June 2014

  • June 30, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director for Americans United for Separation of Church and State

    Two things stand out to me about this morning’s 5-4 decision in Burwell v. Hobby Lobby Stores that the Religious Freedom Restoration Act (RFRA) grants “religious” for-profit corporations an exemption from regulations requiring businesses to include coverage for contraceptives in their health insurance plans:

    First, the majority opinion attempts to hold itself out as a limited, cautious one. A closer look, however, shows that it is no such thing.

    Second, even though Justice Kennedy joined the five-justice majority opinion, his separate concurring opinion indicates that he disagrees with the majority in important respects. In such circumstances, a Justice normally joins a colleague’s opinion only in part, at most. Justice Kennedy’s imprudent joinder of the majority’s entire opinion will likely lead to mischief and confusion in the lower courts.

    Applicability to for-profit corporations

    The majority’s analysis begins with the conclusion that RFRA protects the religious “beliefs” of for-profit corporations, even though it is quite doubtful that the senators and representatives who voted for RFRA expected it to extend that far.

    The majority attempts to “limit” its ruling on this issue by stating that it is addressing only closely-held for-profit corporations here, and that it is not deciding whether RFRA also covers publicly-traded corporations.  But a reading of the majority’s reasoning on this issue — including its explanation that the word “person,” as used in RFRA, is defined as covering all corporations by a law called “the Dictionary Act” — leaves no doubt that the same result will ensue in the case of publicly-traded entities.

    The majority’s real attempt to answer concerns about extending the coverage of RFRA to all for-profit entities is to say: “don’t worry about it,” it’s unlikely that a publicly-traded corporation will attempt to impose religious requirements on its employers because it probably won’t be able to agree internally on any particular religious belief. This should not be of comfort to employees.

    Perhaps smaller, minority religions will not be able to impose their religious views on employees through publicly-traded corporations. But there is no reason to be confident that the religious views held by the majority of persons wealthy enough to own stock, at least in a particular industry or field, won’t give rise to RFRA claims by large, publicly-traded entities. In other words, employees need only worry about being subjected to majority religious views, of the better-off.

  • June 30, 2014
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    In earlier posts on this case, I pointed out the potential that the decision could knock out the pillars of a carefully designed labor relations system. This decision did not do so, but it is clear that Justice Alito is planting the seeds for such destruction. There is no doubt that the National Right to Work Legal Defense Foundation will accept the invitation with future, or even currently pending litigation designed for such a purpose. 

    Although the decision was narrower than it might have been, it was not a victory for the union or the health care workers it represents. The predictable majority in the 5 to 4 decision noted that the workers at issue are not exclusively state employees. They are also employed by the disabled individuals who hired them to provide home care. Therefore, these partial government employees are not covered by the Court’s 37-year old precedent that allows states to enter into agreements with unions that require all employees that the union is mandated by law to represent to pay the costs of such representation. As a result, the state cannot choose to require these employees to pay the cost of union representation, despite its decision that collective bargaining is an effective way to accomplish its interests as an employer.

    Justice Alito spent pages questioning the 1977 Abood decision, which found such agreements do not violate the First Amendment so long as they do not require objecting workers to pay for the union’s political or other nonrepresentational activities. Abood was decided without a dissent by a Court with such notable conservatives as Justices Rehnquist and Powell, demonstrating just how far the Court has moved in recent years.  Justice Alito’s discussion of Abood mirrored and expanded his 2012 opinion in Knox v. SEIU, in which he similarly questioned Abood in dicta, expounding on an issue not raised by the parties in the case. Anyone who doubts that conservative justices engage in judicial activism should read both opinions. At one point Justice Alito supports the proposition that avoiding the problem of free riders, nonmembers who accept the benefits of union representation without paying the cost, does not justify the constitutional harm to the nonmembers who must pay those costs by citing as persuasive authority his own dicta in Knox.

  • June 30, 2014
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    Earlier this month, we celebrated the 70th anniversary of D-Day, the Allied landing in France at Normandy. There is a backstory to that event worth telling.

    During World War II, the Nazi war machine utilized a ciphering device for encrypting secret messages called the Enigma machine. The German Navy and Army used these machines to control and report the locations of submarines in the Atlantic and to pass information about bombing raids, the movement of military units, and the location of cargo and military supply ships. Allied cargo convoys were decimated so successfully by German U Boats that Britain was in danger of being starved into surrender.

    A number of British code breakers expended considerable effort to work out the vast permutations of the Enigma.  It fell, however, to one brilliant, young mathematician, Alan Turing, to create the computing device that cracked Enigma’s code. And, once the Enigma machines’ operations were compromised, the tide of war began to turn against Germany.  Indeed, Britain was able to successfully use the Enigma’s capabilities against Germany’s own Navy and Air Force.

    In developing the code-breaking computer, Turing also developed the concepts of algorithms and computation—known as Turing Rules or Tests—upon which all modern computers, artificial intelligence and theoretical computation devices operate. 

    Turing was also gay.  In the early 1950s, homosexuality was a crime in Britain.  In 1952, Turing was charged with “gross indecency” for having sex with a man.  Instead of being hailed as one of the crucial figures in defeating the Nazis, saving Britain and thousands of lives and securing a favorable conclusion to World War II for the Allies, Turing’s security clearance was revoked, he was barred from working for the British government and he was forced to be chemically castrated with huge injections of female hormones. Less than two years later, at age 41, Alan Turing committed suicide by eating a cyanide-laced apple.

  • June 30, 2014
    Guest Post

    by Sarah Warbelow, Legal Director, Human Rights Campaign

    Today, the U.S. Supreme Court issued a ruling in two cases, Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corporation v. Burwell (Hobby Lobby), in which the Justices were asked to decide whether requiring a corporation to provide insurance coverage that includes contraception under the Affordable Care Act (ACA) is a “substantial burden” on the corporation with religious objections, and whether corporations are covered by the Religious Freedom Restoration Act of 1993 (RFRA). The Court ruled that closely held for-profit corporations are exempt from complying with the ACA contraception mandate based on religious belief under RFRA.

    The lesbian, gay, bisexual, and transgender (LGBT) community watched this decision with bated breath. Though ostensibly about birth control, the potential ramifications of this case could have been far-reaching. Religious beliefs have long been used as a basis to deny LGBT people access to basic civil rights. In the past year alone, more than a dozen states contemplated passing laws that would have permitted business owners to deny LGBT people services if the owner cited religious reasons for their actions. In her dissent, Justice Ginsburg expresses her concern that Hobby Lobby could lead to RFRA being used to permit discrimination against minority groups including LGBT people.

    Yet, in what is otherwise a very damaging decision, the Court expressly attempted to limit the implications of this ruling by explaining, “The principled dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield.” Justice Alito may have chosen race to illustrate his point, but the significance for the LGBT community is clear—employment non-discrimination laws are “precisely tailored to achieve that critical goal” of equal opportunity. Hobby Lobby will NOT serve as a free pass to utilize religion as a means of avoiding laws with which business would rather not comply.

  • June 30, 2014

    by Nicholas Alexiou

    Adam Liptak and Steven Greenhouse of The New York Times summarize today’s 5 to 4 rulings in Burwell v. Hobby Lobby Stores, Inc. and Harris v. Quinn, the final two decisions of the Court’s October Term 2013.

    Selina Maclaren writes at Salon that the justices of the Supreme Court have a problem understanding new technologies, especially when they try to analogize these technologies to previous inventions already protected.

    Jack Goldsmith explains at Lawfare how a proposed lawsuit by the House of Representatives against President Obama in an Article III court is not how the framers would have envisioned Congress attempting to rein in perceived executive overreach.

    At Vox, Dylan Matthews discusses how emerging technologies such as GPS may soon eliminate mass incarceration.

    Ronald K.L. Collins tracks efforts in the Senate to amend the First Amendment in a way that would allow congressional regulation of campaign financing at Concurring Opinions.