Posted on by Marc O. DeGirolami

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge “built on air.”  Actually, it is built on the Constitution and a federal statute, and we’ll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate — and not the putative change in plans alluded to by the President in February — is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: “In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.”  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.

Posted on by Michael Helfand

The New Footnote 4?

For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:

A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor.  Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.

But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.

For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that Read more

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Wright on Neutrality in Religion Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Can We Make Sense of ‘Neutrality’ in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative. The abstract follows.

This Article addresses the controversial question of ‘neutrality’ as a crucial test in a number of important Religion Clause cases. The idea of ‘neutrality’ in the Religion Clause context turns out to be popular, but unavoidably incoherent.

The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality.

What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.

Posted on by Marc O. DeGirolami

Notre Dame Files HHS Mandate Complaint Against Obama Administration

The text of the complaint is here.  A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa).  A few thoughts about this complaint:

  • The leading cause of action is RFRA (beginning at paragraph 202).  This makes sense as it is the strongest legal claim.
  • On the free exercise claim, have a look at paragraph 235.  ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim.  It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.”  That technically is a claim about general applicability.  A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment.  But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
  • Also look at paragraph 236.  ND is not only making a claim about the lack of general application.  It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs.  That knowledge is in turn made the basis for a claim of “targeting” of religion.  This claim, if accepted, implicates the “neutrality” component of the Smith test.  This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g.,  the law of conspiracy).
  • ND is also making an “excessive entanglement” claim which implicates the Establishment Clause.  “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision.  This sort of claim is also raised at paragraph 270 and following.

Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.

Posted on by Mark Movsesian

Second Circuit Upholds NY’s Kosher Labeling Statute

New York’s Kosher Law Protection Act of 2004 requires sellers who market food products as kosher to label the products “kosher” and identify the person who has made the “kosher” certification. Unlike an earlier statute, which defined “kosher” by reference to Orthodox Jewish kashrut rules, the 2004  act does not define the term or authorize state inspectors to determine whether products satisfy particular kashrut requirements. It simply requires sellers to affix a label and disclose the basis for their assertion that the products are, in fact, kosher.

A New York deli that sells kosher food under the supervision of a non-Orthodox rabbi challenged the 2004 statute under the Establishment and Free Exercise Clauses. The deli pointed out that non-Orthodox interpretations of Jewish law do not require kosher food to bear a label, and argued that the labeling requirement thus amounted to an establishment of Orthodox Judaism. The deli also argued that the labeling requirement burdened its free exercise of a non-Orthodox form of Judaism.

Yesterday, the Second Circuit dismissed these claims. With respect to establishment, the court applied the  Lemon test. It held that the 2004 act had the secular purpose of preventing consumer fraud and did not advance religion. It’s true that the labeling requirement coincided with Orthodox Jewish practice, the court reasoned, but that did not amount to a legislative endorsement of Orthodox Judaism. A reasonable observer would see the labeling requirement as a neutral guide for consumers who wished to purchase kosher food — 70% of whom, the court noted, were not even Jewish, according to market research (who knew?). And, because the statute did not require the government to assess the correctness of a kosher designation, but only required sellers to identify the private persons that had made the designation, the statute did not threaten any entanglement with religion. With respect to the free exercise claim, the court held under Smith that the 2004 act was a neutral and generally applicable consumer protection law that did not violate plaintiff’s rights. The case is Commack Self-Service Kosher Meats v. Hooker, 2012 WL 1633143  (May 10, 2012).

Posted on by Michael Helfand

Litigating Religion Redux

I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here).  The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions.  Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.

One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute.  Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators.    The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.”  Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment.   Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third.  As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”

But is this the preferred outcome?

Read more

Posted on by Mark Movsesian

Giving the Ministerial Exception a Bad Name

Over at PrawfsBlawg, our friend Paul Horwitz notes an interesting piece in the New York Times yesterday on doings at the Trinity Broadcast Network, an extremely successful Christian cable channel. Well, “doings” is perhaps too polite. TBN, which advocates the so-called “Prosperity Gospel,” has received many millions of dollars over the years in donations from the faithful — $93 million in 2010 alone. An insider now claims that much of the money has gone to fuel the lavish lifestyle of TBN executives, particularly the network’s founders, the husband-and-wife team of Paul and Janice Crouch. I won’t go into the details, except to say that the portrait is one of high-spending, low-rent excess, and that the allegations come from one of the Crouch’s own granddaughters, who other family members say was the real sponger.

IRS regulations prohibit “excess compensation” for executives of non-profit organizations. According to the Times, though, TBN has been able to avoid scrutiny by relying on the ministerial exception. TBN has allegedly ordained “dozens of staff members . . . including chauffeurs, sound engineers, and others,” as ministers, thus allowing TBN to give them rent-free luxury “parsonages” and to avoid paying Social Security taxes on their salaries. TBN’s lawyer defended the network’s actions, arguing that the hundreds of ordained employees, including performers at a TBN-affiliated religious theme park, had experienced a true religious vocation.

Who knows how these allegations will sort out? One issue that seems sure to arise, though, is fraud. Some of the Court’s church autonomy cases suggest that fraud is a limitation on the ministerial exception, though the cases don’t really develop the idea. If the IRS were to go after TBN, it could argue that the ordinations for company workers without any theological or pastoral training were phony. Questioning such ordinations would obviously raise free exercise concerns, though, and at least one legal expert the Times quotes thinks it won’t happen: “absent clear fraud, the government is not going to touch that.”

Posted on by Mark Movsesian

State Legislature Moves Against Vanderbilt’s “All-Comers” Policy for Student Groups

Last night, by comfortable margins, the Tennessee legislature passed a bill prohibiting Vanderbilt University’s “all-comers” policy for student groups. The policy, which requires that student groups open leadership positions to all Vanderbilt students, even students who disagree with the groups’ core beliefs, has sparked a dispute between the university and some student religious organizations, which argue that the policy effectively dilutes their religious identity. The bill initially banned all-comers policies only at state universities, but an amendment extended the bill’s  coverage to private institutions that receive more than $24 million in state subsidies — which just happens to be the amount Tennessee gives Vanderbilt. The bill does not actually cut off  funding, for the moment, but sponsors threaten to do so in future if Vanderbilt does not change its policy. The bill now goes to Governor Bill Haslam for signature.

A couple of terms ago, in CLS v. Martinez, the Supreme Court held that a similar all-comers policy at the University of California-Hastings was constitutional. As I’ve argued before, though, even if an all-comers policy is constitutional, it’s very misguided. The point of campus diversity is to allow the expression of various viewpoints. It’s hard to see how a group can express a viewpoint if it cannot choose leaders who share its beliefs.

Posted on by Michael Helfand

Religion and the New Multiculturalism

Thanks to Mark and Marc for having me here this month.  I’m hoping to blog a bit this month about the competing claims of law and religion in the age of, what I’ve taken to calling, the “new multiculturalism.”  What I’m thinking of here is a growing set of conflicts between law and religion where religious individuals and religious groups are less concerned about recognition and symbolism and more concerned about securing autonomy from the state.  So, for example, I would contend that questions about prayer in public schools and religious symbols on government property have taken a back seat to debates over the ministerial exception (Hosanna-Tabor v. EEOC) and the role of religious law within U.S. courts (e.g. the recent wave of proposed sharia-bans).

One of the things that I’ve found interesting about this focus is how interdisciplinary the inquiries have been.  Addressing this new multiculturalism invariably requires dabbling in everything from arbitration to international law to political theory.  And similarly, in my recent Litigating Religion piece, I’ve been working a bit on the options for resolving disputes that turn on religious doctrine and practice, a question that requires thinking about the alternative dispute resolution paradigms of both public law and private law.  I’m looking  forward  to discussing this wide range of issues here at the CLR Forum this month.

Posted on by Marc O. DeGirolami

Court Dismisses Muslim Harrassment Suit

The U.S. District Court for the Northern District of Illinois has dismissed a suit by a Saudi Arabian Muslim plaintiff who worked as a child care attendant at the Cook County Circuit Court, and who claimed that her supervisor harrassed her because she wore a headscarf, that he prayed with other employees, and that he referred to other employees as “good Christians.”  The plaintiff brought Establishment and Free Exercise Clause claims, and both were dismissed.  On the establishment front, the court held that there was no allegation of a “governmental policy or practice underlying the alleged misconduct at issue in this case or any entanglement by any governmental entity with religion or preference of any religion by a governmental entity.”  As for free exercise, the court held that the only fact related to this claim in the complaint was an allegation that one of the defendants on one occasion denied the plaintiff time off for an Islamic religious observance.  This was insufficient to make out a free exercise violation.

The case is Huri v. Circuit Court of Cook County, 2012 WL 1431268 (N.D. Ill. April 25, 2012).