Tag Archives: Religious Freedom Restoration Act

Willis on the Contraception Mandate and Corporations

Steven J. Willis (University of Florida, Fredric G. Levin College of Law) has posted Taxes and Religion: The Hobby Lobby Contraceptive Cases. The abstract follows.

Beginning in 2013, the federal government mandates that general business corporations include contraceptive and early abortion coverage in employee health plans. Internal Revenue Code Section 4980D imposes a substantial excise tax on health plans violating the mandate. Indeed, for one company – Hobby Lobby – the expected annual tax is nearly one-half billion dollars. Dozens of “for profit” businesses have challenged the mandate on free exercise grounds, asserting claims under the First Amendment as well as under the Religious Freedom Restoration Act.

So far, courts have been reluctant to hold corporations have religious rights
of their own; as a result, standing of a corporation to assert the religious
beliefs and rights of owners has become the primary issue in the twenty-six
separate cases moving through the courts. Courts are split on whether to grant standing; however, a large majority has used a variation of relational or associational standing to grant preliminary injunctions against enforcement of the tax.

This article discusses the relationship of morality and religion to general
business corporations. It concludes that over the past few decades, movements for social justice and corporate social responsibility have intertwined business corporations and moral issues, blurring the line between religion and commerce. It also concludes that courts should permit associational standing for closely-held corporations – particularly those electing S status for tax purposes – if the owners have unanimous (or near-unanimous) beliefs.

Gaylord on Free Exercise and the HHS Mandate

Scott Gaylord (Elon University School of Law) has posted For-Profit Corporations, Free Exercise, and the HHS Mandate. The abstract follows.

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA.

Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

Waltman, “Congress, the Supreme Court, and Religious Liberty”

This June, Palgrave MacMillan will publish Congress, the Supreme Court, and Religious Liberty: The Case of City of Boerne v. Flores by Jerold Waltman (Baylor University).  The publisher’s description follows.Waltman

In the landmark case City of Boerne v. Flores, the Supreme Court struck down a major federal statute – the Religious Freedom Restoration Act of 1993. This decision raised questions not only about religious freedom in America, but also about federalism and separation of powers. Using the narrative framework of a tense dispute that divided a small Texas town, Waltman offers the first book-length analysis of the constitutional jurisprudence involved in the passage of the act. Congress, the Supreme Court, and Religious Liberty shows how this case and others like it stimulated and advanced an intense legal debate still ongoing today: Can and should the Supreme Court be the exclusive interpreter of the Constitution?

Jolly on State Photo Identification Standards and Religious Freedom

Rajdeep Singh Jolly (The Sikh Coalition) has posted How State Photo Identification Standards Can Be Used to Undermine Religious Freedom. The abstract follows.

The purpose of this essay is to highlight a latent threat to religious freedom in the post-9/11 environment. In the absence of state laws that track the language of the Religious Freedom Restoration Act of 1993, state legislatures motivated by anti-Muslim bias can harm religious minorities by enacting facially neutral and generally applicable laws that forbid headcoverings in driver license photographs. If such laws are enacted, individuals who wear religious headcoverings can be forced to choose between religious freedom and valid identification cards, without which travel and economic transactions become exceedingly difficult. As a safeguard against this deprivation of religious freedom, this essay argues for more robust civil rights protections at all levels of American government, including stronger federal regulations and wider adoption of state versions of the Religious Freedom Restoration Act.

Bridge on State Enactment of Religious Freedom Restoration Act Laws

Last week, Oxford Journal of Church and State posted for advanced access Religious Freedom or Libertarianism: What Explains State Enactments of Religious Freedom Restoration Act Laws? by Dave Bridge (Baylor University).  An extract of the piece follows.

In 2002, officer Rex Shrum submitted his letter of resignation to the Coweta, Oklahoma, police department. Also a Church of Christ minister, Shrum quit the force after twelve years when his superiors would no longer accommodate his need to have Sunday mornings off. Invoking the Oklahoma Religious Freedom Act, Shrum sued, claiming that the city officials had denied him his right to free exercise. The jury sided with the minister, awarding Shrum a total of $235, 000 for religious freedom claims. Even though the Supreme Court had already struck down the federal Religious Freedom Restoration Act (RFRA) in City of Boerne, Texas v. Flores, Shrum had brought suit under Oklahoma’s state-level Religious Freedom Act. This essay looks at state-level RFRAs and assesses their determinants. What factors are associated with states that pass RFRAs? More importantly, what do these factors tell us about (1) broader trends in American politics and (2) the RFRAs themselves?

State RFRAs are significant because they occupy a unique place in American public policy and ideology. At the policy level, they provide concrete laws for the execution of the loftier ideal of free exercise. RFRAs give citizens a clear foundation for making free exercise violation claims against the state. Even though the US Constitution and state constitutions may have language promoting free exercise, state RFRAs provide a strong indicator that their respective states will take steps to ensure religious freedom. Practically, they provide easier access to the courts for free exercise claimants and lay out a stricter standard for state action. The impact of Oklahoma’s law, for example, can be seen above, as Shrum used the Oklahoma RFRA to pursue his case.

District Court: Prohibiting Religious Groups From Feeding the Homeless in Park Likely to Violate Pennsylvania RFRA

Here’s an interesting case from Philadelphia involving the religious mission to feed the homeless.  The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance).  The City’s reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless.  Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors.  A temporary relocation effort of one of the religious groups’ food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.

Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania’s version of the federal Religious Freedom Restoration Act, as well as the First Amendment.  Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith.  (One interesting feature of PRFPA is that it requires “clear and convincing evidence” as its standard for the “substantial burden” component).

The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue).  It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to “provide sustenance to the poor and needy” (and, added the Court, “Plaintiffs are not unique in this respect.  Acts of charity are central to Christian worship”); (2) the ordinance constitutes a “substantial burden” on the free exercise of plaintiffs’ religion; (3) the dignitarian “compelling interest” offered by the City was “difficult to comprehend”: “I am at a loss to understand how taking choice away from the homeless advances their dignity”; (4) even if reducing litter and other waste is a “compelling interest” (about which the Court expressed some skepticism), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).

One noteworthy item, which may have various broader applications.  In response to the City’s claim that it did not burden the plaintiffs’ free exercise because it did not impose “restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park],” the Court said:

What defendants fail to appreciate is that to plaintiffs, sharing food with the poor is as much a form of religious worship as is prayer, preaching, or reading the Bible . . . . But defendants’ argument is not persuasive for an additional and more fundamental reason. Essentially, defendants have assumed the authority to ascribe [to] some of plaintiffs’ religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities. Defendants compound this error by offering to grant Rev. Little a limited exception for the food and drink she uses during her Communion service, which they characterize as a “core component of a religious service,” but not for the food Rev. Little shares with the homeless after the service despite the fact that Rev. Little considers this food an ongoing representation of the Communion observed during the service . . . . It is no more appropriate for defendants to “presume to determine the place of a particular belief in a religion” than it would be for me to do so.
 
The case is Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Pa. Aug. 9, 2012). 
 

Memo to the Times Editorial Board: Read the Case

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

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

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

Corporate Exercise of Religion and Other Thoughts on the RFRA Claim in the Mandate Litigation

There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius.  True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time).  Here are two questions that interested me.

First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all.  He seemed to assume the substantial burden — or perhaps to hold the “difficult questions” about substantial burden in abeyance.  One of those difficult questions, he said, was: “Can a corporation exercise religion?”  Three reactions:

  1. The answer to this question, posed in this way, must be yes.  The Catholic Church is a non-profit corporation, and it certainly can exercise religion — the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not.  Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right. 
  2. Though the doctrine is controversial, we do say that corporations have rights of free speech.  See Citizens United.  If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause?  And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
  3. Still, there is an interesting issue about who is exercising religion when what we’ve got is a publicly traded corporation.  Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on.  What does it mean to say in that circumstance that the corporation is exercising religion?

Second, I was surprised at the court’s skepticism with respect to the question of compelling interest. 

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Plaintiffs Obtain Preliminary Injunction in HHS Mandate Suit

The U.S. District Court for the District of Colorado has issued a preliminary injunction against the federal government in a lawsuit brought by a private corporation, Hercules Industries, Inc., and its owners and several individual plaintiffs, alleging that the HHS Mandate violates their religious liberty.  These plaintiffs, unlike many of the plaintiffs in the other suits, were never within the safe harbor and do not qualify for the “religious employer” exemption of the HHS regulations.  Rather, Hercules is a for-profit, secular employer whose owners are individuals with objections of religious conscience — they are Catholics.  And Hercules is self-insured. 

Of the four elements for obtaining a preliminary injunction, the most interesting is the likelihood of success on the merits.  The court declined to address the plaintiffs’ constitutional claims (free exercise, establishment, and speech clauses) and instead resolved the case on the basis of the statutory claim under the Religious Freedom Restoration Act.  Although it was comparatively non-committal on the question of substantial burden (holding that the question of whether a corporation could “exercise religion” “merit[s] more deliberate investigation”), it was clear that the government would likely fail on both the issues of furthering a compelling interest and least restrictive means.  Here’s the Court on compelling interest:

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Walsh on Strossen on RFRA and Compelled Provision of Contraceptive Services

Over at our friend and former guest Kevin Walsh’s blog, one can see an absolutely extraordinary quote from ACLU president Nadine Strossen in the 1992 legislative history of the Religious Freedom Restoration Act, condemning Employment Division v. Smith for, in part, leading to a situation in which religious hospitals would be compelled “to provide abortion and contraceptive services.”

Take a look.