Called to Congregate: Federal Court Forbids Enforcement of Current Public Gathering Restrictions Against Capitol Hill Baptist Church


Capitol Hill Baptist Church v. Bowser, Mayor of the District of Columbia, No. 20-02710 (TNM).  Order granting preliminary relief entered October 9, 2020.


The United States District Court for the District of Columbia has enjoined enforcement of the District of Columbia’s prohibitions on certain public gatherings during the COVID-19 pandemic because those restrictions may be found to violate the Religious Freedom Restoration Act of 1993 (“RFRA”) because the rules substantially burden the free exercise of religion and because the District of Columbia has not demonstrated that sweeping pandemic-related measures, designed and enforced unevenly, are the least restrictive means of ensuring public health.

At the outset of the perceived public emergency precipitated by the contagious COVID-19 virus, the Mayor of the District of Columbia promulgated orders restricting public gatherings.  Over time some restrictions have been relaxed, permitting some resumption of restaurant commerce, for example, while others, such as those restricting the size of gatherings, have not been.  And notwithstanding the restrictions, the District has permitted and the Mayor has participated in, sizable protest gatherings.

Capitol Hill Baptist Church believes that its congregants are biblically bound to gather in person weekly, a practice begun in 1978 and continuing until March of 2020, with a brief interruption during the influenza outbreak of 1918.

Capitol Hill Baptist Church has asserted, and a federal district judge has agreed, that the District of Columbia’s current prohibition on indoor or outdoor gatherings of more than 100 persons, even if masked and ‘socially distancing’ substantially burdens congregants’ religious freedoms.

It is no answer, the Court has found, that substitutes for gatherings may exist or that the congregation has left the District of Columbia in order to gather, precluding the attendance of some who are without transportation.  

The “substitution” arguments are unavailing, the court concluded, as they do not fairly demonstrate that the District of Columbia has enacted the least restrictive means of ensuring public health.

The questions to be asked in RFRA review are not confined to generalities but to the impact of burdens on individuals as well as institutions.  

The government cannot meet its burden where it has freely abandoned the very restraints it designed, as where the Mayor participated in large public protests.  

The federal court noted that it has declined to address the question of the applicability of an enhanced standard for mandatory injunctive relief, as the relief requested and granted requires restraint from enforcement which does not compel the government to act.  The court observed that in any case the higher standard, if applied, could be met.

The Court also noted that it has declined to address First Amendment claims at this time because it has proceeded with RFRA analysis.

The Court rejected the District of Columbia’s untimely filings and rejected its argument that the church was itself untimely in seeking judicial relief, as the Court felt that the church ought not be penalized for first attempting negotiation before commencing litigation.

For the removal of doubt, the order is appealable.

The case has attracted a chorus of elected officials as amici, as well as a religious liberty advocacy group, which has compiled a summary of state pandemic restrictions on religious gatherings.

CHBC v, Bowser, Mayor, No. 20-02710_2020 10 09 Memorandum

CHBC v. Bowser, Mayor, No. 20-02710_2020 10 09 Order

CHBC v. Bowser, Mayor, No. 20-07210_34 Senators’ Amicus Brief

CHBC v. Bowser, Mayor, No. 20-02710_ Becket Fund for Religious Liberty Amicus Brief

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

 

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)