Posted on by

Murray on Assumptions in Hosanna-Tabor

Brian M. Murray (Staff Attorney, Community Legal Services of Philadelphia) has posted The Elephant in Hosanna-Tabor. The abstract follows.

This article identifies an unarticulated and widely ignored assumption in the Supreme Court’s recent religious liberty decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which grounded the ministerial exception in the Free Exercise Clause. Specifically, the Court’s failure to articulate which organizations can invoke the ministerial exception could undermine the Free Exercise Clause that is the very basis of the exception’s existence. I argue that the Court’s oversight will result in significant future litigation in a post-Employment Division v. Smith world. The Court’s decision in Hosanna-Tabor uses ambiguous and careless language when failing to articulate the assumption mentioned above. Chief Justice Roberts’ majority opinion uses phrases such as “religious body,” “church,” and “religious organization” interchangeably and without explanation. I explain why this is inadequate from an historical, jurisprudential, and practical perspective by highlighting the tradition of recognizing institutional autonomy and the rise of unconventional religious entities, known as “parachurches,” that self-define as religious. These organizations will present the trickiest case studies with respect to the ministerial exception, thereby making future litigation on this issue likely.
Read more

Posted on by Mark Movsesian

Cardinal Suggests Legal Challenge to Contraception Mandate

In a letter he sent Friday to Catholic bishops, Cardinal Timothy Dolan, President of the US Conference of Catholic Bishops, stated that, notwithstanding President Obama’s invitation to “work out the wrinkles,” talks between the Conference and the White House on the revised contraception mandate have not gone well. According to the cardinal, White House staff have stated that the Administration will not expand the the exemption for religious institutions and have suggested the bishops listen to more “enlightened” voices within Catholicism. As a result, the cardinal wrote, the Conference is considering litigation:

In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.

Hosanna-Tabor  is not directly relevant to this issues surrounding the mandate, of course, but I take it the cardinal is using the case more or less rhetorically. In Hosanna-Tabor, the Court unanimously rejected the Administration’s assertion that the  Free Exercise Clause does  not apply to a church’s employment of its minsters — as the Court stated, a rather “remarkable” assertion that suggests an unfortunate antipathy for the special protection the American Constitution offers religious communities.

Posted on by Marc O. DeGirolami

Second Circuit Upholds Preliminary Injunction Against the City — All Religious Groups Included

This reports states that Wednesday the Second Circuit Court of Appeals upheld Judge Preska’s preliminary injunction against the New York City Department of Education, preventing the City from excluding all groups (and not only Bronx Household of Faith) that engage in religious worship from using public school facilities after hours on equal terms with other groups.  I have not been able to locate the order, so it is not clear to me how the reporter is getting the June end-date.  For previous discussion of this issue, see here, here, and here.

If someone has access to the order, please let me know.

UPDATE: According to this report, the source of the June time-frame is this sentence in the Second Circuit’s order: “We hope and expect that the district court will render its conclusive, final judgment as soon as practicable, and no later than mid-June, so that the dispute can perhaps be concluded by the beginning of the next school term.”

Posted on by Marc O. DeGirolami

The Immanent Frame on the HHS Mandate

I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law.  It is in general a terrific blog.

That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there.  Of course, there are many things to discuss with respect to the mandate, and law is only one of those things.  It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things.  But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights.  The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is.  There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).   

One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect.  Here is a portion of Professor Sands’s comments:

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

I’ll confine my comments to the statements about the law, which are wrong in several respects.  Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law.  These statutes apply against the government, not against individual private employers.  So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.

Professor Sands’s statement is also potentially misleading with respect to constitutional law proper.  It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong.  If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application.  That proposition is currently being litigated, and we will see what courts hold.  If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.

Posted on by Marc O. DeGirolami

District Court Finds New York City Department of Education’s “Worship”-Exclusion Regulation Facially Unconstitutional

The United States District Court for the Southern District of New York has issued a preliminary injunction finding the regulation issued by the Board of Education of the City of New York facially unconstitutional under the Free Exercise Clause.  The case is in part interesting because the Second Circuit had narrowed the scope of the District Court’s TRO to the plaintiff, Bronx Household of Faith.  As I explained in this post, however, the plaintiff is challenging the regulation as being facially unconstitutional.  That would invalidate it as to everyone, not just Bronx Household of Faith.

And that is exactly what the district court held in issuing its preliminary injunction.  In the final footnote of the opinion, the court said:

The Court is, of course, aware of the Court of Appeals’ order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party.

With respect from these quarters, too, it seems to me that Judge Preska is surely right about this.  If a regulation is found facially unconstitutional (as Judge Preska found this one to be), the state is prohibited from enforcing it not only against the plaintiff, but against everybody.  The finding is that there are no situations in which enforcement of the regulation would be constitutional.

The other interesting note is that Judge Preska reaffirmed her TRO findings that the regulation is not neutral on its face because it singles out worship for specially negative treatment, and because it discriminates against structured forms of religious expression in favor of unstructured forms of religious expression.  The district court also found that the Department of Education did not have a compelling interest here in conveying the appearance of not violating the Establishment Clause by issuing the regulation (this formed part of the basis for Judge Leval’s earlier Second Circuit majority opinion).  Neither the Second Circuit nor the Supreme Court has held that any interest in avoiding the appearance of an Establishment Clause violation is sufficiently powerful to justify viewpoint discrimination — a clear violation (rather than merely the appearance of a violation) of the Free Speech Clause.

Posted on by Marc O. DeGirolami

Second Circuit Clarifies Scope of TRO in Bronx Household of Faith Case

The Second Circuit Court of Appeals issued an order clarifying the scope of the TRO issued by the district court in the Bronx Household of Faith case.  The order states:

We call to the district court’s attention an appearance of overbreadth of its order. The district court stated that it “issues a temporary restraining order enjoining defendants from enforcing” regulation D-180.  As stated the order could be construed to enjoin the Board from enforcing its regulation not only against the plaintiffs, but also against non-parties as well.  The Board has thus complained that, at the last minute, it is being required to process more than 23 new permit applications. This is a misunderstanding of the order. The order should be understood as enjoining the City from enforcing its regulation against the parties to the case—not as enjoining the City from enforcing its order against non-parties. The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties.

My understanding is that the plaintiff is challenging this regulation as being facially unconstitutional, so if it eventually prevails on the merits of that claim, that would prevent the City from enforcing the regulation against non-parties.  But because at present this is only before the court on a motion for TRO, it applies only to Bronx Household of Faith, and the City is at liberty to throw everybody else out.

Posted on by Marc O. DeGirolami

Bronx Household of Faith Obtains TRO on Free Exercise Grounds

CLR Forum’s educated readership knows that the Free Exercise Clause was interpreted in Employment Division v. Smith to mean that neutral laws of general application which do not specifically target religion for discriminatory treatment are constitutional.  Of course, the majority of the Court in Smith, unlike some of Smith’s most ardent academic supporters, was quite friendly to legislative accommodations for religion.  Smith was about what the Constitution mandated, not what it permitted.

Yet in the fabric of Smith was an important exception — or, perhaps it’s not even right to call it an exception, as it seems to follow from the very rule that Smith announced.  Where a law is not neutral, or not of general application, it warrants the strict scrutiny that applied in the Court’s pre-Smith free exercise jurisprudence. 

And that seems to be the reason for Judge Loretta Preska’s decision to issue a temporary restraining order enjoining New York City’s Board of Education from barring Bronx Household of Faith and all other religious organizations from using public school buildings for religious worship services.  Readers will remember that the Second Circuit, in an opinion by Judge Pierre Leval, held that the municipality could exclude “worship” even though (under Good News Club v. Milford Central School), it could not exclude “religious expression.”  And the Supreme Court, regrettably, denied cert.  But the Second Circuit’s decision did not involve a free exercise claim, and Bronx Household of Faith had preserved that claim. 

If one looks at the memorandum in support of Bronx Household’s motion for the TRO, the free exercise claims involve allegations of non-neutrality (the policy of exclusion specifically targets religious worship, and even more specifically targets Judeo-Christian religions which engage in organized worship) and the lack of general application: the policy is “substantially underinclusive” — it allows “prayer, singing hymns, and religious teaching,” while at the same time excluding worship.  The district court also agreed with the plaintiff’s Establishment Clause claim as a reason to grant the order.

Posted on by Marc O. DeGirolami · 1 Comment

First Lawsuit to Challenge the (Revised) HHS Mandate

The first lawsuit (but surely not the last) challenging the putatively revised HHS contraceptive and abortifacient mandate has been filed right here in the U.S. District Court for the Eastern District of New York: Priests for Life v. Sebelius.  The plaintiff is a private non-profit with about 50-60 employees.  Whatever the content, and future, of the alteration that President Oabama mentioned last Friday, it is the mandate as originally crafted by the Obama Administration which has now become final.  This action challenges that rule, alleging violations of the First Amendment and RFRA, though it also claims that there is no distinction between that rule and the proposed alteration.

I think the RFRA claim is a serious one.  One of the interesting features of the case on the free exercise front is that the plaintiffs argue that the law is not a neutral one of general application because “[t]o date, HHS has granted over 1,000 individualized waiver requests from employers and to insurance plans,” and because by the very terms of the Affordable Care Act, certain insurance plans are grandfathered in.  ¶¶ 17, 20.   One to keep an eye on.  (h/t Professor Friedman)

Posted on by Mark Movsesian

Puzzling

As my colleague Marc pointed out Friday, there are some pretty serious questions about the Administration’s new contraception-coverage mandate. I don’t mean that rhetorically. I mean it’s genuinely unclear what the answers are, even after a weekend in which Administration officials and liberal Catholic commentators like EJ Dionne went on the airwaves to claim that the President had resolved the controversy. Two questions, it seems to me, are crucial:

  • Are insurance companies really going to absorb the costs of employee contraceptives, sterilization, and abortifacients? Some commentators reason that because these services are cheaper for insurance companies than pregnancy care, the companies will be glad to foot the bill. Does that make sense? Have insurance companies made any representations about this? (As of this morning, there was nothing on the website of health insurers’ umbrella organization, “America’s Health Insurance Plans,” or AHIP). Why wouldn’t insurance companies find a way to pass the cost of these services on to the employers who purchase the insurance contracts?
  • What about religious institutions that self-insure? According to the Becket Fund, thousands of such institutions exist.

Until one knows the answer to these questions, it’s hard to see how this “compromise” changes anything in substance about the original mandate.

Posted on by Mark Movsesian

Contraceptives and the Complexities of American Catholicism

There’s word this morning that the Obama Administration plans to announce a compromise on the new HHS regs that require religiously-affiliated entities to cover contraceptives, sterilization, and abortifacients in employee health insurance plans. (When stories start to leak about how the Vice President opposed the regs, you know the White House is in political trouble). It’s not clear what the compromise is, exactly, or whether it will satisfy religious leaders.

For the moment, though, I’d like to focus on something this crisis reveals about American Catholicism. Some proponents of the HHS regs have been shocked at the negative reaction from many American Catholics, large numbers of whom use artificial birth control. Surely Catholics who use artificial birth control should have rallied to the Administration’s side. As Ross Douthat points out in an insightful column, however, religious belief and practice are rarely so clear-cut. One should not, he says,

gloss[] over the complexities of religious faith and practice, which ensure that many Catholics’ relationship to the teachings of their Church is more complicated than a simple “agree or disagree.” There are Catholics who accept the Church’s view on contraception but simply don’t live up to it. There are Catholics who respect the general point of the teaching while questioning its application to every individual case…. There are many American Catholics, as Daniel McCarthy noted in a perceptive interview recently, who are neither devout nor dissidents — Catholics who practice their faith intermittently, drifting away and then being tugged back, without having any particular desire to see its teachings changed to suit their lifestyles. And then there are Catholics (and this is a large category) who do explicitly dissent from Church teaching, but who also don’t want to see secular governments set the rules for what Catholic institutions can and cannot do…. If this issue a matter of conscience only for the “formal hierarchy of the Catholic Church,” then why is the White House taking so much criticism from Catholics with a reputation for disagreeing with the hierarchy — from Commonweal Catholics and National Catholic Reporter Catholics, from famous Catholic liberals like E.J. Dionne and Chris Matthews, Catholic Democrats like Tim Kaine and Bob Casey, Jr., and so on? The answer can’t be that they’re all afraid of the bishops, since we’ve just established that most Catholics don’t agree with the bishops on this issue. Something else is going on here.

“Neither devout nor dissident” — that phrase probably captures the way most people feel, most of the time, about their faith traditions. It surely describes many American Catholics today. When one takes into account the complex social reality of American Catholicism, and the still-profound sense Americans have that government should not interfere with religious conscience, the reaction to the new HHS regs is not too surprising, after all.