Posted on by Mark Movsesian

Federal District Court in DC Grants Preliminary Injunction Against Enforcement of Contraception Mandate

Another victory for plaintiffs challenging the ACA’s Contraception Mandate: on Friday, a federal district court in Washington, D.C., granted a preliminary injunction to Tyndale House, a publishing company that had challenged the mandate under RFRA.

The court ruled that Tyndale House, a small, closely-held firm with a pervasively Christian corporate culture, had standing to bring a RFRA claim on two alternative theories, either as the alter-ego of its owners or as a third-party representative of the primary owner, the Tyndale Foundation. On the merits, Tyndale House had shown its RFRA claim was very likely to succeed. The mandate substantially burdened the firm’s exercise of religion by forcing it to cover contraceptives that violated its religious beliefs or face “enormous” financial penalties. The government, for its part, had failed to show a compelling interest to justify this burden. Although public health and women’s equal access to healthcare were both, broadly speaking, compelling interests, the government had not shown why those interests required this plaintiff to cover the contraceptives in question. The  court stressed that Tyndale House had objected only to certain contraceptives, not all, and that the government had already exempted many other firms from the mandate.The court briefly discussed the “irreparable harm,” “balance of the equities,” and “public interest” tests, and ruled in favor of Tyndale House on each.

So far, there have been four district court decisions on the legality of the mandate as it applies to for-profit companies: three have granted plaintiffs preliminary injunctions, one has not. Friday’s case is Tyndale House Publishers v. Sebelius (D.D.C., Nov. 16, 2012).

Posted on by Mark Movsesian

District Court Grants Preliminary Injunction in Contraception Mandate Challenge

Another victory (though perhaps only temporary) for plaintiffs challenging the Affordable Care Act’s contraception mandate under RFRA. A federal district court in Michigan has granted a preliminary injunction barring enforcement of the mandate against a for-profit corporation whose owners object to complying with the mandate because of their Catholic beliefs. According to Judge Robert Cleland, neither the corporation nor the government had made a strong showing of success on the merits: the mandate might be the least restrictive means of achieving a compelling state interest, but the question was close. Given the religious freedom concerns here, however, the balance tipped in favor of granting the preliminary injunction, in order to avoid irreparable harm to plaintiffs while the case continued. The court dismissed a challenge to the mandate brought by a non-profit Catholic organization on the ground that the organization fit within a temporary regulatory safe-harbor and had not yet suffered a cognizable injury. The case is Legatus v. Sebelius, 2012 WL 5359630 (E.D. Michigan, Oct. 31, 2012).

Posted on by Mark Movsesian

Massachusetts High Court to Hear Challenge to Pledge of Allegiance

The Massachusetts Supreme Judicial Court has agreed to hear a challenge to a state law requiring schoolchildren to recite the Pledge of Allegiance. Plaintiffs, a Secular Humanist family with children in Massachusetts public schools, argue that the phrase, “under God,” in the Pledge violates a state constitutional ban on religious discrimination. Eight years ago, in Elk Grove Unified School District v. Newdow, the US Supreme Court dismissed a federal constitutional challenge to the Pledge on the ground that the plaintiff in that case lacked standing. It doesn’t look like standing will be a problem in the Massachusetts case, however, so the Massachusetts court may well reach the merits. Apparently, there is little case law under the state constitution that addresses the question. Can Newdow  provide any guidance? Newdow is noteworthy mostly for Justice O’Connor’s concurrence, arguing that the phrase “under God” would be permissible under the Establishment Clause as a sort of ceremonial deism. It will be interesting to see whether the Massachusetts court adopts similar reasoning under the state constitution. The case is Doe v. Acton-Boxborough Regional School District.

Posted on by Marc O. DeGirolami · 3 Comments

On the Texas Cheerleader Religious Banner Controversy

Here is the controversy:  Some cheerleaders at a Texas public school wish to display signs and banners with religious messages on them at high school football games (e.g., “If God is for us, who can be against us?”).  Nothing about the signs involves the public school, other than that the venue in which they are displayed is at a public school football game.  The public school superintendent banned the signs.  And a state court judge in Texas has issued a temporary injunction against the government from forbidding the cheerleaders from displaying their signs.  The injunction is here, but it says nothing about the merits.

And here is the New York Times story today: It doesn’t really discuss the law much but instead paints a sort of man-of-conscience-against-a-hostile-world picture of the superintendent, just as it did for a recent story in Rhode Island involving a student who opposed the display of some religious language on a sign in a public school.  I’m sure the superintendent in the Texas case is a very nice man who is just trying to do his job.  It’s probably too much to ask of the Times that it stop the irritating practice of painting American communities as villains.  They’re probably just composed of people who are doing their best to live according to their own lights of the good life, and in ways that at least one court believes the law permits.

It’s a shame that the Times story doesn’t discuss more about the law.  From what I understand (though I could be wrong) the issue was originally that legal counsel for the superintendent believed that the banners violated the Establishment Clause as interpreted by the Supreme Court in the Santa Fe case.  But at some point that defense to the lawsuit dropped out, and now both sides agree that the signs do not violate the Establishment Clause (I find this representation at p.5 of this motion by the Texas Attorney General to intervene in the case).  It seems that the issue now turns on whether the speech here is characterized as public or private speech.  But this is confusing to me, because Santa Fe involved exactly the issue of whether the speech was public or private — the majority and the dissent disagreed on that question.  The Court in Santa Fe held that the school-instituted two-step election process, in which a student vote about whether a message would be communicated was followed by another vote about who would deliver the message, was basically the government’s impermissibly majoritarian policy and therefore government speech.  Obviously the situation is different in this case, and it would require a significant extension of Santa Fe to cover the cheerleaders’ signs.  But I do not understand why, per the representation of the Texas AG, all sides agree that Santa Fe does not apply.  Perhaps readers can offer illumination.

UPDATE: Do see Paul Horwitz’s discussion of the case here.  Paul points out that the NY Times also has an editorial out today in which it  characterizes the cheerleaders’ actions as a violation of Santa Fe (as explained above, I do not think this is accurate if the facts are as reported), and official support for the cheerleaders’ actions as follows: “These officials are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one. “

Posted on by Marc O. DeGirolami · 6 Comments

Does the Name “Theophilus” Violate the Establishment Clause?

The name, Theophilus, means “Lover of God.”  And various important persons have been named Theophilus: Saint Theophilus of Antioch, Theophilus Parsons (about whom our friend Don Drakeman wrote), and the Romantic poet Théophile Gautier are three that come immediately to mind.  [UPDATE: Mark reminds me that the Gospel of Luke is addressed to someone named Theophilus: “Forasmuch as many have taken in hand to set forth in order a declaration of those things which are most surely believed among us, Even as they delivered them unto us, which from the beginning were eyewitnesses, and ministers of the word, It seemed good to me also, having had perfect understanding of all things from the very first, to write unto thee in order, most excellent Theophilus, That thou mightest know the certainty of those things wherein thou hast been instructed.”  Luke 1:1-4.] 

I was thinking of all of these theo-philes as I perused a recent decision by a Richmond County judge here in New York, in which the court denied a petition by a family which wanted to change its last name from Nwadiuko to ChristIsKing (a few years back, the father’s petition to change his son’s name to JesusIsLord had also been denied but it seems was later accepted; something similar happened with the father’s petition to change his daughter’s name to Rejoice).

The judge in this case denied the application for the reason that he believed it would violate the Establishment Clause. 

To permit this name change would be placing unwitting members of the public including public servants in the position of having to proclaim petitioners’ religious beliefs which may or may not be in agreement with that person’s own equally strongly held but different beliefs.

For instance, a calendar call in the courthouse would require the clerk to shout out “JesusIsLord ChristIsKing” or “Rejoice ChristIsKing.” Other litigants would not necessarily know whether the clerk was reading the calendar or making some religious statement in violation of the separation of church and state. A similar situation would occur in the classroom setting. Not only is the speaker being forced to say something which might be repugnant to the speaker but the general public would be subjected to this unwanted intrusion of the petitioners’ religious beliefs. What would be people’s reaction to hear the petitioners’ being paged at an airport or some other public event?

But how was this a violation of the Establishment Clause?  The court relied on the “inoffensiveness” test (the court may be forgiven for rechristening the endorsement test), citing to McCreary County v. ACLU, as well as to several other Establishment Clause cases, for the proposition that “permitting the petitioners to use the statutory process to effectuate a name change would involve the same prohibited entanglement especially because they could avoid the potentially offensive conduct by employing the equally available legally recognized common law right to achieve that purpose.”

The court also purported to distinguish first names like Jesus because such names do not state a contestable, and therefore offensive, religious proposition:

A review of those names however, reveals a significant difference between their origin and what the petitioners’ are advocating. Almost all of these names, most of which have “El or el” in them, a word which in Hebrew refers to “God,”or contain words that are accepted as the equivalent of “God” and both of which are modified by other words which describe what are accepted as the attributes of “God.” Just about every culture throughout history has had some concept of “God” or “gods.” What petitioners are advocating is a name that is a statement that a particular person is “Lord” or is the “King.” This is a position which is not only offensive to persons who are not Christians but also to those who look to God a being gender neutral and not a male figure.

Frankly, this reasoning is rather odd.  Why should the offensiveness to those who believe that God is gender neutral be a special concern of the Establishment Clause?  What is the distinction between calling someone God, or lover of God, or “bearer of Christ” (which is the meaning of Christopher) and calling them JesusIsLord?  Are not both contestable and possibly offensive propositions?  And is it really true that people would be offended as a matter of gender neutrality because somebody decided to call himself “JesusIsLord”? (I am reminded of Judge Posner’s cogent criticism that this whole area is bespattered with the random armchair empirical guesswork of judges who know next to nothing about what people actually find offensive).

It may well be that government ought to deny petitions like this — in fact, I think it’s perfectly reasonable to do so in certain circumstances that have absolutely nothing to do with the Establishment Clause.  Not everything that is silly and therefore eminently regulable needs to be unconstitutional too.  If there is a common law right to change your name, and the court does not wish to issue a judicial order with respect to the name change, then that ought to be sufficient to dispose of the case.

Posted on by Marc O. DeGirolami · 1 Comment

Some Comments About the District Court Decision Dismissing the Mandate Claim

The U.S. District Court for the Eastern District of Missouri has rejected the RFRA and Free Exercise claims of a Catholic who owns a closely held business with 87 employees.  You can get a summary of the decision here, though I must respectfully disagree with Professor Friedman about two things: (1) the district court’s opinion is not “extensively reasoned.”  The reasoning with respect to both the RFRA and Free Exercise Clause claims is shoddy and quite summary. (2) The fact that this judge was appointed by President George H.W. Bush is not relevant.  The political party of the president who appointed a district judge often pops up in media accounts of a particular decision, but it just is not material to a decision that the district judge issues some 20 odd years after the appointment.

Rather than go through the facts, which you can get at Professor Friedman’s site or by reading the short opinion, I thought I’d offer two critical comments about the decision.

1. The court makes the following claim, supported directly by no case law at all: “Laws substantially burdening the exercise of religion often discourage free exercise by exacting a price for religious practice: plaintiff must forfeit a benefit, pay a fine, or even face criminal prosecution.”  There is a good reason why the court cites nothing for this proposition: it is not the law.  The court goes on to discuss Wisconsin v. Yoder as somehow relevant to its view of the law.  But nowhere in Yoder does the Supreme Court say that the burden on religious conscience *must* be supported by a willingness of the religious claimant to suffer criminal prosecution (or a fine or the loss of a benefit).  There is a difference between a necessary and a sufficient condition, and it seems to me that this court has not perceived it.  I should think it would be a major revision of existing law under RFRA to require that a religious claimant be willing to suffer criminal punishment in order to deem his or her objection a “substantial burden.”

2.  Compare these two statements, both of which appear in succession in the opinion:

Statement #1: “[Plaintiff] is not prevented from keeping the Sabbath, from providing a religious upbringing for his children, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise.”

Statement #2: “RFRA is a shield, not a sword. It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others.”

Here’s the comment.  If “RFRA is a shield, not a sword,” then why should RFRA protect a religious organization’s right to “discourag[e] employees from using contraception.”  Wouldn’t that be “forc[ing] one’s religious practices upon others.”  Wouldn’t such advocacy on the part of the employer, if protected  by RFRA, be an example of the use of RFRA as “a sword”?  And what exactly is the scope of the argument?  Can the Catholic Church use RFRA as a “sword” to protect its right not to offer contraception services in its health plans?  Or is this ill-conceived shield/sword metaphor limited to the context of secular employees who make religious freedom claims under RFRA? 

Posted on by Mark Movsesian

Today’s Argument at the ECtHR: Highlights

Today in Strasbourg, a chamber of the European Court of Human Rights heard oral argument in four consolidated cases from the United Kingdom: Chaplin v. UK, Eweida v. UK, Ladele v. UK, and McFarlane v. UK. The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

For an American watching the webcast on the ECtHR’s website, today’s hearing offered some surprises. First, the argument was about two hours long, and the judges waited patiently to the end before asking any questions. A note to our readers in Europe: in an American courtroom, the judges would have interrupted in two minutes! Substantively, the counsel for the UK, James Eadie, made some claims that strike an American lawyer as remarkably broad. For example, he argued that Article 9 does not even cover the practice of wearing crosses. Article 9, he argued, only protects religious practices that are “generally recognized” within a religion, and there is no consensus in Christianity that adherents must wear crosses. I’m not aware of any analogous principle in American law. In response to Eadie, Eweida’s attorney, James Dingemans, scoffed at the idea that a practice must be “generally recognized” or “scripturally Read more

Posted on by Marc O. DeGirolami

Federal Court Denies Preliminary Injunction Against County Legislative Prayer

Another skirmish in the legal contests about the constitutionality of legislative prayer — this time in a thoughtful district court decision.  The plaintiff sued a local Tennessee County to stop it from beginning its regular meetings with a prayer.  The stipulated facts indicated that prayers were given by members of various faiths through the years, but that “[s]ome of the invocations ‘referred to a deity in a way consistent with the Christian faith.'”  Most recently, the Lord’s Prayer was recited, and several commissioners “stood and joined in the spoken recitation of the prayer.”  After these incidents, the County adopted a policy indicating that its list of invocation-givers is drawn from a variety of religious traditions and is entirely voluntary, and that legislative prayer has been held by the Supreme Court in Marsh v. Chambers to be constitutional.  The Freedom From Religion Foundation nevertheless sued, seeking a preliminary injunction to stop the County from conducting the prayers pursuant to the policy and alleging a violation of the Establishment Clause.

The United States District Court for the Eastern District of Tennessee denied the preliminary injunction.  After remarking on the extremely murky status of the Lemon Test (and I loved this quote from a Sixth Circuit opinion: “[W]e remain in Establishment Clause purgatory.”), the court held that in the specific context of legislative prayer, the Lemon Test “simply does not apply.”  Instead, Marsh v. Chambers is the standard, in which the Supreme Court engaged in a historical examination of the practice of legislative prayer, concluding that it is “deeply embedded in the history and tradition of the country.”  The court quoted this specific language from Marsh:

Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo–Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. 

The court recognized that Marsh’s holding had been qualified in City of Allegheny v. ACLU (a religious display case, not a legislative prayer case), where the Supreme Court had some limiting things to say about the force of history and tradition.  But the Sixth Circuit has not (yet) decided a case specifically about the constitutionality of legislative prayer.

In light of the holding and dicta in Marsh, as well as the recent legislative prayer decisions in the Second Circuit (discussed here), Fourth Circuit (particularly Joyner v. Forsyth County), and the Eleventh Circuit (Pelphrey v. Cobb County), the court distilled several broad “themes” relating to the constitutionality of legislative prayer:

  1. “[L]egislative prayer has a unique and well-established history that, relative to the First Amendment, renders it unlike other types of government conduct. It presents a sui generis legal question[.]”
  2. “I]n large measure due to the unique historical place it occupies, legislative prayer is, in general, permissible . . . . Legislatures may call upon—or even employ—ordained ministers to invoke divine guidance on a group of elected officials . . . . [T]o the extent a clear message can be heard from Marsh, it is this: as a basic legal principle, the Establishment Clause is not offended if a legislature formally invokes divine blessings on its official business.
  3. “[D]espite its marked differences from other governmental involvement with the sacred, a legislature’s ability to call on the divine at public meetings is not limitless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the government may not express its allegiance to a particular sect or creed . . . . It is for that reason that the prayer opportunity cannot be used to proselytize listeners . . . . Likewise, such prayer practices may not be used to advance any one belief or to disparage any other . . . . Even when operating under a facially neutral policy, a legislature may not select invocational speakers based on impermissible motives or sectarian preferences.” 

Applying these themes, the court held that the County’s policy did not, on its face, violate the Establishment Clause.  The policy specifically states that it is not intended to proselytize or to promote any particular religion.  It is inclusive in its scope, extending to all religious congregations with an established presence in the County and open to all that wished to be included.  The court rejected as speculative and “unripe” FFRF’s allegation that the Policy is “a sham” and that, when applied, it will certainly be unconstitutional.  Neither, however, does the County’s policy insulate it from further review down the road.

The case is Jones v. Hamilton County, 2012 WL 3763963 (E.D. Tenn. Aug. 29, 2012).

Posted on by JCPW

Day & Diaz on The Affordable Care Act and Religious Freedom

Terri Day & Leticia M. Diaz (Barry U. Dwayne O. Andreas School of Law) have posted The Affordable Care Act and Religious Freedom: The Next Battleground. The abstract follows.

This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the Supreme Court will apply strict scrutiny review as required by the Religious Freedom Reformation Act, the authors conclude that the HHS Mandate will not likely pass constitutional muster.

Posted on by Mark Movsesian

ECtHR Rules That Ban on Screening IVF Embryos for Genetic Defects Violates European Convention

A chamber of the European Court of Human Rights ruled yesterday that Italy’s ban on testing IVF-created embryos for genetic defects violates Article 8 of the European Convention on Human Rights. Italian law permits IVF in limited circumstances, but forbids pre-implantation testing of embryos; on the other hand, Italian law allows women to abort fetuses conceived through natural reproduction if the fetuses  have certain diseases, for example, cystic fibrosis. In the case before the chamber, an Italian couple who were healthy carriers of cystic fibrosis wished to conceive through IVF and to have all embryos tested for the disease before implantation. The chamber ruled that the Italian ban violated article 8’s grant of a right to respect for private and family life. The chamber rejected Italy’s argument that the ban was  justified, among other reasons, to avoid the risk of eugenic abuses. This was a legitimate aim, the chamber said, but the ban on pre-implantation testing seemed “disproportionate,” given that Italy allowed women to abort naturally-conceived fetuses that showed signs of the disease. In effect, Italy was requiring parents in the applicants’ position to conceive through natural means but then abort a fetus that showed signs of cystic fibrosis, a choice that would bring the parents only more anxiety and suffering. Italy’s IVF law is one of Europe’s most restrictive, a result, in part, of the influence of the Catholic Church. Italy has three months to appeal the chamber decision. The case is Costa and Pavan v. Italy (ECtHR, Aug. 28, 2012), available here (follow the link for the PDF).