Posted on by Marc O. DeGirolami

EDNY: Contraception Mandate Violates RFRA

The United States District Court for the Eastern District of New York has issued a decision holding that the HHS contraception mandate violates the Religious Freedom Restoration Act (see here for a previous post on this case). Certain plaintiffs in the case are Catholic non-profit organizations that qualify for the “accommodation” offered by government. Other plaintiffs are Diocesan–the lead plaintiff is the Roman Catholic Archdiocese of New York–and qualify for the exemption. All plaintiffs are self-insured. The exempted plaintiffs’ claims were dismissed.

The remainder of this post will focus on the non-exempted but “accommodated” plaintiffs (for more on exactly who falls into this group, see Points 2B and 3 in this post), whose claims succeeded. The government’s “accommodation” is to allow non-exempted non-profits to fill out a self-certification indicating that they have religious objections to providing the objected-to products to their employees. In the case of self-insured, non-exempted non-profits (such as these plaintiffs) the government demands that such organizations notify a third-party administrator (TPA) of their self-certification, at which time this TPA assumes the obligation of providing the objected-to products to the employees (there is an important wrinkle here that I will note at the end of this post).

In granting the plaintiffs’ motion for summary judgment, the court first held that plaintiffs satisfied the substantial burden prong of the RFRA test. In so holding, it applied a “substantial pressure” standard to evaluate whether plaintiffs suffered a “substantial burden”: “Rather than whether the pressure is indirect or direct, it seems that the more important distinction for the case at bar is between government action that pressures an individual to act inconsistently with his beliefs, and government action that discourages a plaintiff from acting consistently with those beliefs.” The court held that the self-certification requirement imposed by the “accommodation” on non-exempted non-profits was a substantial burden and rejected the government’s proposed test that a court should evaluate whether the burden was “de minimis” or should evaluate whether the self-certification is “too attenuated” to constitute a substantial burden.

The court also found that the government had not provided a compelling interest in mandating contraception coverage in the fashion it has selected. The government offered “the promotion of public health, and ensuring that women have equal access to health-care services” as its compelling interests. Though the court accepted these interests as important in the abstract, it rejected the government’s claim that granting exemptions to these plaintiffs would undermine the government’s ability to administer its regulation so as to achieve its aims uniformly.

Critically, it distinguished United States v. Lee–a case rejecting an Amish plaintiff’s request for exemption from paying taxes into Social Security–on the ground that the whole contraceptive mandate system would not collapse if exemptions were granted in these cases and the government’s application of the mandate is not uniform. Lee is a case on which proponents of the mandate have been placing great emphasis, but the death spiral dynamics at issue in Lee do not seem present here, in large part because of the government’s own exemptions. Here is the key language from the decision:

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Posted on by Perry Dane

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United States, the famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Read more

Posted on by Marc O. DeGirolami

On the Claim That Exemptions From the Contraception Mandate Violate the Establishment Clause

I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time at CLR Forum. In this post, I want to address one such new claim.

Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties–i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The “unyielding weighting in favor of Sabbath observers” resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: “The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.” T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”

I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I’ll start with a few basic points about exemptions and RFRA.

First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others–i.e., “third parties.” If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don’t think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, “This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause.”

Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context–the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger’s opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an “unyielding weighting of” religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function–compelling it even to close. The Thornton Court said that it had to “take pains not to compel people to act in the name of any religion.” (emphasis mine). It’s that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party’s religious freedom–compelling the third party to engage in religious activities. Yet while the Court has said that “[a]t some point, accommodation may devolve into ‘an unlawful fostering of religion,'” Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.

Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the “burden” on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.

Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation “no matter what burden or inconvenience this imposes” on third parties. But the standard for RFRA accommodations is not, “you must grant the accommodation no matter what burden or inconvenience this imposes.” Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven’t been ignored. They just haven’t been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.

But let’s consider the Establishment Clause precedents on their own.

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Posted on by Marc O. DeGirolami

Supreme Court Agrees to Hear For-Profit Contraception Mandate Cases

The Supreme Court has granted certiorari on two cases involving for-profit corporations which brought claims pursuant to the Constitution and the Religious Freedom Restoration Act against the federal government’s contraception mandate (which is part of the Patient Protection Affordable Care Act). The two cases that the Court agreed to hear were the Hobby Lobby case out of the Tenth Circuit and the Conestoga Wood case out of the Third Circuit.

Note that these cases solely involve the issue of for-profit corporations. They do not concern the question of the “accommodation” granted to certain religious non-profit corporations which the government has decided are not exempt from the mandate. As this breakdown indicates, the Tenth Circuit found en banc that the corporation had free exercise rights which had been violated (it did not decide the issue of the rights of the individual owners), while the Third Circuit panel rejected all claims. One last note of interest (for now): neither of these corporations is owned by Catholics. Hobby Lobby’s ownership is Evangelical, while Conestoga Wood Specialties’ ownership is Mennonite.

Posted on by Marc O. DeGirolami

NYPD Beard Policy Violates the Free Exercise Clause

I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department’s facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD’s policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff’s natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.

After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: “‘[f]acial neutrality is not determinative’ when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced.”

What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn’t just the stated exemptions in the policy. It’s the  fact that “the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound.” There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City’s claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers’ mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff’s request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito’s famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a “value judgment” that medical reasons are more important than religious reasons, strict scrutiny applies.

I’ve written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn’t only explicit exemptions to the policy that trigger strict scrutiny, but the “de facto” exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith’s rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.

Posted on by Marc O. DeGirolami

CLR Podcast on Town of Greece v. Galloway

Mark and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center’s first in a planned series of podcasts on law and religion cases and issues.

We tried to be fairly complete in our discussion of the case, and I think this podcast is particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.

Posted on by Marc O. DeGirolami · 2 Comments

Seventh Circuit Enjoins Enforcement of Contraception Mandate Against For-Profits

In an extensive decision, a divided panel of the U.S. Court of Appeals for the Seventh Circuit has enjoined the enforcement of the HHS contraception mandate against several for-profit corporations as well as the individual owners of those corporations. The majority held that “the corporate plaintiffs are ‘persons’ under RFRA and may invoke the statute’s protection; the contraception mandate substantially burdens the religious-exercise rights of all the plaintiffs; and the government has not carried its burden under strict scrutiny.” Since RFRA does not itself define “person,” the majority reached the conclusion that corporations are “persons” under RFRA by consulting the Dictionary Act and finding that nothing in the text of RFRA indicates that the Dictionary Act definition would be a “poor fit” with the statutory scheme (this is the standard announced in a 1993 Supreme Court case).  In both O Centro and Lukumi Babalu, the Supreme Court enforced the free exercise rights of corporations, so the relevant context did not indicate that the Dictionary Act definition of “person” was inapposite here. The court proceeded through a very thorough analysis of the strict scrutiny inquiry. Judge Rovner dissented.

I’ll use the occasion to update my running tally of where we are now in the circuit courts of appeals with respect to this class of litigation:

  • Circuits that have rejected claims in which for-profit corporations are plaintiffs as to the corporations and the individual owners: Third Circuit, Sixth Circuit.
  • Circuits that have accepted claims in which for-profit corporations are plaintiffs as to the corporations and the individual owners: Seventh Circuit.
  • Circuits that have accepted claims in which for-profit corporations are plaintiffs as to the corporations but not the individual owners: Tenth Circuit.
  • Circuits that have accepted claims in which for-profit corporations are plaintiffs as to the individual owners but not the corporations: D.C. Circuit.
Posted on by Marc O. DeGirolami

Hobby Lobby Supports Cert. Grant

Via the very good Josh Blackman, I learn that Hobby Lobby, the corporation that successfully challenged the contraception mandate before the Tenth Circuit, is supporting the government’s petition for certiorari. As Professor Blackman says, “You don’t see this too often.” The formidable Paul Clement to argue for Hobby Lobby.

Posted on by Marc O. DeGirolami

Supreme Court Declines to Hear Hutterite Case

The Supreme Court today denied certiorari in Big Sky Colony, Inc. v. Montana Department of Labor and Industry–a case appealed from a decision of the Montana Supreme Court involving amendments to the Montana state workers’ compensation laws that brought the Hutterite Colonies (a religious group with roots in the 16th century Anabaptist movement) within the coverage of those laws when members performed agricultural, manufacturing, or construction services. The Hutterites brought constitutional claims arguing that they should be exempted from these laws (that is, they should not be designated as “employers”) because their members receive no wages. The Montana Supreme Court rejected those claims in a 4-3 decision.

I was pleased to sign on to an excellent amicus brief in the case spearheaded by Tom Berg arguing for what is, in my view, a correct interpretation of the “generally applicable” component of the Free Exercise Clause test after Employment Division v. Smith (an interpretation that I have also discussed in my book). I am sorry that the Court passed up the chance to clarify that portion of the test.

Posted on by Mark Movsesian

Abercrombie & Fitch Settles Headscarf Lawsuit

An update on the California headscarf litigation I discussed earlier this month. Abercrombie & Fitch has settled the lawsuit and agreed to allow Muslim employees to wear headscarves while on the job. A federal district court in California recently ruled that A&F’s refusal to allow headscarves on the job violated US employment discrimination law. A&F has agreed to pay the plaintiff in the case, Hani Khan, $48,000 and unspecified attorneys fees. The Guardian has the full story, as well as information about other headscarf litigation against A&F.