Posted on by Mark Movsesian

Conference on Hobby Lobby (March 24)

Georgetown’s Berkley Center and Baylor’s Institute for Studies of Religion will host a conference on the Hobby Lobby case on March 24 at the Willard Hotel in Washington, DC:

Is religious freedom good for business? Can religious liberty aid economic development, or help reduce poverty? What are the limits of religious freedom? Under the law, are for-profit businesses entitled to the exercise of that right in the United States? Does the HHS contraceptive mandate under the Affordable Care Act restrict the religious freedom of businesses? What are the legal, economic, and political implications of the answer to that question?

On March 24, the day before Supreme Court oral arguments on the Hobby Lobby case, the Religious Freedom Project at Georgetown University’s Berkley Center for Religion, Peace & World Affairs will co-sponsor a half-day conference on these and related questions. The conference will announce a new partnership between the Religious Freedom Project and Baylor University’s Institute for Studies of Religion, the co-sponsor of the event. The conference will begin with an “On Topic” keynote conversation between Baylor University President and Chancellor, Judge Ken Starr, and Harvard University Law Professor, Alan Dershowitz.

Details are here.

Posted on by JCPW

Volokh, “Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties”

volokh_ebookThis month, the Cato Institute will publish Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties by Eugene Volokh (UCLA School of Law). The publisher’s description follows.

Later this month, the Supreme Court will hear arguments in a case- Sebelius v. Hobby Lobby- that has arisen as society tries to reconcile corporate rights with religious liberty.

Since Hobby Lobby’s founding, the Green family has managed their company in accordance with their Christian principles. Among the religious tenets guiding them is their moral opposition to contraceptives. However, within the Affordable Care Act’s (ACA) thousands of pages is a requirement that corporations with more than 50 employees must provide coverage in their group health plans for certain medical services (contraceptives being one) or face severe penalties, which forces the Greens to choose between their religious principles or their business. The Greens sued to protect the right to exercise their religion, and now the case will be heard, front and center, in the Supreme Court.

Eugene Volokh, one of the nation’s foremost First Amendment scholars and founder of the renowned Volokh Conspiracy blog has been following and writing about these issues and this case and has braided all of his efforts together into this specially created ebook. Merging work he had previously published with new content and analysis, he offers an exceptionally clear, understandable, and compelling view of what can too often be a convoluted and highly complex area. The result is not only an ebook that analyzes a key case that will be decided by Supreme Court but a solid work that provides readers with a comprehensive primer on religious accommodation in the context of the ACA’s contraceptive mandate. In addition, the ebook begins with a comprehensive foreword by Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, which maps out the historical, legal, and current policy framework of the case.

Posted on by Marc O. DeGirolami

Some Good Questions About the Corporate Law Scholars’ Hobby Lobby Amicus Brief

Corporate law is not my area and so I have not especially focused on this amicus brief in the Hobby Lobby litigation, filed by 44 corporate law scholars arguing that a corporation cannot (ever?) take on the religious beliefs of its shareholders. It seems to me that whether a corporation does or should take on such beliefs might depend on a number of factors (Michael Helfand, for example, has identified one such possible factor in this paper). But the notion that a corporation should never take on the religious beliefs of its shareholders seems  both counterintuitive and belied by the fact that we often encourage corporations and businesses generally to take on idealistic aims and aspire to socially beneficent ends.

The point is put well in this post by Keith Paul Bishop, a corporate attorney in California:

[T]he law professors make the following apocalyptic claim:

If this Court were to agree that, as a matter of federal law, shareholders holding a control bloc of shares in a corporation may essentially transfer their [social responsibility] beliefs to the corporation, the results could be overwhelming.

Ok, I substituted “social responsibility” for “religious”. However, if the transfer of stockholder religious beliefs to the corporation would be “overwhelming”, why wouldn’t the same be true of beliefs regarding climate change, the environment, or other beliefs animating the corporate social responsibility movement?

Posted on by Marc O. DeGirolami

Reinsch on RFRA and the Establishment Clause

Richard Reinsch has a post at the Liberty Fund’s Liberty Law blog discussing the claim (made here by a number of church-state scholars) that RFRA exemptions that impose significant burdens on an identifiable class of third parties violate the Establishment Clause. Richard agrees with me that the argument is not persuasive. A bit from his post involving the baseline from which one argues about what constitutes an entitlement, and therefore an establishment:

So if a religious liberty exemption requires cost-shifting in the manner of employees having to purchase—let’s be clear for Hobby Lobby and Conestoga Wood, the objection is to emergency contraceptives like Plan B, Ella, and also IUDs, and not the pill—their own emergency contraceptives, then we have an impermissible establishment of religion. As Eugene Volokh has argued, were the exemption to be granted the employees of Hobby Lobby or Conestoga Wood would return to the status quo before the mandate came down and one that many employees of companies exempt from Obamacare for various reasons will stay in. That is, if they want emergency contraceptives, well, then, they’ll pay for them with their salaries.

Posted on by Marc O. DeGirolami

If you read only one amicus brief in the Hobby Lobby case…

Read this brief authored by Douglas Laycock on behalf of the Christian Legal Society and several other groups. Professor Laycock was right in the center of the legislative debates over the meaning of RFRA in the 1990s. In exploring the meaning of RFRA and its application, the brief describes those debates in very helpful detail, and it also discusses the legislative history of the Religious Liberty Protection Act, a statute that was in the offing (but ultimately was never passed, though portions of it made their way into the Religious Land Use and Institutionalized Persons Act, and portions were used to strengthen RFRA) after the Supreme Court struck down RFRA as applied against the states as in excess of Congress’s enforcement powers under section 5 of the 14th Amendment. Laycock demonstrates that Congress clearly intended RFRA (as well as RLPA) to apply to for-profit corporations, and reflected that intention in the words of the statute. There were many special interests that desired exemptions from RFRA. Those exemptions were rejected.

The Hobby Lobby and Conestoga Wood cases are, at bottom and after the swirling political fog is blown away, about the meaning of a statute. Professor Laycock’s brief is an important contribution in ascertaining that meaning. Here is the summary of the argument:

The Religious Freedom Restoration Act provides universal coverage. It applies to “all” federal law and to “all” cases where the free exercise of religion is substantially burdened.

The legislative history confirms the universality of the statutory text. The sponsors resisted all efforts to add exceptions to coverage. A definition in an early version of the bill, limiting coverage to “natural persons” and religious organizations, was eliminated in all later drafts.

After this Court invalidated RFRA as applied to the states, Congress sought to re-enact RFRA’s standard, in substantively identical language, for application to cases that could be reached under the Commerce and Spending Clauses. The debates on this bill, the Religious Liberty Protection Act (RLPA), reveal the public meaning of the nearly identical language in RFRA. The RLPA debate is highly probative because it was a serious fight on a live issue. It was not in any sense an attempt to make post enactment legislative history about RFRA, but it clearly demonstrates the public meaning of RFRA’s language.

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Posted on by Marc O. DeGirolami

Constitutional Scholars’ Brief in Hobby Lobby

I was pleased to join this amicus brief filed by several constitutional law scholars in the Hobby Lobby/Conestoga Wood litigation (thanks to Nathan Chapman for taking up the pen). The brief argues against the view that the Establishment Clause prohibits an accommodation of the religious claimants. My own views on the matter, reflected in various portions of the brief, are also contained here and here. A post by Kevin Walsh raising an important problem is here. Opposing views may be found here, here, and here. Here is the Introduction and the Summary of the Argument of the amicus brief:

This brief argues that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (RFRA), properly applied, complies with the Establishment Clause. The brief responds to the recent proposal by several scholars that the Establishment Clause prohibits the government from accommodating “substantial burdens” on religious exercise, as RFRA does, when the accommodation imposes “significant burdens on third parties who do not believe or participate in the accommodated practice.”2 This brief does not address the issues directly before the Court, i.e., whether RFRA protects for-profit corporations like Hobby Lobby and Conestoga Woods, and whether either of those parties has a valid RFRA claim.3

The scholars’ proposed doctrine is contradicted by precedent, would needlessly require courts to analyze three speculative Religion Clause questions in most religious accommodation cases, and would threaten thousands of statutes that protect religious minorities.

First, precedent strongly supports the constitutionality of statutory religious accommodations, like RFRA, that allow courts to weigh the government’s “compelling” interests against claimant’s interests in religious exercise.

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Posted on by Marc O. DeGirolami

Supreme Court Order Keeps Injunction in Place in Little Sisters Case

The Supreme Court has issued the following order in the case of Little Sisters of the Poor et al. v. Sebelius:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

It’s always hard to interpret all that much from an order as short as this, but a few things are clear.

First, the injunction stays in place. The Little Sisters can just send the government a copy of their complaint. Second, and notwithstanding the final sentence of the order, at least some of the Court seems to have understood the Little Sisters’ argument–that is, that signing the certification and designation of a third party administrator to provide contraceptive products is a violation of their religious liberty under RFRA. If the Court had not understood it, or had disagreed with it, the injunction would not have remained in place. Third, and in consequence, this order represents another victory, albeit a cryptic one and one of uncertain duration, for the plaintiffs in these nonprofit cases.

Posted on by Marc O. DeGirolami

American Freedom and Catholic Power

It was only a matter of time before this sort of thing was bound to appear, though perhaps it is somewhat disappointing to see it in the pages of US News and World Report. The specific claim seems to be that by granting an emergency stay in the Little Sisters of the Poor case, Justice Sotomayor is waging a “war on women” because she is imposing her Catholic views on the rest of the nation in violation of the law. But that claim is buried within lots of other mud, and I’m afraid I can’t do justice to it without letting much of the rest hatch out:

The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing….

Sotomayor’s blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if “you” are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor’s stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

Catholics in high places of power have the most trouble, I’ve noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can’t know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women’s rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.

Now, as it happens, I am Catholic. And, as it also happens, on the legal merits, I am persuaded that the statutory argument in favor of the Little Sisters of the Poor as to the issue of accommodation of non-exempted nonprofits is strong–stronger than the arguments the government advances. I also believe that a strong free exercise clause claim can be made in light of the individualized exemptions that have been meted out, though to date this argument is generally not being made. These are all legal claims, and so to the extent that any judge agrees with these claims, it would seem to me that they are putting the law first in ruling as they do. Others disagree with my legal views, and they, too, are putting the law first. They are acting and speaking appropriately about their views of the law–in good faith and by their best lights. I think it is a terrible error to believe that anytime a person disagrees with one’s legal views, the reason must be that they are acting in bad faith.

I will say that outside of the legal fight, and as to larger political questions, I do not see why exempting the members of “a nunnery” (as the author so tenderly puts it) from the compulsion to be provided with free access to contraception would constitute a Catholic war on women. I am informed that the members of the Little Sisters of the Poor are women. They seem not to want these products. I don’t believe anybody is waging a war on anybody else; it degrades the horror of war to speak in these terms. And yet, if anyone is conducting a hostile campaign against women, it is those seeking to compel these women to do what they don’t want to do.

Furthermore, if the author were even marginally more serious about providing evidence for her claims, she might have investigated how many of the other judges who have granted injunctions in these cases–18 other such courts, by my current count, and more judges than that–are Catholic. If they are all Catholic, is it also her view that they are all imposing Catholicism on the nation in violation of the law? If they are not all Catholic, what explains their legal findings? Are they all imposing their non-Catholic religious views notwithstanding the law? What if some of the judges who granted injunctions have no religious affiliation? Are they also imposing their non-religious views in finding for the Little Sisters? Or is it only when a judge is Catholic that it can be assumed that she is imposing her views? And what about the judges who denied injunctions? Are any of them Catholic? If they are not, are they imposing their views on the rest of us too? If they are Catholic, I suppose one could claim that they are the good sort of Catholic—Catholics like Nancy Pelosi, as the author puts it–judges who don’t impose their views at all. Still, it would be useful to have this information in order to assess the cogency of the claims.

I recognize that for people who write columns like this one, arguments of this sort are not likely to be persuasive. Indeed, once Ms. Stiehm identifies the source (me), she will surely dismiss out of hand anything that follows without bothering to read it. That is regrettable, but it follows directly from the reality that Ms. Stiehm is not really interested in law or argument at all. She’s interested in rhetoric; unfortunately the rhetoric that interests her is sloppy and misinformed.

Here is a different uncomfortable reality that columns like this should compel us to face. The long history of American hatred of Catholics is alive, and well, and flourishing. It is kept in fine and proud form by people like this, and given space to breathe in all kinds of prominent venues. It will intensify in the months and years ahead. Dark times are coming.

Posted on by Marc O. DeGirolami · 1 Comment

Contraception Mandate “Accommodation”: The State of Play

Both because of the fast pace of the developments (lots of action before the new year) and because of the holidays, I am behind on reporting the state of play with respect to the contraception mandate litigation concerning non-profit entities that have not been exempted by the government. Such entities, as I noted here, have received the government’s so-called “accommodation,” which requires that they certify to the government their religious objections to the mandate. There are special rules for “accommodated” self-insured non-profits who self-certify, which details are discussed in full here. Note finally that these suits are distinct from the question of for-profit challenges to the contraception mandate, which the Supreme Court will take up shortly in the Hobby Lobby and Conestoga Wood litigation.

The Becket Fund reports that the tally now stands at 19-1 in favor of the challengers and against the government. Here’s a breakdown which elaborates a little bit on the present procedural posture of the cases (of course with the caveat that the situation is fluid and that I may well have missed additional cases or changes to the cases I list).

I. Number of cases in which an injunction has been issued at the district court level, or where denial of an injunction at the district court level has been overturned by an appellate court (Court of Appeals or United States Supreme Court), barring enforcement of the contraception mandate against “accommodated” entities: 19.

1. E.D.N.Y. (RC Archdiocese v. Sebelius)

2. W.D. Pa. (Zubik v. Sebelius)

3. W.D. Pa. (Persico v. Sebelius)

4. W.D. Pa. (Geneva College v. Sebelius)

5. D.D.C. (as to Thomas Aquinas College in Roman Catholic Archbishop of Washington v. Sebelius)

6. N.D. Indiana (Diocese of Fort Wayne v. Sebelius)

7. N.D. Indiana (Grace Schools v. Sebelius)

8. S.D. Texas (East Texas Baptist University v. Sebelius)

9. W.D. Oklahoma (Southern Nazarene University v. Sebelius)

10. W.D. Oklahoma (Reaching Souls International, Inc. v. Sebelius)

11. E.D. Mich. (Legatus v. Sebelius)

12. E.D. Mich. (Ave Maria Foundation v. Sebelius)

13. E.D. Missouri (CNS Int’l Ministries v. Dept. of HHS)

14. E.D. Tex. (Catholic Diocese of Beaumont v. Sebelius)

15. N.D. Tex. (Catholic Diocese of Fort Worth v. Sebelius)

In an additional three lawsuits, district courts had ruled against the religious claimants. But circuit court decisions have reversed those findings and granted emergency motions for injunctions pending appeal (which requires a finding of likelihood of success on the merits as well). Those are:

16. D.C. Circuit (Priests for Life v. US Department of Health and Human Services)

17. Sixth Circuit (Catholic Diocese of Nashville v. Sebelius)

18. Sixth Circuit (Michigan Catholic Conference v. Sebelius)

Finally, in one law suit, both the district court and the Tenth Circuit had denied injunctive relief. But Justice Sotomayor granted emergency injunctive relief on December 31, 2013. The government has now filed its brief and the religious claimant (the Little Sisters of the Poor) has filed its reply:

19. United States Supreme Court (Little Sisters of the Poor Home for the Aged v. Sebelius)

II. Number of cases in which an injunction has been denied at both the federal district and circuit court levels: 1.

1. N.D. Indiana and Seventh Circuit (University of Notre Dame v. Sebelius)

Posted on by Marc O. DeGirolami

What is the “Church Plan” Issue?: An Explanation from Matt Bowman

In response to my post on the Eastern District of New York’s decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the “church plan” issue, I’d welcome it, as it has been insufficiently considered.

As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection.  It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”….This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage….Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.

In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.

The impact of this revelation was on grand display in the EDNY case.

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