Writing for TheHuffington Post, distinguished George Washington University Law School Prof. Alan B. Morrison and co-author Adam A. Marshall argue in favor of the National Popular Vote (NPV) movement. In his article, Morrison—a faculty advisor to the ACS Student Chapter at GWU—explains why the current state of the Electoral College is a major deficit to American democracy and how the NPV movement would facilitate a more representative voting system.
Writing for SCOTUSblog, Jody Freeman explains why the greenhouse gas cases pending at the U.S. Supreme Court will have little impact on the EPA and the government’s ability to regulate emissions.
The Associated Press reports on the developing case in the U.S. Court of Appeals for the Tenth Circuit that has Utah state attorneys insisting that same-sex marriage will devalue the family structure and lead to economic crisis.
David H. Gans of Slate breaks down Hobby Lobby’s lawsuit against the Obama administration to reveal why, when it comes to the free exercise of religion, most corporations are sitting this one out.
At the blog of Legal Times, Todd Ruger notes the diversity of President Obama’s judicial nominees.
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 tworecentACSblog posts from BYU law professor Frederick Mark Gedicks. For more on RFRA, UNLV law professor Leslie Griffin recently examined the law’s constitutionality.
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.”
“In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v. Smith that all citizens must obey neutral laws. Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professor Marci Hamilton argued in briefingBoerne.
Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.
Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.
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.