Another victory (though perhaps only temporary) for plaintiffs challenging the Affordable Care Act’s contraception mandate under RFRA. A federal district court in Michigan has granted a preliminary injunction barring enforcement of the mandate against a for-profit corporation whose owners object to complying with the mandate because of their Catholic beliefs. According to Judge Robert Cleland, neither the corporation nor the government had made a strong showing of success on the merits: the mandate might be the least restrictive means of achieving a compelling state interest, but the question was close. Given the religious freedom concerns here, however, the balance tipped in favor of granting the preliminary injunction, in order to avoid irreparable harm to plaintiffs while the case continued. The court dismissed a challenge to the mandate brought by a non-profit Catholic organization on the ground that the organization fit within a temporary regulatory safe-harbor and had not yet suffered a cognizable injury. The case is Legatus v. Sebelius, 2012 WL 5359630 (E.D. Michigan, Oct. 31, 2012).
Corbin on the Contraception Mandate
Caroline Mala Corbin (University of Miami School of Law) has posted The Contraception Mandate. The abstract follows.
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.
Lewis on Religious Freedom, the Common Good and the Contraception Services Mandate
V. Bradley Lewis (Catholic U. of America) has posted Religious Freedom, the Good of Religion and the Common Good: The Challenges of Pluralism, Privilege and the Contraceptive Services Mandate. The abstract follows.
The right to religious freedom is properly grounded in religion’s status as a fundamental and irreducible human good, which is nevertheless related to other goods and social in character. Its protection for persons and groups is therefore also a component of the common good of political society. After arguing for these propositions on broadly Thomistic philosophical grounds, the article discuses and answers three recent challenges. The first is based on a perceived conflict between recognition of the good of religion and pluralism and I argue that this objection can be met by distinguishing between different kinds of pluralism, most of which pose no problem to the thesis. A second objection comes from those outside the Thomistic tradition, who either reject the status of religion as a good deserving of explicit legal recognition and protection or accept it on inadequate grounds. The objections, I argue, are based on accounts of religion that are inadequate to the role it plays in sound practical reason. Finally, I discuss an argument from those within the Thomistic tradition who accept some limitations on religious freedom in the name of the common good. This third challenge is linked to the current controversy over the application of the US federal government’s insurance mandate to religious organizations and the US Catholic bishops’ response to it as an issue of religious freedom. Here I argue that the objection is based on a misunderstanding and misapplication of Aquinas’s account.
International Religious Liberty Award Dinner
On Thursday, I attended the International Religious Liberty Award Dinner in Washington D.C., hosted by the J. Reuben Clark Law Society and the International Center for Law and Religion Studies. The event kicked off with a social hour and talk by Robert T. Smith, Managing Director of ICLRS. He spoke about the importance of properly defining “religious freedom” in the national and international arena. He contrasted “freedom from religion” with “freedom for religion.” In the end, Smith concluded that a better definition of religious freedom is found in James Madison’s “Memorial and Remonstrance.” Madison, Smith argues, expresses a more inclusive understanding of religious freedom which takes account of both concerns.
The night continued with dinner and the presentation of the student writing competition awards. The keynote speech was given by Dr. Katrina Lantos Swett, Chair of the US Commission for International Religious Freedom and the President of the Lantos Foundation. She highlighted the work of both organizations as well as the status of religious freedom around the world.
The evening concluded with the presentation of the International Religious Liberty Award to Professor Douglas Laycock. In his remarks, Professor Laycock began by listing recent court decisions involving religious freedom. He then offered this: overall, “the prospects for religious freedom is not good.” The rights of believers to speak and teach the tenets of their faith will be tested. The right of believers to practice their religion is at risk, especially when religious freedom collides with other rights, as illustrated most clearly by the debates involving same-sex marriage as well as the contraceptive mandate. The source of this problem is result of a “long term change in the distribution of public opinion” about religion in the US, whose features include the decline in religious belief and the rise of rival conceptions of rights, such as gay rights. Today, continued Laycock, religious believers and gay rights advocates are locked in a zero-sum game where any gain by either side is a loss to the other. In such a situation, any reconciliation between the two groups seems unlikely. But, as Laycock hinted in his conclusion, there may hope in the future. The struggle for religious freedom has often been characterized by such seemingly intractable problems. But who would have could have possibly conceived, during the height of the Catholic-Protestant conflicts of the previous centuries, that a comprise would eventually be forged and the two sides would even, at time, be united in common causes?
Some Comments About the District Court Decision Dismissing the Mandate Claim
The U.S. District Court for the Eastern District of Missouri has rejected the RFRA and Free Exercise claims of a Catholic who owns a closely held business with 87 employees. You can get a summary of the decision here, though I must respectfully disagree with Professor Friedman about two things: (1) the district court’s opinion is not “extensively reasoned.” The reasoning with respect to both the RFRA and Free Exercise Clause claims is shoddy and quite summary. (2) The fact that this judge was appointed by President George H.W. Bush is not relevant. The political party of the president who appointed a district judge often pops up in media accounts of a particular decision, but it just is not material to a decision that the district judge issues some 20 odd years after the appointment.
Rather than go through the facts, which you can get at Professor Friedman’s site or by reading the short opinion, I thought I’d offer two critical comments about the decision.
1. The court makes the following claim, supported directly by no case law at all: “Laws substantially burdening the exercise of religion often discourage free exercise by exacting a price for religious practice: plaintiff must forfeit a benefit, pay a fine, or even face criminal prosecution.” There is a good reason why the court cites nothing for this proposition: it is not the law. The court goes on to discuss Wisconsin v. Yoder as somehow relevant to its view of the law. But nowhere in Yoder does the Supreme Court say that the burden on religious conscience *must* be supported by a willingness of the religious claimant to suffer criminal prosecution (or a fine or the loss of a benefit). There is a difference between a necessary and a sufficient condition, and it seems to me that this court has not perceived it. I should think it would be a major revision of existing law under RFRA to require that a religious claimant be willing to suffer criminal punishment in order to deem his or her objection a “substantial burden.”
2. Compare these two statements, both of which appear in succession in the opinion:
Statement #1: “[Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”
Statement #2: “RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others.”
Here’s the comment. If “RFRA is a shield, not a sword,” then why should RFRA protect a religious organization’s right to “discourag[e] employees from using contraception.” Wouldn’t that be “forc[ing] one’s religious practices upon others.” Wouldn’t such advocacy on the part of the employer, if protected by RFRA, be an example of the use of RFRA as “a sword”? And what exactly is the scope of the argument? Can the Catholic Church use RFRA as a “sword” to protect its right not to offer contraception services in its health plans? Or is this ill-conceived shield/sword metaphor limited to the context of secular employees who make religious freedom claims under RFRA?
Movsesian at the Federal Bar Council
This weekend, I participated in the Federal Bar Council’s 2012 Fall Bench and Bar Retreat in Skytop, Pennsylvania. I spoke on a panel, “First Amendment: The State of Freedom of Religion in 2012,” which addressed the ministerial exception, the contraception mandate, and Judge Preska’s recent opinion in the Bronx Household case. My fellow panelists were Judge Raymond Dearie (EDNY), Professor Kent Greenawalt (Columbia), and attorneys Gregory Lipper (Americans United for the Separation of Church and State) and Eric Rassbach (The Becket Fund). Thanks to the Council, and especially program coordinators Brad Glick, Linda Goldstein, and Steve Weyer for inviting me.
Wheaton College Case Against HHS Dismissed on Standing and Ripeness Grounds
The U.S. District Court for the District of Columbia has dismissed Wheaton College’s complaint against Kathleen Sebelius and the Department of Health and Human Services on standing and ripeness grounds. As to standing, the court held that Wheaton’s allegations only made out claims of “future possible injury” because HHS has informed Wheaton that it qualifies for the safe harbor provisions of the mandate, and because an enforcement action by HHS within the safe harbor is neither imminent nor likely. As to ripeness, the court said: “Because they are in the process of being amended, the preventive services regulations are by definition a tentative agency position,” and therefore unfit for adjudication.
The case is Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. Aug. 24, 2012).
Religious Freedom: How Others See Us
Before everyone starts emailing, let me quickly say that the state of religious freedom in America is qualitatively better than in many, many other countries. And I am not in any way equating the HHS Contraception Mandate with the sort of religious persecution that exists routinely elsewhere. (The US does not imprison and abuse people for conducting prayer meetings, for example). Given the US’s habit of issuing annual reports that condemn threats to religious freedom in other countries, though, it might be helpful at least to read what outside observers say about us. Here are two statements, one an editorial on a Russian Orthodox Church website, and the other a public letter from the Vatican, arguing that the US has its own religious freedom issues to address. Of the two, the Vatican’s is better done — the Russian veers into anti-American agitprop — though even the Vatican’s letter is itself a little vague, speaking only of “concerted efforts … to redefine and restrict the exercise of the right to religious freedom,” and ” the unprecedented gravity of … new threats to the Church’s liberty and public moral witness” in America. The implication is clear, though. The Mandate may be compromising the credibility of the US’s voice on religious freedom around the world.
Memo to the Times Editorial Board: Read the Case
On Tuesday, the New York Times ran an editorial criticizing U.S. District Judge John Kane’s decision in one of the HHS Contraception Mandate cases, Newland v. Sebelius. Judge Kane issued a preliminary injunction blocking enforcement of the mandate against a corporation, Hercules Industries. The Times believes this ruling misreads the Constitution:
There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute protecting such exercise should not be in play.
Some of this critique is wrong, some is sloppy, and some is debatable. But the key problem is that the critique is entirely inapposite. As my colleague Marc explained last week, Judge Kane expressly declined to address the corporation’s constitutional claims. He based his ruling solely on plaintiff’s RFRA argument. If you’re going to criticize a judicial opinion, you really should read it first. (H/t: John McGinnis)
Corporate Exercise of Religion and Other Thoughts on the RFRA Claim in the Mandate Litigation
There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius. True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time). Here are two questions that interested me.
First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all. He seemed to assume the substantial burden — or perhaps to hold the “difficult questions” about substantial burden in abeyance. One of those difficult questions, he said, was: “Can a corporation exercise religion?” Three reactions:
- The answer to this question, posed in this way, must be yes. The Catholic Church is a non-profit corporation, and it certainly can exercise religion — the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not. Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right.
- Though the doctrine is controversial, we do say that corporations have rights of free speech. See Citizens United. If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause? And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
- Still, there is an interesting issue about who is exercising religion when what we’ve got is a publicly traded corporation. Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on. What does it mean to say in that circumstance that the corporation is exercising religion?
Second, I was surprised at the court’s skepticism with respect to the question of compelling interest.