10th and 11th Circuits Grant Injunction Pending Appeal To Religious Non-Profits Challenging ACA Rules

Yesterday two circuit courts of appeal granted stays pending appeal in suits by religious non-profits challenging the Affordable Care Act contraceptive coverage accommodation. In Diocese of Cheyenne v. Burwell, (10th Cir., June 30, 2014), the 10th Circuit Court of Appeals held that it would enjoin enforcement of the accommodation against several Wyoming Catholic charitable and educational institutions so long as they inform the Secretary of Health and Human Services in writing (but not necessarily using the government's form) that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.

In Eternal World Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services, (11th Cir., June 30, 2014), the U.S. 11th Circuit Court of Appeals granted an injunction pending appeal to a religious non-profit broadcasting network challenging the contraceptive mandate accommodation rules. Judge Pryor wrote a 26-page special concurrence explaining why EWTN is likely to succeed on the merits. Both the court's order and Judge Pryor's opinion cited yesterday's Supreme Court decision in Hobby Lobby for support. [Thanks to Stephen Blakeman for the lead.]

White House Reacts To Hobby Lobby Decision

At a press briefing yesterday (transcript), White House Press Secretary Josh Earnest set out president Obama's reaction to the Supreme Court's Hobby Lobby decision, saying in part:

The Supreme Court ruled today that some bosses can now withhold contraceptive care from their employees’ health coverage based on their own religious views that their employees may not even share.  President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them.

Today’s decision jeopardizes the health of women who are employed by these companies.  As millions of women know firsthand, contraception is often vital to their health and well being.  That’s why the Affordable Care Act ensures that women have coverage for contraceptive care, along with other preventative care like vaccines and cancer screenings.

We will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.

President Obama believes strongly in the freedom of religion.  That’s why we’ve taken steps to ensure that no religious institution will have to pay or provide for contraceptive coverage.  We’ve also made accommodations for non-profit religious organizations that object to contraception on religious grounds.  But we believe that the owners of for-profit companies should not be allowed to assert their personal religious views to deny their employees federally mandated benefits.

Some Preliminary Thoughts On Today's Hobby Lobby Decision

The Supreme Court's Hobby Lobby opinions handed down today could (and not doubt will) spawn hundreds of pages of scrutiny and analysis.  In this post I offer only some very preliminary reactions, but ones which I hope will be useful starting points for others in analyzing the decisions at greater length.

(1) One of the most widely discussed questions raised by Hobby Lobby has been: Can corporations exercise religion? Justice Alito avoids many of the difficulties posed by this question through adopting the "nexus of contracts" view of corporations put forward by "law and economics" scholars during the past 40 years.  He says:

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.... [P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.

This approach avoids both the question of whether an "artificial person" can exercise religion, and whether traditional "piercing-the-corporate-veil" notions need to be invoked.

(2) Much attention has been focused on whether the government can show a "compelling interest" in imposing the contraceptive coverage mandate.  Again Justice Alito is able to avoid dealing directly with the issue. By focusing instead on the "least restrictive means" prong of RFRA strict scrutiny, he is able merely to "assume" that the government has a compelling interest, without deciding the issue.

(3) Justice Alito's "least restrictive means" discussion  creates some of the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: "be careful what you wish for."  Jutice Alito makes two points. First, he argues that the "most straightforward" less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.

Second, Justice Alito heaps praise on the less restrictive alternative that the government has already developed for religious non-profits, and suggests that this may be the most feasible alternative here as well.  However, as Justice Alito briefly references in a footnote, an equally fierce battle against just that alternative is working its way through dozens of lower federal courts.  Seldom has the Supreme Court so tipped its hand on its views about cases about to come to it.  Dozens of religious non-profits are arguing that opting out of furnishing contraceptive coverage, and thereby triggering coverage from elsewhere, still amounts to religiously objectionable participation.  For-profit corporations with religious beliefs seemingly have the same free-exercise concerns. The majority must think those concerns are not justified.

Supreme Court Denies Cert. In Reparative Therapy and Mt. Soledad Cross Cases

Nearly lost in the coverage of today's Hobby Lobby decision were two important denials of certiorari by the Supreme Court. (Order List of June 30, 2014).  The court denied review in Pickup v. Brown (Docket No. 13-949) and the related case of Welch v. Brown (Docket No. 13-1281).  The 9th Circuit's consolidated decision in the two cases upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Additionally, the Court denied certiorari in Mount Soledad Memorial Association v. Trunk, (Docket No. 13-1061).  In seeking cert., petitioners were attempting to bypass the 9th Circuit and obtain Supreme Court review of a long-running battle over a 43-foot high cross in the now federally-owned Mt. Soledad Veterans Memorial in California. (See prior posting.) Justice Alito filed a separate statement [scroll to end of Order List] concurring in the denial of review, but mainly because of the very demanding standard to obtain Supreme Court review before the Court of Appeals acts.

Supreme Court Rules RFRA Allows Closely-Held Corporations To Refuse Contraceptive Coverage

In Burwell v. Hobby Lobby Stores, Inc., (S.Ct., June 30, 2014), the U.S. Supreme Court today ruled in favor of Hobby Lobby and other closely held corporations whose owners object on religious grounds to providing coverage for contraceptive services. In a majority opinion by Justice Alito, the court held that the Religious Freedom Restoration Act applies to closely-held corporations, and that the government has not shown that the mandate is the least restrictive means of furthering its presumably compelling interest in guraranteeing cost-free access to the four contraceptive methods to which the companies object. Justice Alito said in part:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

Justice Alito argues that the majority opinion is narrow:

We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

He says that if the same accommodation given to religious non-profits were extended to closely-held corporations, the effect on women "would be precisely zero."

Justice Kennedy filed a concurring opinion as well as joining Justice Alito's majority opinion. Justices Ginsburg, Breyer, Sotomayor and Kagan dissented in two related dissenting opinions.

Justice Ginsburg's dissenting opinion calls the majority's decision one of "startling breadth." She adds in a section of her dissent joined only by Justice Sotomayor: "Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private."

Additional analysis of the decision will follow in separate posts.

Supreme Court Grants Cert. On Whether EEOC's Conciliation Efforts Can Be Reviewed

The U.S. Supreme Court today granted certiorari in Mach Mining, LLC v. E.E.O.C. (Docket No. 13-1019, cert. granted 6/30/2014) (Order List.) The case is one involving alleged gender discrimination-- refusal to hire a woman as a coal miner.  The issue presented, however, will impact religious discrimination claims filed with the EEOC as well.  In the case, the 7th Circuit (full opinion) held that an employer sued by the EEOC for employment discrimination cannot raise as an affirmative defense the EEOC's failure to first engage in conciliation as required by 42 U.S.C. § 2000e-5(b). The Petition for Certiorari (full text) asserts that the 7th Circuit's decision exacerbated an already exiting conflict among circuits "over whether and how Title VII’s conciliation obligation may be enforced in court."

Recent Articles of Interest

From SSRN:

• Zvi H. Triger, Golda Meir's Reluctant Feminism: The Pre-State Years, (Israel Studies, 19.3 (Fall 2014), Forthcoming).
• Frederick Mark Gedicks & Andrew Koppelman, Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause, (67 Vanderbilt Law Review En Banc 51 (2014)).
• Raphael Cohen-Almagor, Reconciling Liberalism and Judaism? Human Rights in Israel, (in Jo Carby-Hall (ed.), Essays on Human Rights: A Celebration of the Life of Dr Janusz Kochanowski (Warsaw: Jus et Lex Foundation, 2014), pp. 136-163).
• Robin Fretwell Wilson, Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections, (Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-35 (June 2014)).

From SmartCILP:

• David Pimentel & Brian Anderson, Judicial Independence In Postconflict Iraq: Establishing the Rule of Law In an Islamic Constitutional Democracy, 46 George Washington International Law Review 29-54 (2013).
• Sadiq Reza, Due Process In Islamic Criminal Law, 46 George Washington International Law Review 1-27 (2013).

EEOC Wins Settlement In Religious Discrimination Suit Against Auto Dealership

The U.S. Equal Employment Opportunity Commission announced last week that a federal district court in Chicago has entered a consent decree in a suit brought by the EEOC against a suburban Chicago auto dealership, Rizza Buick GMC Cadillac, Inc.  The suit charged that managers made offensive ethnic and religious slurs against three Arab Muslim employees, including mocking and insulting references to the Qur'an and the manner in which Muslims pray. Under the settlement, the dealership will pay a total of $100,000 in damages plus undertaking reporting and employee training to prevent future violations. [Thanks to Steven H. Sholk for the lead.]

Supreme Court Will Decide Much-Watched Hobby Lobby Case Today

This morning the U.S. Supreme Court will hand down the much-awaited decisions in Burwell v. Hobby Lobby Stores  and Conestoga Wood Specialties Corp. v. Burwell. These challenges to the Affordable Care Act contraceptive coverage mandate raise a number of difficult and interesting religious liberty questions. Here are SCOTUS Blog's resource pages on Hobby Lobby and Conestoga. Also SCOTUS Blog will be live blogging from the courtroom here. The opinions in the cases will be posted here by the Supreme Court as soon as they are announced. Religion Clause will be reporting on the decisions and their implications, probably with a rolling post or with several posts during the day and beyond.

ISIS Declares Caliphate In Parts of Syria and Iraq

As reported by Time, the Sunni group ISIS (Islamic State of Iraq and Syria) today declared a new Caliphate on the territory it holds in Syria and Iraq.  Its statement (full text) declared ISIS leader Abu Baker al-Baghdadi to be the Caliph, and changed ISIS' name to merely Islamic State.  The lengthy statement included this explanation:

The time has come for those generations that were drowning in oceans of disgrace, being nursed on the milk of humiliation, and being ruled by the vilest of all people, after their long slumber in the darkness of neglect – the time has come for them to rise. The time has come for the ummah of Muhammad (peace be upon him) to wake up from its sleep, remove the garments of dishonor, and shake off the dust of humiliation and disgrace, for the era of lamenting and moaning has gone, and the dawn of honor has emerged anew. The sun of jihad has risen. The glad tidings of good are shining. Triumph looms on the horizon. The signs of victory have appeared.

Recent Prisoner Free Exercise Cases

In Kaufman v. Pugh, 2014 U.S. Dist. LEXIS 84532 (WD WI, June 20, 2014), a Wisconsin federal district court dismissed a complaint by a now-released prisoner that authorities refused to authorize an atheist study group. Injuntive relief was dismissed as moot, and a damage claim dismissed on qualified immunity grounds.

In Staple v. Commonwealth, 2014 Pa. Commw. Unpub. LEXIS 388 (PA Commnw. Ct., June 26, 2014), the Pennsylvania Commonwealth Court denied both a writ of mandamus and a declaratory judgment to an inmate seeking return of several religious books that were confiscated because he had altered him.

In Neal-El v. Beitzel, 2014 U.S. Dist. LEXIS 84943 (D MD, June 23, 2014), a Maryland federal district court dismissed an inmate's complaint that for one week he was removed from the list of those permitted to attend Moorish Science Temple services while officials investigated an unfounded report that he was involved in activities jeopardizing security.

In Marron v. Miller, 2014 U.S. Dist. LEXIS 86629 (WD VA, June 24, 2014), a Virginia federal district court dismissed a Muslim inmate's complaint that his religious books were confiscated as contraband because they were inscribed with his religious name rather than the name recognized by the prison system.

District Court Denies Injunction Against ACA Non-Profit Rules; 3rd Circuit Issues Temporary Stay

In Catholic Charities of the Archdiocese of Philadelphia v. Burwell, (ED PA, June 27, 2014), a Pennsylvania federal district court denied a preliminary injunction to several Catholic charitable organizations that object to the Affordable Care Act rules providing for execution of an opt-out form in order to avoid the requirement to cover contraceptive services under their self-insured health care plan. (Full text of complaint.) After a non-profit opts out, ERISA requires the third party administrator to directly cover contraceptive services. The court concluded that plaintiffs had not shown a likelihood of success on the merits because the government may not be able to enforce the ERISA requirement against the "church plan" at issue. Even if that is not the case, the court found that the self-certification form is not what triggers the furnishing of contraceptive services by the third-party administrator.

Plaintiffs quickly filed a motion for a stay pending appeal, and the 3rd Circuit issued an order (full text) temporarily granting the stay, but requiring the parties to file responses addressing the impact of the Supreme Court's Hobby Lobby and Conestoga decisions (to be handed down Monday) on the issues presented. The Philadelphia Inquirer reports on the decision.

Puerto Rico Appeals Court Applies Ministerial Exception Doctrine

In Vega v. Barbara Ann Roessler Church, Inc., 2014 PR App LEXIS 1954 (PR Ct. App., May 30, 2014), the Puerto Rico Court of Appeals in a 2-1 decision applied the "ministerial exception" doctrine to dismiss a claim by a minister that he was unfairly dismissed as pastor of his church. The opinion is in Spanish.

Plaintiff Lacks Standing In Establishment Clause Challenge To ACA Individual Mandate

In Cutler v. United States, (D DC, June 25, 2014), the District of Columbia federal district court dismissed a challenge to the Affordable Care Act's individual mandate.  Plaintiff based his challenge primarily on a claim that the narrow religious exemption in 26 USC Sec. 5000A(d)(2) violates the Establishment Clause by allowing the government to "regulate and track a person’s religion, and . . . to favor one religion over another." The court concluded that plaintiff lacks standing to raise this claim:

Plaintiff is non-observant in his religion and does not assert that a religious exemption should be extended to him.... Plaintiff’s argument is as follows: there is an exemption to the individual mandate for certain religious groups, he is not a member of any of those groups, and, therefore, he is not able to claim that exemption. It follows that Plaintiff’s challenge to the religious exemption solely is based on the general existence of the exemption and not on the exemption’s specific application to him...

... Further, even if the Court were to find that religious exemption violated the exercise of Congress’ Commerce Power in violation of the First Amendment, Plaintiff would be in the same position. He would be subject to the individual mandate and would be required to either obtain health insurance coverage or pay the penalty. The only difference would be that no one else could claim a religious exemption.

The court went on to conclude that even if plaintiff had standing, the religious exemption provisions do not violate the Establishment Clause.

Former Vatican Diplomat Defrocked On Sex Abuse Charges; Criminal Trial Will Follow

Vatican Information Service reported on Friday:

The first stage in the canonical trial against the former apostolic nuncio in the Dominican Republic, Josef Wesolowski, has been concluded with the laicisation of the prelate.

According to Al Jazeera, in August the Vatican recalled Wesolowski from his position in the Dominican Republic after rumors that he had sexually abused teenage boys there. Dominican authorities were unable to charge him because he had diplomatic immunity. Weslowski has two months to appeal Friday's decision by the Congregation of the Doctrine of the Faith.  After that, he will face criminal charges in a Vatican City State Tribunal. In the meantime, the Vatican says that it will limit his freedom of movement "in conformity with the gravity of the case."

7th Circuit Stays District Court's Invalidation of Indiana's Same-Sex Marriage Ban

In Baskin v. Bogan, (7th Cir., June 27, 2014), the U.S. 7th Circuit Court of Appeals issued a stay pending appeal of a federal district court' decision striking down Indiana's laws barring same-sex marriage. (See prior posting.) Fox59 reports on the appellate court's action and reactions to it.

White House Sends Greetings As Ramadan Begins

Ramadan begins tonight. The White House released a statement (full text) from the President extending greetings from the American people to Muslims communities in the U.S. and around the world. The statement reads in part:

... Ramadan is also an occasion when Muslims around the world reaffirm their commitment to helping the less fortunate....  Here in the United States, we are grateful to the many Muslim American organizations, individuals, and businesses that are devoted to creating opportunity for all by working to reduce income inequality and poverty, not only through their charitable efforts, but also through their initiatives to empower students, workers and families with the education, skills and health care they deserve.

President Obama went on to announce that again this year the White House will host an iftar dinner during Ramadan.

Christian Teacher Loses Suit Challenging Required Removal of Religious Postings In Classroom

In Silver v. Cheektowage Central School District, (WD NY, June 24, 2014), a New York federal magistrate judge recommended dismissing most of the discrimination claims brought by a Christian high school science teacher who was required to take down from her classroom her display of several Bible verses, other statements about God and a picture of three crosses on a hill. She was also told to prevent guest speakers from promoting religion.  The court rejected teacher Joelle Silver's Establishment Clause and free speech claims and most of her equal protection claims, saying that the school has authority to take action to avoid litigation claiming Establishment Clause violations.  The court also characterized as "inapposite" the teacher's comparison of her displays to those by the school social worker that were designed to create a welcoming environment for LGBT students. The court however recommended permitting plaintiff to proceed with a claim that school policies relating to her role as advisor to the student Bible Study Club were selectively enforced. News 4 reports on the decision. American Freedom Law Center issued a press release announcing the decision.

Turkey's Constitutional Court Says Female Lawyers Can Wear Headscarves In Courtrooms

On Wednesday, Turkey's Constitutional Court ruled 16-1 that the rights of a Muslim female lawyer had been infringed when she was not permitted to enter a courtroom wearing a headscarf.  According to Daily Sabah, the Council of State, the country's highest administrative court, ruled in 2013 that women lawyers had the right to register at the Bar Association with a photo showing them wearing a headscarf. However some judges were still banning headscarves in their courtrooms. The Constitutional Court said this week that such bans violate Art. 10 (equality before the law) and Art. 24 (freedom of religion and conscience) of Turkey's Constitution.

Council Revokes Invitation To Wiccan To Deliver Invocation

WHNT News reports that the Huntsville, Alabama City Council pulled back the invitation it originally extended to a Wiccan clergyman to deliver the invocation at yesterday's City Council meeting.  Wiccan Blake Kirk had been scheduled to deliver the opening prayer, but when the Council agenda was publicly released several Council members received "community concerns" about a Wiccan being invited. Kirk said he gave the invocation earlier this year and no one asked him to identify his faith.