First Amendment

  • January 16, 2014
     
    The remarkable silence of Chief Justice John Roberts cast a pall of uncertainty over oral arguments in McCullen v. Coakley, heard yesterday morning at the Supreme Court. Adding to the unusual environment was Justice Elena Kagan, who appeared to seek a middle ground between upholding the law at hand and scrapping it altogether.
     
    That law is a 2007 regulation enacted by the Massachusetts state legislature, mandating a 35-foot “buffer zone” around all reproductive health centers. The petitioner, 77-year-old Eleanor McCullen, has spent every Tuesday and Wednesday morning for the last 13 years outside one such center: the Planned Parenthood clinic on Commonwealth Avenue in downtown Boston. She claims the buffer zones infringe upon her First Amendment right to free speech by making her communication with patients less effective. “It’s America,” McCullen told NPR. “I should be able to walk and talk gently, lovingly, anywhere with anybody.”
     
    Mark Rienzi, attorney for Ms. McCullen, advanced the argument that buffer zones are unconstitutional. Under the test for “time, place and manner” restrictions as outlined in Grayned v. City of Rockford, he explained, the buffer zones were not narrowly tailored to the state’s stated interest in preventing obstruction and congestion. For example, in response to objections from Justice Sonia Sotomayor, Rienzi noted that laws governing military funeral protests were aimed specifically at acts that disrupt “the peace and good order” of the funeral, as opposed to all activity.
     
    Justice Ruth Bader Ginsburg was first out of the gate with a nod to the “considerable history of disturbances” outside of reproductive health clinics and the state’s inability to pick out bad actors in advance of any given moment. Justice Stephen Breyer acknowledged the limitations of the judiciary, reminding counsel that “we’re not legislators” and suggesting that the Court did not have the basis to demand more than a “reasonable record” from policymakers. And Justice Kagan took issue with a hypothetical situation proposed by Mr. Rienzi, which featured animal rights activists who wish to persuade the employees of a slaughterhouse. “You must have used it for me to say, oh, that’s terrible,” she said. “But my reaction was kind of, ‘What’s wrong with that? Just have everyone take a step back.’”
     
  • January 3, 2014
     
    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 two recent ACSblog posts from BYU law professor Frederick Mark Gedicks. For more on RFRA, UNLV law professor Leslie Griffin recently examined the law’s constitutionality.
  • December 23, 2013
    Guest Post
    by Erin Kesler, Communications Specialist at the Center for Progressive Reform
     
    Climate change and pollution affects everyone. Global warming-induced hurricanes pummel our coasts and droughts ravage our farmland. Our neighbors, friends, and children develop asthma and heart attacks because of air pollution and our favorite parks and hunting grounds are withering away.
     
    The science is conclusive and polls reflect the concern of many Americans about global warming and its related pollution. So what can account for the lack of government action on the issue? The answer has a lot to do with our broken campaign finance system and the ability of individuals committed to denying the existence of climate change to dump huge amounts of money (much of it secret) into elections and in the political process.
     
    During the 2012 election, outside spending groups, many of them newly created in the wake of the Supreme Court’s Citizens United decision, reported spending more than $1.28 billion to influence voters and politicians. Of the amount disclosed, just 132 individuals who contributed over $1 million each were responsible for the bulk of Super PAC spending. Significant amounts were dumped into the campaign coffers of members of Congress by regulated industries that have taken an active role in opposing any new efforts by the President to move forward on greenhouse gas regulations.
     
    In addition, veins of secret money whistled their way through the campaign to the tune of over $300 million. Financial juggernauts of vague origin “donated” even more money to still more groups organized under the section of the tax code reserved for nonprofits and trade associations and continue to spend and influence policy debates and elections throughout the country, with a particular focus against environmental protection and anti-pollution measures.
  • December 19, 2013
    by Gabriel J. Chin, Professor of Law, UC Davis School of Law
     
    * This post is part of a series examining Harris v. Quinn, for which the high court will hear oral argument on January 21.
     
    I was in a labor union and have been on strike; I happily paid my dues to Local 2325 of the UAW because I thought my brothers and sisters greatly benefitted from collective bargaining. But that is just my opinion, and no group of workers must be represented by a union unless a majority agrees, and no individual worker need join a union at all.  But those who decline to become a member of a union that a majority of their fellow workers chose often must pay an agency fee, to reimburse the union for benefits which accrue to all.
     
    That’s essentially the issue in Harris v. Quinn, which Kent Greenfield has already aptly described as a potential sleeper on the Supreme Court’s docket:  Are workers’ First Amendment rights impaired, not by being forced to join a union (which they are not) but by being forced to pay for collective bargaining (which they are)?  The Court could use the case to limit the ability of government workers to unionize, to eliminate any required payment of agency fees by non-members benefitting from the contract, or undermine the principle, embodied in the National Labor Relations Act, of exclusive representation by a single union.  All of these would be unfortunate, and would require repudiation of a line of Supreme Court decisions dating to the unanimous Railway Employees v. Hanson, 351 U.S. 225 (1956), which found no problem in a federal law allowing negotiation of contracts requiring all covered workers to pay union dues, rejecting dissenting workers’ claims that mandatory payment of dues compelled "ideological and political associations which violate their right to freedom of conscience, freedom of association, and freedom of thought protected by the Bill of Rights."
     
    Harris involves home health care aides provided by the state of Illinois to certain ill people through Medicaid.  The case is maddening in a number of ways.  The plaintiffs—represented by, among others, former Acting Solicitor General Neal Katyal—insist that the workers at issue cannot be considered government employees, even though they get paychecks and health benefits from the state, must meet qualifications set by state regulations, and perform duties as required by those regulations and by individual social service supervisors.  Although the aides are “hired” and “fired” by the individual patients they serve, that is only so because the state in its generosity has delegated that authority.  The patients, who pay nothing both because of the rules of the program and because they are indigent, are not in any ordinary sense “employers.”
  • December 19, 2013
     
    Like many residents of the Town of Greece, New York, Susan Galloway and Linda Stephens regularly attended the Town Board’s monthly meetings, where votes would be held on proposed ordinances, residents’ input would be solicited and public business would be conducted. Historically, the Town Board began each meeting with a moment of silence, a practice that was replaced by a prayer in 1999. In 2007, Galloway and Stephens complained that the prayers “aligned the town with Christianity” and “were sectarian rather than secular.” In response, the Town scheduled three non-Christians to deliver prayers at a third of the Board meetings in 2008, the year in which Galloway and Stephens filed a lawsuit against the Town. But in the following eighteen months, only Christian clergy delivered the prayer.
     
    Galloway and Stephens’ lawsuit alleges that the Town violated the Constitution’s Establishment Clause in two ways: (1) its procedure for selecting prayer-givers unconstitutionally “prefer[red] Christianity over other faiths,” and (2) it allowed individual citizens to deliver “sectarian” prayers. To engage with this argument, ACS Student Chapters have held events on Town of Greece v. Galloway, which was heard before the Court last month. Gregory Lipper, Senior Litigation Counsel at Americans United for Separation of Church and State, spoke with the Georgetown ACS Student Chapter about the case. “You certainly do not need to be the Pope to know that that is a Christian prayer,” he said, when describing how explicit the opening prayers were at the Town’s meetings.
     
    Addressing the law students, Lipper explained that the Town-appointed chaplain of the month often asked the meetings’ attendees for some form of participation in the prayer, such as bowing their heads, standing, or responding “Amen” as members of the Board stood behind him. As a result, individuals often felt that noncompliance would alienate the Board, the body they had yet to address with their request or case. Lipper claimed that the prayers were not only denominational but also coercive, effectively requiring meeting attendees to participate or risk losing government and/or social support. “Because citizens are there to petition their government, it is especially important that these meetings be inclusive,” he added. “This is where the Town has fallen woefully short.”