by Craig Konnoth, Deputy Solicitor General, Office of the Solicitor General, California Department of Justice; Co-Author, Brief amici curiae of California, et al. in support of the Government, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius; Member, Board of Directors, ACS Bay Area Lawyer Chapter
* The views expressed in this post are the author’s own, and do not reflect those of any institution with which he is affiliated or employed.
As the Supreme Court heard oral arguments today in the “contraceptive mandate” cases, one question that everyone is grappling with has to do with the ramifications of the decision. These cases concern whether the Religious Freedom Restoration Act (RFRA), which prohibits federal law from imposing a substantial burden on a person’s exercise of religion, excuses for-profit corporations from providing access to contraceptive coverage to their employees. For the Court to rule in favor of the corporations, it must hold that (1) a corporation has free exercise rights under the statute, (2) that the burden the mandate imposes is substantial and (3) the interests the mandate serves are not compelling. Ruling in favor of the plaintiffs on any of these grounds will have substantial effects for doctrine across the board.
However, one possible result that has received less (if any) attention is the effect that the Court’s holding will have on state laws relating to numerous areas including antidiscrimination, insurance coverage, land use and corporations law. There is good reason for this oversight. In Boerne v. Flores, the Supreme Court held that RFRA could not limit state law—so the Court’s holding as to the reach of RFRA will not inhibit the reach of state law. And because this is a statutory holding, and the Court shows no immediate signs of re-incorporating the RFRA test into constitutional doctrine, the effects on First Amendment doctrine (which does limit state law) will be limited.
But there is, nonetheless, a good chance that a loss for the government will affect state regulation. First, in the area of land use, the Religious Land Use and Institutionalized Persons Act (RLUIPA), unlike RFRA, has does (as of now, at least) apply to localities. While there may be textual reasons why RLUIPA could be read differently that do not bear deep excavation, the bottom line is that RLUIPA was basically modeled after RFRA. If corporations can invoke RFRA to escape federal regulation, they may well be able to invoke RLUIPA to escape basic zoning regulation, from which, so far, only churches and religious institutions have so far been exempt.
“I realize that my calling the United States a ‘colonial’ nation is repugnant to most Americans,” acknowledged Judge Juan R. Torruella of the U.S. Court of Appeals for the First Circuit at a recent Harvard Law School conference. “[B]ut do you think that the reality of this fact of life is any less repugnant to those of us who find ourselves in the degrading status of second-class citizens, merely because we reside as citizens of the United States in a piece of land that, although belonging to the United States and owing allegiance thereto, has been declared by judicial fiat to be an unequal part of this nation?”
In his keynote remarks, Judge Torruella, who resides in Puerto Rico, expressed frustration and indignance on behalf of the 4 million residents of U.S. territories who remain unjustly bound by the dead hand of the past.
In a series of infamous decisions at the turn of the twentieth century known as the Insular Cases, the Supreme Court established a judicial doctrine recognizing two kinds of territories: incorporated territories, including those acquired before the Spanish-American War, and unincorporated territories, including Puerto Rico, the Philippines, Guam and others. The Court extended only certain rights to residents of unincorporated territories because, as one Yale professor reasoned in 1899, “[it would be unwise] to give … the ignorant and lawless brigands that infest Puerto Rico … the benefit[s] of [the Constitution].”
For more than a century, the Insular Cases have stood as controlling precedent, granting broad congressional authority for governing both kinds of territories and defining their relationship to the Constitution. American Samoa has long borne the brunt of this second-class status; as of 2005, it remains one of only two territories whose residents are labeled as “non-citizen U.S. nationals.” That reality may soon change, however, with a favorable ruling in Tuaua v. United States.
by James C. Nelson, Justice, Montana Supreme Court (Retired)
There is gathering national support acknowledging that lesbian, gay, bisexual and transgender (LGBT) citizens are simply that—citizens—with the same rights, privileges and obligations as other citizens. In response, some States, along with various fundamentalist religious and conservative organizations are fighting for a legally protected right to discriminate. This right to discriminate is grounded in the First Amendment’s “Free Exercise” clause. As the theory goes, being able to discriminate against LGBT citizens is necessary to preserve the First Amendment right to the free exercise of religion for these States’ fundamentalist religious heterosexuals and conservative organizations.
This stratagem is not only patently specious; it is legally insupportable.
Contrary to the homophobic fear-mongering by religious fundamentalists and conservatives, there is no legal support for the notion that a State which has recognized the equal rights of LGBT citizens can force a religious organization to adopt those same views. If Religion X condemns gay people, the State cannot, require Religion X to perform a gay or lesbian marriage or change its doctrinal beliefs against homosexuality under threat of governmental penalty. Indeed, if the State attempted to do that, it would violate the free exercise clause of the First Amendment. And, of course, for that reason, no State has made any such demands on any sectarian organization.
Yet, in Arizona, Idaho, Kansas, Nevada, Oregon, South Dakota, Tennessee, Oklahoma, Mississippi, Ohio and Utah religious and conservative organizations and, in some cases, their supporters in the state legislatures are actively promoting the adoption of laws that would permit any individual or group to discriminate in a variety of contexts based on religious beliefs. Such laws would allow business owners, for example, to discriminate against LGBT customers in much the same fashion that businesses run by racists once discriminated with impunity against people of color. A government official could deny same-sex couples basic services and benefits based solely on that official’s religious beliefs. Indeed, Arizona has even proposed to allow the denial of equal pay to women and the abrogation of contractual rights in the name of religion. In other words, one’s personal religious beliefs trump legal obligations imposed generally upon and for the benefit of all.
Before the movement for marriage equality began to gather steam Virginia, like a slew of other states, banned same sex-marriage either with laws or constitutional amendments or in the case of North Carolina, both.
For instance in 2006 through a referendum Virginians voted to amend their Constitution to outlaw same-sex marriage. Actually that amendment was rather sweeping, not only defining marriage as exclusively a union between a man and woman, but also prohibiting civil unions and all other contracts to “which is assigned the rights, benefits, obligations, qualities, or effects of marriage.”
But some of those states’ constitutional amendments and laws, following the U.S. Supreme Court’s 2013 opinion in U.S. v. Windsor, are looking increasingly vulnerable.
The Virginia ban was challenged last year on the grounds of violating the Due Process and Equal Protection Clauses of the 14th Amendment by two couples. Tim Bostic and Tony London have been together for 24 years. Carol Schall and Mary Townley have been together for 30 years. Even though Schall and Townley were legally wed in California, Virginia’s constitutional ban meant it would not recognize those same-sex marriages. The couples’ challenge to the constitutional amendment was considered in the District Court for the Eastern District of Virginia earlier this month.
Judge Arenda Wright Allen on Thursday found Virginia’s ban to subvert the U.S. Constitution’s Due Process and Equal Protection Clauses. In her ruling, Wright Allen wrote, “Gay and lesbian individuals share the same capacity as heterosexual individuals to form, preserve and celebrate loving, intimate and lasting relationships. Such relationships are created through the exercise of sacred, personal choices – choices, like the choices made by every other citizen, that must be free from unwarranted government interference.”
The Lilly Ledbetter Fair Pay Act was the first bill signed into law by President Obama in 2009 and has been a vital tool in the battle against wage discrimination ever since. Writing for Roll Call on the anniversary of the bill’s passage, Lilly Ledbetter and the American Civil Liberties Union’s Deborah J. Vagins reflect on the legacy of the Ledbetter Act, the importance of the proposed Paycheck Fairness Act and the necessity of executive order.
Last year, the Senate eliminated its 60-vote supermajority requirement for most judicial and executive appointments after Senate Republicans chose to filibuster an egregious number of President Obama’s nominees. In an article for The Blog of Legal Times, Todd Ruger explains why it is likely that the Senate’s power to filibuster nominations will remain applicable to our nation’s highest court.
Writing for the Center for American Progress, Joshua Field examines the current state of the Voting Rights Act, post-Shelby County. In his report, Field addresses the need to combat voting-related discrimination and the role our federal courts must play going forward.
In an article for The National Law Journal, Tony Mauro examines the ACLU’s First Amendment fight against the Supreme Court’s ban on protesting on the Court’s plaza.