First Amendment

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • November 4, 2015
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    In recent years, religious groups have attempted to use the legal system to impose their beliefs on others in a variety of areas, from health-insurance coverage and healthcare services, to discrimination in public accommodations and employment. Religious groups have typically done so by claiming that they have a statutory or constitutional “religious freedom” right to discriminate, deny services, or be exempted from laws or regulations.

    The New York Times exposes another way in which religious groups are attempting to foist their faith on those who might not share it. More and more frequently, religiously affiliated institutions are requiring people with whom they interact to sign contracts that require any disputes to be resolved through religious arbitration instead of the secular court system.

    Such religious arbitration is typically based on religious law, such as the Bible. Arbitration sessions are often opened with prayers. And the arbitrators are typically adherents of the religion of the entity that is being sued.

    Religious arbitration may make sense in some circumstances. Courts are prohibited from resolving disputes relating to certain internal affairs of a house of worship, including controversies that require interpretation of religious doctrine or involve the selection of ministers. In such situations, religious arbitration may provide the best chance for a disagreement to be resolved fairly.

    But religious arbitration clauses have spread far beyond contracts between houses of worship and their employees or members. The Times reveals that such clauses are being used by a variety of entities and businesses that serve the public, including substance-abuse programs, providers of vacation houses, flooring vendors, and even a sponsor of a fishing tournament.

    In these kinds of circumstances, religious arbitration functions as yet another means for religious groups to force the doctrines of their faiths upon people who do not share those beliefs, and to avoid legal rules that apply to others. Religious arbitration, in that context, is also suspect from a legal and constitutional standpoint.

    Although courts have generally upheld contractual clauses that mandate arbitration to resolve disputes, some of the reasoning underlying such decisions does not apply to religious arbitration clauses: Secular arbitrators usually must rely on the same legal principles that courts do; religious arbitrations follow religious law. Secular arbitrations are subject to limited review by the courts; courts cannot review religious arbitrations at all, however, because courts are barred from interpreting religious law. And secular arbitrators must be impartial; religious arbitrations, on the other hand, may be conducted by the very same religious groups that are being sued.

  • July 17, 2015

    by Nanya Springer

    When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

    While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of Confederate Veterans by less than 24 hours.

    Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

    A full transcript of the speech is available here and here, and the video can be viewed below.


  • June 19, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    I do not like the idea of confederate flags on license plates issued by the State of Texas, but I found the Court’s reasoning very troubling in allowing the Texas Department of Motor Vehicles to prohibit this. In Walker v. Texas Division, Sons of Confederate Veterans, the Court in a 5-4 decision, held that the Texas Department of Motor Vehicles did not violate the First Amendment in refusing to issue a license plate with the confederate battle flag.

    Texas, like all states, requires license plates on cars. In Texas, people can have either the general type of plates issued by the state or they may have specialty plates. One type of specialty plates are those where a non-profit organization asks the Texas Department of Motor Vehicles Board to approve a design and then issue plates with it. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a confederate battle flag, but the Board rejected the proposal.

    The Supreme Court held that the Board did not violate the First Amendment because license plates are government speech and when the government is the speaker it cannot violate the speech clause of the First Amendment. Justice Breyer, writing for the majority said, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court explained, “Were the Free Speech Clause interpreted otherwise, government would not work.” The government must be able to express messages such as to encourage recycling or energy conservation or vaccination of children.

    The Court said that the license plate is government speech and therefore the choice of the Board to not allow the confederate flag does not violate the First Amendment. The Court stressed that license plates have long communicated messages from the state and that license plate designs are perceived by the public as coming from the state. The Court said that Texas license plates are essentially government IDs. The Court stressed that Texas retains control over the content of its license plates. The Court said that Texas was not creating a forum for private speech, where the First Amendment would apply, but it was Texas speaking itself.

    It is easy to like the result in this case because confederate battle flags convey a message of racism that is inherently hurtful and divisive.   Indeed, it may be for exactly this reason that Justice Clarence Thomas was the fifth vote in the majority – joining Justices Breyer, Ginsburg, Sotomayor and Kagan – in an alignment that is rare on the Court.  In Virginia v. Black (2003), Justice Thomas was the sole dissenter arguing that the government should be able to ban cross burning because of its vile history and hateful message.

  • June 2, 2015
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Yesterday’s Supreme Court opinion in EEOC v. Abercrombie & Fitch Stores was unusually short, a mere six and one-half pages.  The Court issued a sensible ruling that ― unlike last year’s decision in Burwell v. Hobby Lobby Stores ― upheld the religious freedom of employees.

    Abercrombie & Fitch had a policy requiring its employees to maintain a certain “look.”  “Caps” were not allowed.  Samantha Elauf, a Muslim, applied for a job at an Abercrombie store.  She was apparently quite stylishly dressed, but she wore a headscarf in accordance with her faith.  Abercrombie managers refused to hire her because of the headscarf, even though they believed that the headscarf was religiously motivated.

    Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire a job applicant because of his or her religious practice, unless accommodating that practice would impose an undue burden on the employer.  Yet the U.S. Court of Appeals for the Tenth Circuit ruled that Abercrombie did not violate Title VII because Elauf did not tell Abercrombie that she needed a religious accommodation.

    The Supreme Court reversed that ruling yesterday and allowed Elauf’s case to proceed.  The Court explained that when an employer knows or suspects that an employee’s practice is religiously motivated, the employer cannot deny employment because of that practice unless accommodating it would impose an undue hardship.

    The Supreme Court’s ruling is sensible, while the Tenth Circuit’s approach was eminently unfair.  There was no evidence here that Elauf knew about Abercrombie’s prohibition on “caps.”  How can a prospective employee be expected to request an accommodation if she has no idea that she might need one?