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Expansive and Extensive Exercise of Emergency Powers Threatens Freedoms, Justice Gorsuch Cautions

Arizona v. Secretary of Homeland Security, No. 22-592. Statement accompaying Order remanding for reversal motion to intervene issued May 18, 2023.

During the Covid-19 pandemic, the Executive Branch issued orders — the Title 42 Orders — which limited entry into the United States as a defense against the spread of contagious disease.

When those orders lapsed of their own accord, states concerned with border issues petitioned to have the orders remain in effect, complaining that the lapse of the orders violated the Administrative Procedures Act, as notice and the opportunity to present comments was not afforded prior to the dissolution of the orders.

In contrast, a class action of asylees sought and obtained universal vacatur of the Title 42 orders, arguing that there never existed any authority to issue the orders.

The concerned states sought to intervene in the class action brought by asylees. 

The Court of Appeals for the District of Columbia Circuit affirmed the trial court’s denial of the state’s motion to intervene.

The states petitioned the United States, which granted review, the result of which was that the Title 42 Orders remained in effect until the legislative and executive branches declared that the Covid-19 emergency to be over.

All this rendered both cases in litigation moot, but this result did not sit well with Justice Gorsuch.

In a statement accompanying the order of remand, Justice Gorsuch remarked of the grave abrogations of freedoms that governments large and small visited upon the population during the “Covid-19 pandemic” under the rubric of ’emergency’ measures because of a perceived threat to public health.

The threat to democratic rule was and is equally if not more grave, Justice Gorsuch opined, for the capacity to usurp individual rights by virtue of emergency orders has been established.  Notwithstanding that some measures did not survive challenge, the disruption and diminution, if not denial, of individual and economic freedoms has been substantial.  The capacity to compel conformity with government edicts by exploiting fear has not gone unnoticed.  The ability of federal judges in one jurisdiction to issue orders effective throughout the nation — “cosmic” injunctions — is itself an expansion of power that provokes concern.

21-592 Arizona v. Mayorkas (05_08_2023)

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If Maine Subsidizes Secondary Schools, It May Not Exclude Sectarian Schools, Supreme Court Concludes

CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL. v. MAKIN, No.  20-1088.  U.S. Supreme Court June 21, 2022.

Maine is the most rural state in the nation.  Some geographic “School Administrative Units” have no public secondary schools through which to provide the education promised by the state. To ameliorate the strain families who must make arrangements for their children, Maine offers tuition assistance to parents so that their children may access secondary education through qualified schools outside the geographic confines of the School Administrative Units.

At one time, Maine did not distinguish between sectarian and non-sectarian schools for purposes of funding parents’ preferences.  In 1981, Maine determined that this practice was in violation of the Establishment Clause of the First Amendment.

Parents who selected schools with religious orientation challenged Maine’s denial of tuition assistance as violative of the First Amendment Free Exercise Clause, triggering what appears to be an annual (or at least semi-annual) head on collision between the Establishment Clause, which precludes government endorsement of religion, and the Free Exercise Clause, which forbids government interference with religious practice.

While the petitioners’ litigation was pending, the Supreme Court struck down a Montana statute that forbade aid to any church controlled school as offensive to the Free Exercise Clause.   Espinoza v. Montana Department of Revenue, 591 U. S. ___ (2020).  While this removed from the consideration of the U.S. Court of Appeals for the First Circuit any reliance on prior precedent that would affirm Maine’s refusal to provide tuition assistance that would permit students to attend sectarian schools.

Nonetheless, the First Circuit distinguished away Espinoza because Maine, unlike Montana, concerned itself with religious use of funds as opposed to a blanket prohibition based on religious identify. Moreover, the First Circuit perceived another distinguishable difference between Montana and Maine, because Maine intends to provide the equivalent of a public school education not otherwise available in a student’s location.  As public school education is secular, no constitutional harm is done by limiting tuition assistance to parents whose children will attend secular schools.

The Supreme Court’s majority has concluded that the Maine tuition assistance scheme fails to comport with the Free Exercise Clause because it conditions the availability of an otherwise available public benefit based on a requirement of ‘non-sectarianism’ within accredited schools.

That the Free Exercise Clause prohibits indirect burdens on religious exercise has recently been re-emphasized by the Court, not only with respect to participation in public contracts, as in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), but also with respect to providing funding assistance to private education, as in Espinoza, supra.  In neither case can religion be interposed as a disqualifier precluding access to benefits otherwise available to all. 

The Court noted that a state need not fund private education.  If a state chooses to do so, however, the state may not preclude participation because of religious affiliation. 

In dissent, Justice Breyer expressed fear that the majority view — which requires other citizens to subsidize, through taxation — aid to religious views they might find objectionable — threatens to foment the kind of discord that the tension between the Establishment and Free Exercise Clauses were intended to inhibit.  This is all the more so in this case, where not just religious affiliation but religious instruction within the curriculum is in issue. 

In Justice Breyer’s view, the Religion Clauses serve the nation well by precluding state involvement in religion and by prohibiting state restraint of religion.

Justice Breyer sees the majority’s decision as introducing religion into public education, the provision of which is contemplated by Maine’s statutory scheme.  

Notwithstanding the not infrequent tension between the religion clauses, their overall purpose is to function as complements in creating a government that is benevolently neutral. The Court has previously expressed that the Religion Clauses ”permit religious exercise..without sponsorship or interference,” as this would “insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970).  

Separately dissenting, Justice Sotomayor has expressed dismay that the Court has chartered a dangerous course, essentially eviscerating the Establishment Clause in service of the Free Exercise Clause.  Justice Sotomayor observes that, rather than stressing that the government need not fund religious activity, the Court has embraced the idea that the states may now be compelled “to subsidize religious indoctrination with taxpayer dollars.”  Sotomayor, J., Dissent, Slip. Op. at 3.

Carson v. Makin, 596 U.S. ____ (2022)

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A Grand Old (Private) Flag at Boston City Hall: Supreme Court Clarifies Establishment and Speech Clause Interests

Shurtleff v. City of Boston, No. 20-1800, 595 U.S.      (May 2, 2022)

Private Flag Permitting at Boston’s City Hall Plaza.  Three flagpoles are situated on the public plaza surrounding Boston City Hall.  These flagpoles ordinarily display the flag of the United States and the flag of the Commonwealth of Massachusetts.  At times the flag of the City of Boston is displayed but the third flagpole is available, upon request and approval, for display of commemorative flags.

Until 2017 the City of Boston approved every application for a permit that was presented to it but stopped short of granting a permit to fly a flag showing a religious symbol where the name of the flag but not the flag itself, mentioned a religious faith.  

A Boston City Official thought granting a permit for that flag would offend the Establishment Clause of the First Amendment of the U.S. Constitution.  Litigation in the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals culminated in favor of the City of Boston, and review in the United States Supreme Court was then sought and obtained. 

Constitutional Purposes and Constraints.  Broadly stated, the Constitution of the United States constrains the government from acting against the interests of the people of the United States.   The Establishment Clause checks the power of the state by forbidding the government from adopting a faith as the government’s own, coercing the adoption of a faith, endorsing a faith while excluding others, and other errors.  The Free Speech Clause requires that where the government opens up a space for public participation, the government may not exclude or inhibit otherwise lawful speech, including the expression of religious views, in that space without committing the error of “viewpoint discrimination.”   

Clauses on a Collision Course, or So It Sometimes Seems.  Although in error, it is easy to see how an individual such as the decision-making official in Boston could think that permitting the presence of a flag with a religious symbol would be in error.  However, the Establishment Clause applies only to government action.  Were the space at City Hall and the flagpole to be considered a public forum for non-government speakers, the Establishment Clause would not preclude, and the Free Speed Clause would require, that all views, including religious views, be permitted. 

Justice Breyer’s Judicial Opening Farewell.  Justice Breyer wrote the Court’s opinion which unanimously held that the petitioner had been subjected to viewpoint discrimination, requiring that the judgment of the First Circuit be reversed.  Perhaps as a parting gift to the nation and the law, the Justice began with clarity and thereafter applied his inquisitive style of jurisprudence.  

Government speech and government created forums must be distinguished, he wrote.  A government created forum must be open to all without restriction based on viewpoint.  Government speech is not so constrained, as the government must be able to provides views and opinions in order to function as a government.  

This is all very clear until it is not.  In this case, had the city adopted the flag permitting and display process as its own, the city would be engaging in government speech and would not, in the ordinary case, be subject to the First Amendment.  On review it did not appear that the city was engaged in government speech, and thus its refusal to permit the petitioner’s flag was viewpoint discrimination. 

Meaningful distinctions between government and private speech become blurred where private speech occurs at the government’s invitation, where it is not always clear whether the government has transformed private speech into government speech, or whether the government has simply created a forum for private speech. 

Today the Court has opined that a ‘holistic’ approach must be undertaken to determine whether “the government intends to speak for itself or to regulate private expression.”  Slip. Op. at 6.  Introducing its approach, the Court offered:

Our review is not mechanical; it is driven by a case’s context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public’s likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Slip Op. at 2. 

In this case, the Court found evidence favoring the government except that the city had invited all participants and had approved all applications except the one in issue in this case, which was denied because the name of the flag, not the flag itself, signified a religion.  The city’s self-perception that the program was government speech stands in contrast to its practice of unrestrained permitting except in this case. 

Boston’s position was further weakened, the Court opined, because Boston had no written policies or guidance concerning flag permits, a situation which Boston might choose to rectify in the future. 

A brief reiteration:  Justice Kavanaugh concurs.  This case arose, Justice Kavanaugh has noted, because a city official misunderstood the Establishment Clause. Speech principles, not the Establishment Clause, forbid the exclusion of religious speech in public activity.  All views, secular or not, must be treated equally in public programs, benefits, facilities and related settings and activities. 

The end may be all right, but the means, not so much.  Justice Alito, joined by Justices Thomas and Gorsuch, concurs in the judgment and criticizes the controlling opinion.   Justice Alito disfavors the application of facts such as history, public perception and government control as guidance in analysis. The core question is whether the government is speaking or regulating private opinion.  Enlisting government speech analysis in viewpoint discrimination cases may cause more distortion than clarity. 

Such distortion is dangerous, Justice Alito writes, as the government may claim to have adopted speech as its own to conceal favoritism among speakers.  The critical question is who the speaker is.  The Court errs, in Justice Alito’s view, in asserting that precedent has established a settled methodology to be applied to government speech analysis.  No such test can be found.  The totality of the circumstances, not limited by key factors, governs such cases and review of particular factors is helpful only to the extent that it aids in the identification of the speaker.  

Government control is significant in identifying who a speaker is because speech over which the government exercises no control is not government speech, yet the concept of government control is central to analyzing censorship.   Requiring or withholding government control of private speech can be censorship but granting permission to speak does not transform speech into government speech.  

…neither “control” nor “final approval authority” can in itself distinguish government speech from censorship of private speech, and analyzing that factor in isolation from speaker identity flattens the distinction between government speech and speech tolerated by the censor. And it is not as though “actively” exercising control over the “nature and content” of private expression makes a difference, as the Court suggests, ibid. Censorship is not made constitutional by aggressive and direct application. 

Alito concurrence in judgment, Slip. Op. 4

While history may aid in illustrating what was considered in the past, it cannot serve to dictate results in a particular matter.  An overemphasis on tradition in this case favors the government simply because governments traditionally use flags for government messaging, but this cannot be of the consequence the Court affords it where the government activity in question is unorthodox, not traditional. 

A focus on public perception yields no good result where it cannot be presumed that the public can know, from casual observation,  who is speaking, where fear of misperception of private speech or government speech could promote exclusion of views, and where the government may always make plain to the public that the views expressed are not its own. 

The issue is not simply one of fashioning an analysis, Justice Alito stresses.  Risks of error pervade the Court’s “factored” test, but the greatest risk is the risk of aggressive application of the concept of government controls in service of censorship. 

Finally, creating a three-factor test but applying only one factor to direct the outcome highlights the weakness of such an approach.

Justice Alito would analyze whether the government is purposefully presenting its own message through its own agent without abridging private speech.  There should be no confusion about government speech where private citizens are ‘deputized’ to speak on the government’s behalf or where a private entity cedes its platforms for government speech. 

The Unbearable Persistence of Lemon.  Justices Gorsuch and Thomas concur in the judgment, but join to point to the errors not rectified but instead introduced into Establishment Clause cases by the Lemon test, itself a factor analysis which only serve to underscore how aptly the test is named.

Reliance on original meanings rather than on the much-loathed Lemon approach would return the law and the courts which administer the law to clarity after decades of great confusion:

“The thread running through these [Establishment Clause] cases derives directly from the historical hallmarks of an establishment of religion—government control over religion offends the Constitution, but treating a church on par with secular entities and other churches does not.   

Gorsuch concurrence in judgment, Slip Op. at 12. (citation omitted.)

20-1800_Shurtleff v. Boston, 595 U.S. (May 2, 2022)

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At the Hour of Our Death: Supreme Court to Consider Prisoner’s Plea for Prayer and Touch in Execution Chamber

Ramirez v.  Collier, Executive Director of the Texas Department of Criminal Justice, et al., No. 21-5592.  Oral argument set for November 9, 2021.   

The Supreme Court will soon consider whether Petitioner Ramirez, sentenced to death for a capital crime, may prevail in his claim that the State of Texas’ has violated the Religious Land Use and Religious Persons Act by refusing Ramirez’s request that his spiritual advisor not only be present in the execution chamber but also be permitted to pray aloud and to lay hands on Ramirez during the execution.

 

RLUIPA was enacted after the Supreme Court concluded that the Religious Freedom Restoration Act (RFRA) could not apply to the states.  Both statutes provide protections for religious exercise that may exceed the guarantees of the First Amendment, by shifting burdens of proof and persuasion and by permitting latitude in what may be considered a religious exercise.  

 

Thus a prisoner need not establish that a requested religious accommodation refers to a normative practice in any spiritual practice adhered to by the prisoner.  The state, however, must establish not only that its practices support a compelling government interest and that the state has employed the least restrictive means in furtherance of that goal.  

 

The presence of ministers in the death chamber has been permitted in Texas, in other states, and in the federal system.  At this time, Texas’ rules and regulations appear not to preclude such a presence, but interpretive guidance, some apparently issued in response to Ramirez’ requests, rule out vocalization and laying on of hands during and following the administration of lethal injections.

 

On its face Ramirez’s request appears compelling and its denial cruel.  What possible end could be served by denying a prisoner the solace of prayer and touch at death?  Safety and security, says the state.  

 

The state, through the Texas Department of Criminal Justice  opines that past procedures permitting religious attention at execution were supported by safety protocols permitting state employees, not volunteers, to provide religious support.  Sabotage and the creation of chaos in the execution room cannot be ruled out, the state argues, as such events are not without a basis in history and the likelihood of a disruptive occurrence is enhanced  if a volunteer minister would be so close to the prisoner that the disruption of the flow of medication or to removal of needles or restraints.  

 

Moreover,  the state argues that its practices and prohibitions respect the dignity of the prisoner by permitting audio surveillance from outside the execution chamber of the administration of lethal substances and the dying process.  Audible prayer would thwart that process, making it more likely that the state could not remediate the execution timely and enhancing the chance of an agonizing death.

 

Religious advocacy groups and scholars of religious freedoms have aligned with Ramirez, particularly in service of precluding interpretations of RLUIPA that would permit accommodations only if the state were affirmatively precluding a recognized religious practice.  

 

Several states have asserted that the states must be deferred to in fashioning acceptable execution chamber protocols.  The states fear a flood tide of litigation intended only to forestall executions, all in defiance of the Prison’ Litigation Reform Act, which would hamstring the state in administering sentences, thereby undermining the criminal justice system and principles of federalism. 

 

The United States has urged the Supreme Court to remand the case for resolution, particularly for further articulation of the parties’ interests.

 

Joining in advocating for bringing to a conclusion Ramirez’ litigation are the survivors of Carlos Ramos, who died after having been stabbed twenty-nine times by the Petitioner.   Ramos’ children, now grown, ask that the Court not be unmindful that at each stage of litigation the trauma of their loss is revived.  The Ramos family asks how it is that media attention appears to cast Ramirez as heroic, where their father was denied a sacramental death.  

JustLawful note:  This comment omits consideration of the exhaustion of remedies argument that is also presented in this case.

JustLawful Comment: Leaving aside the flood tides of dilatory claims, administration of justice, and federalism questions, which are not insignificant, it is difficult to believe that the requested ministerial presence and prayer and touch practices could not be accommodated through prison protocols protecting the interests of all.   “Accommodation” by definition suggests that each party yield — by inches if not by yards — to the other.  The parties seem disinclined toward such a perspective, yet the Court may order remand in furtherance of such a result, which would likewise aid the Court in avoiding unnecessary decisions.

Case Materials:

Brief of Petitioner Ramirez September 27, 2021

Brief for Respondents October 15, 2021

Reply Brief For Petitioner October 25, 2021

Ramirez v. Collier Joint Appendix Vol. I

Amicus Submissions in Support of Petitioner Ramirez

Amicus First Liberty Institute September 27, 2021

Amicus Scholars of the PLRA and Prison Grievance Systems September 27, 2021

Amicus The United States Conference Of Catholic Bishops September 27, 2021

Amicus Religious Liberty Scholars September 27, 2021

Amicus Becket Fund for Religious Liberty September 27, 2021

Amicus Christian Legal Society, et al. September 27, 2021

Amicus Spiritual Advisors and Former Corrections Officials September 27, 2021

Amicus Former Prison Officials September 27, 2021

Amicus Alliance Defending Freedom September 27, 2021

Amicus Protect the First Foundation September 27, 2021

Amicus Submissions in Support of the Respondents

Amicus Arizona, et al. in Support of Respondents October 15, 2021

Amicus Pablo Castro’s Children October 15, 2021

Amicus Criminal Justice Legal Foundation October 15, 2021

Amicus Submissions in Support of Neither Party

Amicus the United States September 27, 2021

Amicus Freedom from Religion Foundation et al. September 27, 2021

 

 

 

 

 

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Where Two Or More Have Gathered, Litigation Has Ensued: Maine Church Argues That Recent Decisions Compel The Conclusion That Maine’s Pandemic Capacity Restrictions On Assembly Violate The Religion Clauses of the First Amendment

 

Calvary Chapel of Bangor v. Mills, Governor of the State of Maine, No. 1:20-cv-00156-NT (D. Maine).

Calvary Chapel Church of Bangor, Maine has challenged pandemic-related capacity restrictions on church attendance since shortly after the state imposed those restrictions nearly a year ago.  

The church believes that Maine’s are now the most restrictive assembly limitations in the nation.

Following an appeal to the First Circuit and remand to the federal district court in Maine, Calvary Chapel now argues that recent decisions of the United States Supreme Court and the federal circuit courts of appeals compel the issuance of an injunction against the governor’s restrictions on church attendance.

The church asserts that the state’s pandemic related imposition of limits on church assembly, where similar limits are not imposed on secular entities and activities, unlawfully discriminates against Calvary Chapel of Bangor, in violation of the Free Exercise Clause of the First Amendment.  Moreover, the state’s restrictions impermissibly interfere with the church’s management of its own affairs and, as the restrictions preclude participation in religious services, they violate the Establishment Clause.  

Calvary Chapel of Bangor differs from other congregations that have engaged in challenges to pandemic-related measures.   Calvary Chapel not only serves as a church for community congregants, but also operates a residential program for persons seeking to renew their lives and recover from life-limiting conditions through, among other things, participation in religious assembly.

The pastor of Calvary Chapel of Bangor notes that not only is assembly commanded by scripture, but also that greater fervor is commanded during times of trouble  

The pastor submits that because almost 50 residents are always in place at the residential program, when those residents are called to church services, then community congregants cannot attend, as the gathering would exceed the Governor’s order’s limits.  

Conversely, if congregants were permitted to attend services, the residents would be precluded from doing so. Such a choice diminishes the dignity of all and undermines the effect of the residential treatment program, which envisions full acceptance within the larger community after completion of the program.

The pastor states he finds himself in an untenable situation, as he must choose between violating the law, which has criminal penalties, and violating his beliefs and obligations as minister.

The pastor points out that this choice is an impossible one, and is particularly troubling in a nation founded on principles of freedom of religious worship.

The governor of Maine’s response to the newly filed motion for injunctive relief has not yet been submitted, nor is there any date for hearing established

What follows are links to the Calvary Church brief and the pastor’s declaration and copies of opinions considering challenges to restrictions on Church attendance during the pandemic.

 

Here are links to Calvary Church’s recent submission to the court:

Calvary Chapel v. Mills Renewed Motion for Injunctive Relief

Calvary Chapel v. Mills Declaration of Ken Graves, Pastor

And here are links to recent opinions:

South Bay United Pentecostal Church v. Newsom, 592 US (Feb.5, 2021)

Calvary Chapel Bangor v Mills 1st Cir 2020

S Bay United Pentecostal Church v Newsom (SD Cal 2020) (Dec.)

High Plains Harvest Church v. Polis, 592 U.S. ( ) Dec. 15, 2020

Calvary Chapel Lone Mountain v Sisolak 9th Cir 2020

Calvary Chapel Dayton Valley v Sisolak 9th Cir 2020

Roman Catholic Diocese of Brooklyn v Cuomo 2020

Calvary Chapel Dayton Valley v Sisolak 140 S Ct 2603 2020

S Bay United Pentecostal Church v Newsom 140 S Ct 1613 207 L Ed 2d 154 2020

 

 

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No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”

Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.

New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020

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From the Same Hymnal: Message of Roman Catholic Diocese of Brooklyn v. Cuo to Be Adopted in Ninth and Tenth Circuits

High Plains Harvest Church v. Polis, 592 U.S. ___ , December 15, 2020; Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), December 15, 2020.

This week both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit affirmed the recent New York determination that pandemic restrictions on public gatherings cannot be more restrictive for religious gatherings than for others.  

In the Calvary Chapel case, the Ninth Circuit has concluded that petitioners are likely to succeed on the merits in their challenge to Nevada’s pandemic-related public gathering restrictions because the disparate treatment accorded to secular and religious groups cannot survive strict scrutiny analysis,  Permitting secular activities at 50% of capacity while limiting religious gatherings to 50 persons without reference to capacity unduly burdens religion.  Pending review in the federal trial court, the Ninth Circuit has granted injunctive relief ordering that no more harsh restriction than 25% of fire code capacity may be attached to in-person religious gatherings.  

The Supreme Court has reiterated that the decision and analysis applied to restrictions on religious services announced in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S.  _____, November 25, 2020, and has directed the U.S. Court of Appeals for the Tenth Circuit to address the challenge to Colorado’s pandemic-related restrictions accordingly.  

Three justices dissented because they believe that the case is moot, as Colorado removed the challenged restrictions following the Court’s November determination concerning New York’s emergency measures.  

JustLawful Observation:  Some may be consoled that Christmas and Chanukah gatherings may have been saved by the Supreme Court’s intervention in New York, which will be applied elsewhere, while others may question why it required the intervention of the nation’s highest court to do what custom and practice, even in a public emergency, once might have dictated.  The more comforting lesson may be that the Supreme Court has rejected the states’ arguments that the Court’s early 20th century views of states’ expansive emergency powers permits unequal treatment of religious and secular activities.   Jacobson v. Massachusetts, 197 U.S. 11 (1905)  was and remains good law, but Jacobson did not decide the questions presented in the present cases, and the Court is not willing to expand states’ powers beyond the limits of the First Amendment. 

High Plains Harvest Church v. Polis 20A105 December 15, 2020

Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.) December 15, 2020

Roman Catholic Diocese of New York v. Cuomo 20A87 (U.S.) November 25 2020

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

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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).

 

 

 

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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

 

 

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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