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?
This morning, the Supreme Court heard oral arguments in Town of Greece v. Galloway, a First Amendment challenge to a New York town's practice of solemnizing its local board meetings with Christian prayer. The argument revealed the weak constitutional footing on which the town stands when it argues that it may invite local clergy, the vast majority of whom are Christian, to deliver official invocations that are overwhelmingly Christian. It also served as a stark reminder of how the Supreme Court has failed citizens who are non-believers when it comes to this issue.
Posing the first question of the day, Justice Kagan asked whether similar official prayers would be permissible at Court sessions or congressional hearings. The town's lawyer responded in the only way a reasonable person could. He conceded that such prayers – those that invoke explicitly Christian beliefs – would indeed be unconstitutional, but argued that the town's prayers were different because they reflect a long history of legislative prayer, which includes state legislatures and the First Congress. Pressed further by Justice Kennedy to provide a justification for the prayers other than tradition, the town's lawyer, not surprisingly, came up short.
In fact, as the ACLU argued in its friend-of-the-court brief, tradition -- standing alone -- is a poor reason for flouting a fundamental principle of the Establishment Clause of the First Amendment: The government should remain neutral on matters of faith and may not promote religion over non-religion. When elected officials violate this maxim by imposing official prayer at meetings, especially local governmental meetings, it casts those who don't subscribe to the promoted beliefs as outsiders, second-class citizens who must pay a steep price in spiritual terms for daring to exercise the right of participatory democracy.
The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives. The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause. No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.
One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference. It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy. As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
Lost amidst the Supreme Court’s end of term fireworks affecting voting rights, affirmative action and marriage equality was the 50th anniversary of one of the Court’s most significant modern decisions reaffirming a different principle of individual liberty – government neutrality in matters of religion. This lack of fanfare is in part a testament to the enduring power of the ruling in Schempp v. Abington School District, which held unconstitutional a state law mandating that public school students begin each school day with a reading from the Bible and the Lord’s Prayer. Today’s subdued response contrasts sharply with the torrent of criticism following the original ruling in 1963, which included hate mail, protests, and legislative efforts to overturn the decision. But that quiet may be the calm before the storm, as the neutrality principle faces a new threat in the current Supreme Court, thanks to a case to be heard next term.
It may seem hard to imagine today, with our nation’s remarkable religious diversity and, for the most part, tolerance, that a Supreme Court decision upholding the principle that in matters of religion “the government is neutral, and, while protecting all, it prefers none, and it disparages none” could generate serious hostility. It is a particularly notable attribute when contrasted with the turmoil in Egypt and other Mideast nations involving the question of religious control of the government.
The reaction was in some ways an echo of the response to the decision the previous term in Engel v. Vitale, which held that an official state-sponsored school prayer was unconstitutional. But Schempp not only reaffirmed that holding, but enhanced the legal argument supporting it, with Justice Tom Clark’s opinion offering an expansive discussion of the history of religious liberty in the nation in support of the principle of separation of church and state. While acknowledging “that religion has been closely identified with our history and government,” Clark reiterated “the wholesome ‘neutrality’” expressed in prior cases which, he explained, “stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or … dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies.”