Verdict Legal Analysis and Commentary from Justia Tue, 22 Jul 2014 13:46:27 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no Hard Labor: New Pregnancy Discrimination Guidance From the EEOC Tue, 22 Jul 2014 04:01:05 +0000 Continue reading →]]> Pregnant EmployeePregnancy discrimination in the workplace is an intractable problem, one that has resulted in a startling number of claims each year to the Equal Employment Opportunity Commission (EEOC)—rising at a faster rate than women are joining the workforce—and increased media attention. But it has also led to extensive litigation that raises, in a variety of contexts, the question of what constitutes illegal pregnancy discrimination under federal law.

In light of these developments, the EEOC has just issued new Enforcement Guidance on pregnancy discrimination—its first in several decades—to explain its interpretation of applicable statutes. In this column, I’ll explain key aspects of the guidance, along with its relevance to Young v. UPS, a pregnancy discrimination case that the U.S. Supreme Court has just agreed to hear.

Federal Protection Against Pregnancy Discrimination at Work

The heart of pregnancy discrimination law is the Pregnancy Discrimination Act (PDA) of 1978, signed into law by President Jimmy Carter in response to a bizarre 1976 opinion from the U.S. Supreme Court, General Electric v. Gilbert, in which it held that pregnancy discrimination was not a form of sex discrimination under Title VII of the Civil Rights Act of 1964, the main federal anti-discrimination law. This ruling, along with others, left in place a regime in which public and private employers could openly discriminate against pregnant women by refusing to hire them, forcing them to quit upon becoming pregnant, refusing to accommodate the physical effects of pregnancy, or changing the conditions of employment to suit the needs of the employer. (More details on the developments leading up to the PDA are available here.)

The PDA was designed to disrupt the status quo—to open workplace doors to pregnant women, and to force employers to abandon those policies and practices that falsely stereotyped pregnant women as incompetent or reflected normative assumptions about the impropriety of pregnant women or mothers in the workforce.

The first clause of the PDA amended Title VII to make clear that discrimination on the basis of “pregnancy, childbirth, or related medical conditions” is unlawful as a form of sex discrimination under Title VII—expressly repudiating the holding in Gilbert. This eliminated the most common exclusionary policies (e.g., pregnant school teachers must leave by the fourth month of pregnancy) and provided a basis for challenging employment decisions based on bias against pregnant women or the application of stereotypes about their competence, abilities, or proper place.

The second clause, which provides that pregnant women have the right to be treated the same as others who are “similar in their ability or inability to work,” was designed to provide a comparison group by which pregnant woman could gauge their right to benefits or accommodations. Pregnant women have no absolute right to accommodations, but if temporarily disabled workers receive them, then pregnant workers are entitled to them as well. Moreover, under a 1987 ruling from the Supreme Court in California Federal Savings v. Guerra, the second clause provides a floor but not a ceiling on benefits and accommodations, so employers can choose to treat pregnant workers more favorably than comparably disabled workers. The second clause, however, has been routinely misinterpreted and misapplied by lower courts, leading to both great confusion about its scope and meaning and a dilution of the rights Congress intended to bestow.

By its terms, the second clause of the PDA provides, at best, a comparative right of accommodation. It does not give pregnant women any absolute right to have pregnancy-related disability accommodated with leave or modifications to the job. Instead, it creates a comparison group to whom pregnant women can compare themselves to gauge their possible entitlement to an accommodation. If no one gets benefits or accommodations, pregnant women have no right to them either. But, the straightforward language of the second clause would suggest, if temporarily disabled workers receive accommodations, then pregnant women must also receive them.

The EEOC’s New Enforcement Guidance: What Is “Pregnancy”?

The EEOC Guidance first tackles the question that has plagued courts of what falls within the category of “pregnancy, childbirth, and related medical conditions.” Work can potentially conflict with all aspects of the reproductive process. Lawsuits have raised specific questions about whether discrimination on the basis of contraceptive coverage, infertility, and lactation fall within the PDA. Confusion about the proper scope has led to some sensible rulings—like the Seventh Circuit’s ruling in Hall v. Nalco that discrimination against a female employee because she was seeking fertility treatment is actionable—and some mysterious ones—like that of a federal district court in EEOC v. Houston Funding holding that lactation discrimination is not covered because lactation is not related to pregnancy.

The Guidance takes an appropriately broad approach to defining discrimination under the PDA, given the text of the statute and the Supreme Court’s prior opinions. While an employer is not liable for pregnancy discrimination if the woman’s condition was neither revealed nor obvious, it is liable for adverse decisions based on stereotypes or assumptions about a pregnant woman’s capacity to work, as well as for decisions motivated by a past pregnancy. Even before a pregnancy occurs, employers cannot discriminate on the basis of potential pregnancy—fertility—or reproductive risk. They also cannot discriminate on the basis of a woman’s intentions to become pregnant, nor her seeking of fertility treatment to become pregnant. This does not mean that employers must facilitate employee efforts to become pregnant—it tacitly approves court decisions holding that the exclusion of fertility treatments from employer-provided insurance does not violate Title VII—but only that they cannot single out or punish employees based on false assumptions about how an existing or future pregnancy might impact a woman’s capacity to work or because of animus against an employee who has made these decisions. Employers must also, under the second clause of the PDA, provide leave, benefits, or accommodations for these conditions to at least the same degree it provides them for comparable medical conditions.

The Guidance also weighs in on contraception, an issue that has been controversial under discrimination law and also in recent litigation about Obamacare. In the Guidance, the EEOC concludes, as several federal courts have, that an employer’s exclusion of prescription contraceptives—all of which are used by women only—from an otherwise comprehensive insurance plan constitutes illegal sex discrimination. With respect to lactation, the Guidance concludes that discrimination against an employee because she is breastfeeding is actionable and that the comparative right of accommodation means that employers must accommodate lactation at least to the same degree they accommodate similar medical conditions. (In addition to having rights under Title VII, women have rights under Obamacare to reasonable break time and a private place to pump breastmilk.) Finally, although the PDA expressly states that employers do not have to provide insurance coverage for abortion, the Guidance concludes that they cannot take adverse action against a woman for seeking an abortion, nor encourage her to get one in order to keep her job.

The Enforcement Guidance and Discriminatory Light-Duty Policies

A second key question covered by the Guidance relates to an employer’s failure to accommodate pregnancy-related incapacity despite accommodating similar incapacity for at least some other workers. In the last decade, there have been a number of lawsuits raising questions about the scope and meaning of the second clause of the PDA. The focus of these lawsuits has been the legality of employer policies that provide light-duty assignments to workers who are injured or disabled on the job (and sometimes to other groups of workers as well), but not to those who are injured off the job. (Lawsuits of this type are discussed here, here, here and here.) These policies do not, by their words, exclude pregnancy, but they are drawn in a manner such that workers with pregnancy-related disability cannot obtain light-duty accommodations. This is so even when the workers who do receive light-duty accommodations are, in every way, “similar [to pregnant women] in their ability or inability to work.”

Yet, despite the obvious violation of the PDA’s second clause, several federal appellate courts have upheld light-duty policies of this nature. Taking a misguided approach to the PDA, courts have searched for discriminatory intent rather than seeing the policy itself as a formal policy of facial discrimination. The most egregious case is Young v. UPS, in which the Fourth Circuit acknowledged that it was collapsing the first and second clauses of the PDA and requiring discriminatory intent for all claims of pregnancy discrimination.

In that case, Peggy Young, a delivery driver who carried lighter letters and packs for United Parcel Service, had a lifting restriction during pregnancy. UPS decided that it could not continue to allow her to work unless she could lift the amount listed in her job description, even though she rarely if ever was asked to lift things that heavy. She was denied a light-duty accommodation despite a combination of collective bargaining rights and employer policies that provided light duty assignments for employees who were injured on the job, who had a qualifying disability under the ADA, or who were legally prohibited from driving due to causes as varied as complications from diabetes and a lost license due to a conviction for driving while intoxicated.

Both the trial and appellate courts held that UPS had not violated the PDA because the policy did not exclude only pregnancy, and there were at least some temporarily disabled employees who, like her, needed accommodation but would not receive it. The Fourth Circuit, inexplicably, rejected the notion that the second clause of the PDA creates a “distinct and independent cause of action,” despite several Supreme Court cases treating it in that way, and refused to transform “an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees.”

The type of reasoning upon which the Fourth Circuit relied is the death knell for the right of comparative accommodation. It effectively allows employers to revert to a pre-PDA world, in which they can single out pregnancy from among other disabilities for adverse treatment. This is precisely what the PDA was enacted to eliminate. (The Supreme Court recently agreed to review this ruling, and it will be argued next term.)

The new EEOC Guidance, fortunately, tackles the light-duty issue head on. It concludes that a pregnant worker “may still establish a violation of the PDA by showing that she was denied light duty or other accommodations that were granted to other employees who are similar in their ability or inability to work.” Comparative evidence that pregnant workers are treated worse than others similar in their ability or inability to work, as a matter of policy or actual practice, is sufficient to establish a violation of the PDA whether or not the employer bore animus against pregnant workers. Therefore, the plaintiff need not use pretext analysis to smoke out discriminatory intent. A policy or decision that denies light duty to a pregnant worker while making it available to someone injured on the job or someone with a qualifying disability under the ADA is prima facie evidence of discrimination.

Moreover, the Guidance continues, “an employer cannot lawfully deny or restrict light duty based on the source of a pregnant employee’s limitation. Thus, for example, an employer must provide light duty for pregnant workers on the same terms that light duty is offered to employees injured on the job who are similar to the pregnant worker in their ability or inability to work.” This is an important response to the appellate court rulings, including the one in Young, which have held that discrimination based on source of injury is “pregnancy-neutral” as long as pregnancy is not the only condition excluded.

If these interpretations were followed in Young, as they should be, the Supreme Court would reverse the Fourth Circuit’s ruling. Peggy Young clearly suffered actionable pregnancy discrimination, for which she should be entitled to a remedy.


The new EEOC guidance tackles other issues related to pregnancy discrimination as well: the proper use of disparate impact theory, the impropriety of forced leave policies, and, importantly, the interaction between other federal statutes such as the Family and Medical Leave Act and the Americans with Disabilities Act (including the latter’s 2008 amendments). Across the board, the EEOC takes an approach designed, as Congress intended, to allow pregnant women to begin work, continue working, and return to work throughout the reproductive process. The Guidance shows sensitivity to the most common types of employer policies and practices that continue to stymie the careers of women who have been or might be pregnant, and it urges employers to go beyond even what the law requires where necessary to level the playing field. Were employers to both comply with the law and follow the recommended “best practices,” pregnant women would find a very different workplace indeed.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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Banning the Export of American Oil Mon, 21 Jul 2014 04:01:26 +0000 Continue reading →]]> Oil WellsSince 1974, federal law generally has prohibited the export of American oil. The law bans such exports even though the Export Clause of the U.S. Constitution provides that Congress can impose “No Tax or Duty” “on Articles exported from any State.” (Art. I, §9, cl. 5.) The higher a tariff is, the more it discourages exporting the good. A total ban on oil exports is equivalent to a tax of infinity.

The history of the Export Clause shows that Congress can no longer justify this ban. When the Framers drafted our Constitution in 1787, the South expressed concern that the North would tax the export of cotton, which was the South’s major cash crop. The South wanted to keep its markets open to the world. James Madison proposed that Congress could impose an export tax, if a super-majority in Congress approved. The South objected that such a restriction was insufficient protection because the more populous North might still be able to impose an export duty. The South did agree that a simple majority could impose a tax on imports but the North had to agree that there must be no tax on exports. While this constitutional restriction in the Export Clause initially favored the South, its principle applies without regard to geographic region. For example, in an effort to make aluminum or steel cheaper, Congress may not impose a tax on their export.

Even low export tariffs on the export of aluminum or steel would hurt the balance of trade, which Congress and the President constantly bemoan. Moreover, export tariffs would increase unemployment in the aluminum and steel industries because the tariff barrier would reduce demand. In the very short term, that lower demand would be equivalent to increasing the domestic supply (thus lowering prices) but that effect will be short-lived because producers of aluminum and steel will reduce supply to synchronize with the reduced demand.

A History of the Export Clause

Since 1974, Congress has imposed the functional equivalent of an absurdly high tax on oil exports by simply banning all exports. However, the Export Clause (Article I, §9) says Congress cannot do that. For example, the Court invalidated the Harbor Maintenance Tax as an invalid tax on exports, in United States v. U.S. Shoe Corp.. The law applied to goods loaded at United States ports for export, based directly on the value of the cargo itself, and not upon any services that the government rendered for the cargo.

Even though the government imposed this tax in a nondiscriminatory fashion, on exports, imports, and domestic commerce, U.S. Shoe Corp. held that the Export Clause prohibits even nondiscriminatory taxes on exports. As the Court explained in another case, the “proponents of the [Export] Clause fully intended the breadth of scope that is evident in the language.” Similarly, the Court later held that Export Clause does not permit nondiscriminatory federal taxes on goods in export transit. As it explained in United States v. International Business Machines Corp., quoting from the debates by the Framers, the hands of the Legislature were absolutely tied” by the Export Clause, and “It is best to prohibit the National legislature in all cases” from imposing export tariffs.

As in life, many issues in constitutional law can get complicated. The Court has allowed Congress, for national security purposes, to impose embargoes. The Court reasoned that the purpose of that export restriction is not to keep goods in the United States just so purchasers can buy them more cheaply. Instead, the congressional purpose is national security. Thus, Congress can prohibit arms manufacturers from exporting tanks to the enemy during times of war. Congress can also decide to limit or restrict exports to particular countries for national security purposes. That is how Congress justifies the trade embargo on Cuba or Iran, for example.

The Oil Export Ban

The oil export ban was a response to the Arab oil boycott of 1974. Congress relied on national security to justify the ban, and that rationale was legitimate at the time. As the Supreme Court explained in Regan v. Wald, the President, if authorized by Congress, “has broad authority to impose comprehensive embargoes on foreign countries as one means of dealing with both peacetime emergencies and times of war.”

While the embargo had obvious national security purposes in 1974, what was true then is not true four decades later. Energy Secretary Ernest Moniz recently urged Congress to reconsider the nation’s ban on exporting domestically produced crude oil. As Mr. Moniz said, “Those restrictions on exports were born, as was the Department of Energy and the Strategic Petroleum Reserve, on oil disruptions.” When the reason for the law changes, the law should change.

The federal oil embargo no longer deals with a peacetime emergency. The International Energy Agency (IEA), a Paris-based adviser to 28 energy-consuming nations, includes among its advisees the United States, Canada, and most of Europe. Late last year, the IEA concluded that by 2015, the United States would overtake Russia as an oil producer. By 2017, it will surpass Saudi Arabia. In 2012, U.S. oil production was 9.2 million barrels a day; by 2020, it will rise to 11.6 million barrels a day. Meanwhile, revenues for OPEC’s 12 members are at its lowest in several years. Many OPEC countries use their oil revenues to arm terrorism. Less profit means less money for countries like Russia or Iran to spend to spread mischief abroad.

The cause of this newfound abundance of oil is American technology. American producers can now tap rock and shale layers in North Dakota; Texas is using horizontal drilling and hydraulic fracturing. The result is that this finite resource is expanding, not contracting. Domestic oil production has increased by 66 percent since 2008. It will continue to increase.

Nonetheless, the oil export ban persists, although the reason no longer has anything to do with national security. Now, the purpose of the ban is to keep domestic prices artificially lower for domestic consumers. For example, Senator Edward J. Markey (D. Mass.) argues, “oil should be kept here in America, to benefit our consumers,” but that admitted goal is directly contrary to the very purpose of the Export Clause. Just as Congress cannot impose export restrictions on cotton to dampen consumer prices in the United States, it cannot impose export restrictions on oil exports when the country is awash in oil.

Granted, using oil affects carbon dioxide and that may affect global warming. However, the rest of the world will produce oil anyway; the only real issue is whether the United States should export oil to countries that are our friends, or keep those countries reliant on countries that are not friendly to us. Today, we are concerned that Ukraine and Western Europe feel under the Russian thumb because of their dependence on Russian energy exports. By exporting our energy, we reduce the power of Russia in a way that does not require flexing any military muscle.

Allowing oil exports will also increase the incentive to find more oil domestically. It will increase employment in the oil industry at a time when national unemployment is stubbornly high. The Commerce Department is taking notice. In late June, in private rulings that it did not publicly announce, it allowed some exports by defining some ultra-light oil as fuel once there has been a small amount of processing, which makes this oil eligible for sale outside the United States. This is a small exemption, but it could grow. The head of oil research at Societe Generale SA in New York, Mike Wittner, recently advised, In addition, it’s good for peace, because it will lower the worldwide price of oil and that serves to reduce the oil income of foreign dictatorships that sponsor violence. That should make the world safer for all of us.

Ronald D. Rotunda is The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University, The Dale E. Fowler School of Law. He is coauthor of six-volume Treatise on Constitutional Law: Substance and Procedure (5th ed., Thomson-West, St. Paul, Minn. 2012-2013), and Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (ABA Thomson-West & ABA, 11th ed. 2013), a one-volume treatise on Legal Ethics.
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A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I Fri, 18 Jul 2014 04:01:36 +0000 Burwell v. Hobby Lobby Stores Inc. deserves heightened attention and weight. In this first of a two-part series of columns, Amar provides background on the roles and types of concurring opinions in 5-4 decisions and provides some historical examples of some key concurrences. Continue reading →]]> Judge WritingLegal and political commentators have already spent thousands of hours on how best to understand Justice Alito’s majority opinion in Burwell v. Hobby Lobby, and whether Justice Ginsburg’s dissent was accurate in saying the decision was of “startling breadth.”

But to understand the scope of the majority opinion construing the federal Religious Freedom Restoration Act (RFRA), we may need to focus on the separate concurring opinion of Justice Kennedy, an opinion that seems to be getting little ink. Two important and complex questions need to be asked about this concurrence: (1) Why should we care what it says? and (2) What does it really say? In the space below, and in my next column in two weeks, respectively, I take up each of those questions.

When There Are Five Votes for a Majority Opinion, Do (or Should) Concurring Opinions Matter?

The first question—why we should pay any attention to the content of Justice Kennedy’s opinion—is fair to ask, and complicated to answer. After all, Justice Alito’s opinion was an Opinion of the Court, which means an opinion for a majority of the voting Justices and not just for a “plurality” of them. In most circumstances, when there is an Opinion of the Court, lower courts (where battles over the scope of RFRA are going to be most meaningfully fought, at least until the Supreme Court decides another RFRA case) must look for meaning and guidance in that Opinion, without necessarily consulting the one or more additional concurring opinions that may have been filed. But, crucially, in Hobby Lobby, Justice Kennedy’s was the fifth vote in a 5-4 case; without Justice Kennedy’s joinder, Justice Alito’s opinion would have lacked a majority. So to the extent that Justice Kennedy’s separate opinion represents a narrowing gloss on Justice Alito’s writing (and in Part Two of this series I will take up whether Justice Kennedy’s opinion is indeed narrower), there is a plausible argument to be made that lower courts (and perhaps also future Supreme Courts) should view Justice Kennedy’s opinion as the guiding or controlling one.

Certainly that would have been true had Justice Kennedy not joined (some or all of) Justice Alito’s opinion, but instead had concurred only in Justice Alito’s bottom-line judgment that Hobby Lobby should win, and written a separate opinion laying out his narrower reasoning. In that instance, everyone would agree there would be no Opinion of the Court (for the parts Justice Kennedy did not join), and Justice Alito’s opinion would be for a plurality only. And in situations like these, the Supreme Court has held, in a somewhat well-known 1977 case, Marks v. United States, that lower courts should look for and be guided by the “position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds” (emphasis added).

Which Matters More, a Justice’s Vote (to Join a Majority Opinion) or His (Concurring) Voice?

Is the situation really so different if a Justice joins an Opinion of the Court (to make a fifth vote) but then writes separately to make clear the (narrow) understanding of the majority opinion on which he based his decision to join? There are first-rate legal minds (including, perhaps, some of my Justia ConLaw professor colleagues) who may say “yes”—formalities matter, and the act of being the fifth vote to join a majority opinion is all-important. There are no constitutional provisions, statutes, or judicial regulations that speak to this question; it seems to be a matter left to and determined by judicial practice. I am not aware that the Supreme Court itself has ever offered detailed views on how a situation like this should be handled, but I find it hard to see a big difference—in the context of a case whose result is determined by a 5-4 vote—between “concurring in the Judgment” and writing a separate opinion, on the one hand, and joining a majority opinion while writing the very same kind of separate opinion, on the other.

Because the writing of a separate opinion laying out a narrower view than that which might have been laid out by the majority opinion is a more specific and more fully explained act than is the general decision to join the majority opinion, I think attaching weight to the narrowing, specific concurrence makes good sense, especially if the concurring Justice is still on the Court (such that his separate writing bears on any prediction of how the Court would rule if another case were brought to it today.) I say this in part because a decision to join with other Justices to make an Opinion of the Court may have been made in part to keep peace at the Court or to avoid the direct insult of a colleague, and does not mean that there might not be important substantive differences among all those who join the Opinion.

The case for crediting the narrow understandings reflected in concurring opinions in this setting is especially strong when the majority opinion may itself be fuzzy (or silent) on the legal question at issue. In these circumstances, a fifth Justice who sincerely believes the majority opinion embraces the narrow reasoning that is on his mind does would not want to refuse to join (and concur only in the judgment) because of the fuzziness. Collegiality and harmony are better served by permitting him to join but to make clear (in a way that will be respected by lower courts) the expectations on which his joinder is based. If his separate concurrence is not given controlling weight in these circumstances, he will be encouraged in future instances not to join the majority opinion (but instead to concur in the judgment only), and this might create needless division and intra-Court friction if in fact the majority opinion embraced the (narrow) holding he thought it did but about which he was not completely sure.

Even when the majority opinion (which has five votes) is clear on the legal proposition in question and a concurring Justice’s “understanding” of the majority opinion, on which his joinder is premised, is objectively unreasonable, there is still a forceful argument to place weight, in a 5-4 case, on a separate concurrence by a Justice within the majority. To the extent that a concurring Justice makes clear by his writing that he disagrees with this part of the Opinion of the Court, his narrower understanding of the law should control, regardless of whether he joined the majority opinion or simply concurred in its judgment.

In effect, we should read his actions/writing together to mean that he really didn’t join with the part of the Court opinion with which he (apparently) disagrees, but he just decided (perhaps because he misread the majority opinion) not to formally opt out of any important sentences or paragraphs in the majority opinion that dealt with the legal proposition in question. It also bears mention that majority opinions often (usually?) fail to break up analysis of each legal question into a separate Section or Part. For this reason, Justices who agree with the bulk of an opinion’s analysis, but who may disagree with a few key sentences, or even words, cannot easily register their nuanced mix of agreement/potential disagreement simply by declining to join whole subdivisions of the opinion.

A few hypothetical variants may help make my point. As I suggested earlier, everyone seems to agree that if a fifth Justice joins most of an opinion, but expressly declines to join a Part or Section of the opinion that included legal proposition X, we would say the Court has not embraced X. If, instead, the fifth Justice writes to say that he “join[s] all parts of Opinion of the Court, except to the extent that the Opinion says X,” again there would be no Opinion of the Court as to the legal proposition X. Now imagine the fifth Justice writes separately to say: “I join the Opinion of the Court because it does not say X.” Should that explicit statement be treated any differently? And, finally, how about: “I join the Opinion of the Court on the understanding that it does not say X”? To me, it would be formalistic without justification to treat the last two of these situations (regardless of the reasonableness of the concurring Justice’s reading of the majority opinion) differently from the first two.

I do think the fact that a Justice joins a majority opinion should not be completely irrelevant in these kinds of situations. So, for example, if there is ambiguity in the meaning of the concurring Justice’s separate writing, that ambiguity should be resolved in favor of harmonizing it with the majority opinion that she chose to join. But to the extent that the concurring opinion clearly disagrees with, or offers more details in narrowing, legal propositions asserted in the majority opinion, the concurring Justice’s voice should control over her vote (to join the majority).

Perhaps the best counterargument, that is, the best argument in favor of not attaching controlling weight to the concurring opinion, is that the Marks-style analysis is often difficult to undertake, and sometimes lower courts make mistakes in trying to figure out what the narrowest common grounds are between multiple opinions. Deciding what is “common” between opinions, and discerning the “narrowest grounds” can be challenging. In the Marks setting, we have no choice but to undertake this tricky analysis because without comparing multiple opinions (no one of which had five votes) we lack any holding at all to guide future cases. By contrast, in the situation I describe in this column, there is an Opinion of the Court (that got five votes), and so telling lower courts to follow it only, and not to complicate matters by trying to incorporate the concurrence into the analysis, does not deprive the system of a holding to guide lower courts.

In the end, I find this counterargument unconvincing for three reasons. First, the Marks-style analysis may sometimes be difficult, but courts do perform this task regularly, and in some cases it may actually be easier to focus on clear limiting language in a concurring opinion than to resolve ambiguities within the majority opinion alone. (I should note that some appellate courts—including the U.S. Supreme Court during its early history—do not issue “Opinions of the Court,” but rather issue individual opinions seriatim, leaving lower courts to figure out the rule(s) of law that were adopted.) Second, we employ Marks analysis not just because we want to generate a holding (we could to that by flipping a coin as between all the opinions that supported the judgment), but because it makes normative sense to seek to identify true common analytic ground between five or more Justices. If that is true in Marks, it is true here as well. Finally, as I noted earlier, if we don’t attach controlling weight to a concurring opinion in the situation I posit here, then a Justice who makes the fifth vote in a future case will, instead of joining the Opinion of the Court, simply concur in the judgment and write a separate opinion anyway, and so we will be right back in the realm of Marks. If a Justice cares enough about an issue to write separately, she probably will do what it takes to make sure the concurring viewpoint is given as much weight as possible in future cases.

Historical Examples

I am not aware of a huge number of prominent instances in which a Justice provided a fifth vote for an Opinion of the Court and then also wrote separately to distance himself in a discernible way from at least some broad propositions in the majority’s approach. But in well-known cases in this category that do come to mind, lower courts have tended to place controlling weight on the concurring views of a fifth Justice even though he also joined the majority. Maybe the most famous illustration of this is Youngstown Sheet and Tube v. Sawyer, where Justice Jackson’s concurring opinion has held tremendous sway in lower court (and also later Supreme Court) rulings, even though he also joined Justice Black’s Opinion of the Court in this 5-4 case. Another significant decision is the 5-4 ruling in United States v. Verdugo-Urquidez, where Justice Kennedy joined Chief Justice Rehnquist’s majority opinion (giving it a fifth vote), but also wrote separately to express views that were narrower than those expressed in the Chief’s writing. And a Third Circuit case, at least (with then-Judge Alito part of the unanimous panel), found that Justice Kennedy’s views controlled.

Perhaps the case most similar to Hobby Lobby in this respect is National League of Cities v. Usery. There, as in Hobby Lobby, powerful entities—States rather than corporations—sought exemptions from federal workplace regulations. And, similar to Hobby Lobby, a five-Justice majority opinion (authored in that case by Chief Justice Rehnquist) held that States were immune from the minimum wage regulations at issue there, laying out what on its face seemed like a rather broad principle of state immunity from federal regulation in areas of “integral” or “traditional” government functions. Justice Blackmun joined the majority opinion, but also wrote separately to make clear his narrow understanding of state immunity and what the majority opinion should stand for; in Justice Blackmun’s view, state exemptions depended on the application of a balancing test in which federal interests were weighed against state autonomy.

In the wake of National League of Cities, at least some influential lower courts found Justice Blackmun’s balancing test to be required by the Court, even though it was not mentioned explicitly in Chief Justice Rehnquist’s majority opinion. Indeed, even though there was an Opinion of the Court in National League (because Justice Blackmun did join the Chief’s writing, giving it five votes), the U.S. Court of Appeals for the District of Columbia characterized the Chief’s opinion as a “plurality” view, and focused instead on how best to read Justice Blackmun’s separate writing. And when the Supreme Court itself was called upon to apply National League of Cities five years later in Hodel v. Virginia Surface Mining, it observed that National League of Cities stood for some kind of balancing test, citing Blackmun’s concurring opinion.

There may be (and probably are) counterexamples, but these high-profile cases, especially National League of Cities, suggest that there is at least a significant likelihood that lower courts will (justifiably) feel controlled by Justice Kennedy’s Hobby Lobby writing and thus will parse it to see if his views narrow the scope of Justice Alito’s opinion. So I will turn to that parsing in Part Two of this series.

Vikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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Federal Judge Strikes Down California Death Penalty: What This Could Mean for California Fri, 18 Jul 2014 04:00:43 +0000 Continue reading →]]> SyringeA federal judge in the U.S. District Court for the Central District of California issued an extraordinary ruling yesterday that California’s death penalty is unconstitutional, vacating Ernest Dewayne Jones’s death sentence. In a remarkably straightforward opinion, Republican appointee Judge Cormac J. Carney found that California’s death penalty system is so unfair and arbitrary as to violate the Eighth Amendment’s ban on cruel and unusual punishment.

Judge Carney found California’s capital system to be rife with delay and dysfunction. The state has sentenced more than 900 individuals to death since 1978, but has executed only 13 of them. By contrast, 94 have died of other causes, including old age, illness, and suicide. Inmates are more likely to die of other causes because of systemic delays in the appellate process that prevent execution than from execution itself. The court pointed out that death penalty cases take more than 25 years to resolve, and that the majority of that time is spent in state courts.

The court also found the appellate delays to be caused by the state of California itself – not malingering petitioners or federal appellate processes. In 2008, the California Commission on Fair Administration of Justice issued a report concluding that the State’s death penalty system was dysfunctional and “plagued with excessive delay.” That Commission recommended a series of improvements be implemented to fix the dysfunction and delay, yet six years later, not one of those recommendations has been put into place. The court found further delays in the direct and collateral appeals resulting from lack of qualified appointed counsel and a severe backlog at the California Supreme Court. Furthermore, backlogs in California state courts cause delays in federal collateral review of capital cases, which requires that the petitioner exhaust all remedies in state court first.

Arbitrary and Capricious Application of the Death Penalty

The Eighth Amendment, and the cases that have subsequently interpreted it, proscribe the arbitrary application of the death penalty. In Furman v. Georgia, the U.S. Supreme Court struck down death penalty sentencing schemes that “created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” This is a hallmark of death penalty jurisprudence that has survived, despite the reinstatement of capital punishment in subsequent Court rulings.

Judge Carney found California’s death penalty scheme to be “so plagued by inordinate and unpredictable delay” that it is indeed an arbitrary, capricious application of the punishment, in violation of Furman and subsequent opinions. The fact that over 900 individuals have been sentenced to death, and only 13 of them actually executed, results in a “sentence of life imprisonment with the remote possibility of death—a sentence that no rational legislature or jury would ever impose.” Carney goes on to note that execution will “depend upon a factor largely outside the inmate’s control”; in other words, it’s not the type or severity of the crime that determines whether the death penalty will be imposed, but arbitrary reasons, and this is a violation of the Eighth Amendment’s ban on cruel and unusual punishment.

Judge Carney also found that California’s death penalty no longer serves the primary penological purposes of capital punishment. Gregg v. Georgia, which reinstated the death penalty, did so with the understanding that the punishment should serve two “principal social purposes”: retribution and deterrence. Carney noted that it is an established principle that “the deterrent effect of any punishment is contingent upon the certainty and timeliness of its imposition, ” and that the 25+ year delay in execution, and the exceedingly low number of individuals actually executed, negates any deterrent value that the punishment may have. The retributive purpose is similarly negated by “such delay and unpredictability” in the system, since most of those sentenced to death end up serving life in prison, instead.

In summary, Judge Carney concluded:

The Court holds that where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State’s process violates the Eighth Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one of execution, be timely and rationally carried out.

Implications of the Ruling

What does this mean for the 748 individuals currently on Death Row? It’s unclear. This decision applies only to the matter at hand, the death sentence of Petitioner Jones. According to press reports, the Attorney General is considering the matter and has not indicated whether she will appeal the ruling. Defendants and Petitioners will certainly cite the holding in their arguments, but other state and federal courts are not bound to follow it.

California, however, seems to be on the precipice of change when it comes to the death penalty. Public opinion has changed dramatically over the past couple of years, both in the state and across the nation. In 2012, a proposition that would have replaced the death penalty with life in prison without parole garnered 48% of the vote. Revelations about the high cost ($4 billion since 1978, and a projected $1 billion over the next five years), structural problems in the system, and the risk of executing an innocent person are leading many citizens away from the death penalty. Stories about botched executions horrify the nation, and many states—including California—are actually enjoined from carrying out executions until new protocols have been adopted. A recent poll shows that 63% of California voters support commutation of the sentences of the entire population of death row to life in prison without the possibility of parole. In 2013, Gallup found that support for the death penalty, nationwide, is at its lowest number in over 40 years.

Judge Carney’s opinion is in line with the direction of public opinion, whether he intended it or not. Regardless of whether his reasoning is upheld on appeal or in subsequent litigation, it could very well signal the imminent demise of the practice in the state.

Courtney Minick is an attorney, blogger, and product manager at Justia, Inc. She is an advocate for free and open access to primary legal materials and government documents.
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Does Hobby Lobby All But Require Companies to Find Religion? Thu, 17 Jul 2014 04:01:43 +0000 Burwell v. Hobby Lobby Stores Inc., particularly whether it effectively compels all companies to adopt beliefs to increase profits and fulfill their fiduciary duties to their owners. Buchanan predicts that either we will see an increasing number of companies take this route to maximize profits, or we will want to investigate why more companies are not pursuing this attractive route to free market salvation. Continue reading →]]> Business ProfitsThe Supreme Court’s 5-4 decision in the Hobby Lobby case continues to reverberate in legal and political circles, with seemingly every angle of the majority’s bizarre decision being scrutinized, defended, and ridiculed. For example, over on Dorf on Law, Michael Dorf and I have now written a total of nine “post mortem” posts analyzing Hobby Lobby, and Professor Dorf’s Verdict column yesterday was also inspired by that case.

Certainly the most fascinating aspect of the case, from my perspective, is the Court majority’s holding that corporate “persons” can hold sincere religious beliefs. Although the specifics of the case involved “closely-held” corporations, the majority’s logic obviously opens up the possibility—indeed the likelihood—that other large, for-profit corporations could declare themselves to be motivated by religious convictions. The majority claims that corporate law might provide a brake on the ability of corporations to invoke religious beliefs; but if a company does decide, through its internal processes, that it is a sincere believer in any particular religion, then there is nothing in Hobby Lobby that would prevent the corporation from being covered by the Religious Freedom Restoration Act (RFRA).

In this column, I explore the possibility that companies will not only be able to invoke RFRA’s religious protections after Hobby Lobby, but that many companies will essentially be all but compelled to take religious positions that will increase the companies’ profits (by, for example, allowing the companies to be exempt from environmental laws). First, however, it is important to understand just how expansive the Hobby Lobby majority’s opinion could turn out to be.

The Basics of RFRA Challenges: Hobby Lobby Puts Pressure on the “Sincerity” Prong

The Hobby Lobby chain of stores, according to the Court’s majority, is a corporate person that shares its majority owners’ fundamentalist Christian beliefs. This “person” won its challenge to a part of the Affordable Care Act (ACA), which required companies either to provide health care coverage that includes a full range of contraceptive choices, or to pay fines to the government.

This corporate person believes that abortion is a sin, and that some of the contraceptive options required under the ACA cause abortions. As Professor Dorf noted in one of his essays on the case, that the corporation’s religious beliefs were scientifically false does not matter under RFRA, because what matters under that law is that the religious person believe that something is true, not that it actually be true.

The analysis under RFRA works as follows: If a person can establish that his/her/its “sincerely held” religious beliefs are being “substantially burdened” by a neutral law of general applicability, then the believer will be exempt from the law unless the law achieves a “compelling governmental interest” by the “least restrictive means” possible. In Hobby Lobby, the majority conceded (grudgingly) that there was a compelling governmental interest served by the ACA’s contraceptive requirement, but it then held that there was a less restrictive way to achieve that compelling interest.

The Dorf on Law series of posts explains in some detail how the RFRA requirements, together with the majority’s ruling in Hobby Lobby, will put enormous pressure on a threshold question that was not in dispute in that case. If a corporation’s religious beliefs are “sincerely held,” then the RFRA analysis proceeds. If not, then one need not even proceed with the formal prongs of the analysis.

Part of the reason that a litigant’s religious sincerity must become an important part of future cases is that there is no other point in the legal analysis to challenge the possibility that a religious belief might be invoked dishonestly or opportunistically. One might, for example, have imagined that an asserted religious belief could be scrutinized for its seriousness under the “substantial burden” prong of RFRA. However, after Hobby Lobby, that prong is unavailable. As Justice Ginsburg’s dissent points out, the majority essentially treats all religious burdens as substantial, removing a possible point at which a court could have said to a future litigant, “Yes, we understand that you have a religious belief that is being burdened by the law, but it is not substantial enough to quality under RFRA.”

It is also possible to read the majority’s opinion as saying that “substantial” under RFRA refers to the seriousness of the penalty that the company would pay for violating the ACA, not the seriousness of the religious belief that is being burdened. Although I find such a reading of Justice Alito’s words to be unpersuasive, it is a minimally plausible interpretation, at least if one focuses on some phrases to the exclusion of others. Even if that were the correct reading, however, then it would merely mean that the substantiality question was never available to challenge the seriousness of religious burdens or beliefs in the first place.

Either way, the only way for a future court to police claims of religious burdens would be to inquire into whether the “person” holding the asserted beliefs does so with sincerity. Otherwise, courts will find themselves proceeding to the analysis of “compelling governmental interests” and “least restrictive means” without any inquiry at all into whether the religious belief in question is in any way serious. This not only would defy logic, but it would also violate RFRA itself.

The Difficulty of Inquiring Into Religious Sincerity, and the Additional Complications When For-Profit Corporations Are Involved

Until now, courts have been understandably hesitant to question the sincerity of any litigants’ asserted religious beliefs. Questioning another person’s sincerity is a serious matter, and courts would prefer not to be forced to rule that a person really does not believe in the religious proposition that he has claimed—on public record, no less—to believe.

Even if a court were willing to so inquire, moreover, it is very difficult to figure out what kind of evidence one would need to “prove” that someone is being insincere. Even a signed affidavit saying, “I do not hold Religious Belief X,” might not be enough, because a person’s religious beliefs can change at any moment. Indeed, many religions teach that proselytizing about their faith to nonbelievers is essential, because nonbelievers simply need to be shown the error of their ways and be directed toward “truth.” The revelation of truth is thought to be a deeply personal event, where a person suddenly sees what he could not see until that glorious moment. This is why deathbed conversions are so often respected, and why being “born again” is a central part of the belief system of many Protestant denominations.

Moreover, in the “Hobby Lobby post mortem” series noted above, Professor Dorf added the additional nuance that it is possible to practice a religion without holding any particular set of beliefs about that religion. This makes it even more difficult to see how a court could inquire into the sincerity with which a litigant holds any given religious claim.

When for-profit corporations are involved, however, one would think that a court’s skepticism should rise, depending on the nature of the religious claim. If a company asserted that its religion prevents it from complying with a law, and that law just happens to increase the company’s costs and thus reduce its profits, the suspicion would be unavoidable that RFRA was merely a new vehicle by which the company was padding its bottom line. Sincerity would be the key, but there is no useful guidance about how to determine sincerity. Indeed, the majority’s opinion goes to great lengths to suggest that inquiries into religious beliefs are wholly unacceptable.

The Profit-Seeking Imperative: If a Law Can Be Challenged, Must a Company Challenge It?

In my contributions to the Hobby Lobby post mortem series on Dorf on Law, I have explained how a for-profit company could proceed through the relevant prongs of RFRA to challenge profit-reducing laws. The example that I discussed at the greatest length was the minimum wage, but certainly any law could be challenged on a religious basis. It is true that such companies could still lose on the other prongs, but they could also win, at least under some easily imaginable sets of facts.

Based on that analysis, I ended up predicting that there could soon be a “gold rush” atmosphere, in which Hobby Lobby opens the floodgates to companies that test the boundaries of the new religious doctrine, to challenge laws that they dislike. Although there are some forces pushing in the opposite direction, I could easily picture a legal landscape in which many companies challenge under RFRA all manner of laws for purportedly violating their sincerely held religious beliefs.

But what if I am wrong? What if companies for some reason find it unseemly to challenge secular laws on religious grounds, or have some other reason to leave well enough alone, no matter the open invitation that the Hobby Lobby majority sent out to corporate America? Arguably, such companies would be violating their duties to their shareholders.

To be clear, religious challenges by corporations will probably continue to “seem weird” to many people—even to people who sympathized with the owners of Hobby Lobby on that company’s particular claim. Other than on matters of reproduction, one might imagine that it would be difficult to find a religious reason to avoid providing a safe workplace, or to refuse to install pollution reduction devices, or to sell tainted food, or to challenge any of a number of other standard business-related laws.

As odd as it sounds, however, such claims could plausibly be supported by religious beliefs. There are plenty of people who hold what they claim to be religiously motivated beliefs, but whose beliefs would seem unsupported by the religion in question. American Protestant churches split over the question of slavery in the nineteenth century, for example. Some people read the Bible to require that believers provide charity to the poor, while others read the same Bible to say that we are required to allow poverty to continue. Does scripture require that heterosexuals love and accept homosexuals, or the opposite?

These difficult questions, moreover, arise even within established religions. RFRA, however, is not limited to those religions, and so long as someone sincerely believes in a religion, then even a brand-new religion is to be accorded respect. When people talk about “faith in the free market,” we generally take that to be a metaphor; but what if a person says that her faith in unregulated commerce is a matter of religious conviction?

All of this, however, still presumes that the post-Hobby Lobby “gold rush” that I predicted would involve only companies that are eager to pursue religious claims, whereas others would be free not to do so. But what if it would actually be a breach of the fiduciary duty to a company’s owners not to pursue such claims? In other words, what if companies would feel compelled to pursue religious claims—even to the point of inventing new religions that embody their sincere beliefs in unregulated markets—in order to fulfill their duty to their shareholders?

The renowned conservative economist Milton Friedman argued nearly a half-century ago that the managers of companies have no business “doing good,” that is, that the executives who run a corporation have an affirmative duty not to “give away the shareholders’ money” by being good corporate citizens. Companies, under this view, would violate their solemn duties if they were to do anything more than what the law absolutely requires.

There is plenty of controversy over Friedman’s views, of course. Even so, his logic suggests that companies are required not only to go to the edge of illegality in all of their dealings, but that they push the edge to see just how far it might go. Tax strategies that might later be found to be illegal, for example, are required business practice unless and until they lead to successful prosecutions. Similarly, spending company money to change the laws—to lobby—in a way that will pad the bottom line, even if doing so harms the political system and society at large, is merely a standard part of good business practices.

Of course, corporate law in the United States gives management a great deal of leeway in deciding what is the best path toward maximizing profits. If a company could challenge an environmental regulation but chooses not to do so, the default assumption is that this was a judgment call by management that deserves to be respected. Maybe the managers thought that the suit would lose, or that the increased profits from winning were too small to matter, or any of a number of other reasons not to do something that could have increased the company’s profits.

That default presumption, however, is still to be weighed against something like Friedman’s view of fiduciary duty. If a corporate executive is handed a profit-making opportunity by the Supreme Court, and the company can avail itself of that opportunity simply by declaring its sincere fealty to religious beliefs that happen to increase the company’s profits, then failing to pursue that avenue is potentially problematic.

Moreover, even if companies’ managers cannot be sued in a derivative lawsuit for failing to pursue RFRA claims, they will certainly now feel pressure to explore and pursue such claims. Internal debates over pursuing Hobby Lobby-like claims will surely arise, and it would be foolish to simply assume that only a tiny number of those debates will be won by those who wish to take an aggressive religious position.

If it turns out that there is merely a trickle of such litigation in the aftermath of Hobby Lobby, therefore, the most interesting question will not be to explain the cases that we see, but to understand why the trickle is not a flood. Or, to mix metaphors, if this dog does not bark, then sleuths will want to know why more companies are not following this new and promising path to free market salvation.

Neil H. Buchanan, a Justia columnist, is an economist and legal scholar, a Professor of Law at The George Washington University, and a Senior Fellow at the Taxation Law and Policy Research Institute, Monash University (Melbourne, Australia). He blogs at, and he is the author of The Debt Ceiling Disasters: How the Republicans Created an Unnecessary Constitutional Crisis and How the Democrats Can Fight Back.
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How to Fix the Religious Freedom Restoration Act Wed, 16 Jul 2014 04:01:45 +0000 Burwell v. Hobby Lobby Stores Inc. can inform the public and opinion leaders about how to fix RFRA when the opportunity arises. Continue reading →]]> Hobby LobbyAmericans who were dismayed by the Supreme Court’s end-of-Term decision in Burwell v. Hobby Lobby have begun to move from anger to action. For example, the Obama Administration and some Democrats in Congress are proposing new legislation that would make clear that businesses owned by people with religious objections to contraception must nonetheless provide health insurance that covers its cost. And because the Hobby Lobby ruling relied on a statute—the Religious Freedom Restoration Act (RFRA)—rather than the Constitution, a legislative response is possible, at least in theory.

To be sure, with a Republican majority in the House of Representatives, and the possibility that Democrats could lose their majority in the Senate in the coming midterm elections, imminent action by Congress is highly unlikely. Nevertheless, at some point a legislative fix may be politically feasible; in the meantime, discussion of what was wrong with Hobby Lobby can inform the public and opinion leaders about how to fix RFRA when the opportunity arises.

In this column, I offer a menu of eight options, some of which could be accomplished in tandem with one or more of the others. No solution is perfect, but that is to be expected: the whole notion of religious accommodations begins from the fact that sometimes the public interest as expressed through the law conflicts with individual conscience. An accommodation, almost by definition, is a compromise between conflicting objectives.

From the First Amendment to RFRA

RFRA was enacted in 1993 with nearly unanimous bipartisan support in Congress in response to the Supreme Court’s 1990 ruling in Employment Division v. Smith. In that case, two members of the Native American Church sought permission for ritual use of peyote, notwithstanding Oregon’s law banning the drug. They cited the First Amendment’s protection for free exercise of religion. The High Court not only rejected their claim, but, in an apparent reversal of decades of free exercise jurisprudence, the majority held that the claim could not even get off the ground. Oregon’s law forbade everyone from using peyote, and such a “neutral” law that does not target religion, the Court said, raises no First Amendment concerns at all.

The Smith Court worried that granting religious exceptions to neutral laws would “permit every citizen to become a law unto himself,” but Congress thought that dismissing religious objections to neutral laws went too far in the other direction. Someone who needs peyote to perform a religious ritual is burdened in his ability to perform that religious ritual, regardless of whether the law forbidding peyote use applies to everyone or only to religious peyote users like himself. In enacting RFRA, Congress affirmed the principle that freedom of religion protects the ability to practice religion, not just to be free of discrimination on the basis of religion.

Notwithstanding the fact that “Restoration” is part of RFRA’s name, and notwithstanding the fact that one provision of RFRA specifically states the purpose to restore the pre-Smith case law, the Hobby Lobby Court held that the operative provisions of RFRA, as amended in 2000, provide broader protection for free exercise than the pre-Smith precedents did. Writing for the majority, Justice Alito concluded that there is now “a complete separation” of RFRA “from First Amendment case law.” Thus, even though the Hobby Lobby plaintiffs might have lost under the pre-Smith Free Exercise cases, they prevailed under RFRA.

Writing for herself and three other dissenters in Hobby Lobby, Justice Ginsburg argued that the majority misconstrued the 2000 amendment to RFRA. Even as amended, she argued, RFRA remained continuous with the pre-Smith case law.

Option 1: Restore the pre-Smith Test

The dissent thus points to one seemingly straightforward way to fix RFRA: Re-restore the pre-Smith case law.

The main difficulty with this approach is that the pre-Smith case law is itself unclear on many important questions, including some of the issues that divided the Court in Hobby Lobby. Thus, merely restoring the old case law might not even have the result of overruling Hobby Lobby.

Option 2: Strip Corporations of Religious Rights

Some critics argue that the central problem with the Hobby Lobby ruling is that it recognizes a right to religious freedom for corporations, but that only natural persons can practice religion. This criticism is closely related to similar complaints about the Court’s campaign finance rulings, especially Citizens United v. FEC, and therefore has some of the same problems as those complaints.

In both contexts, “depersonifying” corporations could endanger the liberty of natural persons. At a bare minimum, any such shift would need to include special rules for special-purpose corporations. After all, churches and other religious non-profit organizations typically use the corporate form. So do major news organizations.

Option 3: Withdraw Religious Protection from Businesses

In light of the foregoing, the focus on the corporate form appears to be misguided. But perhaps it points to a related distinction: between businesses and other entities. Perhaps RFRA could be amended to distinguish between religious non-profits and for-profit businesses, whether organized using the corporate form or otherwise. That is more or less what the Obama Administration itself attempted when it wrote regulations making religious non-profits eligible for exceptions from the contraception insurance mandate.

One might well think that in deciding to enter into some business—whether selling hobby products or taking wedding photographs—one accepts the conditions that the government places on the running of that business. And indeed, this principle has considerable appeal with respect to claims for religious exceptions from antidiscrimination law.

Nonetheless, the distinction between business conduct and other conduct is no magic bullet. For example, thoughtful critics of Citizens United recognize that for-profit news corporations should retain free speech rights. Likewise, one might well conclude that at least some businesses of a religious nature should have a right to religious freedom. Consider a corporate-owned chapel, a religious bookstore, or a purveyor of kosher or halal food.

A carefully drafted amendment to RFRA might distinguish between religious businesses and other businesses, but difficult line-drawing problems could arise. Suppose that a store sells mostly religious items but also has a refrigerator case from which it sells soft drinks. Any percentage cutoff (other than the unrealistic cutoff of zero or one hundred percent) will be arbitrary.

Option 4: No Right to Burden Third Parties

Perhaps the most disturbing aspect of the Hobby Lobby ruling is that it appears to elevate the religious rights of business owners above the health interests of their employees. More generally, some critics argue that religious exceptions should be given, if ever, only when doing so does not impose the claimant’s religious beliefs on others.

It is possible to read this criticism as misdirected at the Hobby Lobby decision. There, the majority explained that the plaintiffs can be accommodated without depriving their employees of contraceptive health insurance, so long as a different mechanism is used to provide it. Even in the follow-up order in Wheaton College v. Burwell—in which the Court temporarily excused a religious non-profit from having to use the official government form to register its objection—the majority stated that Wheaton’s “employees and students” could still “obtain, without cost, the full range of FDA approved contraceptives.”

Nonetheless, the Hobby Lobby opinion contains suggestions that in some future case the Court might uphold a RFRA claim, even if doing so burdens third parties. For example, the majority indicates (but ultimately does not decide) that the government might be required to replace a legal regime that burdens someone’s religion with a less burdensome regime, even at taxpayer expense. That expense, of course, is a burden on third parties.

Moreover, it is not quite accurate to say that prior case law has never upheld religious claims that burdened third parties. The leading example of a successful exceptions claim in the pre-Smith period was Sherbert v. Verner. In that case, the Court upheld the right of a Seventh-day Adventist to be treated as involuntarily unemployed because of her refusal to work on Saturdays despite the resulting increased burden on others, who were responsible for funding the benefits scheme.

Whether a religious accommodation burdens third parties, and the extent to which it does so, does still seem like a relevant consideration in evaluating a claim for a religious exception, but because no one is an island, it may be impossible to craft a bright-line rule implementing this principle. Accordingly, if Congress amends RFRA to prevent religious claimants from imposing their beliefs, or the costs of their beliefs, on others, it may have to do so through a somewhat indeterminate standard.

Option 5: Repeal RFRA

None of the options discussed thus far would be wholly unproblematic. Accordingly, one might think that the best option would be simply to repeal RFRA, as urged by my fellow Verdict columnist, Professor Marci Hamilton. In a recent column, she contends that Hobby Lobby is faithful to RFRA and precisely for that reason, it shows that RFRA goes too far. She thus proposes an “end it, don’t mend it” approach.

Hamilton’s proposal has the virtues associated with the Court’s Smith decision—but also its chief vice: As noted above, neutral laws sometimes conflict with religious obligations, and a society that values freedom of religion will attempt to accommodate religious obligations when it can do so without unduly sacrificing public policy goals. The Smith case itself is a good example: Whatever marginal benefit Oregon derived from a total ban on peyote use, rather than a ban with religious exceptions, appeared to be outweighed by the cost to members of the Native American Church when they were forbidden from taking part in an important sacrament.

Option 6: Redefine Neutrality

Even if one thinks that Professor Hamilton’s proposal to repeal RFRA outright goes too far, it may nonetheless be worth asking whether the whole approach of RFRA is wrong. Is there some way to legislate around Smith without opening the door to a potentially limitless number of claims?

Perhaps there is. Maybe the problem in Smith was not that the Supreme Court limited the Free Exercise Clause to an anti-discrimination principle. Maybe instead the problem was that the Court did not even correctly apply the anti-discrimination principle.

The Oregon law specifically forbidding peyote use was “neutral” in the sense that it applied to anyone who wished to use peyote for any reason. But viewed in wider perspective, the body of Oregon law as a whole was not neutral: It criminalized peyote, a mind-altering substance used ritually by a vulnerable minority religion, but did not criminalize alcohol, a mind-altering substance used ritually by more numerous, more politically powerful groups (Catholics and Jews).

Accordingly, RFRA might be replaced with a more robust, equality-focused law. Such a law would cast the courts in the relatively comfortable role of defending the rights of minorities—in this instance, religious minorities.

Option 7: Add Non-Religious Obligations of Conscience

To this point I have discussed options that would cut back on RFRA, but in at least one way, we might think that RFRA is insufficiently protective. RFRA protects people who have sincere religious objections to complying with federal law, but not those who have sincere objections of conscience that are not rooted in religion. Yet people who have such non-religious objections can feel squeezed between the law and their conscience in much the same way that people with religious objections feel squeezed.

For example, people may believe it is wrong to participate in providing abortions because their religion condemns abortion, or they may simply believe that abortion is immoral because it ends a human life. Federal law accommodates such non-religious conscience with respect to abortion in some contexts, but RFRA does not extend similar protection to non-religions conscience in general.

Accordingly, one way to fix RFRA would be to expand it to cover non-religious conscience. Indeed, although the Supreme Court has held that religious-only exceptions are permitted by the Establishment Clause, one might think that basic fairness requires treating sincere moral beliefs the same, whether they come from religious teaching or elsewhere.

Option 8: Do Nothing

Finally, Congress could do nothing, leaving the Hobby Lobby interpretation of RFRA in place. This approach of not fixing RFRA would rest on the premise that it ain’t broke.

Because the body of commentary criticizing Hobby Lobby is already enormous, I see no need to elaborate the reasons I do not favor the do-nothing option. Perhaps the best that can be said for this option is that, given the current composition of Congress, it is by far the most likely to occur—at least in the short run.

Eventually, however, Congress will inevitably change. If and when it revisits the question of religious exceptions, it will have plenty of options from which to choose.

Michael C. Dorf, a Justia columnist, is the Robert S. Stevens Professor of Law at Cornell University Law School and the principal author of The Oxford Introductions to U.S. Law: Constitutional Law. He blogs at
]]> 5 0:13:31 Cornell University law professor Michael Dorf proposes eight different options for fixing the Religious Freedom Restoration Act (RFRA). Dorf suggests that open discussion of what was wrong with the U.S. Supreme Court’s recent decision in Burwell v. [...] Cornell University law professor Michael Dorf proposes eight different options for fixing the Religious Freedom Restoration Act (RFRA). Dorf suggests that open discussion of what was wrong with the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores Inc. can inform the public and opinion leaders about how to fix RFRA when the opportunity arises. no no
Saint Ethel? A Review of “Ethel Sings: The Unsung Song of Ethel Rosenberg” Tue, 15 Jul 2014 04:01:03 +0000 Continue reading →]]> Judge and GavelThe case of Julius and Ethel Rosenberg has inspired artists for decades. The Rosenbergs, husband and wife, were indicted in 1950 for passing atomic secrets to the Soviet Union, tried and found guilty a year later, sentenced to death and ultimately executed in Sing Sing Prison in 1953.

The case was extraordinarily controversial and developed into a worldwide political affair by the time the couple was put to death. Not surprisingly, it has inspired novels, including E.L. Doctorow’s superb The Book of Daniel, published in 1971; plays—Ethel Rosenberg figures prominently in Tony Kushner’s “Angels in America,” produced in 1993; and films.

“Ethel Sings: The Unsung Song of Ethel Rosenberg” is the latest entry in the Rosenbergs oeuvre. (The show just ended its five-week run in Manhattan on July 13.) Written by Joan Beber and directed by Will Pomerantz, the play focuses on the excruciating conflict that literally determined whether Ethel would live or die: Should she remain loyal to her husband Julius, whom she loved passionately? Or should she cooperate with the government in its investigation of Communist spies and subversives, which would enable her to escape the electric chair and continue to be a mother to her two sons?

The drama of Ethel’s dilemma is heightened by the fact that the key witnesses against her were her younger brother, David Greenglass, and his wife Ruth. (In her analysis of the case, Rebecca West famously wrote that “few modern events have been as ugly as this involvement of brother and sister in an unnatural relationship which is the hostile twin of incest.”)

Although Ethel’s story has the elements of a great tragedy, “Ethel Sings” is not very compelling. The play suffers from a myopic historical understanding of the Rosenbergs case. As a result, the ensuing drama is too partisan and therefore not as interesting as it could have been. Nonetheless, “Ethel Sings” is effective in dramatizing Ethel’s conflict.

A More Balanced Account of the Rosenbergs Case

In the director’s notes set out in the program, Pomerantz writes:

The Rosenbergs were liberals, Jews, labor activists, and communist sympathizers in an era of virulent anti-Communism and anti-Semitism. Their trial became a show trial for the rise of McCarthyism, and although the actual evidence against them was inconclusive at best, they were found guilty after only two weeks of testimony.

This view of the Rosenbergs was popular among their supporters in the early 1950s and still has adherents today. It defines the Rosenbergs as innocent victims of political prejudice during the early, overheated years of the Cold War and informs the representation of Ethel in the play.

This view also is incomplete, at best, and results in an overly simplistic presentation of Ethel and her husband. Julius Rosenberg ran a spy ring for the Soviet Union for nearly a decade. His greatest accomplishment was persuading David Greenglass, who was stationed at Los Alamos during World War II and worked as a machinist on the development of the atomic bomb, to pass atomic secrets that were sent to the Soviet Union. Julius’s espionage efforts on behalf of the Soviet Union continued after World War II. Ethel, at least tacitly, supported her husband’s efforts.

When the federal government (including Roy Cohn, an ambitious and ethically dubious lawyer) prosecuted the Rosenbergs, it presented the testimony of the Greenglasses and a number of other witnesses to prove that the couple (and a third defendant, Morton Sobell) engaged in a conspiracy to commit espionage. The jury credited the testimony and convicted all of the defendants.

The trial was problematic, to be sure, especially with respect to the case against Ethel. But it was no mere “show trial” in which the defendants were prosecuted and convicted merely for their political beliefs. Furthermore, the historical record developed since the trial confirms that Julius Rosenberg was a spy for the Soviet Union and passed atomic secrets to that country in violation of federal law.

My criticism of “Ethel Sings” for obscuring Julius’s extensive espionage efforts on behalf of the Soviet Union has aesthetic implications. The drama of Ethel’s dilemma would be heightened if we understood that she stood by her husband even though he was guilty of the crimes for which they were convicted.

Furthermore, with extensive references to the fact that Ethel played the lead in her high school’s production of “Saint Joan”—George Bernard Shaw’s play about the life and trial of Joan of Arc—the play presents uncritically Ethel’s view of herself as a martyr. Fair enough. But isn’t Ethel’s martyrdom more interesting if we have to reckon with the fact that she chose to die despite (or, more likely, because of) the fact that it would benefit the Soviet Union in the ongoing Cold War with the United States?

The Problematic Case Against Ethel Rosenberg

Although “Ethel Sings” may be willfully blind about Julius’s espionage, it draws on the historical record to highlight the ways in which she was a victim of misconduct by the United States government.

To briefly summarize: Ethel was indicted after Julius in order to pressure him to cooperate with the government’s ongoing spy ring investigations; she was convicted on the basis of the trial testimony given by her younger brother and his wife that Ethel participated in the conspiracy by typing David Greenglass’s notes—testimony that David Greenglass later said was fabricated; and Ethel was sentenced to death and executed even though, at most, she did nothing more than aid and abet her husband’s espionage efforts.

“Ethel Sings” highlights these points effectively. David Greenglass is depicted as an oaf, eagerly following the lead of Cohn. His wife, Ruth, is portrayed as a vixen, using her cunning charm to persuade the court to convict the couple. This representation of the Greenglasses accords with the popular view of the couple at the time and, appropriately, makes the audience uncomfortable. The pathos of the Greenglasses’ cooperation would be funny if the underlying stakes were not so high.

While the Rosenbergs were on death row, the government installed a telephone line in Sing Sing prison. If Ethel did not want to die, all she had to do was agree to cooperate with the government and provide information about others who supported the Soviet Union. The phone line remained open through the executions in the event that she changed her mind—a decision that would have kept her alive for her young sons.

“Ethel Sings” makes great dramatic use of the telephone, making it a central character in the dilemma of her final act. With the phone nearby, life is so close. However, Ethel refuses to cooperate with the government, steps into the electric chair, and the lights go dark. In making her choice, Ethel embraced martyrdom—just like Joan of Arc, whom we now know as “Saint Joan.”

Rodger Citron is associate dean for academic affairs and professor of law at Touro Law Center in Central Islip, New York.
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Grounding the No-Fly List: Part Two of a Three-Part Series of Columns Fri, 11 Jul 2014 04:01:52 +0000 Continue reading →]]> AirplaneIn a prior column, it was noted that U.S. District Court Judge Anna J. Brown in Oregon has ruled that the United States government’s No-Fly List is unconstitutional. The prior column examined the remarkably vague—not to mention publicly unknowable—criteria for anyone being added to the No-Fly List.  It was not merely the vagueness of the No-Fly List criteria, however, that created the constitutional problems addressed by the court’s ruling.

Judge Brown explained a fundamental problem with the No-Fly List stems from the fact that most Americans are provided no real remedy to have their name removed from this list when it has been mistakenly included, resulting in an unconstitutional deprivation of the right to travel and not be falsely and unfairly stigmatized as involved in terrorism. While a powerful U.S. Senator like Edward Kenney was able to get his mistaken No-Fly status corrected, most people would find that task exceedingly difficult, if not impossible.

A Mistaken “No-Fly List” Status Has No Remedy 

The ACLU’s lawsuit against the No-Fly List sets forth how each of the thirteen plaintiffs diligently, not to mention frustratingly, tried to obtain an explanation of why they were being denied the access to any commercial aviation, and because they are not engaged in terrorism, to obtain a remedy. Accordingly, each plaintiff pursued the recommendation of the Department of Homeland Security and filed “DHS TRIP” complaints.

DHS’s “Traveler Redress Inquiry Program” (DHS TRIP) is the mechanism for inquiries or requests to resolve problems experienced during screening at airports, including: watch list issues and situations where travelers believe they have been unfairly or incorrectly delayed, denied boarding, or identified for additional screening. Complaints and inquiries can be filed online, by email or regular mail.

Judge Brown described the process in detail, which I have summarized. DHS TRIP matters are handled by the Terrorist Screening Center Redress unit (TSC Redress), which determines (1) whether the traveler is an “exact or near match to an identity” of the name in the government’s database, and (2) whether—“if the traveler is an exact match”—the name should remain in the database.  TSC Redress reports to DHS TRIP, which sends a determination letter advising the traveler only that the review is complete, and if appropriate they advise the traveler that he or she can seek judicial review as a next step. In short, the best a traveler can hope for is a further process, with no indication of what is actually at stake.

If the traveler seeks judicial review, the reviewing court is provided that traveler’s administrative file, but that file is not given to the traveler. Judge Brown further described the process she found wanting:

[A]t no point during the judicial-review process does the government provide the petitioner with confirmation as to whether the petitioner is on the No-Fly List, set out the reasons for including petitioner’s name on the List or identify any information or evidence relied on to maintain the petitioner’s name on the List. For a [petitioning traveler] who is on the No-Fly List, the court will review the administrative record submitted by the government in order to determine whether the government reasonably determined the petitioner satisfied the minimum substantive derogatory criteria for inclusion on the List. If after review the court determines the administrative record supports the petitioner’s inclusion on the No-Fly List, it will deny the petition for review. If the court determines the administrative record contains insufficient evidence to satisfy the substantive derogatory criteria, however, the government takes the position that the court may remand the matter to the government for appropriate action.

In short, this process is like a coin flip where you agree that if heads—the government wins; if tails—you lose, because even if you prevail in a judicial review proceeding, the government claims it can, if it wishes, keep you tied up indefinitely in an additional bureaucratic process.

Constitutional Consequences of No-Fly List Naming

The ACLU’s lawsuit proves there are serious consequences with No-Fly status.  The hardships suffered by the plaintiffs in this lawsuit clearly established “the significance of the depravation of the right to travel internationally” and “the stigma of being a suspect terrorist [when] that is publicly disclosed to airline employees and other travelers near the ticket counter.”

Based on facts (uncontested by the government at this stage of the proceedings), Judge Brown found that No-Fly List inclusion results in a “major burden” and significant suffering imposed on plaintiffs denied international air travel, which include:

[L]ong-term separation from spouses and children; the inability to access desired medical and prenatal care; the inability to pursue an education of their choosing; the inability to participate in important religious rites; loss of employment opportunities; loss of government entitlements; the inability to visit family; and the inability to attend important personal and family events such as graduations, weddings, and funerals. The Court concludes international travel is not a mere convenience or luxury in this modern world. Indeed, for many international travel is a necessary aspect of liberties sacred to members of a free society.

Judge Brown, understandably and appropriately, disagreed with the government’s claim that “all modes of transportation must be foreclosed before any infringement of an individual’s due-process right to international travel is triggered.”  In addition, the court noted that not only commercial flights are precluded but since the United States shares this information with 22 foreign governments, it can preclude other modes of travel as well, not to mention entry into other countries. The government largely conceded that anyone on the No-Fly List becomes stigmatized, and while the damage may be confined, the Court found that No-Fly status raised “constitutionally-protected interests” in reputation.

What Is the Solution?

Judge Brown has drawn on a developing body of post-9/11 case law examining the difficult issues of balancing the government’s efforts to protect the national security in a world with terrorism, and the rights of Americans to enjoy their constitutionally protected freedom and liberties.  But this lawsuit is not over, and the solution has not yet been found and agreed upon.

The court ruled that the government “must provide a new process that satisfies the constitutional requirements for due process,” by fashioning “new procedures that provide Plaintiffs with the requisite due process described [by the court] without jeopardizing national security.” The court suggested doing what the government has to date been unwilling to do: to tell the plaintiff why he or she is on the No-Fly List.  The court further suggested that the government might also openly respond to the evidence the plaintiffs submitted in both administrative and judicial review proceedings that were pursued. The court noted that such procedures have been identified by the Ninth Circuit as appropriate due process, including such additional actions as the government providing unclassified summaries of the reasons for placement on the No-Fly List or disclosing such classified information to a properly cleared attorney representing a traveler.  Judge Brown is making rather clear what she believes necessary to make this process constitutional.

There has been a good bit of scholarly attention to the constitutional problems created by No-Fly Lists, and similar watch lists.  There seems to be a consensus that such lists, when fashioned to properly protect the rights and liberties of Americans, can assist in protecting national security. But the potential for abuse has long been noted, and it has clearly culminated in this lawsuit.  I have provided links to several studies I found illuminating, here, here and here.

What will be most interesting is how the government responds to Judge Brown’s order.  The parties have been instructed to confer before July 14, 2014, and it is anything but clear how the government will deal with the situation.  So I will return to this matter when it becomes clear.  Meanwhile, if you are a frequent flyer, as I am, think about the TSA Pre-Check.  It runs your name through the TSA database and gives you a Known Traveler Number, which should preclude accidentally ending up on the No-Fly List (while expediting your visits with TSA at the airport.)

John W. Dean, a Justia columnist, is a former counsel to the president.
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Hobby Lobby Yields More Rancor as Wheaton College Queues Up to Deny Contraceptive Coverage to Its Female Employees Thu, 10 Jul 2014 04:01:19 +0000 Continue reading →]]> Supreme Court at NightWhen I was in third grade, my family moved from Richardson, Texas, to Wheaton, Illinois. It was an eye-opening move for this Presbyterian, because I had had no sense of being an outsider in Richardson, but felt acutely out-of-place in the city of Wheaton, which was controlled by Wheaton College and the Wheaton Bible Church. The city was dry; the pervasive ethos was that you needed to be “saved” to make it to Heaven; and there were “true believers” and then the rest of us.

Many of my friends were part of the evangelical culture, and eventually I was “saved” at an enormous Billy Graham event and joined, for a period of time, the youth group at the Bible Church. I will never forget being invited to a Bible study one afternoon after school. We gathered in an apartment living room filled with fellow students sitting on the floor, chairs, and the couch. I do not even remember the Bible verse that prompted the comment, but early in the event, the prayer leader declared that “all Catholics are going to hell.” Heads bobbed up and down around the room.

I stood up and left, never to return.

Wheaton College Demands RFRA Accommodation to Avoid Providing Some Reproductive Coverage for Its Female Employees

I honestly don’t know whether Wheaton evangelicals have changed their minds about Catholics’ chances at salvation, but as the National Catholic Reporter

notes, there is now a shared political universe of the two faiths in the Republican Party. Thus, perhaps it was inevitable that after the male Catholic members of the Supreme Court (a majority of the Court) declared that closely held corporations have souls and, therefore, can use their faith to deprive their female employees of reproductive health coverage in Burwell v. Hobby Lobby, the next organization to step into the spotlight was Wheaton College. And wouldn’t you know it: the men who interpreted RFRA to force accommodation of for-profit nonreligious corporations in Hobby Lobby granted the college an injunction—barring the government from enforcing the Administration’s accommodation measures for nonprofit organization—while the case was pending on the merits.

Wheaton College is seeking to avoid having to self-certify to its insurance provider that it objects to covering some contraception; it is the self-certification to which Wheaton objects, just as the University of Notre Dame had objected. Notre Dame lost in the Seventh Circuit, so in that circuit Wheaton should have lost as well, except that the Supreme Court protected it for the time being.

The Hobby Lobby majority actually played games with this accommodation, implying at one point that the nonprofit accommodation would pass muster under RFRA while dropping a footnote saying it wasn’t deciding the issue. Justice Kennedy’s concurrence also implied it was constitutional. Yet, the Court’s issuance of the injunction raised concerns that this accommodation might fail as well as the Obama Administration’s refusal to accommodate for-profit nonreligious corporations. The Court’s statement that the injunction was not a decision on the merits was cold comfort for women.

It was, all in all, a pretty bleak week for female employees across the country. The three female members of the Supreme Court, who dissented in Hobby Lobby, also dissented spiritedly from the Court’s apparent siding with Wheaton College.

The Rancor at the Court Shines a Light on RFRA’s Faults

From where I am sitting, though, there is finally some light at the end of the tunnel. After litigating Boerne v. Flores, I came to understand the dangers inherent in extreme religious liberty in ways few others could. It was not an easy education, nor always welcome, but it was impossible to ignore. So, after the Religious Freedom Restoration Act (“RFRA”) was declared unconstitutional in Boerne, I thought, “Good, that’s that.” But then, of course, the religious lobbyists ran back to Congress and demanded another bite of the apple of extreme religious protection. As the propaganda and misdirection swirled once again through the halls of Congress about the First Amendment and free exercise, I contacted every group I could think of that would be negatively affected by a new RFRA.

It was a classic case of shouting into the wind. I was a newly tenured upstart who had just won a big case at the Supreme Court, but big deal. In that era, it was still taboo to say that religious believers could be dangerous. Some groups politely thanked me, others hung up on me, while still others agreed with me privately but made it clear they would never oppose “religious liberty” in the public square—it was too politically risky, regardless who would be harmed. What was an academic to do? Over time, I gathered facts, started files, and wrote the first edition of God vs. the Gavel. And wrote column after column, and spoke, and wrote some more.

Now, some of those groups are in the forefront of fighting RFRA and the Hobby Lobby decision in Congress, with some demanding repeal and others demanding amendment. Music to my ears! It is a relief to me that the Supreme Court showed RFRA’s true light in Hobby Lobby, and then reinforced RFRA’s divisiveness with its quick Wheaton College ruling. In case anyone thought for a second that Hobby Lobby was a one-time gift for a couple of employers, Hobby Lobby and RFRA are a “gift” that will never stop taking until the latter is repealed.

For those thinking that we only need to protect women from this pernicious law, I can only tell you that that is beyond short-sighted. Don’t worry; I won’t be making any cold calls this time around. I am hoping, though, that the hundreds of organizations and millions of Americans who are enraged with the Hobby Lobby decision shift their attention from the Court and train it where it needs to be instead: on the members of Congress who are responsible for the religious rancor, the discrimination, and the shameful treatment of employees and women engendered by RFRA.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, and the author of God vs. the Gavel: The Perils of Extreme Religious Liberty and Justice Denied: What America Must Do to Protect Its Children. She also runs two active websites covering her areas of expertise, the Religious Freedom Restoration Acts,, and statutes of limitations for child sex abuse, Professor Hamilton blogs at Hamilton and Griffin on Rights. Her email address is
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Federal Appellate Court Rules Utah’s Ban on Marriage by Same-Sex Couples Unconstitutional Tue, 08 Jul 2014 04:01:25 +0000 Continue reading →]]> Same-Sex MarriageWhile all eyes have been on the end of the U.S. Supreme Court’s term, as it issued important rulings on, among other things, Obamacare’s contraceptive mandate, other courts have been busy as well. At the end of June, the U.S. Court of Appeals for the Tenth Circuit held that Utah’s ban on marriages by same-sex couples violates the federal Constitution’s guarantees of equal protection and due process.

Although there have been many rulings in the last year with similar effect—rulings fueled by the Supreme Court’s decision in United States v. Windsor invalidating Section 3 of the Defense of Marriage Act in June 2013—this is the first post-Windsor ruling from a federal appellate court, which brings the issue of state bans one necessary step closer to the U.S. Supreme Court. Moreover, this effectively invalidates not only Utah’s ban on same-sex marriage in that state, but also similar bans in other states falling within the Tenth Circuit, including Colorado, Oklahoma, Wyoming, and Kansas.

Before describing and analyzing the ruling, let me first disclose that I wrote and filed an amicus brief on behalf of the plaintiffs in this case. That brief, filed on behalf of family law and conflict of laws scholars, argued that even if the underlying ban on marriages by same-sex couples was upheld, the state’s refusal to give effect to same-sex marriages validly celebrated elsewhere was independently unconstitutional under the Supreme Court’s rulings in Romer v. Evansand United States v. Windsor because Utah’s singling out of this type of marriage for non-recognition constitutes a discrimination “of an unusual character” that is strongly suggestive of legislative animosity and illegitimacy. Because the Tenth Circuit ruling invalidated the ban on the celebration of marriages by same-sex couples, it did not need to reach this question directly, and the ruling neither accepts nor rejects this particular argument.

The Steps Leading to the Tenth Circuit’s Ruling

In the past year, there have been sixteen trial court rulings on the validity of bans on the celebration and/or recognition of marriages by same-sex couples. The plaintiffs have prevailed in every one of these cases. (There are more than 70 similar cases at various stages in thirty states across the country.)

These recent rulings—and the unbroken winning streak—are fueled by the Supreme Court’s ruling last June in United States v. Windsor, in which it held that the federal Defense of Marriage Act (DOMA)’s refusal to recognize valid same-sex marriages for federal-law purposes was unconstitutional. The Court did not rule that Congress lacked the power to regulate marriage, but it did hold that DOMA was invalid because it marked a stark deviation from a long history and tradition of the federal government’s deferring to state-law determinations of marital status. As a discrimination of “an unusual character,” DOMA merited “careful consideration” and raised a strong inference that Congress was motivated by “bare animus” in passing the law.

Upon further analysis, the Court concluded that the text, structure, and history of the law made clear that its “avowed purpose and practical effect” was “to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” In the Court’s words, “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” Congress does not have the power to “identify a subset of state-sanctioned marriages and make them unequal,” nor to tell “those couples, and all the world, that their otherwise valid marriages are unworthy of . . . recognition.”

In dissent, Justice Scalia predicted that the Court’s ruling, although it purported to express no opinion on the validity of state bans on marriages by same-sex couples, was a death knell for all such laws. If a “bare . . . desire to harm” is all that is needed to declare a law invalid, “[h]ow easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

If the 16-0 score is any indication, lower federal courts agree with his take on the breadth and meaning of Windsor. (Many, in fact, have cited Scalia’s dissent as authority for their readings of Windsor.) This ruling has been facilitated by the fact that these states went to great lengths to make their contempt for gay marriage known, often passing not just a single statute, but multiple statutes followed by a reinforcing constitutional ban.

The 70 pending cases raise essentially the same question: can states single out a particular type of marriage for unequal treatment? The answer from every court thus far has been no. The Ohio ban on the recognition of same-sex marriages was among the first to fall, but it has been followed by the invalidation of bans on either celebration or recognition of marriages by same-sex couples in states such as Tennessee, Kentucky (discussed here), Texas (discussed here), Oklahoma, Pennsylvania, and Idaho. The courts have been uniform in their poetic denunciation of these bans, but also uniform in their conclusion that the constitution permits no other result.

The Ruling in Kitchen v. Herbert

The opinion in Kitchen v. Herbert was written by Judge Lucero, a Clinton appointee, and joined by Judge Homes, an appointee of George W. Bush. Judge Kelly, appointed by George H.W. Bush, dissented on the key aspects of the ruling. The recent rulings have all been poetically written, by judges trying to remain on the right side of history. This one is no different, beginning with the grand observation that: “Our commitment as Americans to the principles of liberty, due process of law, and equal protection of the laws is made live by our adherence to the Constitution of the United States of America.” It is “those very principles,” the opinion continues, at stake in the controversy over marriages by same-sex couples. And those same principles are the ones that led the Court to conclude that a state may not “constitutionally deny a citizen the benefit or protection of the laws of the State based solely upon the sex of the person that citizen chooses to marry.” The court went on to “hold that the Fourteenth Amendment protects the fundamental right to marry, establish a family, raise children, and enjoy the full protection of a state’s marital laws. A state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage, based solely upon the sex of the persons in the marriage union.”

The Tenth Circuit ruling follows a similar pattern to many of the recent district court rulings. Before reaching the question on the merits, it had to dispense first with issues of standing—did the parties who were defending the law have the legal right to do so? It held that they did and moved on to the second thorny question about the precedential value of the U.S. Supreme Court’s 1972 ruling in Baker v. Nelson, in which it summarily dismissed a similar lawsuit brought by two men seeking to marry in Minnesota.

Although the Court initially agreed to review the case, it then dismissed the appeal “for want of substantial federal question.” Baker has been a stumbling block, if only a small one, in this new round of lawsuits over the constitutionality of state laws banning same-sex marriage. It was not relevant to the dozens of cases that preceded Windsor because almost all of those were litigated under state constitutions rather than the federal constitution, and the U.S. Supreme Court’s opinion about those constitutions is irrelevant. But its opinion about the meaning of the U.S. Constitution is binding on all federal courts, and, if the Supreme Court said that case did not raise a “federal question”—meaning that it did not raise a meaningful claim under a federal statute or the Constitution—then does that bar lower federal courts from ruling these laws unconstitutional? The answer from the Kitchen court was no: due to significant doctrinal developments since the ruling in Baker, that case no longer can be said to preclude a court from invalidating a state ban on same-sex marriage on federal constitutional grounds. Baker was decided when the right of same-sex couples to marry presented only the seed of a question; that seed has now flowered and must be considered anew. Every federal court in the last year to consider the relevance of Baker has reached the same conclusion.

The Kitchen court then reached the merits: are Utah’s statutory and constitutional bans on marriages (celebration and recognition) by same-sex couples unconstitutional? As in many other states, Utah’s anti-same-sex-marriage laws date to the mid-1990s, when Utah was caught up with other states in a national fervor to stop gay marriages from entering their borders. The bans were followed by a separate code provision announcing that the refusal to recognize same-sex marriages from other states follows from the “policy of the state” and that the ban also applies to “any law creating any legal status, rights, benefits, or duties that are substantially equivalent to those provided under Utah law to a man and a woman because they are married.” The ban was also enshrined into the Utah Constitution in a 2004 amendment designed to preclude not only judicial consideration as to the validity of a particular marriage, but also judicial consideration of the validity of the non-recognition rule itself. (In the Tenth Circuit ruling, the statutory and constitutional bans in Utah are collectively referred to as “Amendment 3.”)

The court began its analysis with a discussion of whether the fundamental right to marry—recognized by the Supreme Court in a series of cases beginning with Loving v. Virginia—includes the right to marry a person of the same sex. It drew on Supreme Court precedents noting that marriage “is the most important relation in life” and that the right to marry is “of fundamental importance of all individuals.” The Tenth Circuit focused on the level of generality at which the right to marry is typically discussed. It is not about the right to any particular type of marriage, but the right to marry in general. Loving v. Virginia, for example, in which the Court struck down Virginia’s ban on interracial marriage, was not about the right of a black person to marry a white person or vice versa, but the right all people to marry a person of their choosing. The logic of this reasoning means that the choice to marry might also include the right to marry a person of the same sex.

The fact that until recently a gay marriage would have been unthinkable does not mean it cannot now be recognized as within the fundamental right to marry. Indeed, the Supreme Court, in Lawrence v. Texas, said, of Loving, that “neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.” Nor can they save a law prohibiting marriages by same-sex couples.

Having concluded that the right to marry is fundamental and includes the right to marry a person of the same sex, the Tenth Circuit proceeded to the next step of constitutional analysis—a review of the fit between the state’s asserted goals and the means chosen to reach them. Here, the state failed to show a sufficient relation between the means and the ends. Three of its four goals related to the ostensible attempt by the state to tie marriage to procreation. But its own laws, the Tenth Circuit reasoned, belie the importance of that goal to the state. First cousins, for example, are permitted to marry in Utah only if they first establish their inability to procreate. Moreover, Utahans, like others, have the constitutional right to choose not to procreate—and Utah has made no attempt to screen out couples from marriage based on their intent or exercise of that right. Nor could Utah convince the court that biological procreation deserves special privilege given the state’s support for adoption by married couples.


In the end, the Tenth Circuit’s ruling joins many others—but ups the ante merely by coming from an appellate court. The court stayed its ruling pending a request for rehearing en banc (by the full circuit) or a petition to the U.S. Supreme Court to review the ruling. The Supreme Court may wait to weigh in, but review by the High Court on the issue is inevitable in the near future. There are similar cases pending on appeal in the Fourth, Fifth, Sixth, and Ninth Circuits. The federal courts so far have spoken with one voice, captured in the Tenth Circuit’s observation that gay and lesbian couples “desire not to redefine the institution [of marriage] but to participate in it.” Increasingly, they are earning that right.

Joanna L. Grossman, a Justia columnist, is the Sidney and Walter Siben Distinguished Professor of Family law at Hofstra University. She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and the coeditor of Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press 2009). Her columns focus on family law, trusts and estates, and sex discrimination.
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