Posts Tagged ‘contraceptives mandate’

Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters’ charism is one of hospitality, in which the Sisters strive to “be little in order to be close to the most humble, and [to] be close to make them happy.”

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph’s Home in Richmond (including two Sisters from St. Martin’s Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes’ residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph’s Home’s chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as “religious employers.” But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.

(cross-posted at Mirror of Justice)

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USA Today ran an editorial today arguing that businesses should not be able to rely on religious freedom in refusing to provide no-copay coverage for all FDA-approved contraceptive drugs and devices.  The newspaper also ran Mark Rienzi’s better op-ed for the opposite position. (HT: Mirror of Justice)

Both op-eds are written in plain English and make their points effectively. But USA Today’s house editorial is marred by a misunderstanding of existing religious liberty law. In particular, the editorial is written as if RFRA does not already exist. Instead of arguing that RFRA does not protect business corporations, as some have tried to do, the editorial simply misdescribes the state of the law. It argues that “the issue is one of balance” without describing the law that describes how that balance is to be struck. Indeed, the editorial describes “granting religious exemptions to private organizations” as “troubling” and “open to abuse,” seemingly unaware that RFRA exists and does precisely this. Although the Obama Administration has tried to carve out the category of for-profit, secular corporations from RFRA’s reach, everyone agrees that RFRA provides some “religious exemptions to private organizations.”

The editorial also is mistaken about Supreme Court precedent. Consider the following paragraph:

Over the years, plaintiffs have demanded religious exemptions from laws on racial equality, the military draft, paying taxes, child neglect, drug use, animal cruelty and more. The Supreme Court has repeatedly said no, drawing a line between laws that explicitly target or place a substantial burden on a religion and those that impose broad, secular requirements on society that people might find religiously objectionable.

This paragraph implies that the Supreme Court has said “no” to religious exemptions from laws on drug use and animal cruelty. But that is not true. In Gonzales v. O Centro Espirita Beneficente UDV, 546 U.S. 418 (2006), the Supreme Court held that RFRA provided an exemption for “drug use” in a religious ritual. (The lead party that brought the claim in this case, by the way, was a New Mexico corporation.) And in Church of the Lukumi Babalu, Aye, Inc. v. Hialeah, 508 U.S. 520 (1993), the Court held that the Free Exercise Clause protected ritual animal sacrifice by adherents of the Santeria religion; this ruling prohibited enforcement of a city ordinance justified in part by concerns about animal cruelty.

A bigger problem with USA Today’s statement of the law, however, is that it conflates laws that explicitly target religion and laws that place a substantial burden on religion, and then contrasts those two kinds of laws with laws that “impose broad, secular requirements on society that people might find religious objectionable.” The problem with this framing is that some laws that impose broad, secular requirements on society also place a substantial burden on religion. And that is why Congress passed RFRA. Unlike the Free Exercise Clause, which the Supreme Court has held to provide no protection against neutral and generally applicable laws, RFRA protects against such laws whenever they impose a substantial burden on religion. RFRA’s protections are triggered by the imposition of the burden, not the nature of the law imposing that burden. RFRA claims do not always win, of course. But RFRA places the burden on the government to satisfy strict scrutiny when a federal law imposes a substantial burden on the exercise of religion. If the Obama Administration has to satisfy strict scrutiny for its contraceptives mandate, it will lose.

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A recent post at Mirror of Justice brought me to Perry Dane’s insightful seven-page essay, Doctrine and Deep Structure in the Contraception Mandate Debate, which is well worth reading. So too is Douglas Laycock’s recently posted article, Religious Liberty and the Culture Wars

Dane’s and Laycock’s reflections align in a way with aspects of Joel Friedlander’s incisive 1992 Comment, Constitution and Kulturkampf: A Reading of the Shadow Theology of Justice Brennan, 140 U. Penn. L. Rev. 1049 (1992). In this Comment (written as a student but of a quality that far surpasses most faculty-produced scholarship), Friedlander seeks to explain Justice Brennan’s jurisprudence as it developed over the course of his judicial career. His thesis is that “a kulturkampf, warring cultures and warring theories of culture, best explains the shift in Justice Brennan’s decisions and his place in the continuing war over the meaning of the Constitution.”

Friedlander analyzes Brennan’s jurisprudence through analytical frameworks supplied by social theorists Otto Gierke, Ernst Troeltsch, and Philip Rieff. His description of Rieff’s thought suggests the ongoing relevance of Rieffian analysis, and Friedlander’s Rieffian analysis of Justice Brennan’s obscenity decisions points toward a different kind of “culturally conservative” jurisprudence:

Rieff, a contemporary of Justice Brennan, is a sociologist of culture and cultural change. In Rieffian theory, modernity denies and negates the sacred order that all cultures, Catholic and otherwise, address. Included in his theory of cultural warfare, or kulkturkampf, are theories of legal personality and the relative authority of religious and racial motifs. * * *

To Rieff, the first sociological fact worth knowing about cultures is that their continued life depends upon them disarming their competitors. Only as a last resort is military force utilized; the first weapon is words. Of concern in this Comment is the ultimate weapon of the law, which implies both command and compulsion. * * *

* * *

The dimensions of this cultural warfare are not contained by, and may dwarf, the longstanding jurisprudential debates between originalism and non-originalism or between natural law and positivism. At stake in this culture struggle is the survival or abandonment of the moral authority in the Constitution that is derived from Judaism, Christianity, or any other religion. Though there are those who fear the implementation of a “new right” jurisprudence, the cultural conservatives on the opposing side are largely constrained by their positivism, if not by their originalism. To avoid these artificial constraints, this Comment concludes, a culturally conservative jurisprudence should look to Justice Brennan’s theories and their expressing in the reasoning of Roth.

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I suspect that the government lawyers who successfully defended the HHS contraceptives mandate against RFRA and Free Exercise claims in Conestoga Wood Specialties Corp. v. HHS really would have preferred to win on different grounds. That is because the basis for the Third Circuit’s decision is legally insubstantial. On an issue that will be decided by the Supreme Court, it would be better for the government to have won on a more defensible basis than the conclusion that a “for-profit, secular corporation” cannot “exercise religion.”

The dissenting opinion by Judge Jordan convincingly demonstrates that the majority’s ultimate conclusion is wrong and that its supporting reasoning is defective. Will Baude at Volokh Conspiracy and Marc DeGirolami at Mirror of Justice have also raised questions about the panel majority’s analysis. Over the next couple of weeks, I aim to provide additional critical commentary that elaborates on criticisms previously raised and offers new angles of analysis and criticism. While some of these criticisms will be based on arguments advanced in the amicus brief that I co-authored in Conestoga, I aim to expand beyond the targeted set of arguments advanced there.

For now, I will begin with Marc DeGirolami’s argument about the short shrift given RFRA in the panel majority’s analysis. The majority opinion states: “Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim.” DeGirolami argues that the court should not have simply assumed “that a term as used in the Constitution must mean exactly the same thing as a term used in a statute.”

DeGirolami is right that there cannot be a one-to-one relationship between RFRA and the Free Exercise Clause as interpreted by the Supreme Court. The purpose of RFRA was to replace the legal standard for evaluating Free Exercise claims adopted in Employment Division v. Smith, 494 U.S. 872 (1990). But given the stated intention of RFRA, there should be a close correspondence between the pre-Smith reach of the Free Exercise Clause and the reach of RFRA. One of the purposes declared in the legislation is “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1).

If the panel majority’s analysis had started with RFRA instead of the Free Exercise Clause, it is less likely that its analysis would have led to the wrong conclusion. To begin with, there is more textual guidance in the U.S. Code. As DeGirolami points out, Congress has declared that the protected “exercise of religion” “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” That language suggests an expansive understanding of “exercise of religion,” and it invites further inquiry into how “exercise of religion” should be understood.

As I have previously argued in connection with the Third Circuit’s earlier mistaken decision on the contraceptives mandate, “a religiously based refusal to do something otherwise required by law is an ‘exercise of religion.'” Consider the facts of Sherbert v. Verner, 374 U.S. 398 (1963), one of the two cases singled out in RFRA. The exercise of religion in that case was Adele Sherbert’s religion-based refusal to work on Saturday. See id. at 403 (describing the relevant conduct as “appellant’s conscientious objection to Saturday work”).

A corporation can engage in this kind of “exercise of religion” if a corporation can refuse, for religious reasons, to do something otherwise required by law. And it plainly can. Suppose a federal law requiring fast-food restaurants located near interstate highways to be open seven days a week. Chick-fil-A’s religion-based refusal to operate on Sundays in violation of this law would surely be an “exercise of religion” akin to Ms. Sherbert’s refusal to work on Saturdays.

The profit-making character of the corporation does not change the analysis of whether the corporation can make a religion-based decision. Chick-fil-A is a profit-making business. Yet it foregoes the profits it would otherwise make through Sunday operation because its religion-based corporate policy controls the manner in which it seeks to make a profit. Similarly, Ms. Sherbert was working for money (and later seeking unemployment benefits). Yet her religious obligation not to work on Saturday conditioned the manner in which she could go about earning money.

The panel majority opinion simply does not address this line of argument. One way in which its failure to address RFRA independently may have contributed to this failure to analyze what counts as a protected “exercise of religion” emerges from a word search for that phrase. It does not appear until page 28, after the majority has already concluded its Free Exercise analysis. In the course of its Free Exercise analysis, the Third Circuit panel majority does not ask whether a corporation can engage in the “exercise of religion” (RFRA’s words), but rather whether corporations can “engage in religious exercise” [11] or whether corporations can “exercise religion” [15]. The wording shift is subtle and almost certainly unintentional, but it nevertheless tends to lead analysis in the wrong direction. For the panel majority’s rephrasing suggests asking whether a corporation can engage in religious exercises like prayer, worship, participation in sacraments, and so on. But that is not what the governing law requires.

One might try to distinguish the exercise of religion in Sherbert on the ground that the underlying basis of the refusal to work on Saturday was so that Ms. Sherbert could engage in the religious exercise of attending worship services. The problem with this distinction is that it is sufficient for the religion-based refusal to be sincere and religion-based. It does not need to be tied to some other “religious exercise.” Consider Thomas v. Review Board, 450 U.S. 707 (1981). The exercise of religion in that case was Mr. Thomas’s refusal to participate in the production of turrets for military tanks. This refusal was based on Mr. Thomas’s beliefs as a Jehovah’s Witness. It did not matter that this religion-based refusal conditioned Mr. Thomas’s pursuit of money. The Supreme Court found it sufficient that “Thomas terminated his employment for religious reasons.” Similarly, the Third Circuit should have found it sufficient that Conestoga objects to compliance with the mandate for religious reasons. That religion-based objection is an “exercise of religion” within the compass of both RFRA and the Free Exercise Clause.

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A prior episode in RFRA history suggests why it would be imprudent for federal courts to dismiss the pending RFRA claims against the Obama Administration’s contraceptives mandate without the benefit of oral argument. The long and short of this prior episode is that the need to take a clear litigation position on a RFRA matter brought about one of the quickest reversals of an Administration’s legal position in the last few decades. It happened when the presidency was held by a former constitutional law professor–in the Clinton Administration.

The case was Christians v. Crystal Evangelical Church. The Clinton Administration needed to address how the RFRA, then a relatively new statute of uncertain constitutionality (it was signed early in the Clinton presidency), interacted with a provision of the bankruptcy code authorizing a bankruptcy trustee to claw back transfers made in a period leading up to the declaration of bankruptcy. The issue was posed when a bankruptcy trustee (Christians) successfully clawed back thousands of dollars that had been donated over the course of the prior year to a church (Crystal Evangelical Church). When the decision allowing this clawback was appealed to the Eighth Circuit, the Clinton Administration intervened to take a position on the constitutionality of the RFRA and  the validity of the clawback provision as applied to donations to a church. The Administration filed a brief arguing that the RFRA was constitutional and that the clawback provision was valid as applied, notwithstanding RFRA; donations to the church should be considered just like donations to non-religious charities (which could be clawed back).

The Administration’s position in Crystal Evangelical led to substantial political and legal pushback. Among other things, Senator Orrin Hatch took to the Senate floor and denounced the Administration’s position. Senator Hatch’s position on the RFRA carried great weight, as he was a principal sponsor of the Act (along with Senator Kennedy). Senator Hatch argued that the position in the Clinton Administration’s amicus curiae brief was “contrary to the plain meaning of the act, to the detriment of religious free­dom.” He asserted that, “[d]espite the act’s widespread support and its clearly defined and agreed upon objective, its purpose is being un­dermined by this administration.” Expounding further, Senator Hatch stated:

Perhaps  this is the kind of limited protection President Clinton envisioned when he  committed himself to the protection of one of the most precious of all-Amer­ican liberties—religious freedom—but I can say quite confidently that this is not the type of protection Congress fought so hard and so long to restore. The Department’s position is a slap in  the face to our religious community, and it should not stand. I personally believe that President Clinton must not know what they are doing, or he would put a stop to it. So, in a sense, it is a slap in his face, as well, since he was one of the strongest supporters of what we were trying to do. I hope that he will get involved and direct the Department to back off—especially since there is no fraud here— and allow the Religious Freedom Res­toration Act to have the widespread, broad coverage that we intended here in Congress in the first place.

The Clinton Administration decided to take a closer look at its position. DOJ lawyers sent to the White House to describe the Administration’s position to counsel at the White House found themselves meeting with President Clinton himself. (Seth Waxman recounts this meeting and its significance to his later work as SG in this BYU Law Review article.) Some time later, the responsible DOJ lawyers were told by the White House that the President had decided that the position taken in the brief was wrong and that the brief should be withdrawn. This took place the night before oral argument. The career DOJ lawyer to argue the appeal did not find out until the morning of oral argument.

The posture of the Crystal Evangelical Church case is far different from the contraceptives mandate litigation. But in that current RFRA litigation, like in Crystal Evangelical Church, taking a position in court could prompt a  harder look at the Administration’s position on a legal question. The benefit of bringing the federal government into court for argument is to force anticipation of having to answer questions in open court. And the need to formulate clear answers can stimulate a clarification or even a change of opinion.

Clarification is certainly needed in the contraceptives mandate litigation. In February, the Administration finalized its rule limiting exemption from the contraceptives-without-cost sharing mandate for insurance coverage to a narrow band of religious employers. But the Administration also announced that it would develop an accommodation for non-exempt employers with religious objections. Based on this promised future accommodation (and accompanying one-year safe harbor from government enforcement of the contraceptives mandate against non-exempt employers), the federal government has moved to dismiss several challenges to the mandate.

A federal judge in D.C. last week dismissed Belmont Abbey College’s challenge to the HHS contraceptives mandate on standing and ripeness grounds. On standing, Judge Boasberg held that Belmont Abbey’s injury was speculative because the contraceptives mandate remains a moving target. On ripeness, Judge Boasberg reasoned that the challenged rule was not sufficiently final to render the dispute fit for judicial resolution.

The Becket Fund for Religious Liberty, which is representing Belmont Abbey, filed a motion for reconsideration of that dismissal yesterday. It was not until I read the motion that I realized that Judge Boasberg had dismissed the case without hearing oral argument on the government’s motion to dismiss. I think that was a mistake. Here is the first question that the federal government should be brought into court to answer: Will Belmont Abbey College’s health plans be exempt from the contraceptives mandate, or will they not?

The government’s position has been wonderfully ambiguous on this most critical question. The final regulations adopted in February 2012 continue to divide the world of employers subject to the contraceptives mandate into two categories: exempt and non-exempt. Belmont Abbey College is in the non-exempt category, and it seeks to vindicate statutory and constitutional claims that, if successful, would render it exempt. The government has proposed to “accommodate” non-exempt religious objectors like Belmont Abbey College. Yet these objectors seek what has already been denied them in the final regulations: exemption. In its advanced notice of proposed rulemaking, the federal government has claimed that its proposed accommodation would be effectively like an exemption. But what does that mean, especially when coupled with the final adoption of a regulation that classifies objectors like Belmont Abbey College as “non-exempt”? Yet another question that the government should have to answer in open court.

And there are others. Is the government’s attempt at accommodation based on their recognition that the mandate is a substantial burden on the exercise of religion? Why did the government finalize its exemption if it aims to expand that exemption? Why didn’t the government consider other alternatives before, rather than after, finalizing its exemption? The answers to these and other questions would be helpful to a court deciding the ripeness of non-exempt employers’ claims.

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Comments by Vice President Joe Biden yesterday suggest a more conciliatory approach by the Administration toward religious liberty objections to the contraceptives mandate. The Vice President said that people have not focused enough on the additional year that the HHS gave objecting institutions for coming into compliance: “There’s going to be a significant attempt to work this out, and there’s time to do that. And as a practicing Catholic, you know, I am of the view that this can be worked out and should be worked out and I think the president, I know the president, feels the same way.”

The Administration has less time than it may think to “work this out.” Thanks to the Religious Freedom Restoration Act and the First Amendment, the Administration will need to answer in federal court well before another year has expired. The operative regulation is an “Interim Final Rule” approved on July 28, 2011, effective August 1, 2011, and published in the Federal Register on August 3, 2011 at 76 Fed. Reg. 46,621. The “interim” label does not prevent this regulation from being final agency action that is challengeable in federal court under the Administrative Procedure Act. Moreover, the “interim” label does not control the standing or ripeness analysis in any of the lawsuits that have been filed to date.  To the extent that the Vice President’s comments might suggest a rope-a-dope rulemaking strategy for the Administration to avoid having to answer in federal court for its violation of religious liberty, that strategy should not succeed.

In any event, the Vice President’s interpretation of the purpose of the one-year cannot be squared with the HHS’s announcement of it (an announcement that coincided, but not coincidentally, with marking of the anniversary of Roe v. Wade). As the announcement makes clear, the one-year period is for religious objectors to come into compliance–a transitional period for the groups to accommodate themselves to the new legal order imposed upon them. The HHS announcement provided every indication of having made a firm decision and no indication that its position, rather than that of the objectors, would yield.

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Linda Greenhouse’s Opinionator column today addresses “the escalating conflict over the new federal requirement that employers include contraception coverage without a co-pay in the insurance plans they make available to their employees.” The most interesting aspect of the column is what is missing from its legal analysis: any consideration of all the other ways that the Administration could ensure widespread access to low-cost contraception without violating the religious liberty of religious objectors. Perhaps one shouldn’t be surprised that the “tags” for the column are “birth control” and “Roman Catholic Church,” rather than “religious liberty” or “conscience.”

After beginning by criticizing the rhetoric of mandate opponents and noting the silence of mandate supporters on the question of conscience, Greenhouse states that “the purpose of this column is to examine the conscience claim itself, directly, to see whether it holds up.” But Greenhouse’s framing of the analysis reflects a basic misapprehension of the legal protections for religious liberty already embedded in federal law. Greenhouse writes that objecting religious institutions claim “a right to special treatment: to conscience that trumps law.” That is wrong: the objecting religious institutions claim that the mandate violates federal law. They do not argue that conscience “trumps law.” Far from placing conscience over law, the objecting institutions advance a claim under the law.

After misframing the issue as whether conscience trumps law, Greenhouse devotes two paragraphs to explaining why “that is not a principle that our legal system embraces.” These two paragraphs discuss the Supreme Court’s discussion in Employment Division v. Smith, a 1990 decision authored by Justice Scalia. Only after discussing Smith does Greenhouse turn to the Religious Freedom Restoration Act (“RFRA”). In the journalism business, this is known as burying the lede. The RFRA is where the principal legal action will be in the lawsuits challenging the contraceptives mandate.

Having submerged the real legal basis for the objectors’ claims, Greenhouse then leaves out the part of the RFRA‘s test that will be hardest for the Administration to satisfy. The RFRA provides that the federal government cannot substantially burden the exercise of religion unless doing so is the least restrictive means of accomplishing a compelling government interest. Yet Greenhouse’s discussion contains no mention at all of the “least restrictive means” part of the test. Instead, Greenhouse says that a RFRA challenge “would pit the well-rehearsed public health arguments . . . against religious doctrine.” The omission is telling, because the weakest part of the government’s case will be this least restrictive means requirement. There are so many other ways for the federal government to accomplish its objectives that it should lose the RFRA claims on precisely this point.

Earlier in her column, Greenhouse notes the lack of a “full-throated defense” of the contraceptives mandate, “except on pure policy grounds.” The best explanation for the silence of the mandate supporters with respect to religious liberty may be the simplest: nobody likes to pick a fight that they cannot win.

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