Tag Archives: RFRA

The Best Legal Argument For Protection of For-Profits Under RFRA

Posted on February 27, 2013 by | Leave a comment

Several people have asked me about the issue of the protection of for-profit corporations in the ongoing HHS contraceptives mandate controversy.  Generally, skeptics of such protection are apt to jump immediately to policy arguments — for example, “doesn’t giving religious liberty protection to for-profits threaten the rule of law?”

Set those policy arguments, which are certainly worth taking seriously, aside for the moment.  Instead, focus strictly on the legal arguments under the Religious Freedom Restoration Act.  The very best legal argument that I have seen so far that RFRA does, indeed, protect for-profit corporations is set out in this amicus brief filed on behalf of several US Senators in the Hobby Lobby litigation, authored in part by Kevin Walsh (Richmond), and which I was fortunate to have an early look at.  Whatever policy concerns one might have, it seems to me that the Administration’s categorical exclusion of for-profits in its current proposed rule, and its reliance on certain definitions in Title VII of the Civil Rights Act, just is not going to fly in the RFRA context.

Here is one important part of the brief (at 17-18):

In formulating RFRA, Congress heard testimony about the need for greater protection for the free exercise of religion by organizations as well as individuals . . . .  And Congress did not limit RFRA’s protections to individuals. Rather, Congress provided that “[g]overnment shall not substantially burden a person’s exercise of religion,” 42 U.S.C. § 2000bb-1(a), employing a term that ordinarily encompasses “corporations, companies, associations, firms,  partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1.

Rather than reach the obviously incorrect conclusion that RFRA does not extend to corporations at all, the district court created an exception from RFRA’s coverage for “secular, for-profit corporations,” incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1288, 1291-92 (W.D. Okla. 2012). The district court reasoned that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.” Id. at 1291. But the same can be said of corporations that unquestionably are “persons” under RFRA, such as hospitals, universities, and religious orders.

In attempting to justify their failure to respect religious objections to the HHS mandate asserted by for-profit corporations, Defendants have observed that Congress has sometimes distinguished between nonprofit religious organizations and for-profit secular organizations. 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (discussing Title VII of the Civil Rights Act of 1964). This demonstrates that Congress can distinguish between for-profit and nonprofit employers when it wishes to do so. But Congress made no such distinction in RFRA, which applies broadly and generally, subject only to displacement by later enactments that relax its reach in specific areas. Congress plainly wrote RFRA to include corporations, and neither RFRA nor the PPACA excludes for-profit corporations.

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Posted in Commentary, Marc O. DeGirolami

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On Corporations, Their Purposes, and Their “Exercise of Religion” Under RFRA

Posted on February 9, 2013 by | 1 Comment

Kevin Walsh (Richmond) has a superb post about the question whether for-profit corporations are “persons” who “exercise religion” pursuant to RFRA.  He makes his claims in the context of criticizing a recent panel decision of the Third Circuit.  You should read the whole thing, but here is a selection:

RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion” unless the government satisfies strict scrutiny. 42 U.S.C. § 2000bb-1(a) (emphasis added). In the U.S. Code, “person” ordinarily encompasses “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U.S.C. § 1. Nothing in RFRA excludes corporations generally. To the contrary, it is plain that corporations can assert claims under RFRA. The only Supreme Court case applying RFRA against the federal government involved a claim asserted by a corporation, O Centro Espírita Beneficente União do Vegetal . . . .

When one analyzes the claim, it turns out that the argument is not really about the meaning of the word “person” (even though the conclusion of the argument purports to be a claim about the meaning of this word). Rather, the argument pivots on “exercise of religion.” In the words of the district court opinion adopted by the Third Circuit, “a for-profit, secular corporation cannot exercise religion.”

Again, the claim is not that corporations cannot engage in exercise of religion. After all, corporations can, and do, exercise religion. Consider, for example,Church of Lukumi Babalu Aye, Inc. or Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. The claim, rather, is limited to “secular, for-profit corporations.” But the claim rests on a mistake about “exercise of religion” under federal law and a mistake about corporate action.

For Kevin’s arguments about the meaning of “exercise of religion” under RFRA and about the purposes of corporate action, read the post.  I will add that on the former point, it is unquestionably the case that as a historical matter, refusals to behave in a certain way may be “exercises of religion”: two of the earliest religious exemption questions — the Quakers’ resistance to military conscription and the opposition in some religious communities to swearing oaths — take just this form.

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Posted in Commentary, Marc O. DeGirolami

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New York Times Story on the HHS Mandate Suits

Posted on January 27, 2013 by | Leave a comment

Here’s a story published yesterday in the Times on the HHS Mandate law suits.  The story has several problems, among which are:

(1) It gives the impression that courts are, at this point, either dismissing these cases because they believe that “contraception is a vital health need and a compelling interest” or finding for the plaintiffs because “they [the plaintiffs] have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged.”  The reality is that the large majority of these  suits have been dismissed without prejudice on standing or ripeness grounds, as we have noted again and again here at CLR Forum.  Standing does not appear at all in the story.

(2) Its focus on the Free Exercise Clause is odd.  It mentions the Religious Freedom Restoration Act, but it focuses on the Free Exercise Clause and it mistakenly calls the O Centro case a free exercise case.  It was a RFRA case.  Here is some important language in that case:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.”

The discussion of the Smith decision in the news story also gives the misimpression that Smith is an iron clad rule with no exceptions, but that is not true, as I have noted before.

(3) The story references the possibility that “[a] compromise for religious institutions may be worked out” and then proceeds to talk about the previously announced putative plan to shift the cost of contraception to insurers.  Standing alone — i.e., without an expansion of the category of religious employers and without dealing with the issue of self-insured plaintiffs — that compromise will work very little out for religious institutions.  But I guess we’ll see by roughly the end of the first quarter.

That said, the reporter is to be commended for getting a variety of perspectives on the issue.

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Posted in Commentary, Marc O. DeGirolami

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Carpenter on Limiting and Empowering American Indian Religious Freedoms

Posted on January 21, 2013 by | Leave a comment

Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.

Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

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Posted in Andrew R. Hamilton, Scholarship Roundup

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Missouri Federal District Court Enjoins HHS Mandate

Posted on December 22, 2012 by | Leave a comment

The momentum in the HHS mandate cases seems to be moving against the federal government.  The more time that goes by, the weaker the standing and ripeness objections become, and the more likely that courts will begin to turn their attention to the merits.  The legal argument for the mandate seems to be flagging even in those cases where it seemed (at least to me) that the government’s case was comparatively stronger.

On Thursday, the United States District Court for the Western District of Missouri issued a preliminary injunction against the government from enforcing the mandate against a private company, American Pulverizer Co., whose owners are Evangelical Christians who believe that the use of contraception is contrary to their religious beliefs.  Plaintiffs’ companies employ about 150 people, and the current plans cover contraceptive services (perhaps a notable feature of the plans, in my opinion, insofar as the “substantial burden” prong of the RFRA standard is concerned, though the court did not discuss it in reaching its decision).  But plaintiffs wish to change the plans to exclude contraceptive coverage.

As in the O’Brien case referenced by the court (and in which the Eighth Circuit essentially granted the claimant’s motion for preliminary injunction pending appeal), the plaintiffs do not qualify for any exemption or safe harbor from enforcement — they are not religious employers under the terms of the ACA, the don’t qualify for the safe harbor available to non-profits, and they don’t qualify for grandfathered status.  That means the regulation would be enforced against them at the beginning of the new year.

In granting the preliminary injunction against the government, the court essentially punted on the question of whether a corporation can exercise religion, ruling that because the issue demands further “deliberate investigation,” an injunction was warranted.  And it further held that indirect impositions on religious beliefs can constitute substantial burdens.  Finally, the court held that the government could not satisfy its burden to demonstrate that it is advancing a compelling state interest in imposing the mandate, in light of the numerous exceptions contained in the law: “these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs.”

The case is American Pulverizer Co. et al. v. U.S. Department of Health and Human Services, No. 12-3459-CV-S-RED (W.D. Mo. Dec. 20, 2012).

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Posted in Commentary, Marc O. DeGirolami

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An Important HHS Mandate Decision: Standing & Ripeness Satisfied

Posted on December 5, 2012 by | Leave a comment

The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI).  The case is important on the issues of standing and ripeness.  The plaintiffs operate self-insured health plans which they believe do not qualify for grandfathered status, though they all do qualify for the safe harbor (meaning that no enforcement would occur against them until January 1, 2014).  The decision is complicated and has several moving parts.  Here’s the scoop, after the jump.

Continue reading →

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Posted in Commentary, Marc O. DeGirolami

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District Court Rules Against For-Profit Plaintiff in Contraception Mandate Litigation

Posted on November 21, 2012 by | Leave a comment

The United States District Court for the Western District of Oklahoma has denied a preliminary injunction to a for-profit company which had sued the Department of Health and Human Services on the grounds that the contraception mandate violated its religious liberty.  Hobby Lobby Stores, Inc. is a closely held corporation whose business is arts and crafts — operating over 500 stores in 41 states and with over 13,000 employees.  The company, the court says, is “secular,” but also operated by the owners “according to their Christian faith.”  This is confusing.

At any rate, the court denied the PI both as to the Free Exercise Clause claim and the RFRA claim.  On the particular issue of whether a corporation can exercise religion (see CLR Forum posts here (Professor Colombo’s paper) and here), the court had this to say:

General business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters referenced in [Nat'l Bank of Boston v.] Bellotti  which is not the province of a general business corporation.  (18)

This is a bizarre and unnecessarily maximalist statement.  It is not needed to reach the result in the case.  It also seems untrue: it is perfectly natural to say that a corporate body can exercise religion.  I take it that at least one of the reasons that even the government itself carved out an exception in the mandate for houses of worship was that it recognized that corporate bodies can and do exercise religious freedom.  To the extent that the court is drawing a line between for-profit and not for-profit “businesses,” one might have wished for a bit more discussion about what it is exactly about the for-profit context that makes it conceptually impossible for such businesses to exercise religion.  The interesting question, I had thought, about the issue of for-profit corporations was not whether it is impossible conceptually for corporations to exercise religion full stop.  Surely it is.  The interesting question is also clearly not whether religious exercise is “a purely personal matter”; it isn’t, and in any case, one wonders why the court is qualified to opine on that sort of issue.  The interesting question, I thought, has to do with how we can know, when a corporation is very large and diffuse, or is owned by many people with different religious beliefs, what the corporation’s religious beliefs are.

The case is Hobby Lobby Stores, Inc. v. Sebelius.  Lawyers for the plaintiff have said that they will appeal.

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Posted in Commentary, Marc O. DeGirolami

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Federal District Court in DC Grants Preliminary Injunction Against Enforcement of Contraception Mandate

Posted on November 19, 2012 by | Leave a comment

Another victory for plaintiffs challenging the ACA’s Contraception Mandate: on Friday, a federal district court in Washington, D.C., granted a preliminary injunction to Tyndale House, a publishing company that had challenged the mandate under RFRA.

The court ruled that Tyndale House, a small, closely-held firm with a pervasively Christian corporate culture, had standing to bring a RFRA claim on two alternative theories, either as the alter-ego of its owners or as a third-party representative of the primary owner, the Tyndale Foundation. On the merits, Tyndale House had shown its RFRA claim was very likely to succeed. The mandate substantially burdened the firm’s exercise of religion by forcing it to cover contraceptives that violated its religious beliefs or face “enormous” financial penalties. The government, for its part, had failed to show a compelling interest to justify this burden. Although public health and women’s equal access to healthcare were both, broadly speaking, compelling interests, the government had not shown why those interests required this plaintiff to cover the contraceptives in question. The  court stressed that Tyndale House had objected only to certain contraceptives, not all, and that the government had already exempted many other firms from the mandate.The court briefly discussed the “irreparable harm,” “balance of the equities,” and “public interest” tests, and ruled in favor of Tyndale House on each.

So far, there have been four district court decisions on the legality of the mandate as it applies to for-profit companies: three have granted plaintiffs preliminary injunctions, one has not. Friday’s case is Tyndale House Publishers v. Sebelius (D.D.C., Nov. 16, 2012).

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Posted in Commentary, Mark L. Movsesian

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The Catholic Vote and the Contraception Mandate

Posted on November 8, 2012 by | 3 Comments

Here’s an interesting piece of data from Tuesday’s exit polls: President Obama won the Catholic vote. The margin was narrow — 50%-48%, which more or less mirrors the President’s popular-vote victory — but, still, he won. Now, you might say, this isn’t surprising. Catholics have traditionally leaned Democratic, and President Obama’s campaign stressed social justice concerns that resonate with Catholic teaching. One should remember, though, that the Obama Administration imposed the contraception mandate, and that Catholic bishops made the mandate a salient issue. Requiring Catholic institutions to provide contraceptives and abortifacients to employees, the bishops said, seriously threatens Catholics’ religious freedom. Apparently, the majority of Catholic voters disagreed. Or thought that the threat to religious freedom, if it existed, was not as important as other issues, like increasing taxes on wealthy Americans and leaving entitlement programs untouched. Perhaps Latino Catholics voted “ethnicity” rather than “religion.” Who knows? The point is, the majority of Catholic voters apparently did not accept the bishops’ understanding of the importance of the issue.

Leaving aside whether voters who disregard their bishops’ views on the contraception mandate are erring as Catholics – a question on which I’m not qualified to state an opinion – I wonder what implications this vote has for the future of the mandate. Legally, the lawsuits under RFRA will go forward, and I think they have a fair shot at success. But the atmosphere may have changed. It won’t show up expressly in judicial opinions, of course, but I wonder whether judges who support the mandate won’t feel more emboldened to find that the mandate doesn’t “substantially burden” Catholic institutions.  And I wonder whether the Obama Administration won’t feel more comfortable taking a hard line on whatever “accommodation” they are preparing for the final regulations, due before August 2013. The courts may or may not follow the election returns, but politicians surely do.

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Posted in Commentary, Mark L. Movsesian

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District Court Grants Preliminary Injunction in Contraception Mandate Challenge

Posted on November 3, 2012 by | Leave a comment

Another victory (though perhaps only temporary) for plaintiffs challenging the Affordable Care Act’s contraception mandate under RFRA. A federal district court in Michigan has granted a preliminary injunction barring enforcement of the mandate against a for-profit corporation whose owners object to complying with the mandate because of their Catholic beliefs. According to Judge Robert Cleland, neither the corporation nor the government had made a strong showing of success on the merits: the mandate might be the least restrictive means of achieving a compelling state interest, but the question was close. Given the religious freedom concerns here, however, the balance tipped in favor of granting the preliminary injunction, in order to avoid irreparable harm to plaintiffs while the case continued. The court dismissed a challenge to the mandate brought by a non-profit Catholic organization on the ground that the organization fit within a temporary regulatory safe-harbor and had not yet suffered a cognizable injury. The case is Legatus v. Sebelius, 2012 WL 5359630 (E.D. Michigan, Oct. 31, 2012).

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Posted in Commentary, Mark L. Movsesian

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