The D.C. Circuit’s recent decision addressing the contraception mandate – Gilardi v. United States Department of Health and Human Services – got some things right but many more things wrong. The contraception mandate is the Affordable Care Act’s requirement that health care plans, now mandatory for large employers, include all FDA-approved contraception without any cost sharing by employees.
Francis and Philip Gilardi own and manage Freshway Foods and Freshway Logistics, fresh food processing and delivery companies. The brothers are religiously opposed to contraception and argued that the mandate violates their corporations’ and their own religious rights under the Religious Freedom Restoration Act (RFRA). Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A divided panel of the D.C. Circuit held that the brothers were entitled to an exemption from the mandate under RFRA.
What the Gilardi Court got right. The Gilardi Court held that secular corporations are not “persons” capable of religious exercise and therefore cannot bring a RFRA claim. Because RFRA draws from Free Exercise Clause jurisprudence, the D.C. Circuit took the occasion to examine whether corporations had free exercise rights. It rejected such a notion, observing that the Supreme Court has never extended free exercise protection to secular corporations and “has expressed strong doubts about the proposition.” “When it comes to the free exercise of religion . . . the [Supreme] Court has only indicated that people and churches worship.”
In our criminal justice system, we ask jurors to make incredibly difficult decisions about life and death, guilt and innocence, all without much training, preparation or support. One day you are a mother, father, employee, ordinary citizen; the next, you are deciding whether someone should be executed by order of the State.
This is the American system. Citizens become jurors and are suddenly entrusted with the most important decisions a society is required to make. Jurors are elevated to a constitutional role and given more power than ever before, all in the name of keeping the democratic legitimacy of citizen representation in our criminal justice system.
Just not in Alabama when it comes to the death penalty.
For the ninety-fifth time, a duly constituted local Alabama jury spared the life of a defendant facing the death penalty. In Woodward v. Alabama, the jurors voted 8-4 to sentence Mario Dion Woodward to life in prison without the possibility of parole. A single judge overrode the decision and sentenced Mr. Woodward to death.
In her dissent from a denial of certiorari, Justice Sonya Sotomayor raised significant Sixth and Eighth Amendment concerns about the practice of allowing judges (facing the political pressure of reelection) to impose the death penalty because those judges disagree with the jury’s assessments of the facts. Such reasoning runs directly against the logic of Ring v. Arizona and may violate the constitutional rights of the accused.
However the Supreme Court ultimately decides the constitutional issue, I see a broader problem focusing not on the accused but on the citizen. Simply stated, a judicial override process devalues civic participation and threatens to undermine the legitimacy of the jury system. By disrespecting the jury verdict, the judge is disrespecting the juror’s role in the criminal justice system.
by Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project
Earlier this week the U.S. Supreme Court issued a decision refusing to block a Texas law that has forced more than one third of the women's health centers to stop providing abortion. The Court reached its decision despite the fact that the law is having devastating effects on women in the three weeks that it's been in place. Women have been turned away from clinics. They are frustrated, angry, and in tears. In large parts of the state, including the Rio Grande Valley, there is no abortion provider. One woman whose appointment at a Harlingen health center was cancelled said that she did not have the money to travel north, and she would likely be forced to carry to term.
The law at issue requires doctors to have admitting privileges at a local hospital. At first glance, that sounds reasonable. But this requirement is simply a backdoor attempt to shut providers down. As the District Court found after a trial, admitting privileges will place a substantial obstacle in the path of women seeking abortion, and will do nothing to ensure patient safety. This is why the American Congress of Obstetrician and Gynecologists Texas Medical Association, and the Texas Hospital Association opposed the law.
So where to do we go from here? We keep fighting. As disappointed as we are, we will do everything we can to protect Texas women. We know the public is behind us too. In a poll, 80 percent of Texans opposed this law. As we saw in New Mexico Tuesday night, when asked directly, voters routinely reject laws that attempt to take away personal and private decisions from women and their families.
Our case continues on the merits, and the Fifth Circuit Court of Appeals will hear arguments in January. We hope we will find justice at some point in the court process.
by Meagan S. Sway, Associate, Paul, Weiss, Rifkind, Wharton & Garrison LLP
On Monday, Justice Sotomayor illuminated what many Alabama defendants and their lawyers have long known: the closer it gets to election season, the less the Sixth and Eighth Amendments matter in capital cases. While only Justice Breyer joined Justice Sotomayor’s dissent, the practice of granting elected judges power to override jury sentences in capital cases should trouble all nine justices, as Alabama’s capital sentencing scheme undermines our entire justice system.
While a majority of the justices do not appear to accept that Alabama’s sentencing scheme violates a defendant’s Sixth Amendment right to trial by jury, the defendant is not the only player who loses as a result of granting a judge the power to override a jury’s recommendation—jurors also suffer. The Supreme Court has recognized in its Batson jurisprudence that discrimination against a veniremember deprives the defendant of his Sixth Amendment right to a jury and also denies the individual veniremember his “most significant opportunity to participate in the democratic process.” Powers v. Ohio (1991). Alabama’s judicial override system has the same problem. As shown in Bryan Stevenson’s mini-multiple regression analysis, there is a statistically significant relationship between a judge facing an election year and his exercise of judicial override. Thus, a person who serves on a jury, whose judge is facing an election, will see her vote count less than a person serving on a jury whose judge is not. This has the additional negative effect of causing jurors to lose faith in the system, because of the sense that whatever decision they reach it is subject to apparently arbitrary review (and potential reversal) by a judge. A juror may well ask herself, why bother?
The Court should be concerned with the startling appearance of impropriety that results from Alabama’s capital sentencing scheme. Judges are – and should be – supremely concerned about guarding against any appearance of impropriety, as it undermines society’s trust and confidence in the justice system. The Second Circuit’s recent sua sponte removal of Judge Shira Scheindlin from New York City’s stop-and-frisk litigation comes to mind. There, the court removed Judge Scheindlin because she directed related cases to her docket and granted media interviews while the stop-and-frisk litigation was pending. Judicial overrides in Alabama provide much more damning evidence of judicial impropriety: Stevenson’s analysis demonstrating an overwhelming correlation between judicial elections and overrides; 92% of all judicial overrides result in death sentences; states where judges are not elected but have the power of override do not exercise that power; and Alabama judges themselves have admitted that elections have influenced their decisions to override a jury’s recommendation of a life sentence.
Judge Patricia Wald on Wednesday received the Presidential Medal of Freedom—the nation’s highest civilian honor. I smiled when I heard she was nominated—not because she was a legal trailblazer for generations of women in the law or because she was once chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. I smiled not because she was the former board chair of the Open Society Justice Initiative or because she distinguished herself as a judge
on the International Criminal Tribunal for the former Yugoslavia. (Though she did all of those things and more—with grace and integrity.)
I smiled because Judge Wald championed two causes that some legal luminaries ignore.
In 2006, there was no serious legislative initiative to remedy the disparity between crack and powder cocaine in the nation’s sentencing laws. So the Justice Roundtable, a Washington-based criminal justice coalition, sought to bring attention to the issue in the international arena.
The Inter-American Commission on Human Rights accepted the Roundtable’s request to hold a thematic hearing on the crack cocaine disparity as the most egregious example of mandatory minimum sentencing in the U.S. criminal justice system. The Commission, an autonomous organ of the Organization of American States, convened the hearing on March 3, 2006, and heard riveting testimony about how mandatory minimums are applied in a discriminatory fashion and lead to increased arbitrariness in federal sentencing.
Judge Wald’s closing words were, perhaps, the most poignant part of the Human Rights Commission’s proceedings.