Posted on by Dan Crane · 2 Comments

Religious Communities as Disruptive Competitors

Last fall, Barak Richman and I had a friendly exchange on this blog about whether antitrust law should apply to restrictive practices governing rabbinical hiring.  Our debate raised the question of whether antitrust norms are appropriate for regulating competition within religious organizations.  Two recent judicial decisions, one involving Benedictine monks in Louisiana and the other involving a Hutterite colony in Montana, raise questions about commercial competition between religious and secular organizations.

The Benedictine monks case arose out of  Hurricane Katrina, which destroyed part of the St. Joseph’s Abbey’s pine timberlands.  The abbey traditionally harvested pines to support itself.  In need of an alternative source of income, the monks decided to get into the casket business, hand-making two models of “blessed” pine caskets in their workshop.  Before they had sold a single casket, the monks received a cease and desist order from the Read more

Posted on by Marc O. DeGirolami

Vischer on Religious Liberty and For-Profit Businesses

You should make the time to read Rob Vischer’s new piece, Do For-Profit Businesses Have Free Exercise Rights?  One interesting feature of the paper is Rob’s engagement with the First Amendment institutionalism literature.  He makes the case for some line drawing, in his usual careful and thoughtful way.  Here is the abstract:

Americans are understandably troubled by the prospect of Wal-Mart and the First Presbyterian Church as conceptually identical free exercise claimants. As an expanding array of for-profit businesses sue to block enforcement of the HHS contraception mandate, there is a danger that our failure to distinguish them will weaken the protections for all institutional free exercise claimants. Except for some still largely uncontroversial questions of internal church governance, the “moral bedrock” of religious liberty is increasingly contested when invoked by institutions. Absent some categorical distinctions, we risk what Fred Schauer and others have called “institutional compression” through a process “of leveling down rather than leveling up.” Nevertheless, in the wake of Citizens United, courts may decide not to embrace potential paths of distinction. If the identity of the speaker doesn’t matter for purposes of free speech, it is tempting to say that the identity of the actor doesn’t matter for purposes of free exercise.

Foreclosing a for-profit business’s standing to raise free exercise claims entirely is not justified. However, in light of the differences between corporate political speech and corporate religious exercise, and in light of the enormous market power wielded by for-profit businesses in the provision of essential goods and services, including the paths by which to earn a livelihood, a court would be justified in interpreting free exercise doctrine to reflect institutional distinctions.

Posted on by Dan Crane · 5 Comments

Marriage Privatization Won’t Be Easy

Several years ago I wrote a “Judeo-Christian” defense of marriage privatization, by which I mean getting the government out of the business of deciding what marriage is and by what terms it should be governed.  As the cultural wars over same-sex marriage intensify, that idea has gained wide popularity across the political spectrum.  For example, in their popular book Nudge, Richard Thaler and Cass Sunstein devote an entire chapter to advocating marriage privatization.

Many advocates of marriage privatization seem to think that disentangling the state from marriage would be easy.  They argue that the government should just stop issuing marriage licenses.  Marriage would then become a private ceremonial and contractual matter.  The state would enforce marriage contracts just like other contracts.

Although I remain an advocate of marriage privatization, disentanglement would be far from that easy.  The state is thoroughly intertwined with marriage; the Gordian knot cannot be neatly severed.  I’m currently working on article entitled How to Privatize Marriage that tries to work through these complex issues.  My bottom line is that privatizing marriage does not mean that the state would get out of regulating and recognizing intimate unions altogether, but that it would try to create a wider space for regulation and recognition by individuals and social and religious groups.

I’m still working through these issues and won’t try to offer a comprehensive solution yet.  For now, I’d  like to raise three difficulties with marriage privatization that need to be addressed as part of any privatization proposal.  They correspond to functions currently served by state marriage regulation and recognition.

First, the state uses marriage as a marker for the dispensation of state benefits and the extraction of obligations owed to the state by individuals.  This is most obvious in the taxation context, but occurs across a tremendous range of state activities. (I’m using “state” in its broad sense to include all governments).   For example, selective service (i.e., Read more

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Nelson on the Free Exercise Rights of Institutions

James David Nelson (Columbia University Law School) has posted Conscience, Incorporated. Nelson’s essay evaluates the ability of corporations and other institutions to claim exemptions from the Affordable Care Act’s contraception mandate under the Free Exercise Clause. The abstract follows.

Do business corporations have free exercise rights? This question has become critically important in recent challenges to the Affordable Care Act’s so-called “contraception mandate.” A host of businesses selling ordinary goods and services claim that they cannot be compelled to provide employees with insurance that covers contraception. Courts have divided over whether corporations can assert rights of conscience, and existing theoretical accounts fail to provide guidance on this question.

This Article offers a new normative framework for evaluating corporate claims of conscience. Drawing on theories of conscience and collective rights, it develops a “social theory” of conscience that explains how individual moral identity is formed within associations and, consequently, how the social structure of those associations can support institutional claims for legal exemptions.

The social theory of conscience has direct implications for free exercise doctrine. For an institution to assert a valid claim, it must be a constitutive community, such that individual members regard the collective as intimately tied to their sense of self. Some institutions, like churches and other religious organizations, fit comfortably in this category. But the legal, social, and economic norms that govern modern business practice pervasively undermine the formation of tight personal connections to for-profit corporations and thereby erode the normative basis for institutional legal exemptions. Free exercise doctrine should therefore resist corporate claims to exemptions from the law.

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Gaylord on Free Exercise and the HHS Mandate

Scott Gaylord (Elon University School of Law) has posted For-Profit Corporations, Free Exercise, and the HHS Mandate. The abstract follows.

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA.

Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

Posted on by JCPW

Rienzi on Religious Liberty for Money-Makers

Mark Rienzi (Catholic University of America – Columbus School of Law) has posted God and the Profits: Is There Religious Liberty for Money-Makers? The abstract follows.

Is there a religious way to pump gas, sell groceries, or advertise for a craft store? Litigation over the HHS contraceptive mandate has raised the question whether a for-profit business and its owner can engage in religious exercise under federal law. The federal government has argued, and some courts have found, that the activities of a profit-making business are ineligible for religious freedom protection.

This article offers a comprehensive look at the relationship between profit-making and religious liberty, arguing that the act of earning money does not preclude profit-making businesses and their owners from engaging in protected religious exercise.

Many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses. Thus businesses can be observed to engage in actions that are obviously motivated by religious beliefs: from preparing food according to ancient Jewish religious laws, to seeking out loans that comply with Islamic legal requirements, to encouraging people to “know Jesus Christ as Lord and Savior.” These actions easily qualify as exercises of religion.

It is widely accepted that religious freedom laws protect non-profit organizations. The argument for denying religious freedom in the for-profit context rests on a claimed categorical distinction between for-profit and non-profit entities. Yet a broad examination of how the law treats these entities in various contexts severely undermines the claimed categorical distinction. Viewed in this broader context, it is clear that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.

Posted on by Marc O. DeGirolami

Predictably Unpredictable: Thoughts on the Free Exercise Clause

I want to talk to you about the Free Exercise Clause of the Constitution.  This post is long.

My view of the Free Exercise Clause is one part of a larger approach to The Tragedy of Religious Freedomconstitutional adjudication involving the religion clauses.  For those who have been thirsting feverishly to know more about that approach, fear not: soon enough, I will flood the zone.  Suffice it for now to say that one of the most serious criticisms of my approach is that it is insufficiently predictable.  It is sometimes said, not without reason, that my approach is not rule-like enough, and that it is therefore damaging to rule of law values.

These are fair criticisms, and I do my best to address them.  I do this in part by taking a close look at the way in which a selection of district and intermediate appellate courts have applied that putatively most rule-like of all religion clause rules: neutral laws of general application do not violate the Free Exercise Clause.

What I find is: that rule is not nearly as inviolable as many who invoke it believe.  In fact, knowing when that rule will apply actually depends on having the sense of a host of context-dependent and issue-specific factors.  The trouble, as I have explained before, is the issue of general applicability.  Employment Division v. Smith carved out the unemployment compensation cases from its holding.  But, per this amicus brief, it is more accurate to think about this carve-out not as an “exception” but as a corollary to the rule itself, which creates a kind of graduated spectrum of general applicability. Laws which are not “generally applicable” are lifted out of the Smith “rule” and receive judicial balancing.  How do we know when a law is not “generally applicable”?

It falls to courts to determine what “generally applicable” means along the spectrum.  It cannot mean that the law has no exceptions, period; that would destroy the rule.  And yet “generally applicable” must mean something.  What it means is the subject of judicial interpretation–for now, very much in the common law style.  And that means that the Smith rule is much less predictable than its supporters suppose: “If the vice of pluralistic approaches is that they are predictable only to those who know how they will be applied, that is no less true of monistic approaches.”  Chapter 8, The Tragedy of Religious Freedom.  That is not enough, by itself, to convince you to adopt my approach.  For that, you need to buy the book!

Here is a brand new HHS Mandate case to show the predictable unpredictability of Smith, Geneva College et al. v. Sebelius, decided Wednesday by the U.S. District Court for the Western District of Pennsylvania.  The case is somewhat unusual inasmuch as the plaintiffs are both nonprofits and for-profits.  The nonprofits’ case was dismissed on standing grounds (only the Eastern District of New York, to my knowledge, has not followed this route for nonprofits).  As to the for-profits, after discussing the issue of a corporation’s exercise of religion and the RFRA claim, the court rested its decision to deny the motion to dismiss with respect to plaintiffs’ free exercise decision on an analysis of the issue of general applicability.  Here’s a substantial chunk of the decision, beginning around page 46:

There is little doubt that the mandate’s requirements are facially neutral in the sense that they are directed toward benefiting the public health, and are not explicitly targeted at any particular religious conduct. The court’s analysis, however, must extend beyond the face of the regulations in question. The Court of Appeals for the Third Circuit has acknowledged that

the Free Exercise Clause’s mandate of neutrality toward religion prohibits government from ‘deciding that secular motivations are more important than religious motivations.’ . . . Accordingly, in situations where government officials exercise discretion in applying a facially neutral law, so that whether they enforce the law depends on their evaluation of the reasons underlying a violator’s conduct, they contravene the neutrality requirement if they exempt some secularly motivated conduct but not comparable religiously motivated conduct.

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 165-66 (3d Cir. 2002). The process of implementing the objected to requirements has been replete with examples of the government impermissibly exercising its discretion by exempting vast numbers of entities while refusing to extend the religious employer exemption to include entities like SHLC.

The primary example of the “categorical exemption” rejected in Fraternal Order of Police in the present case is the grandfathering provision in the ACA, which exempts as many as 191 million entities from the mandate’s requirements. The grandfathering exemption impacts secular employers to “at least the same degree”—and likely far more—than religious objections from entities like SHLC. Blackhawk, 381 F.3d at 209. The fact that the government saw fit to exempt so many entities and individuals from the mandate’s requirements renders their claim of general applicability dubious, at best. Elsewhere in their briefing, defendants respond that the number of grandfathered plans will continue to decrease as time goes on. Even if this comes to fruition (which is not a certainty), the secular exemption for employers with fewer than fifty full-time employees that choose not to provide any insurance coverage remains. 26 U.S.C. § 4980H(c)(2)(A). Taken together, these categorical exemptions for secular entities and individuals raise a concern that the mandate’s requirements are not generally applicable.

In addition to the secular exemptions, the government continues to engage in an impermissible “religious gerrymander” by extending exemptions to an increasing number of religiously-affiliated entities. Although the court of appeals in Blackhawk and Fraternal Order of Police was not faced with the situation where, as here, some religious conduct is exempted, the fact that defendants continue to carve out exemptions, see generally 78 FED. REG. 8,456, while subjecting SHLC and other similarly-situated close corporate entities to the mandate’s requirements, raises a suggestion of “discriminatory intent” against close corporate entities seeking to advance the religious beliefs of their owners. Fraternal Order of Police 170 F.3d at 362. On the present record, this court finds that the Hepler plaintiffs raised plausible claims that the sheer number of exemptions—both secular and religious—to the mandate’s requirements burdened their free exercise rights to an extent sufficient to trigger strict scrutiny. The court already analyzed the mandate’s requirements under the compelling government interest test in the RFRA context and found that they do not survive strict scrutiny; therefore, for the same reasons, the First Amendment claim is sufficient, and the motion to dismiss this claim must be denied.

Let’s set to the side, for the moment, the issue of the proper interpretation of “general applicability.”  This court interpreted in a certain way; other courts, as I show, interpret it differently.

The problem with the “general applicability” issue isn’t that one court may decide a case in a way you might like, and another court may decide a different case in a way you might not.  The real burn of it is that the very unpredictability that Smith aimed to eliminate has seeped right back in.  No matter how rule-like Smith tried to be, it could not squeeze out of constitutional adjudication what is and must be true about it (at least as to issues like these).  And if the response is that we can solve all of this by clarifying Smith and making it even more rule-like, my reply is: the more you squeeze, the more slips through.

Posted on by Mark Movsesian

You Are Not a Religion

In Habits of the Heart, written almost 30 years ago, sociologist Robert Bellah and his co-authors came up with a term to describe a new American religion: “Sheilaism.” The phrase comes from an interview Bellah conducted with a woman called  Sheila, who described her religion as follows:

I believe in God. I am not a fanatic. I can’t remember the last time I went to church. My faith has carried me a long way. It’s Sheilaism. Just my own little voice. . . . My own Sheilaism . . . is just to try to love yourself and be gentle with yourself. You know, I guess, take care of each other.

You don’t have to be a sociologist to appreciate how well Sheila’s comments reflect the mindset of millions of Americans. You can dismiss that mindset as empty and self-indulgent, but in the land of  postmodern individualism, Sheilaism has powerful rhetorical appeal. It is preached relentlessly in advertising, books, movies, music, TV programs, even presidential politics (“We are the ones we’ve been waiting for”). It is the effective religion of the “Nones”– the rapidly increasing cohort of Americans who claim no formal religious affiliation–and, one imagines, many churched people as well.

Yet Sheilaism is not a constitutionally recognized religion, at least in the Fourth Circuit. That’s one lesson of the recent, fascinating Psychic Sophie case that Marc described in his post this week. In the case, a Virginia fortune teller, “Psychic Sophie,” argued that local licensing and zoning rules violated her First Amendment right to freely exercise her religion. She described her religion this way:

I am very spiritual in nature, yet I do not follow particular religions or practices, and “organized” anythings are not for me. I pretty much go with my inner flow, and that seems to work best.

She didn’t use the phrase, but Psychic Sophie’s religion is Sheilaism. And, as Marc notes, the Fourth Circuit held that this worldview does not constitute a religion for purposes of the First Amendment. For constitutional purposes, the court reasoned, religion means some organizing principle or authority other than oneself.  Going with one’s inner flow does not qualify.

That makes a good deal of sense. Sheilaism is a very useful concept in sociology, but it doesn’t really work in constitutional law. Recognizing Sheilaism as a religion for constitutional purposes would create all sorts of problems. We’d have millions of religions in America, each of which could claim a right to free exercise. We’d be courting anarchy. 

Or would we? The really interesting thing about the Psychic Sophie case is that it’s so unusual. With so many Sheilaists in America claiming to follow their own paths, surely we should be seeing many more claims for religious exemptions from generally applicable laws. There should be much more friction in American life. But there isn’t. All these free spirits wind up believing pretty much the same things and acting in pretty much the same ways. Perhaps Sheilaism isn’t really about following one’s inner voice, but the voice of the mainstream culture. In which case, Sheilaism isn’t really about individualism, but conformity. Like the guy said, you can have a car painted any color you like–as long as it’s black.

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Oleske on Lukumi Babalu Aye

James M. Oleske Jr. (Lewis & Clark Law School) has posted Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws. The abstract follows.

Twenty years after the Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah, uncertainty reigns in the lower courts and among commentators over the issue of constitutionally compelled religious exemptions. Despite the Court’s general disavowal of such exemptions in Employment Division v. Smith, Lukumi appeared to breathe life into a potentially significant exception to Smith. That exception – which this Article calls the “selective-exemption rule” – provides that religious exemptions may still be required by the Free Exercise Clause when the government has selectively made available other exemptions to a law.

This Article addresses the key unresolved questions about the scope of the selective-exemption rule and challenges the received reading of the leading circuit court decision interpreting the rule. Relying heavily upon that reading, prominent religious liberty advocates have been pressing for a remarkably broad Read more

Posted on by Marc O. DeGirolami

New York Times Story on the HHS Mandate Suits

Here’s a story published yesterday in the Times on the HHS Mandate law suits.  The story has several problems, among which are:

(1) It gives the impression that courts are, at this point, either dismissing these cases because they believe that “contraception is a vital health need and a compelling interest” or finding for the plaintiffs because “they [the plaintiffs] have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged.”  The reality is that the large majority of these  suits have been dismissed without prejudice on standing or ripeness grounds, as we have noted again and again here at CLR Forum.  Standing does not appear at all in the story.

(2) Its focus on the Free Exercise Clause is odd.  It mentions the Religious Freedom Restoration Act, but it focuses on the Free Exercise Clause and it mistakenly calls the O Centro case a free exercise case.  It was a RFRA case.  Here is some important language in that case:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.”

The discussion of the Smith decision in the news story also gives the misimpression that Smith is an iron clad rule with no exceptions, but that is not true, as I have noted before.

(3) The story references the possibility that “[a] compromise for religious institutions may be worked out” and then proceeds to talk about the previously announced putative plan to shift the cost of contraception to insurers.  Standing alone — i.e., without an expansion of the category of religious employers and without dealing with the issue of self-insured plaintiffs — that compromise will work very little out for religious institutions.  But I guess we’ll see by roughly the end of the first quarter.

That said, the reporter is to be commended for getting a variety of perspectives on the issue.