Most discussions of whether Hobby Lobby and Conestoga Wood are protected by the Religious Freedom Restoration Act (RFRA) as corporations have focused on their for-profit character. This is something of a red herring; for-profit character matters, but not in the way most people think. As law professors Micah Schwartzman, Richard Schragger and Nelson Tebbe have pointed out (see here and here), what disqualifies a corporation from RFRA protection is as much its size as its for-profit character.
The corporate plaintiffs in Hobby Lobby, for example, insist that they “believe” and “practice” the religion of their owners because they are “family businesses” and “closely held” corporations that have very few shareholders. This self-description evokes the stereotypical image of the small-town “mom-and-pop” grocery store, staffed mostly by an extended family whose members greet everyone by name and whose customers, suppliers and other employees uniformly identify as the “real” owners irrespective of legal formalities.
Federal laws are frequently sensitive to the needs of such genuinely small businesses. For example, Title VII of the Civil Rights Act exempts businesses with fewer than 15 employees, and the Fair Housing Act similarly does not apply to small apartment complexes where the owner resides on the premises. The ACA itself exempts businesses with fewer than 50 employees from the employer mandate to provide employee healthcare insurance.
The corporations here are light years away from the “mom-and-pop” stereotype. Hobby Lobby and its affiliates employ 13,400 people in 600 locations scattered through 39 states (including a 3.4 million square foot headquarters complex). Forbesestimates its annual revenue at substantially more than $2 billion.
This year should be a cause for celebration, as we mark the 50th anniversary of the right to counsel for indigent defendants recognized by the Supreme Court in Gideon v. Wainwright. Sadly, in the last year we have seen that critical right threatened by sequestration and budget cuts that jeopardize the stability of Federal Defender organizations, and that undermine the ability of Criminal Justice Act (CJA) counsel to represent these clients most in need.
Federal Defender organizations and CJA panels represent clients charged with federal offenses in over 200,000 cases each year – 90% of the defendants in federal court. This system of funded Defender organizations and private CJA counsel have together represented a model of quality and cost-effective representation, and have been protecting the adversarial system of justice for the past forty years.
This successful model is now at risk. In Fiscal Year 2013, Federal Defenders suffered a 10% cut to their budgets due to sequestration. Hundreds of full-time positions were lost, with over 10% of staff being terminated or lost to early retirement. The Defender offices were also forced to impose over 160,000 hours of unpaid furloughs. While Federal Defenders’ budgets were slashed, the Justice Department avoided furloughs for all of its employees. These cuts create greater long-term expenses through delays in litigation and longer pretrial detention.
At the end of Fiscal Year 2013, the Executive Committee of the Judicial Conference of the United States adopted emergency measures to save the Defender programs from the severe impacts of sequestration. Unfortunately, those measures required the deferral of CJA payments for up to four weeks, and the temporary reduction of $15 per hour of the CJA panel rate. This rate cut to CJA counsel undermines a rate that was secured after years of effort, and poses a real threat to the ability of private counsel to continue their vital service to the Court by providing indigent defense.
by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.
In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.
Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.
On November 21, the Senate voted to change the rules on filibusters for judicial nominations to require 50, not 60, votes for cloture on a nominee. This so-called “nuclear option” was a controversial move, yet ultimately necessary to stop Senate obstructionists from effectively shutting down the judiciary with filibusters of President Obama’s nominees.
Following the rules change vote, Senate Majority Leader Harry Reid (D-Nev.) made a motion to reconsider the cloture vote on Patricia Millet for the D.C. Circuit, which was previously blocked. The vote on her confirmation is expected to be held when the Senate returns to session on December 9. It is anticipated that reconsideration of Federal Housing Finance Agency nominee Rep. Mel Watts (D-N.C.), as well as D.C. Circuit nominees Cornelia “Nina” Pillard and Richard Wilkins, will soon follow.
ACS President Caroline Fredrickson explained: “With obstructionists in the Senate bent on shutting down the judiciary, something had to give…Our judicial system is hamstrung and a rules change was necessary to ensure it gets back up and running.” Leading up to the rules change, Fredrickson discussed the importance of confirming judicial nominees on PBS’s NewsHour and MSNBC’s The Cycle.
Without the filibuster, the hope is that judicial nominations and confirmations will speed up when the Senate returns after the holidays. This depends, however, on the blue slip process, which some observers predict will be the obstructionist tactic of choice without the filibuster. Under current Senate Judiciary Committee rules, Senators must sign off on judicial nominees for judgeships in their state, known as “returning a nominee’s blue slip,” before the Committee can hold a hearing on a nominee.
by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law and ACS Faculty Advisor, University of California, Irvine School of Law
United States v. Apel, which I argued in the Supreme Court on December 4, involves the right to protest outside of a closed military base. Vandenberg Air Force Base, located in California, is surrounded by a fenced perimeter and entering requires going through a gate with an armed guard. About two hundred yards from the perimeter the military has painted a green line on the ground. Just outside this green line is Highway 1, Pacific Coast Highway. The military has given an easement to California for Highway 1, which is a fully open road with no signs to even indicate that it is part of the base. On the edge of Highway 1, on the public side of the green line, there is a designated protest zone.
My client, Dennis Apel, has been protesting outside of Vandenberg Air Force Base for the last 17 years. In 2003, right before the Iraq war, he threw blood against the wall, just inside the green line, which says, “Vandenberg Air Force Base.” He was convicted of vandalism and spent a short time in jail. He was issued a bar order keeping him from the base. In 2007, he went into the base in violation of his bar letter and was given a letter permanently barring him from entering Vandenberg.
On several occasions in 2010, he went to protest at Vandenberg. He always stayed on the public side of the green line in the public protest area on Highway 1. Military officials said that he was on base property in violation of the bar letter and ordered him to leave; when he refused he was prosecuted and convicted for violating 18 U.S.C. §1382, which prohibits entering a military base after a person has been barred.
The United States Court of Appeals for the Ninth Circuit reversed his conviction holding that §1382 applies only if the United States has exclusive possession of the area. This is in accord with the approach followed for decades, in the Ninth Circuit and courts throughout the country.
The United States government sought certiorari and argued that §1382 applies to all of the area owned by the United States and that national security was jeopardized by the Ninth Circuit’s approach. There were two questions before the Supreme Court: first, does §1382 apply to this public protest zone? Second, if so, does the First Amendment protect a right to engage in peaceful protest?