Posted on by Mark Movsesian

Memo to the Times Editorial Board: Read the Case

On Tuesday, the New York Times ran an editorial criticizing U.S. District Judge John Kane’s decision in one of the HHS Contraception Mandate cases, Newland v. Sebelius. Judge Kane issued a preliminary injunction blocking enforcement of the mandate against a corporation, Hercules Industries. The Times believes this ruling misreads the Constitution:

There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute protecting such exercise should not be in play.

Some of this critique is wrong, some is sloppy, and some is debatable.  But the key problem is that the critique is entirely inapposite. As my colleague Marc explained last week, Judge Kane expressly declined to address the corporation’s constitutional claims. He based his ruling solely on plaintiff’s RFRA argument. If you’re going to criticize a judicial opinion, you really should read it first.  (H/t: John McGinnis)

Posted on by Marc O. DeGirolami

Corporate Exercise of Religion and Other Thoughts on the RFRA Claim in the Mandate Litigation

There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius.  True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time).  Here are two questions that interested me.

First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all.  He seemed to assume the substantial burden — or perhaps to hold the “difficult questions” about substantial burden in abeyance.  One of those difficult questions, he said, was: “Can a corporation exercise religion?”  Three reactions:

  1. The answer to this question, posed in this way, must be yes.  The Catholic Church is a non-profit corporation, and it certainly can exercise religion — the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not.  Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right. 
  2. Though the doctrine is controversial, we do say that corporations have rights of free speech.  See Citizens United.  If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause?  And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
  3. Still, there is an interesting issue about who is exercising religion when what we’ve got is a publicly traded corporation.  Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on.  What does it mean to say in that circumstance that the corporation is exercising religion?

Second, I was surprised at the court’s skepticism with respect to the question of compelling interest. 

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Posted on by Marc O. DeGirolami

Eleventh Circuit: No Free Exercise Right to Cling to Your Guns and Religion

It can’t possibly top Mark’s Pussy Riot post, but here’s an unusual case out of the Eleventh Circuit.  In 2010, the state of Georgia passed a statute prohibiting the carrying of weapons or “long guns” in certain public venues.  One of these eight designated locations in this Carry Law was a “place of worship.”  Two individual plaintiffs claim that they “regularly attend religious services, possess a weapons carry license, and ‘would like to carry a handgun’ while in a place of worship.”  The complaint alleges violations of the Free Exercise Clause and the Second Amendment.

The Eleventh Circuit tossed the case.  “The Supreme Court has reiterated time and time again that personal preferences and secular beliefs do not warrant the protection of the Free Exercise Clause,” it said.  The Court held that it had searched the complaint for any allegation that the Carry Law violated a sincerely held religious belief of the plaintiffs, but to no avail.  “That Plaintiffs ‘would like’ to carry a firearm in order to be able to act in ‘self-defense’ is a personal preference, motivated by a secular purpose . . . . [T]here is no First Amendment protection for personal preferences; nor is there protection for secular beliefs.”

The Second Amendment claim was also dismissed.  The case is Georgiacarry.org, Inc. v. Georgia, 2012 WL 2947817 (11th Cir. July 20, 2012).

Posted on by Mark Movsesian

District Court Grants TRO in Favor of Tennessee Mosque

On Wednesday, a federal district court in Tennessee ordered local officials to grant an occupancy permit to a controversial mosque in that state. Construction of the mosque, in the city of Murfreesboro in Rutherford County, has been tied up in litigation for years; some neighbors have been very hostile, to put it politely, to the presence of a mosque in their city. The mosque’s opponents won a victory last month, when a state court barred the issuance of an occupancy permit for the mosque, ruling that the Rutherford County zoning board that had approved construction had violated the state’s open meetings law. The mosque and DOJ then sued the county in federal court, arguing that denial of the permit violated both the Free Exercise Clause and RLUIPA. On Wednesday, in the DOJ lawsuit, the federal court issued a TRO requiring the county to grant the occupancy permit in time for the start of Ramadan yesterday. For a detailed account of the litigation, see this article in the New York Times. The case is US v. Rutherford County (M.D. Tenn., July 18, 2012) (H/T: Religion Clause).

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

Wisconsin Supreme Court Plurality Dismisses Breach of Contract Claim Under Ministerial Exception

The Wisconsin Supreme Court has dismissed a breach of contract claim against St. Patrick Congregation, a Roman Catholic Church in the Archdiocese of Wisconsin.  The reasoning is…complicated.

The plaintiff had entered into a one-year contract with the Church as “Director of Faith Formation,” and the terms of the contract provided that dismissal was to occur only for “good cause” as determined by the Church.  It was undisputed that the plaintiff was a “ministerial employee,” but the plaintiff sued for her expectation damages (that is, she had already been paid for services rendered) when the Church terminated her.

The Church did not defend on the issue of whether the termination was for good cause.  It instead moved to dismiss under the First Amendment and Article I section 18 of the Wisconsin Constitution (“The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; … nor shall any control of, or interference with, the rights of conscience be permitted….”), on the basis that the plaintiff was a ministerial employee and that the Church is a religious institution.

The case was dismissed but the rationale is kind of a mess. 

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Posted on by Marc O. DeGirolami

Permanent Injunction Issued in Bronx Household Case

The latest decision in this long legal battle (which began back in 1995) was written last Friday by United States District Judge Loretta Preska, who issued a permanent injunction against the City of New York from implementing its policy of excluding Bronx Household of Faith and other organizations engaged in “worship services” from using public school facilities on equal terms with other groups.  For some previous discussion of the case, see this, this, and this.

The court readopted its legal findings from the preliminary injunction, but addressed the City’s new claims as well.  It held that the policy violated the Free Exercise Clause because it (a) was not neutral, therefore lifting it out of the framework of Employment Division v. Smith; and (b) does not satisfy strict scrutiny. 

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Posted on by Marc O. DeGirolami

The Anniversary of the Virginia Declaration of Rights

On this date in 1776, the Virginia Declaration of Rights was adopted by the Virginia legislature, preceding the Virginia State Constitution by a few days.  The portion dealing with religious liberty was drafted by James Madison and is generally considered to be an important antecedent to the federal constitutional right of free exercise of religion (adopted in 1791).  Here is the text of Article XVI:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Posted on by Marc O. DeGirolami

Fluhman, “‘A Peculiar People’: Anti-Mormomism and the Making of Religion in Nineteenth-Century America”

An interesting work about nineteenth-century American religious and political history by J. Spencer Fluhman (BYU), “A Peculiar People”: Anti-Mormonism and the Making of Religion in Nineteenth-Century America (UNC Press 2012).  The first major Supreme Court religion clause decision, Reynolds v. United States, was decided in 1878 and involved the prosecution of a member of the LDS Church for bigamy in what was then the Utah territory.  The publisher’s description follows.

Though the U.S. Constitution guarantees the free exercise of religion, it does not specify what counts as a religion. From its founding in the 1830s, Mormonism, a homegrown American faith, drew thousands of converts but far more critics. In “A Peculiar People”, J. Spencer Fluhman offers a comprehensive history of anti-Mormon thought and the associated passionate debates about religious authenticity in nineteenth-century America. He argues that understanding anti-Mormonism provides critical insight into the American psyche because Mormonism became a potent symbol around which ideas about religion and the state took shape.

Fluhman documents how Mormonism was defamed, with attacks often aimed at polygamy, and shows how the new faith supplied a social enemy for a public agitated by the popular press and wracked with social and economic instability. Taking the story to the turn of the century, Fluhman demonstrates how Mormonism’s own transformations, the result of both choice and outside force, sapped the strength of the worst anti-Mormon vitriol, triggering the acceptance of Utah into the Union in 1896 and also paving the way for the dramatic, yet still grudging, acceptance of Mormonism as an American religion.

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Patrick on Theocratic Constitutionalism

Jeremy Patrick (University of Southern Queensland School of Law) has posted Religion and New Constitutions: Recent Trends of Harmony and Divergence. The abstract follows.

The explicit incorporation of Islamic principles in the constitutions of Iraq and Afghanistan has highlighted concern over the past decade that theocratic constitutionalism has become a rival to traditional liberal constitutionalism. Whereas liberal constitutionalism ascribes religion special value but places it in the sphere of the private through guarantees of religious freedom, equal protection of religion, and non-establishment, the emerging ideology of theocratic constitutionalism holds the potential to redefine all rights through the lens of a particular religion.

This Article is an empirical study of whether, and to what degree, liberal constitutionalism has been supplanted by theocratic constitutionalism. Every constitution enacted since the year 2000 has been examined, and its provisions relating to religion sorted into the following categories: Preambular, Ceremonial Deism, Established Religion, Freedom of Religion, Equal Protection of Religion, and (non-)Establishment Clause. Analysis of the prevalence of these categories in new constitutions demonstrates that most new constitutions display some evidence of both liberal and theocratic constitutionalism.