Tag Archives: RFRA

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

Reflections on the Hobby Lobby Oral Argument: On the Establishment Clause Claim

It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 (“Now what–what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”).

On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:

Justice Alito: Well is it your argument that providing the accommodation that’s requested here would violate the Establishment Clause

General Verrilli: It’s not our argument that it would violate the Establishment Clause. But it is our argument that you–in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.

43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That’s the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: “[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties.” 44

Of course, that the government disavows a claim does not mean that the Court can’t go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he “would suggest that we think about the position and the rights of the–of the employees[.]” Justice Kennedy then remarked that “the employees are in a position where the government, through its healthcare plans is…allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious–religious beliefs of the employer. Does the religious beliefs just trump?” 33

After a response from Mr. Clement, here’s what Justice Ginsburg said:

But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn’t override other significant interests. And that was true of Sherbert and that was true of Yoder. The–and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.

34. Later in the discussion, Justice Kagan referred specifically to the “tangible harm[]” that women will suffer who don’t get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.

Why Not Repeal RFRA?

The media coverage of the now-vetoed Arizona bill amending the existing Arizona RFRA has been abominable. The claim that the bill would have permitted private businesses to refuse to serve gay people is simply untrue; the bill did not say that. The bill was short–just two pages long. Anybody could have read it quickly to see what it provided: expansion of state RFRA coverage for businesses and an amendment that private actions are now covered (as in, what the government cannot do directly, it cannot do indirectly by giving private parties a cause of action). The bill would have done nothing to change the basic burden-shifting framework of the Arizona RFRA–the same framework used by the federal RFRA–in which a judge is charged to determine whether there is a substantial burden counterbalanced by a compelling government interest achieved by the least restrictive means.

Perhaps that is the point, though. Anger against this bill is entirely misdirected. If one truly believes that laws which provide for the possibility of religious exemptions against generally applicable laws are anathema, the obvious course is to repeal the state and federal RFRAs themselves. Several prominent law and religion scholars have been advocating vigorously for just that result for some time. It appears that public sentiment is turning in their direction.

Reinsch on RFRA and the Establishment Clause

Richard Reinsch has a post at the Liberty Fund’s Liberty Law blog discussing the claim (made here by a number of church-state scholars) that RFRA exemptions that impose significant burdens on an identifiable class of third parties violate the Establishment Clause. Richard agrees with me that the argument is not persuasive. A bit from his post involving the baseline from which one argues about what constitutes an entitlement, and therefore an establishment:

So if a religious liberty exemption requires cost-shifting in the manner of employees having to purchase—let’s be clear for Hobby Lobby and Conestoga Wood, the objection is to emergency contraceptives like Plan B, Ella, and also IUDs, and not the pill—their own emergency contraceptives, then we have an impermissible establishment of religion. As Eugene Volokh has argued, were the exemption to be granted the employees of Hobby Lobby or Conestoga Wood would return to the status quo before the mandate came down and one that many employees of companies exempt from Obamacare for various reasons will stay in. That is, if they want emergency contraceptives, well, then, they’ll pay for them with their salaries.

If you read only one amicus brief in the Hobby Lobby case…

Read this brief authored by Douglas Laycock on behalf of the Christian Legal Society and several other groups. Professor Laycock was right in the center of the legislative debates over the meaning of RFRA in the 1990s. In exploring the meaning of RFRA and its application, the brief describes those debates in very helpful detail, and it also discusses the legislative history of the Religious Liberty Protection Act, a statute that was in the offing (but ultimately was never passed, though portions of it made their way into the Religious Land Use and Institutionalized Persons Act, and portions were used to strengthen RFRA) after the Supreme Court struck down RFRA as applied against the states as in excess of Congress’s enforcement powers under section 5 of the 14th Amendment. Laycock demonstrates that Congress clearly intended RFRA (as well as RLPA) to apply to for-profit corporations, and reflected that intention in the words of the statute. There were many special interests that desired exemptions from RFRA. Those exemptions were rejected.

The Hobby Lobby and Conestoga Wood cases are, at bottom and after the swirling political fog is blown away, about the meaning of a statute. Professor Laycock’s brief is an important contribution in ascertaining that meaning. Here is the summary of the argument:

The Religious Freedom Restoration Act provides universal coverage. It applies to “all” federal law and to “all” cases where the free exercise of religion is substantially burdened.

The legislative history confirms the universality of the statutory text. The sponsors resisted all efforts to add exceptions to coverage. A definition in an early version of the bill, limiting coverage to “natural persons” and religious organizations, was eliminated in all later drafts.

After this Court invalidated RFRA as applied to the states, Congress sought to re-enact RFRA’s standard, in substantively identical language, for application to cases that could be reached under the Commerce and Spending Clauses. The debates on this bill, the Religious Liberty Protection Act (RLPA), reveal the public meaning of the nearly identical language in RFRA. The RLPA debate is highly probative because it was a serious fight on a live issue. It was not in any sense an attempt to make post enactment legislative history about RFRA, but it clearly demonstrates the public meaning of RFRA’s language.

Continue reading

Constitutional Scholars’ Brief in Hobby Lobby

I was pleased to join this amicus brief filed by several constitutional law scholars in the Hobby Lobby/Conestoga Wood litigation (thanks to Nathan Chapman for taking up the pen). The brief argues against the view that the Establishment Clause prohibits an accommodation of the religious claimants. My own views on the matter, reflected in various portions of the brief, are also contained here and here. A post by Kevin Walsh raising an important problem is here. Opposing views may be found here, here, and here. Here is the Introduction and the Summary of the Argument of the amicus brief:

This brief argues that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (RFRA), properly applied, complies with the Establishment Clause. The brief responds to the recent proposal by several scholars that the Establishment Clause prohibits the government from accommodating “substantial burdens” on religious exercise, as RFRA does, when the accommodation imposes “significant burdens on third parties who do not believe or participate in the accommodated practice.”2 This brief does not address the issues directly before the Court, i.e., whether RFRA protects for-profit corporations like Hobby Lobby and Conestoga Woods, and whether either of those parties has a valid RFRA claim.3

The scholars’ proposed doctrine is contradicted by precedent, would needlessly require courts to analyze three speculative Religion Clause questions in most religious accommodation cases, and would threaten thousands of statutes that protect religious minorities.

First, precedent strongly supports the constitutionality of statutory religious accommodations, like RFRA, that allow courts to weigh the government’s “compelling” interests against claimant’s interests in religious exercise.

Continue reading

American Freedom and Catholic Power

It was only a matter of time before this sort of thing was bound to appear, though perhaps it is somewhat disappointing to see it in the pages of US News and World Report. The specific claim seems to be that by granting an emergency stay in the Little Sisters of the Poor case, Justice Sotomayor is waging a “war on women” because she is imposing her Catholic views on the rest of the nation in violation of the law. But that claim is buried within lots of other mud, and I’m afraid I can’t do justice to it without letting much of the rest hatch out:

The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year’s Eve in Times Square. Or maybe she’s just a good Catholic girl.

The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let’s be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing….

Sotomayor’s blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if “you” are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor’s stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.

Catholics in high places of power have the most trouble, I’ve noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can’t know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women’s rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.

Now, as it happens, I am Catholic. And, as it also happens, on the legal merits, I am persuaded that the statutory argument in favor of the Little Sisters of the Poor as to the issue of accommodation of non-exempted nonprofits is strong–stronger than the arguments the government advances. I also believe that a strong free exercise clause claim can be made in light of the individualized exemptions that have been meted out, though to date this argument is generally not being made. These are all legal claims, and so to the extent that any judge agrees with these claims, it would seem to me that they are putting the law first in ruling as they do. Others disagree with my legal views, and they, too, are putting the law first. They are acting and speaking appropriately about their views of the law–in good faith and by their best lights. I think it is a terrible error to believe that anytime a person disagrees with one’s legal views, the reason must be that they are acting in bad faith.

I will say that outside of the legal fight, and as to larger political questions, I do not see why exempting the members of “a nunnery” (as the author so tenderly puts it) from the compulsion to be provided with free access to contraception would constitute a Catholic war on women. I am informed that the members of the Little Sisters of the Poor are women. They seem not to want these products. I don’t believe anybody is waging a war on anybody else; it degrades the horror of war to speak in these terms. And yet, if anyone is conducting a hostile campaign against women, it is those seeking to compel these women to do what they don’t want to do.

Furthermore, if the author were even marginally more serious about providing evidence for her claims, she might have investigated how many of the other judges who have granted injunctions in these cases–18 other such courts, by my current count, and more judges than that–are Catholic. If they are all Catholic, is it also her view that they are all imposing Catholicism on the nation in violation of the law? If they are not all Catholic, what explains their legal findings? Are they all imposing their non-Catholic religious views notwithstanding the law? What if some of the judges who granted injunctions have no religious affiliation? Are they also imposing their non-religious views in finding for the Little Sisters? Or is it only when a judge is Catholic that it can be assumed that she is imposing her views? And what about the judges who denied injunctions? Are any of them Catholic? If they are not, are they imposing their views on the rest of us too? If they are Catholic, I suppose one could claim that they are the good sort of Catholic—Catholics like Nancy Pelosi, as the author puts it–judges who don’t impose their views at all. Still, it would be useful to have this information in order to assess the cogency of the claims.

I recognize that for people who write columns like this one, arguments of this sort are not likely to be persuasive. Indeed, once Ms. Stiehm identifies the source (me), she will surely dismiss out of hand anything that follows without bothering to read it. That is regrettable, but it follows directly from the reality that Ms. Stiehm is not really interested in law or argument at all. She’s interested in rhetoric; unfortunately the rhetoric that interests her is sloppy and misinformed.

Here is a different uncomfortable reality that columns like this should compel us to face. The long history of American hatred of Catholics is alive, and well, and flourishing. It is kept in fine and proud form by people like this, and given space to breathe in all kinds of prominent venues. It will intensify in the months and years ahead. Dark times are coming.

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)

What is the “Church Plan” Issue?: An Explanation from Matt Bowman

In response to my post on the Eastern District of New York’s decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the “church plan” issue, I’d welcome it, as it has been insufficiently considered.

As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection.  It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”….This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage….Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.

In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.

The impact of this revelation was on grand display in the EDNY case.

Continue reading

EDNY: Contraception Mandate Violates RFRA

The United States District Court for the Eastern District of New York has issued a decision holding that the HHS contraception mandate violates the Religious Freedom Restoration Act (see here for a previous post on this case). Certain plaintiffs in the case are Catholic non-profit organizations that qualify for the “accommodation” offered by government. Other plaintiffs are Diocesan–the lead plaintiff is the Roman Catholic Archdiocese of New York–and qualify for the exemption. All plaintiffs are self-insured. The exempted plaintiffs’ claims were dismissed.

The remainder of this post will focus on the non-exempted but “accommodated” plaintiffs (for more on exactly who falls into this group, see Points 2B and 3 in this post), whose claims succeeded. The government’s “accommodation” is to allow non-exempted non-profits to fill out a self-certification indicating that they have religious objections to providing the objected-to products to their employees. In the case of self-insured, non-exempted non-profits (such as these plaintiffs) the government demands that such organizations notify a third-party administrator (TPA) of their self-certification, at which time this TPA assumes the obligation of providing the objected-to products to the employees (there is an important wrinkle here that I will note at the end of this post).

In granting the plaintiffs’ motion for summary judgment, the court first held that plaintiffs satisfied the substantial burden prong of the RFRA test. In so holding, it applied a “substantial pressure” standard to evaluate whether plaintiffs suffered a “substantial burden”: “Rather than whether the pressure is indirect or direct, it seems that the more important distinction for the case at bar is between government action that pressures an individual to act inconsistently with his beliefs, and government action that discourages a plaintiff from acting consistently with those beliefs.” The court held that the self-certification requirement imposed by the “accommodation” on non-exempted non-profits was a substantial burden and rejected the government’s proposed test that a court should evaluate whether the burden was “de minimis” or should evaluate whether the self-certification is “too attenuated” to constitute a substantial burden.

The court also found that the government had not provided a compelling interest in mandating contraception coverage in the fashion it has selected. The government offered “the promotion of public health, and ensuring that women have equal access to health-care services” as its compelling interests. Though the court accepted these interests as important in the abstract, it rejected the government’s claim that granting exemptions to these plaintiffs would undermine the government’s ability to administer its regulation so as to achieve its aims uniformly.

Critically, it distinguished United States v. Lee–a case rejecting an Amish plaintiff’s request for exemption from paying taxes into Social Security–on the ground that the whole contraceptive mandate system would not collapse if exemptions were granted in these cases and the government’s application of the mandate is not uniform. Lee is a case on which proponents of the mandate have been placing great emphasis, but the death spiral dynamics at issue in Lee do not seem present here, in large part because of the government’s own exemptions. Here is the key language from the decision:

Continue reading