Posted on by Mark Movsesian

Muslim Parents Sue Greek Orthodox School for Banning Head Scarves

Here’s an unusual case. Muslim parents are suing a public school in south London for refusing to allow their nine-year old daughter to wear a head scarf to class. That’s not so unusual in itself. Law school casebooks are full of cases in which parents sue public schools for failing to accommodate their children’s religious practices. What makes this case unusual is that the public school in question, St. Cyprian’s in Croydon, is an Orthodox Christian school.

To Americans, faith-based public schools are unfamiliar. As Ashley Berner explains here, however, such schools are common in England. According to the official government website, roughly 7000 “maintained,” as in publicly maintained, “faith schools” exist, the large majority of which are affiliated with the Church of England. St. Cyprian’s is affiliated with the Greek Orthodox Church — it is the only Greek Orthodox school in England, in fact. As a faith-based school, St. Cyprian’s may give priority in admission to Greek Orthodox students, though by law it must admit students of other faiths if places remain unfilled. As far as I can tell, like other public schools, St. Cyprian’s may adopt its own school uniform policy, subject to very broad guidelines.

I’m not sure how the English courts will resolve this dispute. But the whole situation is puzzling and it’s a shame things have come so far. It’s odd, in the circumstances, that the parents would insist on a Greek Orthodox school for their daughter. If it’s so important to them that she maintain Muslim practices, why put her in a school in which a different religion is pervasive? Isn’t that a bit unreasonable, and unfair to her? The school says the parents petitioned to send their daughter to St. Cyprian’s, and that the school’s rule against head scarves was explained to them before she matriculated. St. Cyprian’s has very high academic ratings; perhaps that explains why the parents are so eager to have their daughter attend. Still, it’s all rather odd.

On the other hand, the school’s position is puzzling as well. There’s nothing in Orthodoxy that forbids the wearing of head scarves; in fact, some Orthodox women wear head scarves in church. Perhaps St. Cyprian’s is concerned that a visible non-Orthodox presence would dilute the school’s identity. That’s a valid concern, in my opinion. And I can understand how school officials might think they’ve been sandbagged by the parents in this case. If the parents knew about the rule against head scarves before their daughter matriculated, why are they complaining now? But the law requires St. Cyprian’s to admit non-Orthodox students if it has places for them, and it doesn’t seem tenable to admit such students and then forbid them from wearing their religious attire. Anyway, mightn’t it be better, in the circumstances, to allow this student to wear her head scarf? What would demonstrate more effectively the essential nature of Christianity — its willingness, even joy, in serving everyone and anyone?

Posted on by Marc O. DeGirolami

Notre Dame HHS Mandate Lawsuit Dismissed on Standing and Ripeness Grounds

Well, it seems I was a bit…unripe in expressing the view that the HHS mandate suits seem not to be going the government’s way.  The United States District Court for the Northern District of Indiana has dismissed the University of Notre Dame’s complaint against Health and Human Services on standing and ripeness grounds.  Notre Dame falls within the safe harbor provision and so the as yet unknown ‘Advanced Notice of Proposed Rulemaking/putative proposed accommodation/vague promise of emendation of the current legal rule’ applies to it.  I quote the court’s language (along with its citations to those cases dealing with entities within and outside the safe harbor, many of which we have discussed before at CLR Forum) at length, as it may be helpful to readers to have it all in front of them:

This is one of dozens of similar suits filed across the nation, and courts have ruled on similar dismissal motions in several of those cases. Some of those rulings dealt with plaintiffs not in the safe harbor; as will be seen, those plaintiffs’ circumstances are too dissimilar to Notre Dame’s for those rulings to be helpful. See, e.g., Grote Indus., LLC v. Sebelius, No. 4:12cv00134-SEB-DML S.D. Ind. Dec. 27, 2012); Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278 (W.D.Okla. 2012), application for injunction denied 2012 WL 6698888 (U.S., Dec. 26, 2012) (Sotamayor, J.); Tyndale House Publishers, Inc. v. Sebelius, 2012 WL 5817323 (D.D.C., Nov. 16, 2012); Legatus v. Sebelius 2012 WL 5359630 (E.D.Mich., Oct. 31, 2012); O’Brien v. U.S. Department of Health and Human Services, 2012 WL 4481208 E.D.Mo., Sept. 28, 2012); Newland v. Sebelius, 2012 WL 3069154 (D.Colo., July 27, 2012).

Of the rulings involving plaintiffs in the safe harbor, all but one have found the claims unripe and the plaintiffs to have lacked standing. Zubik v. Sebelius, 2012 WL 5932977 (W.D.Pa., Nov. 27, 2012); Catholic Diocese of Nashville v. Sebelius, 2012 WL 5879796 (M.D.Tenn., Nov. 21, 2012); Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. 2012), appeal held in abeyance 2012 WL 6652505 (D.C.Cir. 2012); Belmont Abbey College v. Sebelius, 2012 WL 2914417 (D.D.C. 2012), appeal held in abeyance sub nom Wheaton College v. Sebelius, 2012 WL 6652505 (D.C.Cir. 2012); Nebraska ex rel. Bruning v. U.S. Dept. of Health and Human Svcs., 2012 WL 2913402 (D.Neb. 2012); contra, Roman Catholic Archdiocese of New York v. Sebelius, 2012 WL 6042864 E.D.N.Y. ,2012).  None of those rulings bind this court, but the majority are persuasive. Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them.

Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement . . . .

Turning first to ripeness, the challenged regulatory requirement isn’t sufficiently final. Notre Dame is correct that regulation itself claims to be final, 45 C.F.R. § 147.130(a)(1)(iv), but events following the regulation’s adoption make clear that it isn’t final. The defendants have announced their intention to refashion the rule in an effort to address concerns such as those Notre Dame has raised and, by virtue of the safe harbor provision, have exempted Notre Dame from the rule for the time believed to be required for the re-fashioning. The government is entitled to a presumption of good faith in such promises . . . .

Our defendants have taken prompt and concrete action — the safe harbor provision — indicating that its [sic] rule is subject to reconsideration and modification.  Although Notre Dame is correct that an agency can’t “stave off judicial review of a challenged rule simply by initiating a new proposed rulemaking that would amend the rule in a significant way,” American Petroleum Institute v. EPA, 683 F.3d 382, 388 (D.C. Cir. 2012), none of the cases on which Notre Dame relies involve any parallel to the safe harbor provision that protects Notre Dame and others like it from the challenged rule.

Turning back to the question of standing, the challenged regulatory
requirement isn’t the cause of the injuries of which Notre Dame complains. Taking the defendants at their word concerning the intended reworking of the rule, this regulatory requirement won’t require Notre Dame to conduct itself in ways its Catholic mission forbids. This regulation’s replacement might do so, but no one can say because that future rule hasn’t been promulgated. It is enough to know that the present regulation is to be replaced by another, and the safe harbor is protecting Notre Dame from harm to its religious precepts until that replacement occurs.

Indeed, “no one can say” what the replacement rule might do because “no one can say” what the promised proposed rule is, or might be, or is contemplated to be.  But every banana ripens at some point.

The case is University of Notre Dame v. Sebelius, No. 3:12CV253RLM (N.D. Ind. Dec. 31, 2012).

Posted on by Marc O. DeGirolami

Missouri Federal District Court Enjoins HHS Mandate

The momentum in the HHS mandate cases seems to be moving against the federal government.  The more time that goes by, the weaker the standing and ripeness objections become, and the more likely that courts will begin to turn their attention to the merits.  The legal argument for the mandate seems to be flagging even in those cases where it seemed (at least to me) that the government’s case was comparatively stronger.

On Thursday, the United States District Court for the Western District of Missouri issued a preliminary injunction against the government from enforcing the mandate against a private company, American Pulverizer Co., whose owners are Evangelical Christians who believe that the use of contraception is contrary to their religious beliefs.  Plaintiffs’ companies employ about 150 people, and the current plans cover contraceptive services (perhaps a notable feature of the plans, in my opinion, insofar as the “substantial burden” prong of the RFRA standard is concerned, though the court did not discuss it in reaching its decision).  But plaintiffs wish to change the plans to exclude contraceptive coverage.

As in the O’Brien case referenced by the court (and in which the Eighth Circuit essentially granted the claimant’s motion for preliminary injunction pending appeal), the plaintiffs do not qualify for any exemption or safe harbor from enforcement — they are not religious employers under the terms of the ACA, the don’t qualify for the safe harbor available to non-profits, and they don’t qualify for grandfathered status.  That means the regulation would be enforced against them at the beginning of the new year.

In granting the preliminary injunction against the government, the court essentially punted on the question of whether a corporation can exercise religion, ruling that because the issue demands further “deliberate investigation,” an injunction was warranted.  And it further held that indirect impositions on religious beliefs can constitute substantial burdens.  Finally, the court held that the government could not satisfy its burden to demonstrate that it is advancing a compelling state interest in imposing the mandate, in light of the numerous exceptions contained in the law: “these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs.”

The case is American Pulverizer Co. et al. v. U.S. Department of Health and Human Services, No. 12-3459-CV-S-RED (W.D. Mo. Dec. 20, 2012).

Posted on by nelsontebbe

Court Agrees to Review DOMA and Prop 8

The Court has granted cert. in Windsor, concerning the federal Defense of Marriage Act, and Perry, concerning California’s Proposition 8. The religion overtones of both cases are obvious and make them of great interest to CLR readers. Here is Adam Liptak’s coverage in the New York Times.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here’s a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.”  To which CJ Traxler responded, “How would you characterize the Book of Revelation?”  Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn’t think so, but I’m not a free speech maven.  But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day.  We’re still waiting on Revelation.  On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”

Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.”  But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.”  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel’s decision.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part I

Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit.  It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email.  She offered these services from a small office within a larger office complex which included licensed mental health professionals.

Read more

Posted on by Marc O. DeGirolami

An Important HHS Mandate Decision: Standing & Ripeness Satisfied

The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI).  The case is important on the issues of standing and ripeness.  The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014).  The decision is complicated and has several moving parts.  Here’s the scoop, after the jump.

Read more

Posted on by Marc O. DeGirolami

Another Mandate Lawsuit Dismissed on Ripeness Grounds

The United States District Court for the Western District of Pennsylvania has dismissed without prejudice the complaint of the Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, and Catholic Cemeteries against the federal government related to the contraception mandate.  The Diocese of Pittsburgh operates several schools and other charitable institutions, and it self-insures its employees; some of its health plans were grandfathered in by the regulations, some were not.

The court held that the temporary safe harbor provision (which expires on January 1, 2014) and the Advanced Notice of Proposed Rulemaking filed by the federal government on March 21, 2012, which suggests that the government may be amenable to an emendation of the (now final) rule, both indicate that the case is unripe.  As my constitutional law students studying for their Tuesday examination will surely know, ripeness turns on the questions of “fitness” of the issue for adjudication and hardship to the parties of denying review.  The court held that even though the current law is final and has been formally promulgated, the noises made by the government about changing the regulations — in combination with the temporary safe harbor and the presumption that the government is acting in good faith — mean that the case is unripe.  The reasoning more or less follows the pattern set in the Belmont Abbey case (see prior posting).  For good measure, the court held that plaintiffs here had failed to allege standing as, in the court’s view, the injury alleged was too speculative.

The case is Zubik v. Sebelius, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012).

Posted on by Marc O. DeGirolami

Amicus Brief of Constitutional Law Scholars in Stormans v. Salecky

I am happy to have joined an amicus brief together with several other constitutional law professors –but written by Doug Laycock and some excellent lawyers in Austin, Texas — in Stormans v. Salecky, a case currently being litigated in the Western District of Washington and the Ninth Circuit.  The case concerns the free exercise rights of several pharmacists at small pharmacies who have religious conscience objections to dispensing Plan B emergency contraception, and who are being compelled to do so by the Washington State Board of Pharmacy’s regulations requiring all pharmacies to dispense certain drugs, without exception.  I am particularly keen on the description in the brief of Smith and Lukumi-Babalu as representing a kind of range of general applicability — the idea being that many cases will fall somewhere between those two points.  That’s nifty, because one often sees Lukumi instead described as an “exception” to the Smith “rule,” which has different connotations.  You can read more about the case in Judge Leighton’s most recent opinion.

Posted on by Marc O. DeGirolami

District Court Rules Against For-Profit Plaintiff in Contraception Mandate Litigation

The United States District Court for the Western District of Oklahoma has denied a preliminary injunction to a for-profit company which had sued the Department of Health and Human Services on the grounds that the contraception mandate violated its religious liberty.  Hobby Lobby Stores, Inc. is a closely held corporation whose business is arts and crafts — operating over 500 stores in 41 states and with over 13,000 employees.  The company, the court says, is “secular,” but also operated by the owners “according to their Christian faith.”  This is confusing.

At any rate, the court denied the PI both as to the Free Exercise Clause claim and the RFRA claim.  On the particular issue of whether a corporation can exercise religion (see CLR Forum posts here (Professor Colombo’s paper) and here), the court had this to say:

General business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters referenced in [Nat’l Bank of Boston v.] Bellotti  which is not the province of a general business corporation.  (18)

This is a bizarre and unnecessarily maximalist statement.  It is not needed to reach the result in the case.  It also seems untrue: it is perfectly natural to say that a corporate body can exercise religion.  I take it that at least one of the reasons that even the government itself carved out an exception in the mandate for houses of worship was that it recognized that corporate bodies can and do exercise religious freedom.  To the extent that the court is drawing a line between for-profit and not for-profit “businesses,” one might have wished for a bit more discussion about what it is exactly about the for-profit context that makes it conceptually impossible for such businesses to exercise religion.  The interesting question, I had thought, about the issue of for-profit corporations was not whether it is impossible conceptually for corporations to exercise religion full stop.  Surely it is.  The interesting question is also clearly not whether religious exercise is “a purely personal matter”; it isn’t, and in any case, one wonders why the court is qualified to opine on that sort of issue.  The interesting question, I thought, has to do with how we can know, when a corporation is very large and diffuse, or is owned by many people with different religious beliefs, what the corporation’s religious beliefs are.

The case is Hobby Lobby Stores, Inc. v. Sebelius.  Lawyers for the plaintiff have said that they will appeal.