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Horwitz, “First Amendment Institutions”

This November, Harvard University Press will publish First Amendment Institutions by Paul Horwitz (University of Alabama School of Law). The publisher’s description follows.

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Read more

Posted on by Marc O. DeGirolami

Wheaton College Files Suit Against HHS Mandate

When it rains it pours.  Wheaton College, a Christian liberal arts college in Illinois, filed a federal lawsuit yesterday in the District of Columbia (the same jurisdiction in which Belmont Abbey filed) claiming that its constitutional and statutory rights are violated by the Mandate.  Causes of action include RFRA, free exercise, free speech, and an APA claim.  Wheaton’s specific complaint has to do with providing “health insurance for abortion-causing drugs, abortion procedures, and related services.”  “Wheaton College has no conscientious objection to providing coverage for non-abortion-causing contraceptive drugs and services.”  (¶ 39)

Posted on by Marc O. DeGirolami

States’ Lawsuit Against the HHS Mandate Dismissed

Yesterday was an active day for the HHS Mandate litigation.  The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness. 

The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.

Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs.  These conjectures were too speculative to confer standing.

Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to.  Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.

I’m sensing a pattern here…

Posted on by Marc O. DeGirolami

Belmont Abbey College HHS Mandate Suit Dismissed on Standing and Ripeness Grounds

Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment.  The grounds are lack of standing and ripeness.  The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status.  It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”

But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor.  It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.  “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.”  The court also dismissed the case for lack of ripeness.

There is an interesting feature of the case that appears in the ripeness discussion.  Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception.  The court said this:

This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.

Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking.  Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be.  Dismissal was without prejudice.

It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.

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Marshall & Nichol on Standing and the Establishment Clause

William P. Marshall (University of North Carolina School of Law) and Gene R. Nichol Jr. (University of North Carolina School of Law) have posted Not a Winn-Win: Misconstruing Standing and the Establishment Clause. The abstract follows.

In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program.
Read more

Posted on by Marc O. DeGirolami

Garry, “Limited Government and the Bill of Rights”

Something that looks closely related to the recent exchange between Mark and Steve about the justification of religious liberty as obstructive of the government’s power — Limited Government and the Bill of Rights (University of Missouri Press 2012), by Patrick M. Garry (University of South Dakota).  The publisher’s description follows.

What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry’s novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court’s contemporary individual rights jurisprudence, the Bill of Rights is all about government—about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.
 
Garry recognizes the desire of the constitutional framers to protect individual liberties and natural rights, indeed, a recognition of such rights had formed the basis of the American campaign for independence from Britain. However, because the constitutional framers did not have a clear idea of how to define natural rights, much less incorporate them into a written constitution for enforcement, they framed the Bill of Rights as limited government provisions rather than as individual autonomy provisions. To the framers, limited government was the constitutional path to the maintenance of liberty. Moreover, crafting the Bill of Rights as limited government provisions would not give the judiciary the kind of wide-ranging power needed to define and enforce individual autonomy.
 
With respect to the application of this limited government model, Garry focuses specifically on the First Amendment and examines how the courts in many respects have already used a limited government model in their First Amendment decision-making. Read more
Posted on by Marc O. DeGirolami

Florida Appellate Court: Church Autonomy Doctrine Does Not Require Dismissal of Tort Claims

Readers may remember that in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court explicitly put to the side the question of the ministerial exception’s application to tort actions.

Here’s an interesting Florida appellate court case decided yesterday which describes some of the contours of the church autonomy doctrine in the context of relatively simple defamation and breach of fiduciary duty claims.  The plaintiff joined the First Pentecostal Church of South Brevard, Inc. and he befriended the pastor at the time.  The two developed a personal and professional friendship, and the pastor even sponsored the plaintiff to obtain a minister’s license in the greater Pentecostal church.  At some point, however, the relationship soured when the pastor accused the plaintiff of being gay and published those accusations to the congregation, including to the plaintiff’s fiancée’s father. 

Plaintiff filed a complaint for defamation and other causes of action and the defendant pastor moved to dismiss for lack of subject matter jurisdiction on the basis of the church autonomy doctrine.  The lower court dismissed.

The Florida appellate court reversed.  After finding that the church autonomy doctrine acts as a jurisdictional bar (rather than an affirmative defense…note that Hosanna-Tabor took a different view of the ministerial exception, and see also Howard Wasserman’s very good piece), the court held that the church autonomy doctrine did not shield an action by a minister of a church where there was no evidence that “the conduct in question had been undertaken ‘in furtherance of a sincerely held religious belief,’ and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs and practices.”  The First Amendment, the court concluded, “does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members . . . . This claim can be properly adjudicated without implicating the First Amendment.”

The case is Bilbrey v. Myers, 2012 WL 2465242 (Fla. App. Dist. June 29, 2012).

Posted on by Mark Movsesian

Call for Papers: “Emerging Issues in First Amendment Jurisprudence”

The Elon Law Review has issued a call for papers for a symposium, “Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship between Religion and the State in the Modern Age,” to be held in October 2012. Proposals are due next month. Details are here.

Posted on by Mark Movsesian

Religious Groups Still Oppose Health Care Law

In the “Generalissimo Francisco Franco Is Still Dead” category, the Wall Street Journal reports that religious groups suing the Administration over the ACA’s contraceptive mandate are continuing with their lawsuits, notwithstanding today’s Supreme Court decision upholding the constitutionality of the statute. No surprise there: today’s decision didn’t address the groups’ First Amendment claims.

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Koppelman, “Defending American Religious Neutrality”

This November, Harvard University Press will release Defending American Religious Neutrality by Andrew Koppelman (Northwestern University School of Law). The publisher’s description follows.

Although it is often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a distinctive human good. It insists, however, that this good be understood abstractly, without the state taking sides on any theological question. Here, a leading scholar of constitutional law explains the logic of this uniquely American form of neutrality—more religion-centered than liberal theorists propose, and less overtly theistic than conservatives advocate.

The First Amendment’s guarantee of freedom of religion is under threat. Growing numbers of critics, including a near-majority of the Supreme Court, seem ready to cast aside the ideal of American religious neutrality. Andrew Koppelman defends that ideal and explains why protecting religion from political manipulation is imperative in an America of growing religious diversity. Read more