Posted on by Marc O. DeGirolami

Supreme Court Declines to Hear Hutterite Case

The Supreme Court today denied certiorari in Big Sky Colony, Inc. v. Montana Department of Labor and Industry–a case appealed from a decision of the Montana Supreme Court involving amendments to the Montana state workers’ compensation laws that brought the Hutterite Colonies (a religious group with roots in the 16th century Anabaptist movement) within the coverage of those laws when members performed agricultural, manufacturing, or construction services. The Hutterites brought constitutional claims arguing that they should be exempted from these laws (that is, they should not be designated as “employers”) because their members receive no wages. The Montana Supreme Court rejected those claims in a 4-3 decision.

I was pleased to sign on to an excellent amicus brief in the case spearheaded by Tom Berg arguing for what is, in my view, a correct interpretation of the “generally applicable” component of the Free Exercise Clause test after Employment Division v. Smith (an interpretation that I have also discussed in my book). I am sorry that the Court passed up the chance to clarify that portion of the test.

Posted on by Mark Movsesian

Library of Congress Releases “Constitution Annotated”

To celebrate Constitution Day yesterday, the Library of Congress released a new resource, Constitution Annotated, or, more formally, The Constitution of the United States of America: Analysis and Interpretation. Constitution Annotated contains legal analysis and interpretation of the US Constitution, including the Religion Clauses, based primarily on Supreme Court case law. It is updated through the end of the last Court term. Looks very helpful.

Posted on by Marc O. DeGirolami

Third Circuit Denies Rehearing En Banc in Corporate Free Exercise Case

Yesterday, the U.S. Court of Appeals for the Third Circuit denied rehearing en banc in Conestoga Wood Specialties Corp. v. Secretary of the U.S. Department of Health and Human Services. The vote was 7 to 5.

In light of the many problems with Judge Cowen’s opinion for the panel majority as well as the circuit split that is developing over the issue of corporate free exercise of religion (for constitutional and statutory purposes) and the dichotomous confusions that the issue is generating (religious vs. secular, for-profit vs. non-profit), it would not be surprising if one or more of these cases found their way to the Supreme Court relatively soon. On the other hand, these kinds of predictions have an uncanny way of being wrong.

Posted on by Marc O. DeGirolami

Walsh on the Third Circuit’s Contraception Mandate Decision

Center for Law and Religion friend Kevin Walsh has a thoughtful and informative post about the Third Circuit’s recent decision in Conestoga Wood Specialties Corp. v. US Department of Health and Human Services, which I noted and discussed here. One thing that Kevin’s post makes me think is that given the nature of the legislative purpose for enacting RFRA, it is probable that the meaning of “exercise” was intended to be close to the constitutional meaning (pre-Smith). It would have been useful to have more statutory analysis of this type from the Third Circuit. From Kevin’s post:

Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.

Posted on by Marc O. DeGirolami

Baude on the Third Circuit’s Contraceptive Mandate Opinion

Will Baude has a strong post discussing the takeaway from the opinion of the United States Court of Appeals for the Third Circuit yesterday upholding the denial of a preliminary injunction in a contraceptives mandate case. In Conestoga Wood Specialties Corporation v. Department of HHS, a for-profit corporation sued the federal government to stop enforcement of the contraceptives mandate against it. The court, in a divided opinion, held that for-profit corporations cannot “exercise” religion and that they therefore can have no constitutional free exercise or RFRA claims.

Will asks some very good questions about the court’s analysis. I think he is right that the court proves far too much. All of the arguments it makes against the free exercise rights of corporations would apply equally to non-profit corporations like churches. Though the majority recognizes this problem, it does not discuss sufficiently (or really, at all) what for it are the key distinctions–the distinction between “for profit” and “nonprofit,” and the distinction between “religious” and “secular.” There may well be strong arguments to exclude corporations that fall on one side of these distinctions from the category of those entities that can “exercise” religion. But they do not appear in the majority’s opinion.

There is another odd portion of the majority’s opinion that Will does not discuss. Will’s post is largely focused on the Free Exercise Clause and the constitutional question. But there is a RFRA claim as well. As to that claim, the majority’s argument was surprisingly short:

Next, we consider Conestoga‘s RFRA claim. Under the RFRA, ―[g]overnment shall not substantially burden a person‘s exercise of religion even if the burden results from a rule of general applicability [unless the burden] (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.‖ 42 U.S.C. §§ 2000bb-1(a)-(b). As with the inquiry under the Free Exercise Clause, our preliminary inquiry is whether a for-profit, secular corporation can assert a claim under the RFRA. Under the plain language of the statute, the RFRA only applies to a ―person‘s exercise of religion.‖ Id. at § 2000bb-1(a).

Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a “person” under the RFRA.

With respect, this is very strange. Normally, one does not simply assume that a term as used in the Constitution must mean exactly the same thing as a term used in a statute. That’s not a rule of statutory interpretation I ever heard of. Normally, one interprets the statutory language independently, using the accepted tools of statutory interpretation. It is true that one should avoid construing a statute in such a way that it violates the Constitution, but that canon does not apply here. It is perfectly possible that there may be different, and distinct, linguistic usages in a statute and in other legal texts. As an example, the majority’s own preferred approach to divining the meaning of “exercise” under the Free Exercise Clause is to engage in what it calls a “historical” analysis. But presumably to divine the meaning of the statutory language, one would begin with the “plain meaning” of the words in the statute as used today. The court uses the words “plain meaning” in the first paragraph, but it does not discuss the plain meaning of the words as used in the RFRA. Perhaps the usage is the same in the RFRA as in the Free Exercise; perhaps not. But simply to assume this about the meaning of the statute because one has decided on the constitutional question has got to be in error.

ADDENDUM: A recent prominent example of different constitutional and statutory meanings concerns the term “tax” as used in the Anti-Injunction Act and in Article I Section 8 of the Constitution. The Supreme Court has held that “tax” in the AIA is to be understood in its broadest possible sense, but a different, and narrower, meaning has been said to apply to the term as used in the Constitution (see, e.g., the Child Labor Tax Case). The same thing might be true of the term “exercise.” See 42 USC s. 2000bb-2(4) (exercise of religion “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief”) (emphasis added).

Posted on by Marc O. DeGirolami

Garnett on Same-Sex Marriage and Religious Freedom

Our friend Rick Garnett (Notre Dame) has a short piece on Commonweal concerning the implications of the Supreme Court’s recent same-sex marriage decisions (Rick’s primary focus is the DOMA decision, United States v. Windsor) for claims of religious freedom. The essay may be usefully read, I think, as having larger application to the issue of exemptions from generally applicable laws. A bit from the conclusion of Rick’s essay:

It is easier to respect religious freedom in law and policy when everyone agrees or when governments do not do very much. With disagreement and regulation, however, inevitably comes conflict between religious commitments and legal requirements and, when it comes, the majority tends to take care of itself. What about the rest? In a constitutional democracy like ours, we are generally willing to absorb some costs and suffer some inconveniences in order to accommodate the invocation of rights by dissenting or idiosyncratic minorities, especially when the majority thinks that it has a stake in those rights. For example, America still takes a robustly libertarian approach to the freedom of speech, and protects offensive and worthless expression to an anomalous extent, because most Americans still think that protecting misuses and abuses of the right is “worth it.”

However, as religious liberty increasingly comes to be seen as something clung to by a few rather than cherished and exercised by many, as religious traditions and teachings start to strike many as the expensive and even dangerous concerns of quirky, alien margin-dwellers, and as the “benefits” of allowing religious believers’ objections or religious institutions’ independence to stand in the way of the majority’s preferred policies begin to look more like extractions by small special-interest groups than broadly shared public goods, we should expect increasing doubts about whether religious liberty is really “worth it.” We should be concerned that the characterization by the majority in Windsor of DOMA’s purpose and of the motives of the overwhelming and bipartisan majority of legislators that supported it reflects a view that those states—and religious communities—that reject the redefinition of marriage are best regarded as backward and bigoted, unworthy of respect. Such a view is not likely to generate compromise or accommodation and so it poses a serious challenge to religious freedom.

Posted on by Marc O. DeGirolami · 2 Comments

What Does Delay of the Big Mandate Suggest for the Little Mandate?

As has been widely reported, the Obama Administration has decided to delay by one year implementation of the mandate that all employers with more than 50 employees must provide insurance for their employees (I’ll call this the “big” mandate). The reason for the delay seems to be largely economic and administrative: the White House has been persuaded to delay in order to ease the transition for employers.

Over at Religion Clause blog, Professor Friedman suggests that delay in enforcement of the big mandate may also mean that courts will now find greater attraction in dismissing suits against the contraception mandate (which is one small piece of the larger requirement to provide insurance–I’ll call it the “little” mandate) on grounds of ripeness. I confess that this was my first reaction as well; delay in enforcement means that there is more time for the Administration to change its mind, tweak the rule, etc.

But some friends with whom I batted the idea around have persuaded me that such dismissals are not probable. The reason is that as recently as June 25 (exactly 1 week before the announcement about delay), the Administration announced the “final rule” involving the little mandate. That means that the injury (assuming that there is an injury) is no longer speculative. It is certain. Ripeness doctrine aims to ensure than an issue is sufficiently final that it is ready for judicial review.  “A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998). But the little mandate is now final. So unless, as part of its delay on the big mandate, the Administration also indicates that it is now reconsidering the finality of the little mandate, dismissal of a lawsuit against the little mandate on ripeness grounds seems unlikely.

There is another way that delay of the big mandate might affect arguments about the little mandate. The RFRA test demands that once the plaintiffs show that the particular law or rule represents a substantial burden on their religious exercise, the government is required to show that the burden is justified by a compelling interest and that it is pursuing that compelling interest by the least restrictive means. Most of the attention thus far has focused on the means element; many arguments have been advanced that there are many less restrictive means for the government to achieve its interest, assuming that interest to be compelling.

But delay of the big mandate might go to the question of whether the government’s interest actually is compelling at all. It has always been difficult to know precisely what it is that makes a government interest compelling. It may be somewhat easier to identify those characteristics that make an interest not compelling. In his article, “A RFRA Runs Through It: Religious Freedom and the US Code,” Professor Michael Stokes Paulsen wrote that an interest is not compelling if it involves only issues of expense or administration: “Government–except in perhaps the most exceptional situations–does not have a compelling interest in bureaucratic convenience or ease of administration.”

The situation here, however, is a little bit different. The government can say that its interest in, say, “public health” continues to be compelling and continues to be the ground of the contraception mandate. But another even more compelling interest–the economic and administrative expenses that employers will suffer as a result of (what the Administration now believes is) premature enforcement of the big mandate–is more important than whatever interest it has in enforcement of the little mandate right now. The idea is: yes, the contraceptives mandate is important. But it’s even more important that we make it easy for businesses to implement the employee coverage mandate in an economically and administratively feasible manner. We are willing to delay implementation of the mandate to cover employees generally (for economic/administrative reasons), at the expense of getting immediate coverage for contraceptives for those selfsame employees.

In order for that argument to work, however, one would have to be persuaded that the easing of economic and administrative expenses for employers faced with implementing the big mandate is itself a compelling government interest. Up until yesterday, one might have thought that the pursuit of the “public health” represented by the big mandate was more compelling than such economic and/or administrative interests. But now the issue is less clear. And if it is less clear for the sort of public health to be achieved by the big mandate, it may be less clear for the more particular sort of public health to be achieved by the little mandate. It does not seem very persuasive to claim that the government’s interest in the little mandate becomes compelling only at such time when it is more palatable or economically feasible for employers to comply with the big mandate.

It’ll be interesting to see how this shakes out.

Posted on by Marc O. DeGirolami · 1 Comment

New York Times Editorial on the Contraception Mandate

Here is the New York Times offering an opinion about the Obama Administration’s decision to press on ahead with the contraception mandate and about the Tenth Circuit’s decision in the Hobby Lobby case (the case was handed down when Mark and I were at a conference last week, and it is quite long, so I haven’t quite yet had a chance to review it). The Times quotes Professor Marci Hamilton as saying that the Tenth Circuit decision is a “fantasy.” The opposition in the Times editorial has almost nothing to do with the specific issue decided in Hobby Lobby–whether for-profit corporations may exercise religious liberty rights. The Times’s position is that the mandate is “an important advance in public health” and that the Obama Administration “has gone further than fairness or the First Amendment require to reach a compromise that respects the concerns of some religious entities without sacrificing an employee’s right to make her own decisions regarding contraceptives and not to conform to the religious beliefs of her employer.” It then says this:

Contrary to the majority opinion, a corporation like Hobby Lobby is plainly not a “person” covered by the Restoration Act. In any case, the contraceptive rule still leaves the company’s owners free to rail about the different forms of birth control to which they object and to try to convince employees not to use them. As the Justice Department cogently argued, the burden imposed on any religion is trivial in allowing employees to make their own independent decisions to obtain free contraceptives.

Note that unless one is putting a whole lot of emphasis on the phrase “like Hobby Lobby,” this opinion really has nothing to do with the issue in Hobby Lobby itself. And the points thereafter about freedom of owners to object (is it a great concession that the Obama Administration did not curtail the freedom of individuals to object?) and the triviality of the burden on religion do not depend on the status–for-profit or non-profit–of a particular corporation. All of these points would apply with equal force to a non-profit, like a church. If the burden imposed on religion is “trivial,” then it would be important to understand why it is so in the case of for-profits and not in the case of non-profits. Otherwise, it’s trivial as to both (to be clear, some people take this view. But that’s not a particular claim about the issue in Hobby Lobby, so much as skepticism that “fairness” requires any accommodation at all).

Posted on by Mark Movsesian

Movsesian on Alito

For CLR Forum readers who would be interested, my chapter on Justice Samuel Alito appears in the just released, revised edition of Justices of the Supreme Court: Their Lives and Major Opinions (2013), edited by Leon Friedman and Fred Israel. Among other cases, I discuss Alito’s famous opinion for the Third Circuit in the Newark Police Department beard case, Fraternal Order of Police v. City of Newark (3d Cir. 1999), as well his opinion for the Supreme Court in the “Seven Aphorisms” case, Pleasant Grove City. Utah v. Summum (2009), and his dissent in Christian Legal Society v. Martinez (2010).

Posted on by Marc O. DeGirolami

Targeting, Unequal Application, and Free Exercise

This may be obvious to readers of this blog, but perhaps it’s worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of “constitutional violations.” Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service.

I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side).

Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group’s plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing “sacrificing” an animal defined sacrifice as “to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption.” The Court struck down these ordinances as violations of the Free Exercise Clause.

How might these cases apply here? Suppose that the government’s explanation for delaying and/or denying a particular group’s application for tax-exempt status was that the group “is not educational” or “is political” or “does not present all views.” As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, “No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views” without violating the Free Exercise Clause as interpreted by Smith (of course, it would be violating other provisions of the Constitution, but I am focusing specifically on free exercise).

Things don’t end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn’t really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or “targeting,” it did not. Only two Justices–Kennedy (writing for the majority) and Stevens (who joined him on this point)–relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City’s desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be–given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be “narrowly tailored” to the government’s aims, and the failure of that narrow tailoring in turn suggests that the government’s interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law’s aims and application is.

One might wonder whether this difference is important. A law that is motivated by the desire to “target” religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might “target” religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a “leap of faith” off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to “target” this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the “dangerous” (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the “targeting” legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.

In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government’s subjective intention to “target” particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.