The US Fish and Wildlife Service this month granted a permit to the Northern Arapaho Tribe to capture and kill two wild bald eagles a year for use in religious ceremonies. Although some conservation and animal-rights groups question the need for killing, suggesting the tribe use the carcasses of eagles killed accidentally instead, the tribe maintains that wild birds are necessary. The tribe had filed a lawsuit against the Service to force the grant of the permit, but the Service says its decision was unrelated to the pending litigation. Federal law protects bald and golden eagles, but the government has granted permits for killing eagles in religious ceremonies to several Native American tribes.
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.
Religious Exceptions and the NJ “Marriage Equality and Religious Exemption Act”
The New Jersey Star-Ledger reports that the NJ State Assembly has enough votes to pass a proposed same-sex marriage bill. The Assembly will officially vote on the bill on February 16, three days after the Senate takes up the bill. Governor Chris Christie has repeatedly promised to veto any same-sex marriage legislation and has instead urged a referendum on the issue.
As I noted in a previous post, exceptions for religious groups have been a prerequisite to the passing of same-sex marriage legislation in other states, most notably New Hampshire, Vermont and New York. These exceptions have focused on two areas. First, they allow clergy to refuse to solemnize same-sex marriages and prevent both state action (i.e. penalizing or withholding benefits) and individual causes of action resulting from such refusal. Second, these exceptions allow a religious organization, like Catholic Charities, to “tak[e] … action … calculated … to promote the religious principles for which it is established or maintained.” Arguably, this language would allow a foster care service, run by Catholic Charities, to refuse to place children with same-sex couples, a scenario that has become a kind of litmus test on the strength of religious exceptions to same-sex marriage laws.
With this in mind, it is surprising that there has not been more press coverage about the NJ law’s religious exceptions. Read more
The Religious Freedom Restoration Act of 2012
You read the date right. In response to the new HHS regs requiring all employers, including most religiously-affiliated employers, to cover contraceptives in employee health plans, Senator Marco Rubio (R-FL) yesterday introduced a bill, “the Religious Freedom Restoration Act of 2012,” that would make the regs inoperative. The bill creates what it calls “conscience protections” that would exempt employers who oppose contraception “on the basis of religious belief.” Others have introduced similar legislation. The text of Senator Rubio’s bill is here.
Schwartzman on Questioning the Special Treatment of Religion
Micah Schwartzman (U. of Virginia School of Law) has posted What if Religion is not Special? The abstract follows.
This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.
Douthat on the New HHS Regulations
Ross Douthat has an interesting piece in the Times today about the Obama Administration’s decision to require religiously-affiliated universities and hospitals to cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, in employees’ health care plans. An exemption applies to religious institutions that primarily serve members of their own faith, rather than the public at large – parish churches, for example. Douthat takes the traditional libertarian line: even if one disagrees with religious objections to contraception, such that one would oppose government’s attempt to discourage their use, one might wish to allow private voluntary associations, like churches, to conduct themselves according to values that government does not share. Otherwise, by eliminating the state’s competition, one risks creating a despotic government that ultimately will trample on the liberties of the people. Douthat also points out the perverse incentives the proposed regs create. If a religiously-affiliated institution believes that conscience requires that it not cover sterilization and contraceptive drugs, including drugs considered to be abortifacients, for its employees, the institution must limit its charitable work to co-religionists. Not exactly encouraging Good Samaritans.
Washington Post on Contraceptive Coverage
Here’s a bit of surprise: the Washington Post has come out against the Obama Administration’s decision to require religiously-affiliated employers to cover contraceptives, including abortifacient drugs, in their health-insurance plans:
The best approach would have been for HHS to stick to its original conclusion that contraception coverage should generally be required but to expand the scope of its proposed exemption for religiously affiliated employers who claim covering contraception would violate their religious views. The administration’s feint at a compromise — giving such employers another year to figure out how to comply with the requirement — is unproductive can-kicking that fails to address the fundamental problem of requiring religiously affiliated entities to spend their own money in a way that contradicts the tenets of their faith. . . .
[T]he significance of the new health-care law is that the federal government will for the first time require all employers to provide insurance coverage for their workers — in other words, to spend their own money to help underwrite this coverage — or, in many cases, to pay a penalty. In this circumstance, requiring a religiously affiliated employer to spend its own money in a way that violates its religious principles does not make an adequate accommodation for those deeply held views. Having recognized the principle of a religious exemption, the administration should have expanded it.
The NY Times on Catholic Charities and Same-Sex Marriage
A recent article in the NY Times reports on the effect of Illinois’ same-sex union law on Catholic Charities’ foster-care placement services. In particular, the article notes that non-discrimination provisions in the law, which require Catholic Charities to treat couples in same-sex unions the same as those in traditional marriages when placing children in foster care, has caused the organization to cease offering foster-care services altogether. Catholic Charities also ceased foster-care services in Massachusetts and Washington DC when same-sex marriage became law those jurisdictions. Focusing on these three jurisdictions, the Times article suggests that these non-discrimination provisions are a form of increasing government religious persecution aimed at excluding religious groups from the public sphere. However, the article ignores those legislatures which have worked hard to protect the freedom of religious organizations through religious exceptions.
New York, New Hampshire and Vermont all allow wide exceptions for religious organizations that oppose same-sex unions. These states provide that religious organizations do not violate non-discrimination provisions when they take actions that are calculated to promote the religious principles for which they are established or maintained. Such exceptions have been integral to the passing of the same-sex marriage laws. In New Hampshire, Governor John Lynch refused to sign a same-sex marriage bill into law until the legislature increased the protections for religious organizations. In New York, the Republican members of the Senate who ultimately provided the necessary votes for same-sex marriage said that they could vote for the bill only because it protected religious organizations. Indeed, far from persecuting religion, these states have extensively debated how to balance the rights of these religious organizations with the policy of non-discrimination.
Sidhu on Religious Liberty and Prison Grooming Requirements
A very interesting paper by Dawinder S. Sidhu (New Mexico), Religious Freedom and Inmate Grooming Standards, about the appropriate standard for claims for exemption under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment. The abstract follows.
This Article explores the Eleventh Circuit’s repeated rejection of challenges, under the First Amendment’s Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), to “restrictive” inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states’ policies, and recent legal developments, that the Eleventh Circuit’s approach in upholding these policies is no longer sustainable.
Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states — including the three states within the Eleventh Circuit — that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the “specific plaintiffs” in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit’s routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny.
Accordingly, I propose the following:
11th Circuit Rules Against Christian Student in Religious Discrimination Case
Last Friday, the 11th Circuit dismissed a lawsuit a graduate student had brought against Augusta State University in Georgia, arguing her expulsion from the university’s school-counseling program violated her constitutional rights. The student, a Christian, had expressed skeptical views about homosexual identity and conduct, and the university required her to participate in a “remediation plan” to make sure that her views did not affect the counseling she would provide clients in the program’s clinical practicum, particularly clients from the “gay, lesbian, bisexual, transgender and queer/questioning (GLBTQ) populations.” When she refused to do so, the university expelled her. The 11th Circuit ruled that her expulsion violated neither her free speech nor free exercise rights. Briefly, with respect to the former, the court noted that the student would be advising clients in a university-sponsored clinic; the university thus could require her to conduct herself in accordance with the American Counseling Association’s code of ethics, which forbids counselors from imposing moral views on clients. The university was not disciplining the student for her religious views, in other words, but for failing to agree to put them aside in accordance with her professional responsibilities. With respect to the student’s free exercise claims, the court held that school’s requirement that students abide by the ACA code, notwithstanding their own religious convictions, was neutral and generally applicable, and rationally related to the university’s legitimate interest in maintaining its accreditation. The case is Keeton v. Anderson-Wiley (Dec. 16, 2011).