Faith Leaders Ask Obama To Include Religious Exemption In Planned LGBT Non-Discrimination Executive Order

In remarks (full text) at a June 30 White House reception celebrating LGBT Pride Month, President Obama announced that he has directed his staff to prepare two executive orders.  One will prohibit discrimination by federal contractors on the basis of sexual orientation or gender identity. Another will expand the sexual orientation non-discrimination provisions applicable to federal employees to also include gender identity.

Meanwhile the Washington Post reports on a July 1 letter (full text) sent to the President by 14 clergy and faith-based organization leaders asking the President to include a religious exemption in any executive order on federal contractors and LGBT employment policy. The letter reads in part:

Without a robust religious exemption,, like the provisions in the Senate-passed ENDA, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom....

While the nation has undergone incredible legal and social change over the last decade, we still live in a nation with different beliefs about sexuality. We must find a way to respect diversity of opinion on this issue in a way that respects the dignity of all parties to the best of our ability.... [A] religious exemption would simply maintain that religious organizations will not be automatically disqualified or disadvantaged in obtaining contracts because of their religious beliefs.

Religious Health Care Provider Loses Free Exercise Claim Against Medi-Cal Managed Care Plan

In Horisons Unlimited v. Santa Cruz-Monterey-Merced Managed Medical Care Commission, 2014 U.S. Dist. LEXIS 89030 (ED CA, June 27, 2014), a religious health care provider sued over actions of Alliance, the sole Medi-Cal manged care plan in the county.  Alliance refused to credential the clinics' providers and allow new enrollments of Medi-Cal beneficiaries at the clinics. In addition to various antitrust claims, the clinic asserted infringement of its free exercise of religion. The court rejected the contention, saying:

An allegation that one member of Alliance's governing body "objected to" religious services at Horisons' clinics fails show or give rise to a reasonable inference that Alliance burdened Horisons' practice of religion by preventing Horisons from engaging in conduct mandated by Horisons' faith.

More Legal Problems For Christian Sudanese Woman

In Sudan, the case of Mariam Yahya Ibrahim-- whose father was Muslim, but who was raised by her mother as a Christian-- is becoming legally more complex. As previously reported, Ibrahim was initially sentenced to death for apostasy for embracing Christianity, but an appeals court last week overturned the sentence and released her from custody. (See prior posting.) However, as reported by Reuters, when Ibrahim, along with her Christian husband and her two children, attempted to fly out of the country, she was again briefly detained by police who charged her with using falsified travel documents.  Sudanese authorities objected to her travel documents that were issued by the embassy of South Sudan. After being released by police last Thursday, she and her family took up temporary residence in the U.S. embassy in Khartoum. Now a lawsuit has been filed against her in the Khartoum Religious Court, brought by her father's family, seeking to establish she is a Muslim.  If successful, that would presumably invalidate her marriage to her Christian husband (who is South Sudanese and holds American citizenship), and would impede her plans to leave Sudan.

Arbitrator Awards Damages For Diocese's Breach of Settlement Agreement In Clergy Sex Abuse Cases

In 2008, the Catholic Diocese of Kansas City- St. Joseph (MO) entered a settlement agreement in a lawsuit brought by 47 clergy sex abuse victims, paying them $10 million in damages and agreeing to a number of terms to prevent future abuse and aid past victims.  The agreement included an arbitration clause. Yesterday's Kansas City Star reports that in 2011, 44 of the 47 settling plaintiffs filed suit in a Missouri state court seeking to force the Diocese to arbitration for violating the settlement agreement.  The charges focused on the Diocese's delay in reporting to authorities their discovery of hundreds of images of young girls on the computer of priest Shawn Ratigan. (See prior related posting.) In March of this year, an arbitrator issued a report finding that the Diocese had breached five provisions of the settlement agreement, and awarded damages of $650,000, attorneys' fees of $450,000, $5,820 for unpaid counseling of sex abuse victims.  The award was to remain confidential until one of the parties moved to have the court confirm or vacate it.  On June 20, the Diocese filed a motion to vacate the award, and it then became public.  The Diocese argues that there is nothing in the settlement agreement that authorizes the arbitrator to award additional damages. The arbitrator had said, however, that plaintiffs could have used the breaches as a basis for voiding the settlement agreement and obtaining an even larger award.

Court Enters Settlement Order In Dispute Over State Funding To Religious Child-Care Facility

In Pedreira v. Sunrise Children's Services, Inc., (WD KY, June 30, 2014), a Kentucky federal district court entered an order incorporating terms of a settlement between the parties in an Establishment Clause lawsuit, and retained jurisdiction to enforce the order. At issue was the long-running controversy over the state of Kentucky's funding treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. The settlement requires the state to modify its contracts with child care agencies so that the religious affiliation or non-affiliation of children is respected. (See prior related posting.) The court rejected challenges by Sunrise to the settlement:

Sunrise urges that the Agreement will subject it to a “Hobson’s Choice” – That is, it will have to choose either to accept terms in new PCC agreements which it finds objectionable, or forego contracts with the Commonwealth which provide essential funding for its continued operation. As aptly stated by the Commonwealth defendants however, this is not a “Hobson’s Choice;” it is a business choice....  Sunrise does not suggest that the Commonwealth does not have the right to add to or alter the terms of its future PCC contract offerings, with or without this settlement.

Americans United issued a press release announcing the court's action. AP reports on the decision.

District Court Grants Preliminary Injunction, Quoting Same-Day's SCOTUS Opinion In Hobby Lobby

In Archdiocese of St. Louis v. Burwell, (ED MO, June 30, 2014), a Missouri federal district court granted a preliminary injunction to Catholic non-profit organizations preventing enforcement of the contraceptive coverage mandate accommodation against them. The court rejected the government's argument that the religious-based organizations are not injured (and thus lack standing) because the government has no authority under ERISA to enforce against the third party administrator of a "church plan" the requirement that it furnish contraceptive coverage directly after the non-profit employer opts out. The court said:

Plaintiffs' injury is not related to whether the TPA can be penalized for noncompliance with the mandate. Rather, Plaintiffs' injury arises when the provision of contraceptive coverage has been facilitated by their actions and their beliefs have thereby been violated. This constitutes a sufficient injury to satisfy the constitutional minimum of standing.

The court went on to conclude that the requirement for non-profits to execute a certification to opt out of the mandate imposes a substantial burden on their religious exercise. Then, incorporating language from the Supreme Court's Hobby Lobby opinion decided earlier the same day on which this court's opinion was filed, the court concluded that the government has shown it has a compelling interest, but  it has not shown that it has used the least restrictive means to accomplish its goal. The court said in part:

Indeed, the Supreme Court has observed that the most straightforward way for the Government to achieve its goal without imposing a substantial burden on the exercise of religion would be to assume the cost of providing contraceptives to any women unable to obtain them under their health insurance policies due to their employers' religious objections. Burwell [v. Hobby Lobby Stores, Inc.], --S.Ct.--, 2014 WL 2921709.

The Archdiocese of St. Louis issued a press release welcoming the decision.

5th Circuit: Defer To State Court Proceedings In Church Property Dispute

African Methodist Episcopal Church v. Lucien, (5th Cir., June 30, 2014), involves appeals in two related cases growing out of a property ownership dispute between the national AME Church and a local congregation, St. James Mission Church. St. James sued in a Louisiana state court seeking to evict several AME national church officers who had taken over the local church building. AME filed a counter suit in federal court seeking a declaration that the break-away members had given up any rights to the property through their dissociation.  AME then removed the eviction action to federal court, claiming diversity of citizenship.  However St. James claimed the removal was improper.  The 5th Circuit agreed, finding the jurisdictional diversity of citizenship lacking. The Court ordered that the eviction proceeding be remanded to state court, and that the federal district court also abstain from deciding the counter-suit until the eviction proceeding is concluded in state court.

Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order

In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:

in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. 

However, the court stayed its order until further order of the 6th Circuit Court of Appeals.  The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]

Supreme Court Grants Review In Church's Challenge To Sign Ordinance

The U.S. Supreme Court today granted certiorari in Reed v. Gilbert, AZ, (Docket No. 13-502, cert. granted 7/1/2014.) (Order List.) In the case, 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which non-profit groups can display temporary directional signs.  The limits on temporary event signs are stricter than limits placed on various other types of signs, having the effect of favoring political and ideological signs over religious ones.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.) Here is the petition for certiorari. An ADF press release has more background.

Supreme Court Cleans Up Docket After Hobby Lobby Decision

Today the U.S. Supreme Court did a clean-up of pending Affordable Care Act contraceptive mandate cases brought by for-profit companies now that the Court has handed down its decision in Hobby Lobby. The Court denied certiorari in cases: Department of Health and Human Services v. Gilardi, (Docket No. 13-915); Burwell v. Newland (Docket No. 13-919); and Burwell v. Korte (Docket No. 13-937). In three other pending petitions for review the Supreme Court granted certiorari and summarily vacated the Court of Appeals decisions, remanding each case to the Court of Appeals for further consideration in light of Hobby Lobby.  The cases are: Autocam Corp. v. Burwell, (Docket No. 13-482); Gilardi v. Department of Health and Human Services, (Docket No. 13-567); Eden Foods, Inc. v. Burwell, (Docket No. 13-591). All of these actions are noted in today's Order List.)

Israel's Supreme Court Says Rabbinical Courts Lack Jurisdiction To Order Circumcision of Child

Israel's High Court of Justice on Sunday held 6-1 that a rabbinical court did not have jurisdiction in the context of a divorce action to order a couple to circumcise their one-year old son over the mother's objection. (See prior posting.)  Jerusalem Post reports that Deputy Supreme Court President Miriam Naor wrote in her majority opinion that the question of circumcision is unrelated to divorce issues that define the rabbinical courts' jurisdiction.  She said that parents have the right to make decisions in their child’s best interests whether they are married or divorced. The Court held that the question should be decided by the civil family court system. Chief Rabbi Yitzhak Yosef, president of the Supreme Rabbinical Court of Appeal, strongly criticized the High Court's decision, saying in part:

This ruling is another severe step in which Jewish judges forbid the fulfillment of a mitzva for which the Jewish people sacrificed its lives for throughout the generations.

European Court Upholds France's Ban Wearing Burqa In Public

The European Court of Human Rights today, in a Grand Chamber judgment, upheld France's ban on Muslim women wearing the full-face veil in public.  In S.A.S. v. France, (ECHR, July 1, 2014), the court by a vote of 15-2 held that France's law prohibiting the concealment of one’s face in public places (and thus barring the burqa and niqab) does not violate either Art. 8 (respect for private and family life) or Art. 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. The Court unanimously held that the law does not violate Art. 14 (discrimination). The Court concluded that the ban can be justified as a means of guaranteeing the conditions of "living together." The Court said in part:

[W]hile it is true that the scope of the ban is broad, because all places accessible to the public are concerned (except for places of worship), the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. The Court is aware of the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil. It nevertheless finds it to be of some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face.....

... [T]he respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society .... In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question.

The Court also issued a press release summarizing the decision. CNN reports on the decision. [Thanks to Paul de Mello for the lead.]

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.]