by Kent Greenfield, Professor of Law and Law Fund Research Scholar, Boston College Law School
Most cases on the Supreme Court’s docket in any given year are not the likes of Windsor, Shelby County, or Fisher. Those get the headlines, of course, and rightly so. But most of of the Court’s caseload is dedicated to answering various arcane questions in eddies of the U.S. Code. By virtue of its position at the top of the judicial hierarchy, one of the Court’s primary jobs — still — is to be the final arbiter of these kinds of questions when the lower courts disagree. Only the most fastidious Court watchers pay much attention. (Back when I was clerking on the Court almost twenty years ago, I worked on a case that decided the statute of limitations for the Worker Adjustment and Retraining Notification Act. I’m shocked — shocked! — you don’t remember it.)
So looking over the January argument list, no one would blame you if, at first glance, you assumed Harris v. Quinn falls into this group. The question presented appears to be exceedingly narrow and specific — whether home health care workers in Illinois, paid for by Medicaid, are state employees. If they are, then a union representing state employees will be under a duty to bargain collectively on their behalf, and the workers will be required to pay their “fair share” of the costs of such union representation. The case arose when some health care workers covered by the collective bargaining agreement challenged the mandatory union fees as a violation of the First Amendment.
The Seventh Circuit decided the case in a terse, unanimous opinion. For nearly forty years, since Abood v. Detroit Board of Education, the law has been settled that public employees “may be compelled to support legitimate, non-ideological, union activities germane to collective-bargaining representation.” It is the quid pro quo of labor law: the unions are under a duty to represent all employees in the bargaining unit; in return, the employees are prohibited from free-riding.
The past few Terms have been tumultuous for First Amendment doctrine, and this Term is shaping up to be another First Amendment blockbuster, with cases like Hobby Lobby Stores, Inc. v. Sebelius and McCutcheon v. FEC on deck. But for labor unions, another First Amendment case has potential to be the biggest game changer: In January, the Court will hear argument in Harris v. Quinn, a First Amendment case about union representation in the public sector. At stake are two important questions: first, the extent to which states can allow homecare workers who are paid by the state to be represented by a union; and second, whether public employees have a constitutional right to refuse to pay for the costs of union representation. Thus, while Harris involves an Illinois statute that allows homecare workers to bargain collectively, it has the potential to affect the structure of public sector bargaining throughout the country.
Illinois is deeply vested in improving working conditions for homecare providers – not only do better wages and working conditions mean more stability in the profession (which is good for consumers), but the state also administers many of the programs that fund homecare workers. Under these programs, while consumers or their guardians choose their own homecare workers and direct their day-to-day work, Illinois determines the number of hours they can work, defines minimal standards, creates training opportunities, and sets the workers’ wages and issues their paychecks, among other job parameters. This division of responsibility between state and consumer sets the stage for Illinois’s decision to allow homecare workers to form a union, and is a primary reason for the legal challenge in Harris.
Specifically, elected officials made the proprietary decision that homecare workers – a group that defies the traditional hallmarks of a centralized workforce – are entitled to the same right as myriad other workers: the right to choose whether to form a union. The scope of that right, however, is carefully circumscribed by statute. The majority-approved union may bargain only with the state (not with consumers), and only over the economic conditions that the state controls, such as wages, benefits, training, and certain other working conditions.
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.
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?
Last week the U.S. Supreme Court agreed to review two lower court decisions involving for-profit businesses seeking religious exemptions from the Affordable Care Act’s so-called “contraception mandate.” The mandate requires that employer healthcare plans cover all FDA-approved contraception without “cost-sharing”—that is, without a copayment or other out-of-pocket patient expense beyond the monthly plan premium. Churches and other “houses of worship” are fully exempt from the mandate, and there is a regulatory accommodation for religious nonprofits like religiously affiliated colleges and hospitals, which excuses them from complying with the mandate so long as they certify that compliance violates the tenets of their affiliated religion.
For-profit employers whose religious beliefs condemn the use of some or all of the mandated contraceptives have challenged the mandate under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from imposing a “substantial burden” on a person’s religious practices unless it is pursuing an exceptionally important goal that it cannot accomplish in another way. These employers are claiming that RFRA grants them the same kind of exemption as has been granted to churches, synagogues, and other religious congregations, even though they are unambiguously secular enterprises like craft stores, auto parts manufacturers, construction companies, and medical supply businesses. (I examined the weaknesses in these cases in an ACS Issue Brief last fall).
One of the mandate decisions the Court will review, Hobby Lobby Stores, Inc. v. Sebelius(10th Cir. June 27, 2013), decided that a for-profit corporation that operates a nation-wide chain of craft stores is a “person” who “exercises religion” under RFRA and thus is entitled to its protections. The other decision, Conestoga Wood Specialties Corporation v. Sebelius(3rd Cir. July 26, 2013) went the other way, finding that a for-profit corporation that operates a cabinet-making business is not protected by RFRA, and additionally holding that the mandate does not violate free exercise rights protected by the First Amendment.