Chevron and the Hobby Lobby Decision

Posted by:
Category: Business Regulation, Public, Religion & Law, U.S. Supreme Court
3 Comments »

Hobby Lobby logoThe majority opinion in the Supreme Court’s decision in the Hobby Lobby case is founded on the Religious Freedom Restoration Act (RFRA) and the restrictions it places on the Secretary of Health and Human Services (HHS) when she regulates and enforces the Affordable Care Act (ACA). While the issues raised by Justice Ruth Bader Ginsburg’s dissenting opinion as to the battle of interests protected by the Constitution are significant, an important practical legal issue that was not addressed in the Hobby Lobby case is the power of HHS to interpret the meaning of the ACA. Considering the majority’s reliance on two terms that go undefined by the Court — “sincere religious belief” and “closely held corporation” [see page 29 of the slip opinion and footnote 28] — and the fact that none of the other Hobby Lobby opinions address the meaning of these terms, it is essential that these terms be defined as they fit into the ACA context.

The Court’s failure to address how HHS might interpret the meaning of these terms is reasonable considering that HHS has not acted to interpret the meaning of a “sincere religious belief” or a “closely held corporation” in the context of the ACA. In fact, the majority states explicitly that courts will be able to separate those with “sincere religious beliefs” from those who do not. However, despite the majority’s reference to the ability, and impliedly the power, of courts to interpret the terms “sincere religious beliefs” and “closely held corporations,” terms such as these have been regularly interpreted by federal agencies as they apply to the statutes these agencies enforce. Read more »

Print Friendly



The Sources of Anti-Gay Sentiment in Uganda

Posted by:
Category: International Law & Diplomacy, Popular Culture & Law, Public, Religion & Law
Leave a Comment »

American politicians and journalists have sharply criticized Uganda’s apparent hostility toward gay men and lesbians. When in February Uganda’s President Yoweri Museveni signed into law a bill imposing harsh criminal penalties for homosexual acts, U.S. Secretary of State John Kerry criticized the Ugandan law as a violation of international human rights. When a tabloid in Kampala, the nation’s largest city, published a list of “Uganda’s 200 Top Gays,” American newspapers reported that this mass “outing” led those on the list to fear for their lives and to seek desperately to flee the country.

In response to this criticism, the Ugandan government characterized the political comments and journalistic reports as disturbingly arrogant. Once again, the U.S. seemed to be trying to control Ugandan lawmaking and public opinion, the government said. Museveni himself insisted “outsiders” should leave his nation alone and vowed he would not give in. “If the West does not want to work with us because of homosexuals,” Museveni said, “then we have enough space to ourselves here.”

Is the dispute simply a matter of American support for gay rights colliding with Ugandan homophobia? As is usually the case in an international dispute of this sort, the controversy involves more than the purported enlightenment of the West on the one hand and the narrow-mindedness in the developing world on the other. There is ample evidence that American evangelical Christians heavily influenced Uganda’s political and religious leaders, who as a result of this influence turned on the nation’s gay men and lesbians. Read more »

Print Friendly



Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

Posted by:
Category: First Amendment, Health Care, Labor & Employment Law, Public, Religion & Law
3 Comments »

stethoscopeEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise in the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration’s Affordable Care Act’s (ACA’s) contraceptive coverage mandate.

Here’s a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals. Read more »

Print Friendly



Religious Objections to Autopsies—A Virtual Solution?

Posted by:
Category: Constitutional Law, Criminal Law & Process, First Amendment, Public, Religion & Law
Leave a Comment »

“[I]n this world,” wrote Benjamin Franklin famously, “nothing can be said to be certain, except death and taxes.” Were we to add a third certainty to the list, it might be that law will have something to say about the other two. To be sure, the law has quite a bit to say about death, including a mandate, under certain circumstances, to determine the cause of one’s demise.

Often such determinations entail autopsies or postmortem examinations, but sometimes these examinations are offensive to the decedent’s religious beliefs or to those of surviving family members. In such situations, it has frequently been the case that the religious beliefs have had to yield to the interests of the government or the public.

A few years ago, Kelly McAndrews (MU Law 2010) and I gave a presentation on religious objections to autopsies at a conference of the Wisconsin Coroners and Medical Examiners Association. (At the time, Kelly was the Medical Examiner for Washington County, Wisconsin.) We noted that, among other groups in Wisconsin, the Hmong and Orthodox Jews would likely have strong objections to autopsies, while that the Old Order Amish, Hindus, and some Muslims, American Indians, and Christian Scientists may have objections ranging from minor to moderate in their intensity.

Potential bases for objection, varying by religion, include: concerns about delay in the preparation and burial of the body as prescribed by religious law or tradition; concerns about the mutilation, desecration, or disturbance of the body (e.g., the body belongs to God and should not be altered, the body is needed intact for successful passage to the afterlife, or the body is needed intact in the afterlife itself); and concerns about spiritual harm to the surviving relatives for failing to take care of the decedent in a religiously proper manner. Read more »

Print Friendly



We Are All Sikhs

Posted by:
Category: Family Law, Public, Religion & Law
3 Comments »

The day after the dreadful attacks of September 11, 2001, the French newspaper Le Monde published an editorial under the headline “Nous Sommes Tous Américains” (“We Are All Americans”).  The headline was meant to convey not only that the French people stood behind Americans in our desperate hour, but also that they shared our vulnerability as well as our responsibility in an increasingly dangerous world.  The editorial warned that modern technology enables suicidal warriors of all ideological stripes to do more damage than ever before, and the writer emphasized that all leaders need to act to discourage ordinary people from joining the murderous aims of warmongers like those who wreaked havoc on September 11th.

On Sunday, a smaller — but no less terrible — act of carnage occurred in Oak Creek, when a lone gunman killed six people and wounded three others before he was shot and killed by a police officer.  Deaths by violence are always terrible, but this was also an attack against an entire religious community that resides among us.

I first began to learn about Sikhism a few years ago when one of my students, herself a Sikh, kindly gave me a book about her religion.  The religion was founded in the 15th century and has over 20 million followers throughout the world.  Sikhs believe in one God, Whom they believe is the same Supreme Being worshipped by followers of other religions.  To quote from the website www.Sikhs.org, “Sikhism preaches that people of different races, religions, or sex are all equal in the eyes of God.  It teaches the full equality of men and women.”  The Sikh religion also emphasizes tolerance, honesty, community service, and sharing with those in need.

It is beyond ironic that members of a group devoted to peace, equality and tolerance were violently slaughtered in what the FBI is investigating as an act of domestic terrorism. Read more »

Print Friendly



Cats and Dogs, Libertarians and Social Conservatives

Posted by:
Category: Political Processes & Rhetoric, Public, Religion & Law
1 Comment »

There’s been an interesting exchange among libertarians in response to the Catholic Church’s kick-off of a campaign against application of the HHS mandate on contraception and “morning after” pills to certain religious institutions without an adequate conscience exception.

Jay Carney, writing in the Washington Examiner, began the conversation by suggesting that social conservatives recognize big government as an enemy of religion and calling on libertarians to reassess their political alliances. Walter Olson of Cato responds, observing that libertarians have been out front in opposing state impositions on religion, but pointing out that there are limitations to co-operation between libertarians and social conservatives to the extent that the latter support state intervention as an instrument of the culture war. Walter’s Cato colleague, David Boaz, argues that social conservatives have often called for impositions on liberty to advance a particular moral view, citing a number of historic examples.

Two things.  First, it is always heartening to see libertarians understand that freedom requires resistance to impositions on voluntary associations as well as restrictions of individuals.   Read more »

Print Friendly



Restricting Liberty in the Name of Equality

Posted by:
Category: Civil Rights, Constitutional Interpretation, Constitutional Law, First Amendment, Public, Religion & Law
7 Comments »

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

Read more »

Print Friendly



Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

Posted by:
Category: Criminal Law & Process, Federal Criminal Law & Process, Public, Race & Law, Religion & Law, Seventh Circuit
2 Comments »

Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.

Read more »

Print Friendly



Tebowing and the Constitution

Posted by:
Category: First Amendment, Public, Religion & Law, Sports & Law, U.S. Supreme Court
Leave a Comment »

Much has been made of Broncos quarterback Tim Tebow’s outward expressions of his Christian faith, especially his practice of kneeling in moments of prayer—“Tebowing” as it is now called—after touchdowns, some of them admittedly a bit miraculous.

A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? Read more »

Print Friendly



American Restrictive Covenants and Israeli Community Exclusions

Posted by:
Category: Legal History, Public, Race & Law, Religion & Law
Leave a Comment »

Controversies in the United States during the 1940s and 1950s regarding restrictive covenants related to race foreshadow current controversies in Israel regarding community exclusions of Arab citizens. Both controversies illustrate how difficult it is to maintain equality in a pluralistic society and underscore the importance of freedom to choose one’s housing in that effort.

In the United States, zoning according to race had been found unconstitutional in the early twentieth century, but segregationists turned instead to private restrictive covenants to keep African Americans and members of other minority groups out of white towns and neighborhoods. Fortunately, the United States Supreme Court ruled in Shelley v. Kraemer (1948) that a court enforcing such a restrictive covenant was denying equal protection of the laws and therefore acting unconstitutionally. Would-be segregationists then attempted to sue private parties for breaching the covenants when they sold or rented properties to African Americans, but the United States Supreme Court said that any court entertaining these suits was also acting unconstitutionally.

In Israel, starting in the 1970s, Jewish nationalists began settling in the sprawling exurbs of northern Israel, where membership committees often decide who can buy local homes. When Jewish-only communities emerged in the Negev and in Gallilee, Arab citizens sued, arguing they were being excluded. The Israeli Supreme Court barred the exclusion, asserting that “equality is one of the foundational principles of the State of Israel.” However, just this year the Knesset in effect overruled the judiciary by enacting a law that allows local membership communities to reject potential residents who did not fit the “social-cultural fabric.”

Both extended controversies suggest that equality is impossible if citizens of different races and religions are not free to live where they want. One’s home and one’s ability to choose it are a base for one’s sense of equality, not in the Blackstonian sense of each man’s home is his castle but rather as a starting point for civic self-actualization. How can one understand oneself as equal without the same freedom as others to decide where to live?

Print Friendly



The Supreme Court and the Fate of the Ministerial Exception

Posted by:
Category: Civil Rights, Constitutional Interpretation, Education & Law, First Amendment, Public, Religion & Law, U.S. Supreme Court
Leave a Comment »

In 1999, Cheryl Perich began service as a lay teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan.  A year later, she became a “called teacher,” selected by the congregation to serve as a commissioned minister and charged with duties of a more pastoral nature, such as teaching religion classes, leading the students in devotional exercises, and participating in weekly chapel functions, though continuing to teach predominantly secular subjects.

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school. Read more »

Print Friendly



Accommodation of Prisoners With Idiosyncratic Religious Beliefs

Posted by:
Category: Prisoner Rights, Religion & Law, Seventh Circuit
4 Comments »

Under O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), prison officials may restrict inmates’ religious practices, but such restrictions are constitutionally limited to those that reasonably relate to legitimate penological objectives. The Religious Land Use and Institutionalized Persons Act offers additional, statutory protections. But talk of a religious practice normally conjures up the image of an organized religious group acting pursuant to shared beliefs. What are we to make of an inmate who seeks an accommodation based on an indiosyncratic “religious” belief that is not actually espoused by his or her sect? Must an inmate’s belief be officially supported by an organized religious group in order to receive legal protection?

Yes and no, the Seventh Circuit answered last week in Vinning-El v. Evans (No. 10-1681)Read more »

Print Friendly