The House of God v. The House of the Rising Sun: Vigorous Dissents Accompany Supreme Court’s Denial of Injunctive Relief Where Nevada Church Alleges Pandemic Measures Restrict Churches More Than Casinos

Calvary Chapel Dayton Valley v. Sisolak, Governor of Nevada, No. 17A1070 (July 24, 2020).


A rural Nevada church asked the Supreme Court to enjoin state pandemic emergency measures that impose a flat numeric limit on church attendees while commercial entities such as casinos may operate at a percentage of capacity, permitting close contact for extended periods. 

The Supreme Court denied, without opinion, Calvary Chapel Dayton Valley’s request.  Four justices submitted three dissenting opinions. 

Justices Alito, Thomas and Kavanaugh would grant relief, given the inexplicable and unsupported discrepancy in treatment between secular and religious gatherings as well as the irreparable harm presumed to flow from deprivation of First Amendment rights.  

The justices observed that while “…a public health emergency does not give Governors and others carte blanche to disregard the Constitution for as long as the medical problem persists.”  (Alito dissent, p. 3.)  Particularly as time has passed since the emergency initially arose, and new information may permit revisions, the issue of exigency has diminished while the impact of discrimination against religion has continued unabated.  

The state’s actions fare no better under speech analysis.  While the state may posit that important viewpoints are advanced during permitted public protests, this overlooks the critical truth that the constitution does not permit preferring one viewpoint over another.

Justice Gorsuch wrote a separate dissent, offering his view that the Calvary Chapel case was “simple,” in that “…there is no world in which the Constitution permits Nevada to favor Caesar’s Palace over Calvary Chapel.”  (Gorsuch dissent, p. 1.) 

Justice Kavanaugh wrote separately in dissent to emphasize that the state offered no plausible justification for its differential treatment of commercial activity and religious gatherings.  .  Justice Kavanaugh presented a primer addressing the nature and sources of religious disputes grounded in real or perceived differences in treatment of religion and other activities, and reviewing precedent addressing these cases.

Just Lawful Observes:  The concern with protracted state invocation of emergency powers permeates the dissent here, a concern that was not as apparent in May of this year, where the Court denied injunctive relief to a California church in a manner deferential to the state’s exercise of emergency powers to inhibit viral contagion during a pandemic.  South Bay United Pentacostal v. Newsom, Governor of California, No. 19a1044 (May 29, 2020). Although there were perceived differences between non-church and church activities, none were found to be inconsistent with the Free Exercise Clause. 

Calvary Chapel v. Sisolak, Governor of Nevada: Denial of Injunctive Relief and Dissenting Opinions. No. 19a1070 (July 24, 2020).

South Bay United Pentacostal v Newsom, Governor of California. No. 19a1044 (May 29, 2020).

 

 

 

Contraception Coverage Redux: Supreme Court Excepts Religious Entities from Certification to Exemption from Mandate

Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, No. 19-431; Donald Trump v. Pennsylvania, No. 19-454 (July 8, 2020).


Justice Thomas wrote for the Court.  Interim final rules relating to the Affordable Care act of 2010 (“ACA”) require that contraceptives be covered in employer sponsored health care plans notwithstanding that the ACA legislation is silent on this point.   The mandatory preventive care provisions of the ACA do not define what preventive care must be covered, leaving it to the Department of Health and Human Services (HHS) to provide specifics.

The Departments of Health and Human Services, Labor, and the Treasury have promulgated exceptions from the contraceptive mandate.   HHS excused itself from the Administrative Procedures Act’s (“APA”) notice and comment provisions, notwithstanding concerns expressed by religious employers.  HHS crafted an exemption for churches and their integrated associates.  

Several years passed in crafting refinements and self-certification for exemptions.  Insurers could provide contraceptive benefits separately to employees of self-certifying exempt entities. Religious entities such as the plaintiffs here objected to this scheme as involving unwanted participation in the contraceptive mandate.  

The Little Sisters of the Poor Saints Peter and Paul Home (“Little Sisters”) argued — but courts disagreed — that exemption self-certification presented just the kind of undue burden on the free exercise of religion that the Religious Freedom Restoration Act (“RFRA”) was intended to protect.  Petitions for certiorari from several religious entities were remanded when parties appeared to agree that arrangements for separate provision of contraception could be fashioned so as to not require action by the religious groups, and that this would be a satisfactory result.

At the same time, other challenges to the contraceptive mandate were mounted.  Private employer Hobby Lobby Stores prevailed in an as-applied RFRA challenge, causing HHS to redraft its rules. 

HHS was initially unable to draft measures sufficient to satisfy religious objections while fulfilling the contraceptive mandate’s promise to employees.  After several years, HHS promulgated the rules in issue in this case, which expanded the definition of exempt employers, and which relieved employers from participation in the accommodation process, although that process remained available. 

A federal court issued a national injunction against HHS on the date the rules were to have taken effect.  Subsequent to Third Circuit review, the Supreme Court granted certiorari.

The Supreme Court, engaging in textual analysis, observed that the ACA conferred unbridled discretion on HHS to regulate required, or excluded, health care for women without defining what that care would include or exclude.  Where Congress could have limited this unfettered discretion but did not do so, the Supreme Court would not supply new additions to the statute.  Where no party raised an overbreadth challenge to the delegation, the Supreme Court would not disturb it.

Because the Court concluded that HHS’ discretion was conferred by Congress, the Court did not address whether RFRA compelled or authorized HHS’ action, but the Court noted that it was not improper for HHS to consider RFRA in fashioning regulations, particularly in light of the proceedings relating to to the contraceptive mandate. 

The Court concluded that HHS met the substance of notice requirements and had accepted comments.  The Court refused to require “open mindedness” of HHS, finding no basis for such a requirement in the APA.

Justice Alito, with Justice Gorsuch, concurred.  Justice Alito would extend the Court’s opinion to find that RFRA requires the exemption, thereby precluding arbitrary and capricious challenges on remand.  Justice Alito urged that the Court find finality in its present decision rather than requiring another round of remand. 

HHS’ Health Resources and Services Administration (HRSA) was given responsibility under ACA to determine what preventive services should be made available.  HRSA determined that contraception should be available, at first exempting only churches but later, following objections and litigation before the Supreme Court, expanding that exception and modifying procedures.

Justice Alito opined that RFRA applies to all government activity and as such, HRSA had to administer the contraceptive mandate in accordance with RFRA.  This is particularly so because the Supreme Court held in Hobby Lobby that the contraceptive mandate may substantially burden religion.  

Justice Alito did not think that Congress has fashioned contraceptive coverage in a way that suggests that Congress considered contraception to be a compelling interest, particularly as the question whether it ought to be provided at all was delegated to the administrative agency.  So many people and situations are exempted that it is difficult to perceive that a compelling interest in the provision of contraceptives exists.  The circular administrative exceptions themselves indicate that the mandate did not concern a compelling interest. 

The issue is whether there is a compelling need for coverage, not convenience.  Even if there were a compelling interest, the least restrictive means test must be satisfied.  Congress could create cost-free contraception if it wished without burdening the consciences of religious entities.  

Although the government must legislate using the least restrictive means to advance compelling interests, the government need not adhere to least restrictive means principles in creating accommodations.  The woman who works for an entity that exempts itself from the contraceptive mandate is not burdened by the employer’s exemption: “she is simply not the beneficiary of something that federal law does not provide.”  (Concurrence, Slip Op. at 18.)

Justice Kagan, with Justice Breyer, concurred in the judgment.  Justice Kagan agreed with the idea of authority to create exemptions but questioned whether reasoned decision making is in place, and notes that the lower courts can address this.  The conclusion that authority was present made it unnecessary to address whether any determination was arbitrary and capricious and that needs to be done.  Reasoned decision making is absent where the scope of the exemption does not fit the problem to be addressed.  The revised rule exempts those who might have no objection to the self-certification accommodation, and fails to protect employees’ access to contraception.  The extension of the exemption to publicly traded entities is questionable as it is difficult to locate conscience interests in such companies.  Why more in addition to religious exemptions were included is not clear, and RFRA does not cover “moral” objections. 

Justice Ginsburg, joined by Justice Sotomayor, dissented.  Justice Ginsburg laments what she perceives to be the Court’s abandonment of balancing beliefs so that no interests are overwhelmed, and fears that the Court has demolished the protections that the Women’s Health Amendment to the ACA, leaving “working women to fend for themselves…” (Dissent, Slip Op. at 2.)

Neither the Free Exercise Clause or FRFA required this result.  The Court has abandoned the accommodations intended to ensure that all interests and objections could be addressed.  Unlike the majority, Justice Ginsburg found no authorization for a blanket exemption in the ACA.  Where heretofore it was agreed that any religious exemption to the contraception mandate would preserve access to contraception, the exemption the Court now embraces places an undue burden on women.  Directing women to seek assistance from available government programs will only further cripple already overburdened programs.  

This process would force women to abandon known caregivers and if forced to pay out of pocket would likely cause women to pay for more expensive coverages.

Even if the self-certification process is sincerely believed to be unduly burdensome, that is not true as a matter of fact or law, as the government need not conduct itself in a way that comports with religious views.  Self-certification relieves religious employers of their objections to obligations and transfers the obligation to the insurer:  this both accommodates the religious employer and facilitates the government’s interest in women’s health care.

The obligation to provide contraception arises from the ACA, not from submission of self-certification of exemption based on religious objection.  A blanket exemption is nowhere consistent with any statute or regulation.  

Little Sisters of the Poor v. Pennsylvania No. 19-431 and Trump v. Pennsylvania No. 19-454 July 8, 2020

 

 

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

 

 

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

 

 

 

 

 

“[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

 

 

 

 

 

 

 

 

 

 

 

The Wheels on the Bus Go Round the Supreme Court No More: Certiorari Denied in Challenge to Transit Authority’s Ban on Religious Advertisements

Archdiocese of Washington v. Washington Metropolitan Transit Authority, No. 18-1455.  Petition for Certiorari denied on April 6, 2020.  


In connection with the Court’s denial of the petition for certiorari, Justice Gorsuch, joined by Justice Thomas, issued a statement which leaves no doubt that the two would conclude that the transit authority’s current ban on religious advertising on its buses violates the First Amendment as it is reflects government engagement in impermissible viewpoint discrimination. 

Certiorari was denied because Justice Kavenaugh was involved in the case when he served on the U.S. Court of Appeals for the District of Columbia Circuit.  As he could not participate in reviewing a case he was involved in, deciding the case with less than a full complement of justices appeared unwise.

The decisions below violate Supreme Court precedent, Justice Gorsuch noted, as the Court has determined that “religion” includes both subject matter and viewpoint.  Once subjects are opened for discussion, religious views cannot be suppressed:

…[O]nce the government allows a subject to be discussed, it cannot silence religious views on that topic…[O]nce the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it… [The government] cannot do is what it did here—permit a subject sure to inspire religious views…and then suppress those views. The First Amendment requires governments to protect religious viewpoints, not single them out for silencing.

–Statement respecting denial of certiorari at pp. 2- 3.

JustLawful aside:  The great benefits of opinions accompanying denials of certiorari is that they not only serve to foretell the future, at least as to some justices’ views, but they also offer a brevity that is scarce in current jurisprudence.

2020 04 06 Certiorari Denied 18-1455 Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (04_06_2020)