside for the moment.  Instead, focus strictly on the legal arguments under the Religious Freedom Restoration Act.  The very best legal argument that I have seen so far that RFRA does, indeed, protect for-profit corporations is set out in this amicus brief filed on behalf of several US Senators in the Hobby Lobby litigation, authored in part by Kevin Walsh (Richmond), and which I was fortunate to have an early look at.  Whatever policy concerns one might have, it seems to me that the Administration’s categorical exclusion of for-profits in its current proposed rule, and its reliance on certain definitions in Title VII of the Civil Rights Act, just is not going to fly in the RFRA context.

Here is one important part of the brief (at 17-18):

In formulating RFRA, Congress heard testimony about the need for greater protection for the free exercise of religion by organizations as well as individuals . . . .  And Congress did not limit RFRA’s protections to individuals. Rather, Congress provided that “[g]overnment shall not substantially burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a), employing a term that ordinarily encompasses “corporations, companies, associations, firms,  partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1.

Rather than reach the obviously incorrect conclusion that RFRA does not extend to corporations at all, the district court created an exception from RFRA’s coverage for “secular, for-profit corporations,” incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1288, 1291-92 (W.D. Okla. 2012). The district court reasoned that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.” Id. at 1291. But the same can be said of corporations that unquestionably are “persons” under RFRA, such as hospitals, universities, and religious orders.

In attempting to justify their failure to respect religious objections to the HHS mandate asserted by for-profit corporations, Defendants have observed that Congress has sometimes distinguished between nonprofit religious organizations and for-profit secular organizations. 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (discussing Title VII of the Civil Rights Act of 1964). This demonstrates that Congress can distinguish between for-profit and nonprofit employers when it wishes to do so. But Congress made no such distinction in RFRA, which applies broadly and generally, subject only to displacement by later enactments that relax its reach in specific areas. Congress plainly wrote RFRA to include corporations, and neither RFRA nor the PPACA excludes for-profit corporations.

Mooney on the Hajj and Reasonable Accommodation Under Title VII

Matthew P. Mooney (Student at Duke U. School of Law) has posted Between a Stone and a Hard Place: How the Hajj Can Restore the Spirit of Reasonable Accommodation to Title VII. The abstract follows.

Although section 701(j) of the Civil Rights Act of 1964 requires that employers reasonably accommodate their employees’ religious practices and beliefs, many commentators acknowledge that the spirit of reasonable accommodation has not been realized because courts have drastically limited the scope of employers’ duty. This may be especially true for Muslims, who, according to a 2012 study, are roughly half as likely to prevail in free-exercise and religious-accommodation lawsuits as are non-Muslim claimants. One of the central tenets of Islam, the hajj, poses significant challenges for Muslim employees seeking accommodation under Title VII. Because accommodating the hajj will almost always impose more than a de minimis cost on employers, a court is unlikely to find that Title VII requires employers to accommodate a Muslim employee’s decision to complete the pilgrimage.

This Note attempts to articulate a new method for expanding Title VII’s protection of employees’ religious beliefs and practices. Specifically, this Note argues that increased involvement by the Equal Employment Opportunity Commission and the Department of Justice in hajj-accommodation cases offers a promising approach to developing a more balanced accommodation doctrine, or at least to  realigning the scales so that they are not tilted so heavily in favor of employers. Despite clear precedent limiting an employer’s duty to accommodate, increased intervention by the federal government in Title VII hajj-accommodation cases has the potential to shift the conception of reasonable accommodation. Though the government must pick and choose the cases in which to intervene, hajj-accommodation cases present an opportunity to further the dual purposes of the government’s Title VII enforcement authority to implement the public interest as well as to bring about more effective enforcement of private rights. Intervention can restore the spirit of accommodation to section 701(j) and give employers more of an incentive to accommodate their employees’ religious obligations.

Clark on What Legal Teachers Can Learn From Preachers

Sherman J. Clark (U. of Mich. Law School) has posted To Teach and Persuade. The abstract follows.

Legal speech and religious speech inevitably do some of the same work. Both are vehicles through which we both talk about and become the kind of people we are. Granted, those of us who teach and argue about the law do not often conceive of our work in this way. That is part of what I hope to begin to remedy in this essay. While the construction of character is a more obvious aspect of religious than legal thought, law, including legal argument, can be constitutive in similar ways. If so–if our ways of talking about the law serve some of the same ends as do our ways of talking about religion–then we may be able to learn how better to talk about the law by thinking about how we talk about religion. I do not mean things like paragraph structure or argument organization or the proper use of headings, but rather something more subtle and more fundamental. One way to put it is this: legal speech can learn from religious speech how to be less small, and perhaps more ennobling.
More specifically, those of us who speak and teach about the law may be able to learn from religious ways of speaking and preaching how better to Read more

The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about “Psychic Sophie,” —  Part I and Part II — the “spiritual counselor” who was classified as a “fortune-teller” by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie’s free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin’s post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer “guidance,” as the court says, but its guidance is not definitive — and I don’t mean that in the least as a criticism ofYoder).  Judge Arlin Adams’s Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit’s approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’  Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she ‘pretty much goes with [her] inner flow, and that seems to work best.'”  But, taking care not to “belittle” Psychic Sophie’s beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.

Perhaps the “Eisenhower principle” has its limits.

Happy Birthday, Edict of Milan

We didn’t want to let the month pass without noting the 1700th anniversary of the Edict of Milan, one of the most important events in the history of religious liberty. In February 313, the emperors Constantine (left) and Licinius met in Milan to discuss imperial business. While there, they agreed to grant religious freedom to Christians–and, incidentally, everyone else in the Roman empire. Their decision came to be known as an “edict,” though it’s not clear an official document ever issued. The historian Eusebius supplies the text:

When I, Constantine Augustus, and I, Licinius Augustus, came under favorable auspices to Milan and took under consideration everything which pertained to the common weal and prosperity, we resolved among other things, or rather first of all, to make such decrees as seemed in many respects for the benefit of every one; namely, such as should preserve reverence and piety toward the deity. We resolved, that is, to grant both to the Christians and to all men freedom to follow the religion which they choose, that whatever heavenly divinity exists may be propitious to us and to all that live under our government.

We have, therefore, determined, with sound and upright purpose, that liberty is to be denied to no one, to choose and to follow the religious observances of the Christians, but that to each one freedom is to be given to devote his mind to that religion which he may think adapted to himself, in order that the Deity may exhibit to us in all things his accustomed care and favor.

Note a couple of things. The edict does not, as commonly believed, make Christianity the state religion. That decision came later, under a different emperor, Theodosius–which suggests that Christians who condemn the “Constantinian compromise” that weakened the faith have got their emperors wrong. And, although it is famous for legalizing the practice of Christianity in Rome, the edict does not cover only Christians. It grants religious liberty to everyone in the empire. Everyone should follow the religion he thinks best, the edict proclaims, so that “whatever heavenly divinity exists” will continue his favors to Rome. Which puts one in mind of Gibbon’s famous jibe: to the magistrate, all religions are equally useful.

At length, Licinius changed his mind about the edict and began persecuting Christians in his part of the empire. A power struggle followed; Constantine eventually defeated Licinius, thereby becoming sole emperor. Constantine was always cagey about his own Christianity, perhaps because he wished to avoid upsetting those powerful Romans who remained pagan. He advanced the interests of the church and influenced (or interfered in) doctrinal developments, but he did not actually become a Christian until shortly before his death. Today, both he and Theodosius are commemorated as saints in Eastern churches. Licinius? Not so much.

Sixth Circuit Dismisses Anti-Religion Sign Suit

In a very interesting opinion, Freedom From Religion Foundation v. City of Warren, the Sixth Circuit ruled yesterday that the City of Warren, Michigan, could retain its yearly holiday display (which includes “a range of secular and religious symbols–a lighted tree, reindeer, snowmen, a ‘Winter Welcome’ sign and a nativity scene), located in the atrium of its civic center between Thanksgiving and New Year’s, without also being compelled to display the following:

At this season of
may reason prevail.
There are no gods,
no devils, no angels,
No heaven or hell.
There is only our natural world,
Religion is but
Myth and superstition
That hardens hearts
And enslaves minds.

Placed by the Freedom From Religion Foundation
On Behalf of its State Members

Freedom From Religion Foundation

In his opinion for a unanimous panel, Judge Sutton held that (1) the display does not violate the Establishment Clause because the nativity scene is accompanied by other secular and seasonal symbols; and (2) the display is “government speech” and therefore does not violate the Freedom From Religion Foundation’s free speech rights by refusing to add its anti-religion sign.

Judge Sutton carefully grounded the court’s Establishment Clause holding in the Supreme Court’s holiday display cases–Lynch v. Donnelly and County of Allegheny v. ACLU: “If the multi-purpose, multi-symbol Pawtucket and Allegheny County displays did not offend the Establishment Clause, then neither does the Warren display. The Warren exhibit parallels the Pawtucket one and is less faith-centered than the permitted Allegheny County exhibit.”  He rejected FFRF’s claim that the city’s refusal to display the anti-religion sign demonstrated  a “lack of neutrality between the secular and the religious.” He argued that all of the symbols in the display but one were secular, offering the following interesting discussion:

Some of these symbols allegedly are rooted in pagan traditions . . . . Some are connected to the winter season.  And some embody the most commercial features of the holiday season.  But none of these secular symbols has roots in any one faith or in faith in general.  Look through the Old and New Testaments, even we suspect in their original languages, and you will not find any references to these symbols. It may be true that many of these symbols have become connected to European and American celebrations of Christmas over time, some through the happenstance of the time of year at which the holiday falls (at least in the western part of the Northern Hemisphere) and some through stories written and read over the years. But that did not suffice to invalidate the equivalent display in Lynch; it does not suffice here.

The composition of displays used to commemorate holidays and seasons, moreover, is not static. The breadth of symbols included in the Warren exhibit reflects not just the demands of the Establishment Clause but also the demands of democracy in an increasingly pluralistic country. That presumably is why some cities no longer have such displays, why others have made a point of featuring symbols connected to other faiths (Warren had a Ramadan sign one year) and why a city like Warren would include words conspicuously ungrounded in any faith (“Winter Welcome”). Even the most faith-inspired phrases have taken on secular connotations over time. When one neighbor greets another in mid-December with “Happy Holidays,” it is the rare person who hears “Happy Holy Days.” See Webster’s New International Dictionary 1188 (2d ed. 1950).  What was once the most religious of invocations has become one of the most faith neutral, even secular. One indeed can fairly wonder who has co-opted whom over time with these displays and words. But that is a matter for another day. The key lesson of Lynch and Allegheny County is that a city does not run afoul of the Establishment Clause by including a creche in a holiday display that contains secular and religious symbols.  Warren readily meets that test.

Judge Sutton also rejected FFRF’s claim that certain isolated remarks in a letter written by the Mayor of Warren was proof of the City’s non-neutrality.  And then he said this about a strict separationist approach to the Establishment Clause:

A strict separationist perspective might suggest that the Mayor got carried away when he said that “our country was founded upon basic religious beliefs” and added a few other like-minded sentiments. Id. But the Establishment Clause does not demand strict separation between church and state in governmental words and deeds, even if that were somehow possible. The Mayor indeed could have been more forceful on the point and quoted the Supreme Court in the process: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952). If the Court may say this about American government and if Congress may enact a law devoted to spiritual matters and called the Religious Freedom Restoration Act, all without violating the Establishment Clause, see Wilkinson v. Cutter, 544 U.S. 709, 712–14 (2005), surely the Clause does not stand in the way of the City’s winter solstice-free display and the Mayor’s explanation for it.

It may be true that the Mayor misapprehended the Religion Clauses when he implied that atheists receive no protection from them by saying that the Foundation’s “non-religion” was “not a recognized religion.” In this respect, the Mayor, apparently untrained as a lawyer, may not have missed his calling. The Religion Clauses, it turns out, do protect the religious and nonreligious. Wallace v. Jaffree, 472 U.S. 38, 52–54 (1985). But this defense of his actions, premised on a misreading of precedent, does not transform his actions or the City’s display into an establishment.

Lockley, “Visionary Religion and Radicalism in Early Industrial England”

Last month, Oxford University Press published Visionary Religion and Radicalism in Early Industrial England: From Southcott to Socialism by Philip Lockley (Postdoctoral Research Fellow in the Faculty of Theology, University of Oxford).  The publisher’s description follows.Visionary Religion and Radicalism in Early Industrial England

The political potential of millenarian religion has long exercised the interests of scholars of western history and religion. The religious vision of an imminent messianic age in modernity was once commonly contrasted with secular movements for revolutionary change such as socialism. Recent shifts in historiography and the study of religion have downplayed such comparisons, and yet early industrial England witnessed significant interactions between millenarianism and traditions of radical popular politics, including the first English socialisms. This book offers a new explanation of such interactions, revealing their basis in rich traditions of popular theology and religious practice, and not the collective disillusion and secular conversions once thought. Through a detailed archive-based study of the popular millenarian movement of Southcottianism – the followers of Joanna Southcott – from 1815 to 1840, this work challenges social and gender views of plebeian religion in the period. Adopting innovative approaches in the history of religion, including a view of theology from the perspective of millenarians themselves, this book further overturns existing assumptions about millenarian attitudes to agency, including those of E.P. Thompson’s The Making of the English Working Class. This history of Southcottianism provides a compelling case-study of the political possibilities of visionary religion, revealing how theology framed popular conceptions of human and divine agency in the making of the millennium, and was intimately involved in an early collaboration between the competing Christian and secular visions of transformation which have shaped the modern world.

Donald on Advancing Debate about Religion or Belief, Equality and Human Rights

This month, the Oxford Journal of Law and Religion posted for advanced access Advancing Debate about Religion or Belief, Equality and Human Rights: Grounds for Optimism? By Alice Donald (Senior Research Fellow, Middlesex University School of Law).  The abstract follows.

Legal judgments concerning equality or human rights and religion or belief have frequently provoked controversy in Britain. This article examines why this has occurred. It does not attempt a detailed analysis of the case law; rather, it discusses how the law has been understood and invoked in public discourse. It argues that debate about religion or belief and its place in society has been unduly dominated by particular—and sometimes partial—understandings of legal judgments. It proposes that the most productive level of engagement for those who wish to advance debate, practice and understanding in relation to religion or belief is with ‘front line’ decision-makers, such as public servants and workplace managers. It ventures that in the long term an approach based on human rights principles is likely to be more satisfactory than one which is based principally on equality.

Me at the Catholic Lawyers Guild this Friday

I’ll be giving a short talk at the Catholic Lawyers Guild of New York this Friday, March 1, at the kind invitation of Robert Crotty.  Mass is at 7:45 AM, there is a little light breakfast thereafter, and then I’ll offer some thoughts about the HHS contraceptives mandate, after which we’ll talk together.

The location is the Church of Our Saviour, 59 Park Avenue (Park Avenue at 38th Street).  Please stop in and say hello.

Kester, “Remembering Iosepa”

This month, the Oxford University Press will publish Remembering Iosepa: History, Place, and Religion in the American West by Matthew Kester (Brigham Young University). The publisher’s description follows. Remembering Iosepa

In the late nineteenth century, a small community of Native Hawaiian Mormons established a settlement in heart of The Great Basin, in Utah. The community was named Iosepa, after the prophet and sixth president of the Church of Jesus Christ of Latter-day Saints, Joseph F. Smith. The inhabitants of Iosepa struggled against racism, the ravages of leprosy, and economic depression, by the early years of the twentieth century emerging as a modern, model community based on ranching, farming, and an unwavering commitment to religious ideals. Yet barely thirty years after its founding the town was abandoned, nearly all of its inhabitants returning to Hawaii. Years later, Native Hawaiian students at nearby Brigham Young University, descendants of the original settlers, worked to clean the graves of Iosepa and erect a monument to memorialize the settlers.

Remembering Iosepa connects the story of this unique community with the earliest Native Hawaiian migrants to western North America and the vibrant and growing community of Pacific Islanders in the Great Basin today. It traces the origins and growth of the community in the tumultuous years of colonial expansion into the Hawaiian islands, as well as its relationship to white Mormons, the church leadership, and the Hawaiian government. In the broadest sense, Mathew Kester seeks to explain the meeting of Mormons and Hawaiians in the American West and to examine the creative adaptations and misunderstandings that grew out of that encounter.