November 22, 2013
"The Town FEMA Turned Upside Down"
Jonathan Last has an interesting article at The Weekly Standard about the town of Ocean Grove, New Jersey, which has figured prominently in some of the ongoing discussions and arguments about the tension between religious freedom, on the one hand, and some states' antidiscrimination laws, on the other. Read the whole thing.
An important win for Catholic institutions in HHS litigation
The dioceses of Erie and Pittsburgh secured a preliminary injunction from a federal court against the so-called contraception-coverage mandate. The story is here. What is particularly important about this case, it seems to me, is that -- unlike the rulings that have been the subject of a lot of news coverage lately, and that the Supreme Court is likely to take up soon -- it does not involve the protections afforded by RFRA to for-profit entities or individuals operating businesses. It involved, instead, not only the dioceses themselves but various Catholic non-profit entities (Catholic Charities, Erie Catholic Preparatory School, St. Martin Center, etc.). And, the case -- unlike Hobby Lobby, etc. -- involves a challenge to the "accommodation," not the mandate as it applies to businesses.
Here is a bit from the news story:
The judge wrote in his 65-page opinion that he was ruling on whether "the Government will be permitted to sever the Catholic Church into two parts (i.e., worship and faith, and 'good works') -- in other words, whether the Government will be successful in restricting the Right to the Free Exercise of Religion as set forth in the First Amendment to a Right to Worship only."
The judge wrote that he "is constrained to understand why religious employers such as Catholic Charities and Prince of Peace Center -- which were born from the same religious faith, and premised upon the same religious tenets and principles, and operate as extensions and embodiments of the Church, but are not subsidiaries of a parent corporation -- would not be treated the same as the Church itself with respect to the free exercise of that religion."
The opinion in the case (Zubik v. Sebelius) is available here: Download Erie opinion.
A few items of possible interest, while I work on digesting the opinion. First, I was struck by the fact that the ACLU filed an amicus brief against the dioceses' motion for a preliminary injunction. That is, the American Civil Liberties Union filed a brief -- in a trial court, in the context of a motion for a preliminary injunction -- asking the court not to rule in favor of religious institutions seeking to invoke the protections of the Religious Freedom Restoration Act and the First Amendment against a government mandate. I was surprised (but maybe I should not have been).
Next, the court followed Judge Sykes's recent (and compelling) opinion for the Seventh Circuit in Korte, and emphasized that, with respect to the "substantial burden" aspect of the RFRA claim, "[i]t is enough that the claimant has an 'honest conviction' that what the government is requiring, prohibiting, or pressuring him to do conflicts with his religion." The court continued:
The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.
Third, I was particularly interested in the court's conclusions that "the accommodation and the exemption divide the Catholic Church which creates a substantial burden":
[T]he religious employer “accommodation” separates the “good works (faith in action) employers” from the “houses of worship employers” within the Catholic Church by refusing to allow the “good works employers” the same burden-free exercise of their religion. . . .
Simply put, the Court is constrained to understand why all religious employers who share the same religious tenets – (1) the sanctity of human life from conception to natural death; (2) unity of worship, faith, and good works (“faith without good works is dead”); and (3) the facilitation of evil is as morally odious as the proliferation of evil – are not exempt; or conversely, why all religious employers do not fall within the confines of the “accommodation.” The Court made the factual determination that Plaintiffs sincerely believe that the “good works, or faith-in-action” arms of the Catholic Church implement a core and germane guiding principle in the exercise of their religious beliefs. Why should religious employers who provide the charitable and educational services of the Catholic Church be required to facilitate/initiate the provision of contraceptive products, services, and counseling, through their health insurers or TPAs, when religious employers who operate the houses of worship do not?
In addition, the court noted that the Government's attempt to force a division between exempt "houses of worship"-type employers and non-exempt "good works"-type employers "unnecessarily -- and in direct contravention to the RFRA and the Free Exercise Clause of the First Amendment -- entangles the Government into determining what constitutes 'religion.'" (I would have expected the no-entanglement rule to be attached to the Establishment Clause, but . . . no matter here.)
Finally, for now, the court's response to the Government's claims about "least restrictive means" and the "harm to the Government" that would result from an injunction is hard-hitting (and correct):
The Court concludes that the combined nationwide total of all of those employers who fall within an exclusion, an exemption, or whose plans are “grandfathered” (approximately 100 million individuals are on “grandfathered” health plans) creates such an “underinclusiveness” which demonstrates that the Government will not be harmed in any significant way by the exclusion of these few Plaintiffs.
Marking the tragic day
On this sad day when we mark the 50th anniversary of one of the great tragedies of our national history, the James Madison Program at Princeton will be hosting presidential historian Alvin Felzenberg for a public dialogue on the cultural and political impact of the assassination of President Kennedy. The event, which is free and open to the public, will be at 4:30 in Frist Hall 302. MoJ friends in the Princeton area are most welcome to attend.
On the 50th anniversary of JFK's assassination--a few thoughts
What about his convictions? Well, JFK was a staunch Cold War anti-communist, that much is true. He was not a vigorous (to use a favorite Kennedy family word) or especially enthusiastic supporter of civil rights, though he was finally pressed into announcing that he would introduce a civil rights bill. It was Lyndon Johnson who aggressively pushed civil rights legislation through Congress. In economic policy and other areas Kennedy tended to be pragmatic rather than doctrinaire. Elected by the narrowest of margins (and perhaps only on the basis of fraud in Illinois and Texas), Kennedy sought to govern in a bipartisan and non-ideological fashion, appointing Republicans C. Douglas Dillon and Robert McNamara to key positions (Treasury and Defense, respectively) in his cabinet.
Fifty years after his assassination there are still people who seem to believe that Kennedy was killed by "a climate of right-wing hate." Of course, the truth is that he was killed by a communist. A few years before killing JFK, Lee Harvey Oswald had defected to the Soviet Union. After he returned, he became a strong advocate of "fair play for Cuba" and was deeply hostile to, and concerned about, Kennedy's efforts to topple Fidel Castro--perhaps by engineering his assassination.
C.S. Lewis on Textualism and Purposivism
Today is the anniversary of C.S. Lewis's death. Both to celebrate it, and as something of a remedy for the many silly and shallow things that get said about textualism, here's something from his memoir, Surprised By Joy: The Shape of My Early Life. Lewis is describing his father's deliberations about which primary school to select for his children. The choice ends up being quite wrong, as Lewis is sent to a school with a cruel master whom the students call "Oldie."
You may ask how our father came to send us there. Certainly not because he made a careless choice. The surviving correspondence shows that he had considered many other schools before fixing on Oldie's; and I know him well enough to be sure that in such a matter he would never have been guided by his first thoughts (which would probably have been right) nor even by his twenty-first (which would at least have been explicable). Beyond doubt he would have prolonged deliberation till his hundred-and-first; and they would be infallibly and invincibly wrong. This is what happens to the deliberations of a simple man who thinks he is a subtle one. Like Earle's Skepticke in Religion he "is always too hard for himself." My father piqued himself on what he called "reading between the lines." The obvious meaning of any fact or document was always suspect: the true inner meaning, invisible to all eyes except his own, was unconsciously created by the restless fertility of his imagination. While he thought he was interpreting Oldie's prospectus, he was really composing a school story in his own mind. And all this, I doubt not, with extreme conscientiousness and even some anguish.
November 21, 2013
NYPD Beard Policy Found to Violate Free Exercise Clause
I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department's facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD's policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff's natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.
After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: "'[f]acial neutrality is not determinative' when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced."
What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn't just the stated exemptions in the policy. It's the fact that "the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound." There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City's claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers' mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff's request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito's famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a "value judgment" that medical reasons are more important than religious reasons, strict scrutiny applies.
I've written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn't only explicit exemptions to the policy that trigger strict scrutiny, but the "de facto" exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith's rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.
"A lesson in Equality from California"
Our MOJ colleagues Patrick Brennan and Michael Moreland have a clear and compelling essay up at Public Discourse on Gov. Jerry Brown's (D-CA) recent, wise, and just decision to veto California Senate Bill 131, "which would have revived sexual abuse claims that have long been time-barred under California’s statute of limitations." As Michael and Patrick say, "Brown refused to allow the law to be twisted into a crude tool of vengeance." A taste:
Fairness and equality must be the grounding principles for our laws. One of the goals of the law is to protect the common good by providing justice and security for the maximum number of citizens. Statutes of limitations reflect the good judgment that remedies for legal wrongs must be fair.
A mark of bad law is the amount of collateral damage it does to innocent individuals, to vital institutions, and to society at large in seeking to remedy an injustice. The damage is often done under the guise of well-meaning intentions to remedy an injustice or identified problem. But the damage is nonetheless real.
Read the whole thing. And then, perhaps, contrast the reasonable arguments of Moreland and Brennan, and the wise decision of Gov. Brown, with the misguided claims and unjust goals of groups like this one.
Just in time for Thanksgiving, your horn of plenty of accomplice liability runneth over. I recently noted Sherif Girgis's smart piece and you ought also to take a look at Gideon Yaffe's terrific recent work. In this post I want to highlight the work of my friend Jim Stewart (UBC), who specializes in comparative criminal law and writes about corporate pillage in Africa (a conducive place to think about problems of accomplice liability).
Here is a succinct and very useful piece on complicity. I especially like Jim's methodological approach, one which seems to pair naturally with a comparative perspective. Rather than constructing a top-down account of the best understanding of complicity, Jim identifies several recurring problems or themes in the area and discusses various solutions that have been offered by different jurisdictions. It is an approach which, Jim says, "exposes blind spots in the various schools of thought about accomplice liability." One particular section I thought provocative was the discussion of the relationship of complicity and justification (pp. 10-11). Jim argues for using the affirmative defense of justifcation to obviate the need to decide between a purpose or knowledge mens rea requirement (he relies on a British case involving the sale of contraceptives by doctors to minors, who were then implicated in charges of statutory rape). The choice of evils defense is a familiar repository for the problems of moral nuance, but I'm not sure the law of complicity ought to be let off the hook this way. At any rate, read the piece, and also take a look at Jim's newest piece on corporate criminal responsibility (h/t Larry S.).
Also, here is Jim's extremely well-written and powerful editorial last week about the moral outrage of corporate pillage in Africa--wrongdoing which, of course, presents the problem of corporate complicity in stark terms.
November 20, 2013
Podcast on Town of Greece v. Galloway
My colleague, Mark Movsesian, and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center for Law and Religion's first in a planned series of podcasts on law and religion cases and issues.
We tried to be fairly complete in our discussion of the case, and I hope that this podcast might be particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.
November 19, 2013
Lincoln's Gettysburg Address was the address Lincoln gave at Gettysburg