On December 31, while many Americans were celebrating the arrival of 2014, Supreme Court Justice Sonia Sotomayor (who herself would inaugurate 2014 by leading the famed Times Square ball drop) ended 2013 by erecting a judicial roadblock to an important provision of the Affordable Care Act (ACA). Earlier today the Obama administration answered Sotomayor with a defense of the policy that requires most companies to provide health care plans with access to contraceptives to their workers.
Sotomayor had temporarily enjoined the federal government from enforcing the contraceptive coverage mandates against the Little Sisters of the Poor, as well as other Catholic non-profit groups who use the same health care plan called the Christian Brothers Employee Benefit Trust, who had brought suit claiming that the provisions violated the Religious Freedom Restoration Act (RFRA). The mandate was to go into effect on January 1. As the Supreme Court justice who oversees emergency matters emanating from U.S. Court of Appeals for the Tenth Circuit, Sotomayor issued the order after the Tenth Circuit had denied the request for an injunction earlier on New Year’s Eve.
The U.S. Department of Justice argued in its brief opposing an injunction of the ACA’s contraception policy that there is a simple distinction to be made between the present case and the Hobby Lobby and Conestoga Wood cases that the Court recently agreed to hear on the issue -- that the Little Sisters of the Poor “are eligible for religious accommodations set out in the regulations that exempt them from any requirement ‘to contract, arrange, pay, or refer for contraceptive coverage.’ They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan.” (citations omitted).
For the government, this case is not about religious accommodations, but rather, “whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.” Furthermore, the government points to decisions of lower courts and notes that the church healthcare plan at issue is exempted from regulation under the Employee Retirement Income Security Act (ERISA).
With the government’s response now before the Court, a decision from either Justice Sotomayor or the full Court should come shortly.
For more on Hobby Lobby and Conestoga Wood, you can read tworecentACSblog posts from BYU law professor Frederick Mark Gedicks. For more on RFRA, UNLV law professor Leslie Griffin recently examined the law’s constitutionality.
* This post originally appeared on The Huffington Postand is the third part of an ongoing series. The first part can be read here; the second part can be read here; the fourth part can be read here; the fifth part can be read here.
In my last post, I explored the pros and cons of the NSA's bulk telephony meta-data program. As I reported, after considering all the competing interests and perspectives, the Review Group concluded that, in light of the availability of other means by which the government could achieve its legitimate objectives, there was "no sufficient justification to allow the government itself to collect and store bulk telephony meta-data." The Review Group therefore recommended that the meta-data program, as currently constituted, "should be terminated as soon as reasonably practicable."
At the same time, though, the Review Group found that access to telephony meta-data can be useful to the government in its effort to identify terrorists operating inside the United States. The challenge was to figure out how best to preserve the legitimate value of the program while at the same time reducing its risks to personal privacy and individual freedom.
To strike a better balance, the Review Group recommends several important changes in the program as it currently exists.
First, and perhaps most important, the Review Group recommends that the government should not be permitted to store the telephony meta-data. The Review Group reasoned that taking the meta-data out of the hands of government would substantially reduce the potential for government abuse. The Review Group therefore recommends that the telephony meta-data should be held by private entities. That is, the meta-data should be held either by the various telephone service providers themselves or, upon a showing that that solution would make effective use of the meta-data impossible, by a private organization created specifically for that purpose. This approach would both prevent the government from having direct access to the database and ensure that an independent set of eyes could monitor the government's access to the information.
by Deborah A. Roy, Trial Attorney, Antitrust Division, United States Department of Justice and author of "Justice William J. Brennan, Jr., James Wilson, and the Pursuit of Equality and Liberty,"61 Clev. St. L. Rev. 665 (2013)
* The views expressed are not purported to reflect those of the United States Department of Justice.
Justice William J. Brennan, Jr., who served on the United States Supreme Court for 34 years from 1956 to 1990, was one of the most influential justices during his term on the Court. Today, however, it is unlikely that a president would announce his intent to appoint a justice in the mold of Brennan or that a nominee to the Court would invoke Brennan’s jurisprudence. Justice Brennan has been criticized for legislating from the bench and enacting his own liberal social views, rather than strictly interpreting the United States Constitution. To the contrary, however, Justice Brennan’s opinions were often directly opposed to his personal beliefs. For example, Justice Brennan acknowledged that, as a lifelong Roman Catholic, the rulings outlawing prayer in schools were difficult for him. And while he upheld the right of a demonstrator to burn the United States flag, it is unlikely that Brennan, a World War II veteran who cherished the country established by the Constitution, would himself burn its flag.
In fact, Justice Brennan interpreted the Constitution taking into account his understanding of the document’s founding principles. And his constitutional vision is consistent with that of James Wilson, a Framer from Pennsylvania, who is one of only six men to sign both the Declaration of Independence and the Constitution. Wilson is considered by many scholars to be second only to James Madison in his influence on the drafting of the Constitution. Justice Brennan and James Wilson shared a constitutional vision based on respect for the individual. Brennan frequently referenced human dignity as the foundational principle of his jurisprudence, while Wilson emphasized that the fundamental unit of democratic government is the individual person. From the principle of individual dignity, both men derived rights to equality and liberty. In a speech urging Pennsylvania to ratify the Constitution, Wilson stated that among the advantages of a constitutional democracy are the rights to liberty and equal laws for its citizens. Two centuries later, Brennan’s opinions furthered the realization of racial and gender equality, and upheld the liberty of individuals to make personal decisions without interference from the State.
All in all, 46 recommendations were offered, among them the private, non-governmental retention of all personal communications data, accessible only through individualized court orders approved by the Foreign Intelligence Surveillance Court (FISC); the first-ever appointment of a “public interest advocate” to argue on behalf of civil liberties and privacy concerns before the FISC, which currently has no adversarial process; the ceasing of “back door” access points in hardware or software; and the incorporation of privacy protections for non-U.S. citizens.
Also of note was the enumeration of guiding principles. For example, the panel endorsed a dual understanding of “security” – national security, on the one hand, and Fourth Amendment personal security on the other. The report also said the idea of “balancing” these two interests has “an important element of truth” but is “inadequate and misleading”:
[S]ome safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, and gender.
The panel also endorsed a “broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes.”
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.