Tag Archives: Recent Cases

Horwitz, “The Hobby Lobby Moment”

Our friend, Paul Horwitz, has just published his essay, The Hobby Lobby Moment, in the latest issue of the Harvard Law Review. The piece is well worth reading and reflecting on. It is written in Paul’s characteristically thoughtful and insightful manner, and it makes many points about the social and cultural context of the case that cut much deeper than most of the commentary on what has been, to put it mildly, a controversial decision. Even on those issues where I see things a little differently than Paul (for example, I am much more skeptical than is Paul about the degree to which there was ever consensus about the good of religious free exercise in the legal academy, and therefore about whether there is any substantial fragmentation of that consensus today), the points he makes are interesting, original, and thought-provoking.

What’s Happening in Houston?

When I first saw the story, I dismissed it as a hoax. The City of Houston had served subpoenas on local pastors who had participated in a petition drive against a city ordinance, known as HERO, which prohibits discrimination against LGBT persons. The subpoenas demanded that the pastors turn over “all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession.”

What could justify such an intrusive request? Not only the pastors’ own statements – that would be troubling enough – but statements the pastors had revised, or approved, or just kept in their possession, about homosexuality and gender identity. And about the mayor herself. There must be more to the story, I thought.

It turns out there is a bit more to the story— but the episode is nonetheless very unsettling. When the city rejected the petition on the ground that the signatures were invalid, some opponents of HERO – not the pastors themselves – challenged the city’s decision in court. The city issued the subpoenas in connection with that litigation. The theory, as I understand it, is that because these pastors helped organize the petition drive and hosted meetings, the pastors’s statements about the petition are important. I guess the idea is that the pastors may have said something that induced phony signatures.

Now, given the rules of pretrial discovery, one must concede that there is some plausibility in the city’s argument – some. In an American lawsuit, attorneys can ask for all sorts of information before trial, even if that information is not strictly relevant to the litigation, as long as the information seems reasonably likely to lead to relevant and admissible evidence. This broad standard is meant to allow parties to uncover all the facts. So when the city says it would like to know what the pastors may have said about the petition drive itself, that’s not a completely untenable position, given the freewheeling rules of American pretrial litigation.

But there are other very important considerations. The broad standard for discovery can lead to so-called “fishing expeditions” that seek to harass and intimidate litigants and encourage them to back off. As a result, courts generally have wide discretion to reject requests for information that are overly broad and unduly burdensome to the opposing party. In a context like this one, which raises very sensitive First Amendment concerns, courts must be especially careful.

The pastors have moved to quash the subpoenas. They should and will likely succeed, largely if not completely. Indeed, in response to complaints, including from some defenders of LGBT rights, Mayor Parker and the Houston City Attorney have already indicated that they think the subpoenas are too broad and should be rewritten. (They blame the misunderstanding on pro-bono attorneys the city retained to handle the litigation.) Maybe the court will allow subpoenas with respect to statements directly related to the petition drive, but that’s as far as it’s likely to go. I wonder if the court will allow even that.

Still, even if these pastors succeed in resisting the subpoenas, significant damage has been done. It’s hard to see how this episode will not chill religious and political expression. Most people, quite rationally, want nothing to do with lawsuits and subpoenas. They don’t want to make legal history. The lesson they will draw from the episode is this: if you want to avoid trouble, don’t make politically-charged statements about religious convictions that the government doesn’t approve, even if you’re at a private meeting in your own church. In fact, don’t revise or retain such statements. Otherwise, who knows? You may one day have to lawyer up.

Podcast on Holt v. Hobbs

Mark and I have recorded another in our podcast series, this time on the “prison beard case,” Holt v. Hobbs, argued this week at the Supreme Court. We discuss the claim and the oral argument, and make some predictions. To get our other podcasts, click here.

Estrada and Boizelle on the Obama Administration and Religious Accommodation

In the latest issue of the Cato Supreme Court Review, there is a useful essay by Miguel Estrada and Ashley Boizelle discussing the upcoming Supreme Court term and some of the major cases that the Court will hear. As readers of the Forum are aware, one of these cases is Holt v. Hobbs, concerning a claim by an Arkansas prison inmate–who is serving a life sentence for burglary and domestic battery stemming from an incident in which he attempted to slash his girlfriend’s throat–that prison rules forbidding him to grow a 1/2 inch beard in accordance with his religious views violate the Religious Land Use and Institutionalized Persons Act. One interesting feature of the case is that the Solicitor General has filed an amicus brief on behalf of the prisoner. The authors comment:

Solicitor General Donald Verrilli filed an amicus brief in support of Holt’s challenge, calling the no-beard policy “religious discrimination” and “a substantial burden on religious exercise.” Interestingly, this brief was filed only a few months after the government’s reply brief in Hobby Lobby, which insisted that the requirement that employers provide their employees with no-cost contraceptives did not constitute a substantial burden on the religious beliefs of those employers. In the government’s view, prisons can advance their legitimate safety objectives in some other way that is more respectful of the inmate’s religious beliefs; the federal government, on the other hand, need not be troubled to accommodate the sincere religious beliefs of business owners.

The federal government’s differential treatment of these two cases is odd because RLUIPA was intended to make available to prisoners protections that replicate those available to the general citizenry under RFRA. Whatever the relationship between the two statutes, it would be bizarre if those whose liberty is restricted on account of proven antisocial behavior were better protected from the government’s incursions on their religion than members of the law-abiding public. Be that as it may, given the Supreme Court’s disposition in Hobby Lobby, we should not be surprised to see a ruling invalidating the no-beard policy as an unjustified burden on Holt’s religion.

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.

European Court Decides Church Autonomy Case; Russian Judge Calls Clerical Celibacy a Human Rights Violation

I’m a little late getting to this, but I wanted to say a few words about Fernández Martínez v. Spain, the church autonomy case the European Court of Human Rights decided last month. By a vote of 9-8, the court held that Spain did not violate the European Convention on Human Rights when it declined to renew the contract of a public school teacher who had been offering classes in Catholicism.

Because of the close vote, some commentators have expressed worries about the case’s implication for church autonomy in Europe. I think those worries are overstated. The closeness of the vote turns on the peculiarities of the Spanish public school system, in which state employees offer religious instruction. The dissent of the Russian judge does cause concern, however. Judge Dedov’s opinion suggests a bias against Catholicism unlike anything I can remember in a judicial opinion.

In Spain, public schools offer religious instruction at state expense. The teachers are state employees. But the Spanish government has entered into agreements with four religious communities–Catholic, Evangelical, Jewish, and Muslim–which provide that schools will select instructors in those religions from candidates the communities certify as suitable. With respect to classes in Catholicism, the local Catholic bishop must approve instructors. Fernández Martínez lost his job when the local bishop refused to approve him. The bishop withdrew his approval when Fernández Martínez, a Catholic priest who had decided to marry and raise a family, appeared at a public protest in favor of optional clerical celibacy.

Fernández Martínez argued that the refusal to renew his contract violated his right under Article 8 of the Convention “to respect for his private and family life.” The court disagreed. The interference with the claimant’s right was justified in this case, it held. Spain had acted to protect the important principle of church autonomy, specifically, the right of the Catholic Church to designate which people could offer Catholic instruction in the public schools. Although the instructors were state employees, they were also representatives of the Church. It was not unreasonable for the Church to assert that Fernández Martínez’s conduct affected his credibility as a Catholic representative.

All this seems straightforward. So why was the vote so close? The eight dissenting judges expressed some unfortunate skepticism about what they called “absolute” church autonomy. To my mind, though, the key factor seems to have been that Fernández Martínez was a state employee, paid from public funds. As a result, the dissenters believed, the state had an obligation to him independent of the Church’s decision. It “is not the Bishop’s decision that should be scrutinized,” the dissenters wrote, “but the [state's] reaction to that decision.” For example, the state might have tried to find Fernández Martínez another position that would not involve teaching Catholicism. Instead, the state had simply let him go.

Judge Dmitry Dedov

In short, the closeness of the vote reflects the peculiarities of the Spanish system, in which teachers of Catholicism are state employees, rather than the principle of church autonomy itself. (I recognize that the Spanish system may not be so peculiar in the European context, but that’s a subject for another post.) On the other hand, one of the dissents does raise serious concerns. In a personal dissent, which no other member of the court joined, the Russian judge, Dmitry Dedov, argued that mandatory priestly celibacy was itself a human rights violation the court should not tolerate.

Mandatory celibacy has been a “well-known and serious problem” in Catholicism for centuries, Dedov wrote, citing Victor Hugo’s The Hunchback of Notre Dame and Colleen McCullough’s The Thorn Birds. It had caused a great deal of grief and led priests to abuse children “in many countries.” One could not justify holding people  to a vow of celibacy, even a voluntary one:

The Convention protects freedom of religion…. But it does not entitle religious organizations, even in the name of autonomy, to persecute their members for exercising fundamental human rights. If the Convention system is intended to combat totalitarianism, then there is no reason to tolerate the sort of totalitarianism that can be seen in the present case.

“I believe,” he concluded, “that optional celibacy is the best way out of this problem and that it could also–I hope–serve as a preventive measure against clerical sex abuses of children in the future.”

I suppose Judge Dedov, who attended a Soviet university in the 1980s, is in a position to know something about totalitarianism. But, really, his dissent is an embarrassment. No one asked Judge Dedov for his views on clerical celibacy. The merit of religious doctrine is not a matter for secular human rights judges to address, and certainly not in a simplistic and gratuitously insulting way. (The Thorn Birds? Really?) And to assert, without offering evidence, that Catholicism’s rules on clerical celibacy have themselves caused the sex abuse crisis–a crisis that has, no doubt, many causes–is not what one expects from a judge.

In a human rights court, litigants from religious communities have a right to think the judges will treat them fairly and, to the extent possible, decide cases without bias. Judges are not there to offer musings on comparative religion. Judge Dedov’s dissent suggests he has a personal problem with the Catholic Church. He should take that problem somewhere else.

Justice Sotomayor’s Puzzling Dissent in the Wheaton College Case

Sonia_Sotomayor_in_SCOTUS_robe

Justice Sonia Sotomayor

The battle over the ACA’s Contraception Mandate continues. Yesterday, the Supreme Court granted a temporary injunction to Wheaton College, a religious nonprofit that is challenging the mandate in federal court. As a religious nonprofit, Wheaton qualifies for a regulatory accommodation. It can avoid the mandate by completing a form stating that it opposes covering contraceptives for its employees and giving this form to its third-party plan administrator; the administrator must then provide contraceptive coverage to the employees at its own expense. Wheaton objects that completing the form and submitting it to the administrator would make it complicit in providing coverage for contraceptives, which it opposes on religious grounds. As a consequence, Wheaton argues, the accommodation itself violates RFRA.

Yesterday, by 6-3 vote, the Court ruled that the government may not enforce the mandate against Wheaton pending final disposition of Wheaton’s legal challenge. As a result, until the case is resolved, Wheaton need not complete the form or provide it to the plan administrator. The government, which obviously knows about Wheaton’s challenge, may arrange contraceptive coverage for Wheaton’s employees in the meantime. The Court expressly stated that its grant of a temporary injunction “should not be construed as an expression of the Court’s views on the merits” of Wheaton’s challenge.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented. Her dissent is puzzling. On the one hand, she makes a valid point about the standard for granting this sort of injunction. Traditionally, a high bar exists. The Court will grant an injunction only if the legal rights at issue seem “indisputably clear.” At this point, it’s hard to say that about Wheaton’s claim. There are arguments on both sides and, as Justice Sotomayor points out, the district court hasn’t yet determined the facts and adjudicated the case.

But Justice Sotomayor didn’t stop there, and the rest of her opinion is unfortunately problematic. Here are three quick examples:

  • Internal Inconsistency: Notwithstanding her complaint that the Court had preempted the trial judge’s adjudication of the merits of Wheaton’s claim, Justice Sotomayor presumes to decide the merits herself. “Wheaton has not stated a viable claim under RFRA,” she writes. That seems rather a prejudicial statement, especially as Wheaton’s case, or one very like it, will undoubtedly reach the Court soon. Besides, the Court expressly stated that it wasn’t ruling on the merits of Wheaton’s claim. One should note that, later in her dissent, Justice Sotomayor says only that “Wheaton’s claim is likely to fail.” So perhaps her first statement was  just  a little careless. But one expects more in a Supreme Court opinion.
  • Unfair Criticism: Justice Sotomayor sharply criticizes the Court for going back on its word earlier this week in Hobby Lobby. In Hobby Lobby, the Court indicated that the accommodation is a less restrictive means of promoting the government’s interest in women’s health than the mandate itself. If the accommodation is an acceptable alternative in Hobby Lobby, she asks, why not in this case? This criticism is unfair. The Hobby Lobby Court didn’t say the accommodation is the least restrictive means of promoting the government’s interest, only that it is a less restrictive means than the mandate itself. True, the Court’s language in Hobby Lobby was a little opaque. But it’s wrong to suggest the Court is being sneaky or indecisive.
  • Pot and Kettle: You’d hardly know it from reading Justice Sotomayor’s opinion, but last January she herself joined the Court in granting a similar injunction to another religious nonprofit challenging the mandate, the Little Sisters of the Poor. In a footnote in yesterday’s opinion, Justice Sotomayor tries to distinguish the January case, but not very convincingly. The Little Sisters’ third-party administrator wasn’t going to cover contraceptives anyway, she writes, so, unlike Wheaton’s employees, the Little Sisters’ employees had nothing to lose. But does anyone think Wheaton’s employees will lose contraceptive coverage during the course of this litigation? Both Wheaton’s third-party administrator and the government are aware of the situation and will undoubtedly make such coverage available.

As I say, Justice Sotomayor could simply have discussed the high standard for a temporary injunction and left it there; that would have made for a much stronger opinion. As it is, her dissent suggests a level of frustration that the Court’s ruling yesterday really doesn’t merit. Perhaps Justice Sotomayor knows something she’s not saying about how the Justices will likely decide the next challenge to the mandate that reaches them.

European Human Rights Court to France: Do Whatever You Want

This week, Americans understandably have been occupied with the Hobby Lobby case and its implications for religious freedom in our country. But across the Atlantic, the European Court of Human Rights was handing down its own decision on the scope of religious freedom, S.A.S. v. France. The European Court held that France’s ban on clothing designed to cover one’s face in public–what everyone knows, for obvious reasons, as the “burqa ban”–does not violate the European Convention on Human Rights. The court’s ruling reveals the challenges of enforcing a regional, European standard with respect to religious expression.

Some background: Article 9 of the European Convention recognizes a right to manifest one’s religion or belief, subject to limitations that are necessary to promote certain legitimate state interests, including public safety and “the protection of the rights and freedoms of others.” Any such limitation must be proportionate to the interest the state asserts. The European Court has made clear that Article 9 need not apply uniformly across Europe. Given different national histories and cultures, states have discretion to adapt article 9 in light of the needs and values of their particular societies. The Europeans refer to this discretion as the states’ “margin of appreciation.”

France argued that the ban on burqas is necessary to promote public safety and protect the rights and freedoms of others–specifically, the right of people to live in an “open society” characterized by “civility” and “social interaction.” The court rejected the first argument. Even assuming the burqa posed a risk in some circumstances, it held, a blanket ban is disproportionate. If the concern were public safety, a more targeted ban would be appropriate–in the context of security checks, for example.

The court agreed with France, though, that the ban could be justified on the basis of promoting an “open society”–at least, an open society in the French manner. Obviously, not all societies see the burqa as problematic. In Europe, only Belgium has a similar ban. But the French people had decided that the burqa violates “the ground rules of social communication” in their country. This decision deserved deference, the court held. Given the margin of appreciation in such matters, the court would honor France’s determination that “the voluntary and systematic concealment of the face is … incompatible with the fundamental requirements of ‘living together’ in French society.”

This level of deference is really quite breathtaking. Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?

The deference to national norms is unavoidable in the context of the Council of Europe, a regime that includes scores of states with widely varying cultures and histories. One size simply doesn’t fit all. If the European Court is to have any legitimacy, it will often need to defer to national judgments on sensitive issues. Still, the European Court purports to pursue a common European standard in respect of human rights. Decisions like S.A.S. suggest that pursuit has a long way to go.

Podcast on Hobby Lobby

In our latest podcast, Mark and I discuss yesterday’s decision in Burwell v. Hobby Lobby Stores, Inc., the contraception mandate case. We summarize and explain the background, the holding, and the reasoning of the case. We also consider possible implications for future religious freedom challenges.

A Pretty Narrow Decision

That’s my first read on today’s opinion in the Hobby Lobby case: narrow and pretty much as expected. Indeed, Justice Alito’s opinion for the Court says as much (“our holding is very specific”). It’s a 5-4 decision; a 5-2 decision on one important point. Still, a win’s a win, and Hobby Lobby, its lawyers, and those who filed amicus briefs in its behalf have a right to be pleased–as do all those who value religious freedom.

Some first impressions:

  • The Court does not address Hobby Lobby’s First Amendment claims; Hobby Lobby wins on RFRA grounds. No surprise there.
  • In holding that a for-profit corporation can exercise a religion for RFRA purposes, the Court takes the route that Chief Justice Roberts suggested at oral argument. It expressly limits its holding to closely-held corporations like Hobby Lobby and declines to discuss whether large, publicly traded corporations also can exercise a religion for RFRA purposes. That, as lawyers say, is a question for another day. (Self-promotion alert: this is what I predicted). The vote was 5-2 here; two dissenters, Justices Breyer and Kagan, would not have reached the issue.
  • The Court makes clear its ruling does not mean it will necessarily rule the same way in other cases where employers seek relief under RFRA, for example, where employers object to covering immunizations. Different governmental interests could be involved in those cases, the Court says.
  • The Court goes out of its way to say that its holding would not allow employers to justify racial discrimination on religious grounds. It says nothing about other sorts of discrimination, however. Surely this is intentional. As everyone knows, a major lurking issue is whether RFRA allows employers to discriminate on the basis of sexuality, especially homosexuality. The Court obviously wishes to avoid any allusions to that issue–perhaps to keep Justice Kennedy on board. The dissent does raise the issue, though.
  • The qualifications in the Court’s opinion are obviously meant to answer the dissent’s “parade of horribles.” Seems a pretty good answer to me–but the dissenters are not impressed. The Court’s logic extends to publicly traded corporations, Justice Ginsburg writes, and there is little doubt, notwithstanding the Court’s reassurances,  that RFRA claims will “proliferate” in future. In particular, the dissent raises the issue of religiously-based objections to sexuality. As I say, the Court studiously avoids that issue.
  • In its least-restrictive means analysis, the Court notes that an accommodation of the sort the government has offered to certain religious non-profits would have achieved the government’s end in this case as well, and would have imposed less on Hobby Lobby’s religious exercise. That is, an alternative to the mandate is available. Is the Court hinting at what it thinks about the Little Sisters of the Poor case? I don’t think so; the Court went out of its way to reserve that issue. But the language here is a bit opaque and may cause trouble in future.
  • Not clear what the point of Justice Kennedy’s concurrence is, except to highlight that he sees this as a close case, to say nice things about the dissent, and to expound a little more about his view that religious liberty is about protecting people’s “dignity and … striving for a self-definition shaped by their religious precepts.”

We’ll have further analysis here at CLR Forum as we digest the opinion a little more. But, bottom line: a narrow decision and a win for religious liberty.