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

Plaintiffs Obtain Preliminary Injunction in HHS Mandate Suit

The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty.  These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the “religious employer” exemption of the HHS regulations.  Rather, Hercules is a for-profit, secular employer whose owners are individuals with objections of religious conscience — they are Catholics.  And Hercules is self-insured. 

Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits.  The court declined to address the plaintiffs’ constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act.  Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could “exercise religion” “merit[s] more deliberate investigation”), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means.  Here’s the Court on compelling interest:

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Posted on by Mark Movsesian

ECtHR’s Grand Chamber to Hear Romanian Church Autonomy Case

The Grand Chamber of the European Court of Human Rights  has decided to review the judgment in Sindicatul Păstoral Cel Bun v. Romania, a significant church autonomy case. In the case, a group of Romanian Orthodox priests sought to register as a trade union. The Romanian Orthodox Church objected, arguing that registration would violate the Church’s autonomy, and a Romanian court agreed. In January, however, a  lower chamber of the ECtHR ruled that the European Human Rights Convention granted the priests a right to unionize even over their church’s objections (for details, see our discussion of the lower chamber’s reasoning).  Romania referred the lower chamber’s decision to the Grand Chamber, which has accepted the case. This is not the only important church autonomy case at the ECtHR these days. In May, a different chamber ruled, in Fernandez Martinez v. Spain, that the church autonomy principle allowed a Catholic bishop to fire a priest who had been teaching religion in Spanish schools. Here’s a press release about the Romanian case from the Becket Fund, which represents Romania and the Romanian Orthodox Church.

Posted on by Marc O. DeGirolami

For Wisconsinites (and other Church-Staters)

I’ll be on Wisconsin Public Radio’s “At Issue With Ben Merens” from 5-6 pm eastern time, talking about the separation of church and state in the public school context as well as the 7th Circuit’s Doe v. Elmbrook School District decision discussed below.

UPDATE: The interview can be downloaded here.

Posted on by Mark Movsesian

Catholic Priest Receives 3-6 Years For Child Endangerment

A Pennsylvania judge today sentenced Monsignor William Lynn, a former official of the Catholic Archdiocese of Philadelphia, to a term of three to six years for the crime of felony child endangerment. A jury convicted Lynn last month in connection with his oversight of now-defrocked priest Edward Avery, who is serving a prison term for the sexual assault of an altar boy in 1999. Rather than reveal what he knew about allegations against the priest, the sentencing judge said, Lynn had chosen to obey his bishop and remain silent. Lynn is the first American priest to be convicted in connection with the covering up of sex abuse in the Catholic Church. His lawyers plan an appeal. The AP has the story here.

Posted on by Mark Movsesian

Yesterday’s High School Graduation Ruling: Three Quick Observations

As Marc notes below, the Seventh Circuit handed down what could be a major Establishment Clause case yesterday, Doe v. Elmbrook School District. The case involves a Wisconsin school district’s decision to hold public high school graduation ceremonies inside an Evangelical church sanctuary. Relying on three different tests found in the Supreme Court’s Establishment Clause jurisprudence — the endorsement test of cases like McCreary, the coercion test of Lee and Santa Fe, and the no-proselytism test of Stone v. Graham — the Seventh Circuit ruled, en banc, that the ceremonies violated the Constitution. Here’s a good summation of the reasoning from the decision itself: “An unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbook Church.” 

The case contains three strong dissents, including a not-very-thinly disguised cert petition by Judge Ripple and two quote-worthy excoriations of the Supreme Court’s Establishment Clause jurisprudence by Judges Easterbrook and Posner.  I’m not sure the Court will actually grant cert, and if it does, I’d have to guess that Justice Kennedy, frequently the swing vote in Establishment Clause cases, would agree with the Seventh Circuit’s reasoning about coercion, anyway. But there’s a lot in the case to think about. I’d like to make just three quick observations here:

• Neutrality: the case makes clear that “neutrality,” both among religions and between religion and non-religion, remains the “touchstone” of Establishment Clause jurisprudence. In theory, the Supreme Court’s Read more

Posted on by Marc O. DeGirolami

Seventh Circuit: Holding a High School Graduation in a (Richly Iconographically Religious) Church Violates the Establishment Clause

The Seventh Circuit has come down with a ruling that holding a public school graduation in a church violates the Establishment Clause when the church has an indeterminate number of religious icons and other material which run afoul of the standards that the Supreme Court has encrusted on the Establishment Clause.  It was undisputed that the choice to hold the graduation in the church was made for the sake of convenience, price, and accommodation of the large number of students, and not for any religious reason.  It was also undisputed that no reference was made to religion during the graduation ceremony.

Do read Judge Ripple’s sensible, moderate, and absolutely convincing dissent.  But by far the most pungent lines appear in Judge Posner’s dissent — and boy are there a lot of them.  Taking the prize:

The best that a judge of determined neutrality faced with a case such as the present one can do is to be guided by Gibbon’s aphorism (from chapter 2 of the Decline and Fall) that “the various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful.” For “the Roman world” substitute “the United States” and for “the magistrate” substitute “the judge” and one has the right starting point for the analysis of this case. The judge should not be concerned with the truth or falsity of any religious faith but should regard the various faiths as “equally useful” from the standpoint of society, in recognition of the importance that Americans attach to religion, the diversity and intensity of their religious beliefs and observances, and the bitterness and strife that the government’s taking sides among competing faiths would engender.

Other memorable lines from Judge Posner’s dissent:

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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)