Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).


In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.


Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

Nine Justices, Six Opinions: Giving Voice to Religion Clause Concerns in Addressing Montana Scholarship Case

Espinoza v. Montana Department of Revenue, No. 18-1195, 591 U.S. ____ (June 30, 2020).


That this case prompted the issuance of six opinions suggests there is no shortage of particularized views of the Religion Clauses among the justices.  At best, this can be a sign of healthy disagreement, but at worst, the judges’ divergences disclose an inability to reconcile themselves to the Constitution, to each other, or to both.


What Was In Issue.  Montana enacted a law permitting a modest tax credit for contributions to scholarship organizations which in turn made tuition awards to applicants’ schools, most of which were religiously affiliated private schools.  The Montana law demanded compliance with the provisions of the Montana constitution that forbids public aid to any institution controlled by any religious entity.  Montana Constitution Article X, Section 6(1).  Although disfavored by the state attorney general, the Montana tax authority promulgated an administrative regulation (“Rule 1”) to conform administration of the scholarship program to the state constitution’s ‘no-aid’ provision.  

Uncertain of their children’s scholarship status, parents sought and were granted relief from Rule 1 by a state trial court, which the Montana Supreme Court reversed in 2018.  


The Montana Supreme Court’s View. The state supreme court held that even in the absence of the tax rule, the state constitution prohibited aid to sectarian schools.  Unable to find a workable solution that would save the scholarship legislation without offending the state constitution, the court terminated the program in its entirety.  

The Montana justices agreed that the administrative rule was beyond the tax authority’s power to promulgate, but disagreed on the state and federal constitutional dimensions of the case.  One justice decried needless complexity in current Free Exercise jurisprudence, finding that the scholarship legislation was invalid under the state constitution’s ‘no aid’ provision.  Two justices thought the program acceptable and criticized the court’s invalidation of the legislation where no facial state constitutional challenge had been brought.  Another judge did not see the state constitution as prohibiting the scholarship program but expressed concern that the application of the state court constitution could offend the federal constitution.  


The United States Supreme Court’s Majority View.  In the first of six opinions offered by justices, the majority concluded that where general public programs are available to all, “all” cannot be construed to exclude participation based on religion. 

The majority observed that First Amendment jurisprudence must consider both what is permitted by the Establishment Clause and what is prohibited by the Free Exercise Clause.  Neutral programs that are available to all do not offend the Establishment Clause.  That is particularly so here, where citizens choose how to spend scholarship money.  The Free Exercise Clause forbids preclusion from any government benefit because of faith.  That preclusion is exactly what is in issue in this case.  Strict scrutiny analysis is in order where preclusion is based on religious status.  

This case is distinguishable from an earlier determination that a state could, based on history and tradition, preclude the use of state funds to pursue preparation for professional ministry.  The tradition that supported the prohibition on state funded training for the ministry is ot present in this case, as historic review discloses complexity in approaches. 

The state’s argument that it may act to provide a greater separation between church and state under the state constitution than that provided by the deferral constitution fails because an interest that offends the Free Exercise Clause cannot be compelling.  

Freedom of religion is not advanced by infringing on First Amendment rights, and this is particularly so where choice in whether to access religious education — or not — is denied.  A state might reasonably determine no to engage itself in providing funding to private education, but if a state determines that it will fund private education, it cannot then preclude religious schools from participating.

The majority dispensed with the argument that there can be no free exercise violation where the program in issue is defunct.  The program was a legislative creation invalidated by a court as a remedial measure where no other could be found.  Central to the state supreme court’s determination is its refusal to recognize that the state ‘no aid’ provision violated the federal Free Exercise Clause.  There is no basis upon which to argue that there exists some neutral policy choice or independent state law basis for the state court decision, as its failure to consider the Free Exercise Clause violates the Supremacy Clause. 


Justice Thomas, joined by Justice Gorsuch, issued a separate concurrence.  Justice Thomas decries the “brooding omnipresence” of current Establishment Clause jurisprudence, which dictates that all religions must be treated equally and religion must be treated as equal to non-religion.  The Establishment Clause was intended to inhibit the imposition of any religion by the federal government upon the states.  It is not clear whether the establishment clause was seen as an individual right at the time the Fourteenth Amendment was ratified, but even if it was, incorporation would be limited to establishment as it was considered by the founding fathers.

What was understood at the founding was that federal law could not coerce religious orthodoxy and financial support.

The notion that states must be antiseptic respecting religion has no basis in history. Expansive applications of the Establishment Clause cripples the application of the Free Exercise Clause. Ultimately rigid constructions of the religion clauses act as content based restrictions on the government.  Hostility toward religion, or a “trendy disdain” for religion which has given rise to “offended observer” claims, has distorted the proper meanings of the religion clauses.  Preferencing some constitutional rights over others must be reconsidered so as to permit the free exercise of religion to thrive. 


Justice Alito concurred separately.  Apparently somewhat sore because his view that origins considerations cannot always be controlling failed to prevail in Ramos v. Louisiana, 591 U.S. ___ (2020), Justice Alito seized the opportunity presented by Espinoza to note that the application of the “original motivation” view espoused in Ramos would be fatal to any effort to uphold the ‘no-aid’ provision in issue here.  Justice Alito has published a detailed history of historical antipathy toward religion in the United States, with particular contempt toward Catholicism, which was perceived as threatening to public education, and which gave rise to the sorts of ‘no aid’ provisions enacted and later re-adopted by Montana.  


Justice Gorsuch concurred separately.  Justice Gorsuch wrote to express his view that confining considerations of impingement on religious freedoms ought not be limited to religious status, for religious belief is almost always accompanied by religious behavior, which is also worthy of constitutional protection.


Justice Ginsburg, joined by Justice Kagan, offered a dissenting opinion.  Justice Ginsburg has opined that there can be no Free Exercise Clause violation where the Montana scholarship legislation has been struck down.  The majority’s intimation that the Montana ‘no aid’ provision is itself unconstitutional lacks grounding in federalism principles.  There was no facial challenge before the court making any opinion from the Supreme Court on that issue improper.  

Dismantling the scholarship program worked no injustice on the parents seeking religiously affiliated education for their children, Justice Ginsburg stated, for it left all families on the same footing.  Where all are now without state support for any private education, no discrimination exists.


Justice Breyer dissented, joined in part by Justice Kagan.  Justice Breyer has advocated for comprehensive, case by case considerations of religion clause matters, finding the crafting and application of tests ill suited to develop a sound jurisprudence.  So doing would require more effort, but in his view there is no substitute for sound judgment, which to be informed must consider all that is before the court and all that is implicated by its decision.


Justice Sotomayor wrote a separate dissent.  The Court has committed compound errors, in Justice Sotomayor’s view, as it has answered the wrong question incorrectly.  Once the Montana Supreme Court invalidated the scholarship program, there was no federal Free Exercise Clause question for the Court to decide.  There can be no question of disparate treatment where the purported source of that disparity no longer exists.  The Court has issued a decision intimating facial invalidity when that issue was at no point before the Court.  In so doing, the Court has exceeded its Article III powers and violated federalism principles.  

18-1195 Espinoza v. Montana Dept. of Revenue (06_30_2020)

 

You Cannot Take It With You: First Amendment Speech Protections Do Not Reach U.S. Entities’ Foreign Affiliates

Agency for International Development, et al. v. Alliance for Open Society International, et al., No. 19-177 (June 29, 2020).


Justice Kavanaugh delivered the opinion of the Court.  In 2003, the United States determined that certain recipients of federal funding for international public health initiatives must have an express policy opposing prostitution and sex trafficking. United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act, known as the Leadership Act. 117 Stat. 711, as amended, 22 U. S. C. §7601 et seq.  

In 2013, the Supreme Court agreed with the Alliance for Open Society International (AOSI) that the Policy Requirement, as it came to be known, imposed an unconstitutional condition on AOSI’s First Amendment rights.  

The Policy Requirement remained in effect against AOSI’s separate foreign affiliates, resulting in the present challenge.

The Court acknowledged that foreign citizens in the United States may enjoy some constitutional protections.  The U.S. Constitution may also apply in U.S. territories or places wholly controlled by the U.S. government.  The U.S. may enact legislation granting rights against the U.S. abroad or giving U.S. citizens abroad certain rights, but the government is generally otherwise constrained against attempting to affect activities abroad.

The law traditionally holds that separate corporations have separate rights and responsibilities.  The separate corporations in issue here were incorporated outside the U.S. and, although affiliated, are distinct from the U.S. corporations.  

The Court held that the United States, which. provides more foreign aid than any nation on earth,  may do so by applying conditions such as those in issue here mandating that aid recipients as a matter of policy condemn sex trafficking and prostition.  

Foreign corporations operating abroad enjoy no First Amendment rights.  

In light of both principles, the plaintiffs cannot complain of constitutional error in requiring the Policy Statement of foreign entities. 

Arguments about speech misattribution fail because the cases cited by plaintiffs concern forced affiliations, whie the choice of affiliations here are wholly voluntary.  Plaintiffs are free to affiliate as they please and they may disclaim support for the policy statements that their foreign affiliates must make.

Justice Thomas concurred to restate his discontent with the “forced speech” holding of the 2013 case.  Justice Thomas observed that the Constitution does not compel a viewpoint neutral government nor does conditioning funds tied to affirmations of a belief involve compulsion where entities are free to decide not to apply for or participate in federal funding.  The First Amendment does not protect the conditions in issue at all, without reference to the domestic or international status of the corporation or its affiliates.

Justices Breyer, Ginsburg and Sotomayor dissented, asserting that the First Amendment rights of the U.S. entities and not the foreign corporations are in issue.  By asking the wrong question, they observe, the Court arrives at the wrong answer

Where close affiliates are concerned, answers to questions of compelled speech ought not be distinguished based on whether the affiliated entities are domestic or foreign.  If the government demands speech contrary to the speaker’s message, the mechanism for so doing cannot cure the constitutional infirmity.

The aim of the domestic corporations is to speak abroad. From a structural standpoint, It ought not matter how this is accomplished.  Moreover, the impact of the present decision on U.S. media abroad cannot be disregarded.

The issue of the territorial reach of the U.S. Constitution is of no moment because exploration of the issue comes in response to the wrong question. The speech rights of domestic corporations with respect to closely identified foreign affiliates, not the foreign affiliates in themselves, are in issue.  Additionally, the idea that separate corporations are inviolably so is contrary to law, which can and does at times disregard corporate forms and recognize close corporate relationships.  

U.S. A.I.D. v. Alliance for Open Society No.19-177 S.Ct. June 29 2020

Federal District Court in New York Enjoins Pandemic Precautions Restraining Religious Gatherings

Soos, et al. v. Cuomo, et al., No. 1:20-cv-651 (N.D.N.Y.) (GLS/DJS).  (Order granting injunctive relief entered June 26, 2020).


Since the inception of public health concerns about potential harms should coronavirus (COVID-19) contamination be left unchecked, New York state and city officials have issued not less than seventeen orders dictating who may congregate where and for what purposes.  Religious services fell among the most rigidly curtailed events.

Notwithstanding harms predicted to ensue from close unprotected contact with others, in June mass protests erupted across the United States.

Thousands gathered in New York without official objection.  The governor counseled citizens to be “smart” by practicing social distancing.  It has been reported that, apparently without further elaboration, the Mayor of New York opined that protesting racism presented a “different  question” than did religious events, certain of which he had previously vociferously condemned.

On motion brought by religious leaders, the United States District Court for the Northern District of New York declined to find the public health orders to be “neutral laws of general applicability” presumed to be constitutionally sound even if such laws incidentally burden religion.

The state and local course of conduct created de facto exemptions specifically inhibiting the free exercise of religion, the court found.  The court could not identify a compelling interest which would justify any distinction that would permit public gatherings for some purposes but not for religious purposes. Where irreparable harm could be presumed to flow from the prevention of religious free exercise rights, the court enjoined enforcement of any indoor restrictions greater than those imposed on non-essential entities and any outdoor restrictions.  In both indoor and outdoor settings, social distancing precautions are to be employed.

Soos v. Cuomo No. 20-cv-00651 (N.D.N.Y.) Order June 26 2020

 

 

Case Dismissed! Federal Court of Appeals Orders D.C. Federal District Court to Grant United States’ Motion to Dismiss Criminal Case Subsequent to Plea Agreement Admitting False Statements to Federal Bureau of Investigation

In re. Michael T. Flynn, No. 20-5143 (D.C. Cir.) Petition for writ of mandamus granted in part on June 24, 2020.


General Michael T. Flynn was investigated by the Federal Bureau of Investigation in relation to contacts with foreign sources.  General Flynn plead guilty to lying to federal officers, testifying under oath that he was in fact guilty and had not been subjected to duress.  Months later the United States moved to dismiss the case against General Flynn, having concluded that any false statements made were not material to any investigation.

The United States District Court for the District of Columbia did not look kindly on the United States’ motion to dismiss, and in response invited amici submissions and scheduled hearings to determine whether he ought to find General Flynn guilty of perjury notwithstanding the United States no longer wishing to pursue the matter.

General Flynn’s counsel petitioned the D.C. Circuit Court of Appeals for a Writ of Mandamus which was today granted in part.   The appellate court has ordered the trial court to dismiss the case, but the appellate court refused to transfer the case to another judge.  In light of these determinations, disputes about the engagement of an amicus to assist the trial judge were rendered moot.


The D.C. Circuit  opined that dismissals of criminal matters rest soundly with prosecutorial discretion.  Rule 48 of the Federal Rules of Criminal Procedure has a limited “leave of court” requirement that is intended to protect against prosecutorial harassment.   United States . Fokker Services B.V., No. 15-1306 (D. D.C. 2016).

The court observed that this is not an extraordinary case in which judicial involvement in dismissal could be warranted.  General Flynn agrees with the prosecution, there is no evidence of harassment, and recently produced exculpatory evidence supports the Department of Justice’s view that the interviews with General Flynn in issue were not material to any prosecution.

Moreover, the appellate court concluded, harm to the prosecution in refusing to dismiss is not speculative, particularly in that the hearings proposed by the trial court would provide a foray into the deliberative processes of the Executive Branch.  It is right to attend to the interests of the Executive Branch, the court found, as the executive is not just any party, but is the branch responsible for criminal prosecutions.  Equally significant is that a trial court’s assumption of a supervisory role over the executive would not be a theoretical breach of the separation of powers, but would chill effective prosecutions.

Further, the trial court’s designation of an advocate for for the prosecution put the two coequal branches of government on a collision course.

The appellate court refused to rewrite the limited “leave of court” provision of Rule 48, F.R.Crim.P. to permit elaborate mic submissions and extensive hearings, finding that “[t]he district court has no mechanism by which it can maintain a prosecution in the absence of the Executive Branch moving forward.”  (Slip. Op. at 14.)

Dismissal cannot turn on what a judge independently thinks in in the public interest.  A court should not second guess except in an extreme case:  extensive, pershpas inquisitorial, inquiry in a non-extreme case would contravene Supreme Court precedent and would be inconsistent with  Article III powers.

The majority countered the dissent’s position that a writ of mandamus cannot issue until the trial court has acted, finding that an actual ruling on the motion to dismiss was not necessary where the court had already invited amici and scheduled hearings.

Dissenting Justice Wilkins opined that the majority wholly misdefies the issue at hand.  The question is not whether a court may deny a Rule 48 motion to dismiss but whether the court is precluded from making any inquiry at all.  The appell majority ruling that the district court overstepped its authority has been followed by the appellate court’s following suit, for there is no basis for the court to issue a writ of mandamus absent a discrete action by the district court.

The dissent found the majority’s reliance on Fokker disengenuous, for in that case, a deferred prosecution agreement, not dismissal was in issue.  Reliance on Fokker, Justice Wilkins found, “transforms dicta into dogma.”  (Slip Op. Dissent at p. 3, Part B).

The dissent expressed fear that the majority has read the public interest out of Rule 48.  The law is not as settled as the majority would say and it is not possible to say that petitioner has no other relief available, where it is clear that it exists.

The dissent offered that there is no reason, even in the absence of explicit authority, that a trial judge cannot enlist assistance in charting its course on a case.

Prosecutorial discretion cannot be made into an impenetrable shield.  The dissent observed that the appellate ruling decimates the discretion that resies in trial court’s concerning motions to dismiss.

This is particularly worrisome, Justice Wilkins found, where but months ago the statements now deemed ‘immaterial’ were said to have gone to “the heart of the government’s case.”  (Slip. Op. Dissent at p. 17).

2020 06 24 Opinion In re Michael T. Flynn

2020 06 24 Order in re Michael T. Flynn

 

 

 

 

 

 

 

 

The Tale of the Tell All: Federal District Court Refuses to Enjoin Publication Said to Contain Sensitive National Security Information


United States v. John R. Bolton, No. 1:20-cv-01580-RCL Order denying temporary restraining order entered June 20, 2020.


Former National Security Advisor John R. Bolton complied with the pre-publication review process of his account of his days in the Trump administration up to the point when, following required agency review that had provided assurances that his manuscript was free of classified information, counsel for the White House and National Security Council advised that further review was ongoing.

Bolton’s publisher, Simon & Schuster, has printed and distributed Bolton’s book to re-sellers in anticipation of publication on June 23.  Excerpts are currently available online.

The government’s advanced prohibition of publication — “prior restraint” — is anathema to the First Amendment except in limited circumstances.  The publication of classified information harmful to national security interests is one such circumstance, requiring that those accessing such information agree not to disclose or publish such information absent review.

The United States has sought and has been denied an injunction which would temporarily restraining Bolton from full publication.

The United States District Court for the District of the District of Columbia determined that the law governing injunctions no longer permits flexibility or a “sliding scale” approach but demands that all four prongs of the requirements for injunctive relief must be met.  To obtain such relief, a party must demonstrate a substantial likelihood on the merits, that it will suffer irreparable harm if relief is not granted, that there will be no substantial harm to other parties if relief is granted, and that the extraordinary relief sought serves the public interest.

Following in camera review of the United States’ declarations and submissions supporting its position, the court did not look kindly on what it characterized as Bolton’s “gamble” with national security, surmising that Bolton had weighed the financial and publicity benefits of truncating the review process against the costs to the nation and to himself of the possible disclosure of classified information.

The court found the government’s insistence that irreparable harm would ensue if injunctive relief were denied fell short of the mark where the harm to be prevented has in essence already occurred.   Any further harm that the government fears cannot likely be overcome by a grant of a temporary restraining order where the internet would permit worldwide publication in an instant of materials already disclosed.

The court observed that a toothless injunction could hardly cause harm to others and that an award of such relief would only nominally serve the public interest.

While the court’s analysis and conclusions on the matter of injunctive relief disfavored the government, particularly as the court thought little of the request that the court order recall of materials already in the publisher’s and resellers’ possession, the court did not hesitate to proffer his prediction of the merits:  “[d]efendant Bolton likely jeopardized national security by disclosing classified information in violation of his national security obligations.”  (June 20th Order, Docket No. 27, at p. 6.)

The court recited potential costs if Bolton loses on the merits are not insignificant:  loss of profits, exposure to criminal liability, and harm to national security.

Justlawful observation:  A federal district court does not have time and may lack the inclination to explore institutional ramifications when ruling on a time-sensitive motion for a temporary restraining order.  Suffice it to say that it remains to be debated what ends, positive and negative, the classification of information serves, and what institutional erosion may occur where former officials determine of their own accord what processes will be respected, and what conditions will be abandoned, particularly in service of self interest.

This is not to say that the government wears a ten-gallon white hat in this case.  The government may not be on solid ground if it seeks to preclude embarrassment accompanying publication, and this is a widely held public perception of the government’s position.  Publication of embarrassing information may diminish the United States and its President in the eyes of the world, but without more this cannot be a true national security concern.  Moreover, the bureaucratic obstreperousness perceived in the imposition of additional hurdles to publication diminishes the justification for the extant exception to the constitutional prohibition of prior restraints.

Nonetheless, the court included in its considerations the reality that classification and security interests are not necessarily the subject of single source review, particularly where the author “was entrusted with countless national secrets and privy to countless sensitive dealings.”  (June 20th Order, Docket No. 27, at p. 6).  It is in this that the government’s extension of the review process may stand on firmer ground.

United States v. John R. Bolton No. 20-cv-01580-RCL Order June 20 2020

 

 

 

 

 

Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)


Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

“[T]he mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions.”

ACA International v. Maura Healey, Attorney General of the Commonwealth of Massachusetts, No. 20-10767-RGS (U.S.D.C. Mass.) May 6, 2020.


Among other state measures taken during the COVID-19 emergency, the Attorney General of Massachusetts promulgated measures prohibiting credit and collections agencies from initiating telephone calls or lawsuits to collect debts. Many creditors were exempted from these regulations that operate against entities deemed essential by bank regulators.

The Association of Credit and Collections Professionals (ACA) sought injunctive relief in federal court challenging the regulations on first amendment speech and petition grounds and state law.

The court examined the traditional grounds for injunctive relief in matters concerning protected First Amendment interests, concerning which any infringement presumes irreparable harm: the likelihood that the moving party will succeed on the merits, the balance of equities and the public interest. The court declined to decide claims premised on asserted violations of state law, mindful that precedent limits federal courts’ powers over state officials to matters of federal law.

The intermediate scrutiny applicable to commercial speech gained no favor for the state, as the court could not credit the Attorney General’s unsupported beliefs that citizens would be more vulnerable than otherwise during an emergency or that banning telephone calls would ensure citizens well being or ensure domestic tranquility.

As extant state law regulations already circumscribe creditor activities, and incorporate federal protections, the court could not find a substantial government interest in redundant measures.

Neither could the court justify an outright ban on initiating litigation because some legislative litigation burdens some access to courts. Simply preserving rights until the unknown end of the emergency, particularly when several types of creditors are exempted from the regulations, is not sufficient to justify outright denial of petitionary rights, stating: “[t]he mere fact of an emergency does not increase constitutional power, nor diminish constitutional restrictions.” (Slip op. 25-26).

In balancing the equities, the court observed that debtors have substantial extant protections against unlawful creditor activity, while the emergency regulations could force some creditors out of business, a hardship underscored by medical entities’ dependence on such agencies to recover funds.

The court entered a temporary restraining order enjoining enforcement of the emergency regulations.

ACA International v. Healey, Attorney General. TRO Order May 6, 2020

Eternal Vigilance: Depictions of Press Freedoms and Hazards Around the World

A bit out of the ordinary for JustLawful, but the link below, created by VisualCapitalist.com, provides striking depictions of the ease (or not!) of disseminating information around the world.  Moreover, for those accustomed to observing the lives of the White House Press Corps (i.e., find seat, observe, report), it is deceptively easy to form the belief that reporting is always that cozy.  Not so!

And in further discoveries, the oft-repeated phrase alluded to here, i.e., “Eternal vigilance is the price of liberty,” has not been confirmed by the keepers of the Jeffersonian flame, who offer that the expression was in widespread use in the 19th century.  With no pride of authorship found to reside in founding father Jefferson, the phrase may be more accurately attributed to Irish lawyer, judge, and firebrand John Philpot Curran.  Those dismayed by the unending onslaughts of the digital age may find respite in the slower, yet potent, pace of the 1817 Curran memoir linked below.

Mapped:  Press Freedom Around the World.  Routley, N. Visual Capitalist.  May 2, 2020

Thomas Jefferson Foundation:  “Eternal Vigilance” May Be  a Spurious Quotation

Minnesota Legal History Project_.Memoirs of the Legal, Literary & Political Life of John Philpot Curran

 

 

 

 

 

 

 

 

 

 

 

Surveillance Without Surcease: Massachusetts’ Highest Court to Review Constitutionality of Continuous, Warrantless Videorecording of Criminal Defendants’ Houses

Nelson Mora, et al. v. Commonwealth of Massachusetts, SJC-12890.  Oral argument scheduled for May 5, 2020.

Related:   Commonwealth v. McCarthy, SJC-12750.  Opinion issued April 16, 2020.


Defendants were arrested as part of an ongoing state effort to interrupt commerce in drugs.  As part of that effort, police installed, without warrants, video cameras in public spaces outside defendants’ houses.  These “poll cameras” permitted uninterrupted video recording of the outside of these houses and were equipped with zoom features to permit closer scrutiny.  

Defendants moved to suppress the video evidence as violative of the Fourth Amendment of the U.S. Constitution and Article 14 of the Constitution of the Commonwealth of Massachusetts.  The Superior Court denied relief, finding that defendants have no reasonable expectation of privacy in the exteriors of their homes, which were plainly visible to the world.

Interlocutory review was sought and granted.

Appellants/Defendants argue that incessant videorecording denies defendants’ constitutionally promised privacy interests, which are not defined with reference to brightline distinctions between exteriors and interiors, but rather with respect to the reasonable expectations of privacy enunciated in Katz v. United States, 389 U.S. 347 (1969).  Static, unceasing and warrantless mechanical surveillance is a search which intrudes beyond any reasonable bounds of police powers.  

Defendants are supported by several civil rights and technology advocacy entities, who join in characterizing the surveillance in issue as “Orwellian.”

The state stands firm in its view that that which is in plain view is not private, and that even if issues were to be found in these searches, error should be excused on the basis of the police’s good faith.

Just weeks ago the Supreme Judicial Court outlined constitutional parameters of static camera recordings of vehicles permanently placed at the ends of bridges linking the main land of Massachusetts with Cape Cod.   Following an extensive review of the foundational ideas that support the law of searches and privacy, and after concluding that the camera surveillance in issue could be a search, the court found no constitutional violation as the car in question could be seen without technology and any intrusion was of limited duration.   Chief Justice Gant wrote separately in concurrence, suggesting that the course going forward might be better served if authorizations based on reasonable suspicion and subsequent probable cause were obtained in advance of surveillance. 

Appellants/Defendants embrace McCarthy as pointing the way for a decision in their favor.  The state has tradition on its side: many considerations of poll cameras have found their use to be constitutionally innocuous, with only a few courts demanding that this form of surveillance  be cabinned by time limits.

Justlawful’s Observation.  The “in plain sight” argument offered by the state, if woodenly applied, could lead to results that would undermine Katz.  Moreover, the argument that recording shows only what a passerby might see becomes problematic if human rather than mechanical supervision were in issue.  Were a person to stand in observation of a residence without interruption, the homeowner or resident might well feel intruded upon, even if the onlooker could see only the exterior of the home, and might be justified in seeking injunctive relief to cause the behavior to cease.   

Briefs of the Parties

Commonwealth v. Mora – SJC-12890 Appellants’ Brief

Commonwealth v. Mora — Commonwealth’s Brief

Commonwealth v. Mora — Appellants’ Reply Brief

The McCarthy Decision

2020 04 16 Commonwealth v. McCarthy SJC-12750

For those fond of legal history, an 1890 Harvard Law Review article outlining Warren and Brandeis’ Views of Privacy

Warren and Brandeis, _The Right to Privacy_