Leslie C. Griffin

  • February 19, 2016

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    This post originally appeared on Hamilton and Griffin on Rights.

    Catholics for Choice joined nine other Catholic organizations in filing a “friend of the court” brief with the Supreme Court of the United States. The amicus brief lifts up the voices of the Catholic laity, workers, women, children and LGBT people who would be affected by the Supreme Court ruling in the Zubik v. Burwell case.

    Zubik v. Burwell is consolidated with six other cases brought by members of the Catholic hierarchy and allied organizations in the latest round of challenges to the birth control provisions in the Affordable Care Act. If the Supreme Court were to rule in favor of the bishops’ demands, hundreds of thousands of employees at religiously-affiliated nonprofit organizations could be deprived of their conscience rights, religious freedom and access to healthcare.

    Jon O’ Brien, president of Catholics for Choice and lead among the amici, said, “Where you are employed should not override your religious freedom nor limit your access to healthcare. The majority of Catholics use and support contraceptive coverage. The majority of Catholics support real religious liberty for all. The majority of Catholics would be disappointed by a ruling in favor of the bishops.”

    Continued O’Brien, “We filed this brief because we are all concerned that if the bishops and their allies get their way, it will only be the beginning. The bishops have shown their desire to circumvent any law to which they object. If the courts rule in their favor, they could start opposing health insurance benefits for same-sex couples and their dependents, or refuse maternity leave to women who have children using in vitro fertilization, or deny gay and lesbian parents the right to adopt a child.”

    Marianne Duddy-Burke, executive director of DignityUSA, a member of the coalition, said, “We believe it is absolutely essential that the petitioners not prevail in this case. We are already seeing employees in same-sex marriages being refused employment, fired and denied health benefits that are given to their colleagues—all on the basis of employers’ religious beliefs. We don’t believe the law supports this and hope the court upholds the equality of all employees.”

    Jim Fitzgerald, executive director of Call to Action, a third member of the coalition, said, “The majority of Catholics across the country support equality, inclusivity and social justice. We join them in rejecting discrimination on the basis of sexual identity or conscience-based decisions about healthcare. We lift up the rights of workers to follow their God-given conscience when making deeply personal decisions around their reproductive health.”

    “Catholics for Choice is proud to stand with our partners to represent the majority of Catholics who believe that imposing religious beliefs on others is wrong,” concluded O’Brien. “To use the Catholic faith to deny employees equal access to healthcare is not the freedom from religion guaranteed by our Constitution. What the bishops want is simply state-sponsored discrimination. We support the rights of the workers to follow their conscience when making a decision about contraception, and we oppose the hierarchy’s attempts to interfere with anyone’s personal decisions.”

    Oral arguments for Zubik v. Burwell will be heard by the Supreme Court on March 23.

     

  • November 10, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Now that the Supreme Court has granted cert. in Zubik v. Burwell on seven related religious nonprofits’ cases, we will have an opportunity to learn if Hobby Lobby was a “decision of startling breadth,” as Justice Ginsburg predicted in her dissent. In Zubik, the religious nonprofits allege that the government’s accommodation of the contraceptive mandate of the Affordable Care Act (ACA) violates the Religious Freedom Restoration Act (RFRA). An important part of the case turns on what the Court views as a “substantial burden” on the exercise of religion.

    Under RFRA, a plaintiff must demonstrate as a threshold matter that the government substantially burdened his exercise of religion. Only then does the government have to meet the most difficult test in constitutional law, namely that its action constitutes the least restrictive means of serving a compelling government interest. If the courts make it easy for plaintiffs to prove a substantial burden, each and every federal law can be constantly put to this strict standard.

    The appeals courts in the nonprofit cases ruled that plaintiffs’ religious exercise was not substantially burdened by the accommodation. An Eighth Circuit opinion, however, suggests that those courts misread Justice Alito’s analysis in Hobby Lobby. Zubik will test just how deferential the Court intends to be toward religious plaintiffs who allege a substantial burden on their religion.

    Hobby Lobby’s Substantial Burden

    The contraceptive mandate of the ACA requires employers to include preventive health care services in their insurance coverage. Hobby Lobby involved a successful challenge to the mandate by religious for-profit employers who believe as a matter of faith that four covered contraceptives cause abortion. At the beginning of his opinion upholding the for-profits’ challenge, Justice Alito observed that if the employers did not provide contraceptive coverage, they would be taxed $100 per day for each affected employee, which could amount to $1.3 million per day and $475 million per year for employer Hobby Lobby, and $90,000 per day and $33 million per year for Conestoga Wood. That amount of money, Justice Alito concluded, is “surely substantial.”

    Responding to the argument that the employers need not provide insurance in the first place, Alito then identified an alternative substantial burden. If at least one of their employees qualified for a government subsidy on the health care exchanges, the companies would be fined $2,000 per employee per year, totaling $26 million for Hobby Lobby and $1.3 million for Conestoga. Still substantial, in Justice Alito’s eyes.

  • October 29, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Should judges tell the Little Sisters of the Poor, a group of Roman Catholic nuns who devote their lives to caring for the elderly poor, how to analyze moral complicity?

    That’s a question the Supreme Court will consider on Friday, October 30, when the Justices decide whether to grant certiorari on cases brought by religious nonprofits challenging the contraceptive mandate of the Affordable Care Act (ACA). This particular question about nuns and moral complicity comes from the pen of Paul Clement, the seasoned Supreme Court litigator who represents the sisters. Clement and the Sisters are competing with the Archbishop of Washington for the attention of the Court.

    Background: Challenges to the Accommodation, not the Contraceptive Mandate

    The ACA requires employers to provide insurance coverage for preventive health services, which for women include reproductive care. The insurance regulations specifically require employer health care plans to cover twenty FDA-approved contraceptives as well as sterilization procedures and reproductive counseling.

    The Little Sisters are among 140 plaintiffs in 56 cases brought by religious nonprofits challenging, not the contraceptive mandate itself, but the accommodation that allows religious employers to opt out of the mandate. Under the opt-out mechanism, the employer merely has to inform the Department of Health and Human Services (HHS) of its objection to contraception, identify what kind of insurance plan it offers, and provide the name and contact information of the insurance plans’ third party administrators (TPAs) and health insurance issuers. Once HHS or the insurers receive the notification, the burden of coverage shifts completely to the TPAs and health insurance companies, who provide the contraceptive coverage in separate plans, with no financial input from the religious employers.

    The religious nonprofits argue that this accommodation violates the Religious Freedom Restoration Act (RFRA), which holds that [g]overnment may substantially burden a person’s exercise of religion . . . [only if it is] in furtherance of a compelling government interest; and it is the least restrictive means of furthering that government interest.”

    How Many Angels Can Dance on the Head of a Pin?

    A central debate in the cases is whether the “substantial burden” of RFRA is a theological term or a legal one. As Paul Clement’s question suggests, the moral casuistry of these cases would make a medieval monk proud. Unlike many of the non-Catholic plaintiffs, who oppose only four of the contraceptives that they believe to be abortifacient, all the Catholic plaintiffs believe that the use of artificial contraception is always immoral. The Sisters therefore believe that even signing the compliance form would “make them morally complicit in grave sin.” Their lawyer argues that the courts may not question that this moral belief is automatically a substantial burden under RFRA because it appears substantial to the sisters.

    The plaintiffs differ about just where the immorality occurs – in providing insurance, in signing the form, in authorizing the TPAs, in knowing that contraceptive access will occur, all of the above, or none of the above. Although the moral description varies from case to case, however, the plaintiffs uniformly want no judicial scrutiny of their moral analyses.

  • November 7, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law at UNLV Boyd School of Law
     
    Yet another appeals court has issued an opinion about a for-profit corporation’s challenge to the contraceptive mandate of the Affordable Care Act. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. This time, the D.C. Circuit ruled in Gilardi v. HHS that the Gilardis, two Catholic brothers who own Freshway Foods and Freshway Logistics and oppose contraception, sterilization and abortion, are entitled to a preliminary injunction because they are likely to succeed on their claim that the mandate violates their free exercise rights as well as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” The D.C. Circuit’s action is consistent with the Tenth Circuit’s ruling that the arts-and-crafts chain Hobby Lobby demonstrated that the mandate substantially burdened its exercise of religion, but at odds with rulings against secular, for-profit companies and for the government by the Third and Sixth Circuits.
     
    One aspect of Gilardi is distinctive. Although the Third and Sixth Circuits, ruling for the government, decided that for-profit, secular corporations cannot exercise religion under either the Free Exercise Clause or RFRA, the Tenth Circuit, in support of Hobby Lobby, determined that such corporations are persons who can exercise religion under RFRA. The D.C. Circuit offered a hybrid. Although two judges – Janice Rogers Brown and A. Raymond Randolph – ruled that the Freshway Companies are not persons under either the Free Exercise Clause or RFRA, they nonetheless held that the Gilardis could bring suit because the Freshway Companies are closely held corporations with only the two brothers as owners and shareholders. In that context, the court decided, the brothers suffered a concrete and personal injury and could likely prove that their religion was substantially burdened by the mandate.
     
    The diverse circuit court rulings risk turning the contraceptive mandate issue into a debate over corporate form and institutional rights. If corporations engage in speech under the First Amendment – Citizens United – why can’t they exercise religion?
  • July 26, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law 
     
    Liberty University v. Lew, the Fourth Circuit’s recent decision about the Affordable Care Act [ACA], should please no one. The opinion demonstrates the dangers of exempting religious organizations and individuals from the law. Take your pick. The court either exempted too many, or too few. Its middle ground unsatisfactorily addresses the First Amendment challenges to the Act.
     
    Individual plaintiffs and Liberty University opposed the individual and employer mandates of the ACA. The individual mandate requires individuals to obtain minimum essential health care coverage or pay a penalty in their taxes. The employer mandate requires employers to provide affordable minimal essential health care coverage to full-time employees or face a tax penalty.
     
    All plaintiffs are Christians morally opposed to abortion except to save the life of the mother. The most straightforward of their complaints alleged that their mandated insurance payments would wind up paying for abortions in violation of their constitutional and statutory rights. This is the simplest exemption argument in the case: plaintiffs think they should be exempt from the ACA because it burdens their religion.
     
    The court quickly dismissed that argument. Under the Free Exercise Clause, it ruled, the ACA is a neutral law of general applicability that applies to everyone without singling out religions for disfavor. Moreover, the court decided, plaintiffs’ religion was not burdened by the mandates. Although plaintiffs alleged that their money would be used for abortion, other provisions of the ACA required that a plan without abortion coverage would always be available as a choice for consumers. Without a substantial burden on religion, neither the Free Exercise Clause nor the Religious Freedom Restoration Act (which prohibits the federal government from substantially burdening religion without a compelling government interest) was violated.