Tag Archives: Free Exercise Clause

Cook, “First Amendment Religious Liberties: Supreme Court Decisions and Public Opinion, 1947-2013″

This month, LFB Scholarly Publishing releases “First Amendment Religious Liberties: Supreme Court Decisions and Public Opinion, 1947-2013” by Tracy L. Cook (Central Texas College). The publisher’s description follows:

Cook analyzes the relationship between Supreme Court decisions and public opinion concerning First Amendment religious liberties. Overall, the Court has issued opinions consistent with public opinion in a majority of its decisions dealing with the First Amendment’s religion clauses, with a level of congruence of almost seventy percent when a clear public opinion expression is present. She also provides a new perspective for understanding the long and contentious debate about prayer in public school by identifying an area of agreement between the Court and public opinion that has not received much attention.

Chalmers & O’Reilly, “The Clergy Sex Abuse Crisis and the Legal Responses”

This September, Oxford University Press will release “The Clergy Sex Abuse Crisis and the Legal Responses” by James T. O’Reilly (University of Cincinnati College of Law) and Margaret S.P. Chalmers (Chancellor of the Personal Ordinariate of the Chair of Saint Peter).  The publisher’s description follows:

Clergy Sex AbuseThe sexual abuse of children and teens by rogue priests in the U.S. Catholic Church is a heinous crime, and those who pray for a religious community as its ministers, priests and rabbis should never tolerate those who prey on that community. The legal disputes of recent years have produced many scandalous headlines and fuelled public discussion about the sexual abuse crisis within the clergy, a crisis that has cost the U.S. Catholic Church over $3 billion.

In The Clergy Sex Abuse Crisis and the Legal Responses, two eminent experts, James O’Reilly and Margaret Chalmers, draw on the lessons of recent years to discern the interplay between civil damages law and global church-based canon law. In some countries civil and canon law, although autonomous systems of law, both form part of the church’s legal duties. In the United States, freedom of religion issues have complicated how the state adjudicates both cases of abuse and who can be held responsible for clerical oversight. This book examines questions of civil and criminal liability, issues of respondeat superior and oversight, issues with statutes of limitations and dealing with allegations that occurred decades ago, and how the Church’s internal judicial processes interact or clash with the civil pursuit of these cases.

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

Conference: “Liberty and Justice for All” (October 2-5)

The Christian Legal Society will be hosting its national conference, “Liberty and Justice for All,” at the Boston Park Plaza on October 2-5:

Lawyers, law students, professors, judges and friends are invited to join us October 2-5 in Boston. We are excited that we will be hearing from great speakers like Professor Robert George, Dr. Russell Moore, Andy Crouch and John Stonestreet, as well as a wonderful religious liberty panel. And of course, we will continue to offer practical workshops and CLEs covering numerous areas of the law: from estate planning to running a Christian law firm to human trafficking to employment law and ethics, just to name a few.

Details are here

Rogers, “The Child Cases: How America’s Religious Exemption Laws Harm Children”

Next month, the University of Massachusetts Press will publish The Child Cases: How America’s Religious Exemption Laws Harm Children by Alan Rogers (Boston College). The publisher’s description follows.

When a four-year-old California girl died on March 9, 1984, the state charged her mother with involuntary man-slaughter because she failed to provide her daughter with medical care, choosing instead to rely on spiritual healing. During the next few years, a half dozen other children of Christian Science parents died under similar circumstances. The children s deaths and the parents trials drew national attention, highlighting a deeply rooted, legal/political struggle to define religious freedom.

Through close analysis of these seven cases, legal historian Alan Rogers explores the conflict between religious principles and secular laws that seek to protect children from abuse and neglect. Christian Scientists argued often with the support of mainline religious groups that the First Amendment s free exercise clause protected religious belief and behavior. Insisting that their spiritual care was at least as effective as medical treatment, they thus maintained that parents of seriously ill children had a constitutional right to reject medical care.

Congress and state legislatures confirmed this interpretation by inserting religious exemption provisos into child abuse laws. Yet when parental prayer failed and a child died, prosecutors were able to win manslaughter convictions by arguing as the U.S. Supreme Court had held for more than a century that religious belief could not trump a neutral, generally applicable law. Children s advocates then carried this message to state legislatures, eventually winning repeal of religious exemption provisions in a handful of states.

Contraception Mandate “Accommodation”: The State of Play

Both because of the fast pace of the developments (lots of action before the new year) and because of the holidays, I am behind on reporting the state of play with respect to the contraception mandate litigation concerning non-profit entities that have not been exempted by the government. Such entities, as I noted here, have received the government’s so-called “accommodation,” which requires that they certify to the government their religious objections to the mandate. There are special rules for “accommodated” self-insured non-profits who self-certify, which details are discussed in full here. Note finally that these suits are distinct from the question of for-profit challenges to the contraception mandate, which the Supreme Court will take up shortly in the Hobby Lobby and Conestoga Wood litigation.

The Becket Fund reports that the tally now stands at 19-1 in favor of the challengers and against the government. Here’s a breakdown which elaborates a little bit on the present procedural posture of the cases (of course with the caveat that the situation is fluid and that I may well have missed additional cases or changes to the cases I list).

I. Number of cases in which an injunction has been issued at the district court level, or where denial of an injunction at the district court level has been overturned by an appellate court (Court of Appeals or United States Supreme Court), barring enforcement of the contraception mandate against “accommodated” entities: 19.

1. E.D.N.Y. (RC Archdiocese v. Sebelius)

2. W.D. Pa. (Zubik v. Sebelius)

3. W.D. Pa. (Persico v. Sebelius)

4. W.D. Pa. (Geneva College v. Sebelius)

5. D.D.C. (as to Thomas Aquinas College in Roman Catholic Archbishop of Washington v. Sebelius)

6. N.D. Indiana (Diocese of Fort Wayne v. Sebelius)

7. N.D. Indiana (Grace Schools v. Sebelius)

8. S.D. Texas (East Texas Baptist University v. Sebelius)

9. W.D. Oklahoma (Southern Nazarene University v. Sebelius)

10. W.D. Oklahoma (Reaching Souls International, Inc. v. Sebelius)

11. E.D. Mich. (Legatus v. Sebelius)

12. E.D. Mich. (Ave Maria Foundation v. Sebelius)

13. E.D. Missouri (CNS Int’l Ministries v. Dept. of HHS)

14. E.D. Tex. (Catholic Diocese of Beaumont v. Sebelius)

15. N.D. Tex. (Catholic Diocese of Fort Worth v. Sebelius)

In an additional three lawsuits, district courts had ruled against the religious claimants. But circuit court decisions have reversed those findings and granted emergency motions for injunctions pending appeal (which requires a finding of likelihood of success on the merits as well). Those are:

16. D.C. Circuit (Priests for Life v. US Department of Health and Human Services)

17. Sixth Circuit (Catholic Diocese of Nashville v. Sebelius)

18. Sixth Circuit (Michigan Catholic Conference v. Sebelius)

Finally, in one law suit, both the district court and the Tenth Circuit had denied injunctive relief. But Justice Sotomayor granted emergency injunctive relief on December 31, 2013. The government has now filed its brief and the religious claimant (the Little Sisters of the Poor) has filed its reply:

19. United States Supreme Court (Little Sisters of the Poor Home for the Aged v. Sebelius)

II. Number of cases in which an injunction has been denied at both the federal district and circuit court levels: 1.

1. N.D. Indiana and Seventh Circuit (University of Notre Dame v. Sebelius)

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United Statesthe famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Continue reading

Ron Colombo on Yesterday’s Cert Grants

At Constitution Daily, Hofstra’s Ron Colombo, a past guest here at CLR Forum, has a helpful essay on the contraception mandate cases on which the Court granted cert yesterday. Ron argues that for-profit corporations like Hobby Lobby, the respondent in one of the cases, have standing to raise a free exercise claim:

Hobby Lobby … is owned and operated by a family deeply devoted to its Christian faith.  The company’s statement of purpose commits it to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”  Unlike so many companies today that put profits over people, Hobby Lobby pledges to “[s]erving [its] employees and their families by establishing a work environment and company policies that build character, strengthen individuals, and nurture families.” . . .

So the question becomes:  does the First Amendment provide the protections necessary for businesses such as Hobby Lobby to exist?  Or, to frame things differently:  are individuals free under the U.S. Constitution to follow the dictates of their consciences into the private sector, and to start businesses with practices that are religiously informed?  Businesses around which workers, customers, and investors with shared religious values and beliefs can coalesce?

As should become readily apparent, the recognition of “corporate free exercise rights” ultimately redounds to the protection of individuals.  For it is through religiously expressive corporations that many people wish to live out their faiths.  Can it really be the case that the Constitution effectively consigns these individuals to careers and options only in the world of non-profits?  Is the most significant modern means of harnessing private initiative, the business corporation, somehow carved out from the First Amendment’s religious liberty protections?

You can read Ron’s essay here.

Supreme Court Agrees to Hear For-Profit Contraception Mandate Cases

The Supreme Court has granted certiorari on two cases involving for-profit corporations which brought claims pursuant to the Constitution and the Religious Freedom Restoration Act against the federal government’s contraception mandate (which is part of the Patient Protection Affordable Care Act). The two cases that the Court agreed to hear were the Hobby Lobby case out of the Tenth Circuit and the Conestoga Wood case out of the Third Circuit.

Note that these cases solely involve the issue of for-profit corporations. They do not concern the question of the “accommodation” granted to certain religious non-profit corporations which the government has decided are not exempt from the mandate. As this breakdown indicates, the Tenth Circuit found en banc that the corporation had free exercise rights which had been violated (it did not decide the issue of the rights of the individual owners), while the Third Circuit panel rejected all claims. One last note of interest (for now): neither of these corporations is owned by Catholics. Hobby Lobby’s ownership is Evangelical, while Conestoga Wood Specialties’ ownership is Mennonite.

NYPD Beard Policy Violates the Free Exercise Clause

I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department’s facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD’s policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff’s natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.

After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: “‘[f]acial neutrality is not determinative’ when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced.”

What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn’t just the stated exemptions in the policy. It’s the  fact that “the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound.” There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City’s claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers’ mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff’s request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito’s famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a “value judgment” that medical reasons are more important than religious reasons, strict scrutiny applies.

I’ve written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn’t only explicit exemptions to the policy that trigger strict scrutiny, but the “de facto” exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith’s rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.