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Carpenter on Limiting and Empowering American Indian Religious Freedoms

Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.

Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

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 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.

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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.

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 · 3 Comments

The Catholic Vote and the Contraception Mandate

Here’s an interesting piece of data from Tuesday’s exit polls: President Obama won the Catholic vote. The margin was narrow — 50%-48%, which more or less mirrors the President’s popular-vote victory — but, still, he won. Now, you might say, this isn’t surprising. Catholics have traditionally leaned Democratic, and President Obama’s campaign stressed social justice concerns that resonate with Catholic teaching. One should remember, though, that the Obama Administration imposed the contraception mandate, and that Catholic bishops made the mandate a salient issue. Requiring Catholic institutions to provide contraceptives and abortifacients to employees, the bishops said, seriously threatens Catholics’ religious freedom. Apparently, the majority of Catholic voters disagreed. Or thought that the threat to religious freedom, if it existed, was not as important as other issues, like increasing taxes on wealthy Americans and leaving entitlement programs untouched. Perhaps Latino Catholics voted “ethnicity” rather than “religion.” Who knows? The point is, the majority of Catholic voters apparently did not accept the bishops’ understanding of the importance of the issue.

Leaving aside whether voters who disregard their bishops’ views on the contraception mandate are erring as Catholics – a question on which I’m not qualified to state an opinion — I wonder what implications this vote has for the future of the mandate. Legally, the lawsuits under RFRA will go forward, and I think they have a fair shot at success. But the atmosphere may have changed. It won’t show up expressly in judicial opinions, of course, but I wonder whether judges who support the mandate won’t feel more emboldened to find that the mandate doesn’t “substantially burden” Catholic institutions.  And I wonder whether the Obama Administration won’t feel more comfortable taking a hard line on whatever “accommodation” they are preparing for the final regulations, due before August 2013. The courts may or may not follow the election returns, but politicians surely do.

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 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

Memo to the Times Editorial Board: Read the Case

On Tuesday, the New York Times ran an editorial criticizing U.S. District Judge John Kane’s decision in one of the HHS Contraception Mandate cases, Newland v. Sebelius. Judge Kane issued a preliminary injunction blocking enforcement of the mandate against a corporation, Hercules Industries. The Times believes this ruling misreads the Constitution:

There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute protecting such exercise should not be in play.

Some of this critique is wrong, some is sloppy, and some is debatable.  But the key problem is that the critique is entirely inapposite. As my colleague Marc explained last week, Judge Kane expressly declined to address the corporation’s constitutional claims. He based his ruling solely on plaintiff’s RFRA argument. If you’re going to criticize a judicial opinion, you really should read it first.  (H/t: John McGinnis)

Posted on by Marc O. DeGirolami

Belmont Abbey College HHS Mandate Suit Dismissed on Standing and Ripeness Grounds

Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment.  The grounds are lack of standing and ripeness.  The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status.  It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”

But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor.  It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.  “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.”  The court also dismissed the case for lack of ripeness.

There is an interesting feature of the case that appears in the ripeness discussion.  Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception.  The court said this:

This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.

Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking.  Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be.  Dismissal was without prejudice.

It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.