Bench Memos

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Politicizing the Role of the Attorney General


As Ed just mentioned, today’s Washington Post features an op-ed by Colorado’s attorney general, John W. Suthers, criticizing three state attorneys general for refusing to defend democratically enacted state laws. The net effect of such politicization, Suthers says, “corrodes our system of checks and balances.” Which makes sense: These AGs are basically ignoring their responsibility to the state that elected them, and are instead acting on behalf of left-wing special interests.

In the three states Suthers identifies, California, Virginia, and Pennsylvania, traditional marriage was affirmed by voters in 2008, 2006, and 1996. If the elected officials of those states think the people have changed their minds since then, maybe they should let them say so through the ballot box.

Read the whole thing here.



Hobby Lobby’s Family Owners Speak for Themselves


The Green family–the owners of Hobby Lobby, whose religious freedom the Obama administration is so desperate to violate that it is taking them all the way to the Supreme Court–speak their own minds about the issues in the case in this video.  It’s good to be reminded of the human beings the government wants to coerce, and of the human costs we will all bear if the government wins.



Excellent WaPo Op-Ed on Duty of State Attorneys General


After its inane house editorial last week defending Virginia AG Mark Herring’s irresponsible refusal to defend his state’s marriage laws, I’m pleased to see that the Washington Post today published an excellent op-ed on the broader topic by Colorado attorney general John W. Suthers. An excerpt:

I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on. We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system. The courts, the governments we represent and, most important, the people we serve will treat our pronouncements and arguments with skepticism and cynicism. One must be cynical when an attorney general refuses to defend a controversial law as “clearly unconstitutional” when there is no binding precedent and it is apparent to most knowledgeable people that the U.S. Supreme Court is likely to decide the case on a 5-4 vote.

I’ll add that I’ve just submitted an article to a print magazine on the same topic and expect it to be published in a week or so.

This Day in Liberal Judicial Activism—February 3


1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power. While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous—and are often masked by grandiose rhetorical diversions. To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Roper v. Simmons (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Lawrence v. Texas (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Ashcroft v. Free Speech Coalition (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography.

2010—In Perry v. Schwarzenegger—the case challenging California’s Proposition 8 and traditional marriage—the ACLU Foundation of Southern California continues its involvement in the case by filing a post-trial amicus brief on behalf of its national affiliate, the American Civil Liberties Union.

Ramona Ripston, the wife of Ninth Circuit judge Stephen Reinhardt, is the executive director of the ACLU Foundation of Southern California and (per its website) is “responsible for all phases of the organization’s programs, including litigation.” In addition to leading the political opposition to Proposition 8, Ripston engaged in confidential discussions with the lawyers for the Perry plaintiffs about whether they should file the case. And months later, she will publicly celebrate Judge Vaughn Walker’s decision striking down Proposition 8.

Yet when the wonders of random selection assign arch-activist Reinhardt to the Ninth Circuit panel to review Walker’s decision in this very case, Reinhardt somehow will decline to recuse himself. 

This Day in Liberal Judicial Activism—February 2


2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary. 


The Maine Supreme Court’s Bathroom Mess


Yesterday, by a vote of 5-1, the Maine supreme court, purporting to reconcile two statutes, ruled that a public school is required to allow a “transgender girl”—that is, a boy who identifies as a girl—to use a girls’ bathroom. (Rather than requiring him to use the boys’ bathroom—which he didn’t want—the school had had him use a single-person “unisex staff bathroom.”)

As the dissenter argues, the ruling defies “the plain language of a specific statute [that] explicitly requires segregating school bathrooms by sex.” Further, the ruling construes the Maine Human Rights Act in a way that “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex.” (Dissent, n. 12; see para. 32 of the dissent for fuller explanation.) The majority doesn’t dispute this proposition, and one member of the majority expressly agrees with it.

In other words, under the court’s logic, men in Maine may now use any public women’s bathroom, and women in Maine may now use any public men’s bathroom. By “public” bathroom, I mean any bathroom in a “place of public accommodation”—a very expansive term (see definition in subsection 8 here) that broadly includes, in addition to government buildings, any private facility that offer services to members of the public. Indeed, even labeling a bathroom in, say, a restaurant with a sign designating “Men” or “Women” violates the majority’s understanding of the MHRA.

[Update: I’ve made some additions to the preceding paragraph.]

This Day in Liberal Judicial Activism—January 31


2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire takes effect. Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise. Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency. Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases. Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations. 

The Pope Francis Challenge to Notre Dame


Notre Dame’s  Board of Trustees is meeting this week in Rome, and of course the university’s senior leadership is there too. The first bit of Notre Dame news from Rome yesterday was the announcement of a 400 million dollar campus building project. The heart of the new project is luxury accommodations for football fans, including indoor seating for those willing to pay a thousand dollars to stay warm on chill November afternoons. The other bit of news was Pope Francis’ brief remarks to the Notre Dame party, which visited him at the Vatican.  This pope, already celebrated for his simplicity and poverty of life, praised the university’s historic role in fostering the Catholic faith in America. But then he issued an unvarnished moral  challenge to the assembled leaders of this nation’s  most prominent Catholic institution.  Pope Francis told the Notre Dame group that the “commitment to ‘missionary discipleship’ ought to be reflected in a special way in Catholic universities.” An “essential” (the pope’s word) part of this commitment “is the uncompromising witness of Catholic universities to the Church’s  moral teaching.”  ”It is my hope,” the Holy Father added, “that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts,  from whatever quarter, to dilute that indispensable witness.” 
One such “quarter” is surely the Obama administration, which has required the university to trigger free distribution of contraceptives and abortifacients to all Notre Dame women (employees, spouses, dependents) of reproductive age. Notre Dame continues to seek judicial relief from this requirement, but has chosen to comply with it in the meantime. The mandated  “preventive services” (as the University’s own HR department describes them) are being delivered to those who ask for them by a Saint Louis-based pharmaceutical  giant called “Express Scripts.”  This mega-firm’s relationship to Notre Dame and/or to its third-party provider (Meritain) is not yet apparent.  Nor is the funding source behind these mandated free “services” apparent from the federal regulations, which assert that the objecting religious employer is not to be that source without making clear who is.  
Notre Dame could contribute to its “unambiguous” witness against these immoralities by answering these questions, to the very best of its ability.

Gerard V. Bradley is professor of law at the University of Notre Dame. 

Obamacare and Religious Liberty: Mandating Carcinogens as ‘Women’s Preventive Health’


On January 28, 2014, a unique HHS mandate amicus brief was filed in the U.S. Supreme Court by three cancer-research institutes, 286 members of Legatus, and CatholicVote by Bioethics Defense Fund attorneys Nikolas T. Nikas and Dorinda Bordlee, and Professor Patrick T. Gillen of Ave Maria Law School.

The HHS abortifacient mandate violates the free-exercise rights of individuals and business owners like the amici Legatus members, business owners and executives who, like the owners of Hobby Lobby and Conestoga Woods, are denied their rights of religious liberty. The amicus brief demonstrates how this coercive government action fails to meet the Religious Freedom and Restoration Act requirement that it be in “furtherance” of the government’s purported compelling interest — which it asserts here is promoting women’s “preventive” health care.

The brief shows that the government’s claim that religious-liberty rights must be violated in the interest of women’s “preventive” health care is an empty and biased assertion. A robust body of widely accepted research that the government selectively ignored is surveyed in the amicus brief, showing that the mandated contraceptive drugs and devices significantly increase risks of serious disease, including HIV, stroke, and heart attack. Notably, as cited by the D.C. Circuit Court of Appeals in another HHS challenge, the brief brings the Court’s attention to the 2007 report of the World Health Organization that classifies combined oral contraceptives as “Group 1: Carcinogenic to Humans” — doubling and tripling risks of deadly breast, cervical, and liver cancers.

The research information presented to the Court was compiled in consultation with physicians and researchers of amici Breast Cancer Prevention Institute, the Abortion/Breast Cancer Coalition and the Polycarp Research Institute.

The brief was also filed on behalf of 286 members of Legatus and members of CatholicVote, who object to the mandated drugs based on the teaching reflected in Evangelium Vitae, an encyclical by Blessed Pope John Paul II: “Abortion [is a] crime[] which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection.”

Amici Legatus and CatholicVote members also object to the HHS mandate because sterilization, contraception and abortifacient drugs must be provided for free — “without cost-sharing” — to enrollees and their female dependents who have “reproductive capacity.” This means that the coercive mandate forces parents to provide free access to their minor daughters who have reached the stage of menstruation, thus undermining the Catholic moral duty of a parent to guide their children concerning the right ordering of human sexuality. In support, the brief shows how the government ignored studies establishing that free access to emergency contraceptives increases risky and uncommitted sexual behavior, thus increasing unintended pregnancy, abortion, and sexually transmitted diseases.

The Supreme Court will hear oral arguments in the case brought by Hobby Lobby and Conestoga Woods and their owners on March 25, 2014. To read the brief or learn more go here.

— Dorinda C. Bordlee is a co-founder, along with Nikolas T. Nikas, of the Bioethics Defense Fund, a public-interest legal and educational organization whose mission is to put law in the service of life.

Red Herrings


As I’ve discussed, the elementary propositions that even the Washington Post recognizes lead readily to the conclusion that Mark Herring, Virginia’s new attorney general, violated the duty of his office in announcing that he wouldn’t defend Virginia’s marriage laws (and in taking the additional step of joining the plaintiffs challenging those laws). In particular, a state attorney general’s obligations as a lawyer for the state and its people require him to vigorously defend state laws—including, of course, state constitutional provisions—against federal constitutional challenge so long as there are reasonable (i.e., non-frivolous) grounds for doing so.

I’ve now read AG Herring’s full account (see pages 1-7 of his brief) of his bases for refusing to defend Virginia’s constitutional and statutory provisions on marriage. They are laughably weak.

To his credit, Herring doesn’t make the (utterly implausible) claim that there are no reasonable grounds on which Virginia can defend its marriage laws. Indeed, he relies in part on the fact that other governmental parties will continue to defend Virginia’s marriage laws (pp. 6-7), and he commits “to ensure that both sides of the issue are responsibly and vigorously briefed and argued.” If there were no reasonable grounds for defending Virginia’s marriage laws, it would of course be impossible to “responsibly” defend them.

Herring instead posits that he has plenary authority to exercise his “independent judgment” that Virginia’s marriage laws violate the federal Constitution. But let’s look at his arguments:

1. Herring contends that “it is not unprecedented” for Virginia attorneys general to exercise “independent constitutional judgment” to conclude that a provision of Virginia law “violates the federal Constitution” and to refuse to defend it. He offers two supposed precedents.

a. Herring cites attorney general Ken Cuccinelli’s decision last year in which he “declined to defend a constitutional challenge to the law establishing the Opportunity Educational Institution.” But Cuccinelli’s action provides no support for Herring for two reasons.

First, as Cuccinelli has made clear, he was applying the standard that Herring rejects—that the attorney general may decline to defend a Virginia law only “when he concludes that there is literally no legitimate argument to be made in defense of that law or constitutional provision.”

Second, the “constitutional challenge” to the law in that case was made under provisions of the state constitution. It’s one thing for a state attorney general, acting as the lead lawyer for a state, to determine that provisions of state statutory law don’t comply with the state constitution. In so doing, he is determining what state law, read as a whole, means; he is not acting in opposition to his client. It’s quite another for a state attorney general to believe, as Herring does, that he is free to indulge his “independent judgment” to conclude that defensible provisions of state law violate the federal Constitution—to have, in other words, his own personal legal conclusions trump the legal position of his client.

b. Herring also claims that an amicus brief that former Virginia attorney general Jerry Kilgore signed in 2003 “explain[s] that an attorney general is duty-bound to challenge a statute he believes to be unconstitutional.” But here again, Herring completely misses the fundamental distinction between a state constitution (which, for a state attorney general, sets forth his client’s paramount legal positions) and the federal Constitution (against which the state attorney general is obligated to defend all state laws that can reasonably be defended).

The amicus brief that Herring mistakenly invokes was filed in the case of Davidson v. Salazar in the Colorado supreme court. (The Westlaw cite for the brief is 2003 WL 23221412.) In that brief, 44 state attorneys general defend the authority of the Colorado attorney general to “seek[] to enjoin the enforcement of newly-enacted legislation that he believes violates the Colorado Constitution.” The brief emphasizes the Colorado attorney general’s “prerogative and duty to initiate litigation on behalf of the people of the State of Colorado … particularly when such litigation is necessary to uphold and defend the Colorado Constitution.”  It highlights “the Attorney General’s efforts on behalf of the people of Colorado to ensure compliance with the state’s constitution,” which “reflects the will of the people.”

Thus, the only plausible understanding of the passage that Herring plucks out of context—“When, as here, [the attorney general] believes a statute violates the constitution, he has a paramount obligation to defend the constitution he is sworn to uphold”—is that the attorneys general are referring exclusively to state constitutions. In the broader context of the brief, only someone very dim-witted could misunderstand this passage to support the radical proposition that Herring embraces. [Addendum: Further, the brief does not address at all how a state attorney general should go about determining whether a state statute violates the state constitution. It is thus entirely compatible with the general proposition that the state attorney general should exercise a strong presumption that the state constitution and the state statute are compatible.]

2. Herring argues that the “propriety” of federal officers’ “not defending unconstitutional laws is well established under the federal Constitution.” (Pp. 3-5.) And so it is, and rightly so. But that helps Herring not at all. As I discussed in my House of Representatives testimony in 2011 on the Obama administration’s irresponsible failure to defend the federal Defense of Marriage Act:

Over the last several decades, presidential administrations with very different theoretical understandings of the president’s authority to interpret the Constitution have embraced the general proposition that, with the exception of laws that intrude on the executive branch’s constitutional prerogatives, the Department of Justice should vigorously defend the constitutionality of any law for which a reasonable defense may be made in the courts.

In other words, the standard that federal officers responsibly apply to defending federal laws against federal constitutional challenge is the one that Herring has refused to apply. Further, Herring again fails to grasp the elementary point that while the practice of federal officers with respect to federal constitutional challenges to federal laws might provide some insights into how state officers should deal with state constitutional challenges to state laws, it properly says nothing about how the state’s top lawyer should exercise his legal duty to defend state laws against federal constitutional challenge.

3. Herring also cites a provision of the Virginia constitution that “adds an additional layer to these considerations”—namely, the section that provides that “all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.” (Pp. 5-6.) But Herring proceeds to give zero consideration to this provision, which obviously cuts against his effort to undermine Virginia’s marriage laws.

In sum, Herring shows himself utterly unable to offer any serious basis for his failure to defend Virginia’s marriage laws.

This Day in Liberal Judicial Activism—January 30


2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails. The Senate’s longstanding tradition of providing Supreme Court nominees an up-or-down vote on the Senate floor is respected.

Amicus Briefs in HHS Mandate Cases


Thanks to the Becket Fund (counsel for Hobby Lobby), all the Supreme Court amicus briefs (for both sides and for no side) in the HHS mandate cases are available here. By the Becket Fund’s tally, the briefs run nearly three to one in favor of the parties challenging the HHS mandate.

Having extensively summarized the Ethics and Public Policy Center’s amicus brief, I may highlight some of the other amicus briefs after I’ve had time to review them.

EPPC Amicus Brief on Government’s Parade of Horribles


This is my third (and, I think, last) post highlighting key arguments in the amicus brief that my think tank, the Ethics and Public Policy Center, filed yesterday in the HHS mandate cases in the Supreme Court. As I’ve said, I believe that EPPC’s brief (for which I take no credit but which is instead the outstanding work of Daniel P. Collins and Enrique Schaerer of the law firm of Munger, Tolles & Olson) demolishes the Obama administration’s claim that for-profit corporations are inherently incapable of an “exercise of religion” for purposes of the protections afforded by the federal Religious Freedom Restoration Act and the Free Exercise Clause.

My first two posts presented the brief’s arguments about the meaning of the concept of exercise of religion in the Free Exercise Clause and in RFRA. Here, I’ll provide excerpts from the brief’s discussion (pp. 29-33) of the Obama administration’s imaginary parade of horribles. The remainder of this post consists of excerpts from the brief (with various citations omitted and some paragraph breaks added):

[T]he Govern­ment vastly overstates the implications of extending RFRA’s protections to corporate entities.…  RFRA would only apply to a corpora­tion that could demonstrate (1) a corporate adherence (2) to a religious belief (3) that is sincerely held.  Each of these legal requirements operates as a significant practical constraint on a corporation’s ability to assert a free exercise claim. 

First, absent some indicia that the corporation it­self adheres to certain religious principles, it cannot be said that the corporation (as opposed merely to in­dividuals within it) has a religious belief, much less one that is sincerely and consistently held.  Obvi­ously, incorporation as a religious corporation under state law would be sufficient (as the Government con­cedes), but so too would be (for example) a formal statement of belief adopted on behalf of the corpora­tion itself by those persons with the power to control the corporation.  But the Government is wrong to the extent that it suggests that any religious employee (however low-level) who merely seeks to invoke reli­gion in the course of performing his or her duties would cause the corporation to subscribe to that reli­gion.… 

Second, because “[o]nly beliefs rooted in religion are protected by the Free Exercise Clause,” a corporation’s commitment to principles that are “based on purely secular considerations” is insufficient to invoke the protection of the Clause.

Third, this Court has long held that a free exercise claim requires a showing of action or inaction “based on a sincerely held religious belief.”  Just as an individual’s belief that is hap­haz­ardly in­voked only when convenient is unlikely to be found to be sincere, so too for a corporation.  Thus, one consequence of the sincerity requirement is that, un­less those with ultimate authority over the corpo­ration have taken steps to attempt to ensure that the corporation will generally act in conformity with the corporation’s stated religious principles, it is unlikely that the corporation’s religious belief would be found to be sincerely held.

Few, if any, publicly traded corporations have un­dertaken, or likely ever would undertake, to ascribe to a sincerely held religious belief in the conduct of their operations, much less endeavor to achieve company-wide conformity of the corporation’s actions to those beliefs. And although the Government raises the specter that all of the very largest privately held companies will suddenly get religion, it is hardly surprising that the Government did not identify any large closely-held corporation other than Hobby Lobby (which is only #276 on the Forbes list of “private” companies that the Government cites) that had asserted a claim to exercise religion.… 

Moreover, it bears repeating that recognizing a cor­poration’s exercise of religion under RFRA or the Free Exercise Clause does not mean that the corpora­tion’s free exercise rights will always prevail under the applicable standard.  To be sure, the application of the HHS mandate here does violate the RFRA and Free Exercise Clause rights of these corporate Plain­tiffs. But if the Government is correct in its dire predictions as to the harmful con­sequences that will supposedly follow from upholding religiously-based corporate exemptions from various other statutes not at issue here, then presumably it will be able to defeat such claims by demonstrating that those statutes serve compelling interests and employ the least restrictive means. 

Indeed, if there is any reading of RFRA and the Free Exercise Clause that raises disturbing implica­tions, it is the Government’s.  According to the Gov­ernment, it can make any market for goods or ser­vices a Free-Exercise-Free Zone simply by the artifice of placing whatever obligations it wants on corporate entities rather than on natural persons. 

In the Gov­ernment’s view of the matter, an incorporated kosher deli could be forced to carry non-kosher goods; an in­dependent Catholic hospital with a lay board could be required to provide abortions; a closely-held market owned by Seventh-day Adventists could be required to open on Saturdays; and an incorporated retail store owned by Muslims could be forced to carry liquor. 

As Judge Jordan recognized in dissent below in the Conestoga case, there is a word to describe the Government’s position:  “Remarkable.” 

Orthodox Union Supports Religious-Liberty Challenge to HHS Mandate


In an excellent essay, Nathan J. Diament of the Orthodox Union (that’s orthodox Judaism, not eastern Christianity) explains why his organization has filed an amicus brief in support of the business owners challenging the HHS mandate on religious-liberty grounds. Some excerpts:

We did so because in the cases in question, forcing business owners to subsidize activity that violates their religious beliefs is unnecessary. There are many other means by which the government could ensure women’s access to contraceptives and related care without involving their employers at all, which the OU may support. (Imagine that a woman could take her prescription to CVS, have it filled, and the government would reimburse CVS directly.)

We take this stance because we, particularly as a religious minority in the United States, must stand in solidarity with people of all faiths in demanding the broadest protections for rights of conscience in the face of government (and socio-cultural) coercion to the contrary….

All people of faith should understand and actively support the right of religious (and other forms of conscientious) dissent from the popular and majority view.  Today, in America, Catholic objections to women’s use of contraceptives may be broadly unpopular; tomorrow, it may be circumcision or kosher slaughter that are looked at askance in America, as they are today in Europe.

But this argument is not solely about where a slippery slope may lead; it involves a fundamental question about America’s civic-constitutional view of religious faith. In Europe today, religion has been relegated to something only to be exercised in private. What you do in your home and in your church is your business, but society expects you to leave your religion behind when you come into the public sphere—be it the workplace, school, or house of government. Thus, a believer is not entitled to an accommodation or an exemption from any demands society at large wishes to make, like banning public wearing of headscarves or kippot. This has not been the American view.

While our First Amendment’s establishment clause demands no legal endorsement of religion, there is a longstanding tradition of welcoming faith into the public arena and—most relevant here—including exemptions and accommodations for religious dissent in a wide array of laws so that, as much as possible, people of faith are not forced to choose between their conscience and compliance with other laws. To do otherwise is to relegate religious belief and action to second class status among our civil rights—something Jews, and all people of faith and conscience, must resist.

Yasher koach!

Glitches Resolved


Over the past day or two, Bench Memos suffered some glitches that prevented new posts from appearing via some browsers, including, I think, Internet Explorer and Safari (used on iPads and iPhones). So if you are using any of those browsers, I invite you to scroll down to read what you might have missed.

This Day in Liberal Judicial Activism—January 29


1971—Two years before Roe v. Wade, a divided three-judge district panel rules in Doe v. Scott that the longstanding Illinois abortion statute is invalid in two respects. The majority holds, first, that the statute is unconstitutionally vague because its exception for abortions “necessary for the preservation of the woman’s life” is supposedly not sufficiently intelligible. Second, it determines that the Supreme Court’s ruling in Griswold v. Connecticut on a marital right to contraception compels the conclusion that the statute unconstitutionally invades a woman’s privacy interests. The court enjoins state officials from enforcing the statute against licensed physicians performing abortions during the first trimester in a licensed medical facility.

In an excellent dissent, senior district judge William Joseph Campbell faults the judges in the majority for “impos[ing] upon the people of Illinois their own views on this most important and controversial issue concerning public health and morals.” Judge Campbell points out that “we are presented with no actual circumstance where the vagueness question is in issue,” and he cites “numerous examples of statutes which have been held constitutional and which are not as clear and definite as this one.” He also finds “incredible” the majority’s assertion that “there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life.”

2004—Having somehow given her permission to the NOW Legal Defense and Education Fund to dedicate a lecture series in her honor, Justice Ruth Bader Ginsburg presents opening remarks at the fourth annual Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Never mind that the highly ideological NOW Legal Defense and Education Fund regularly files briefs in the Supreme Court (and indeed had filed a brief in a case that was pending when Ginsburg agreed to give her remarks).

Somehow many of the same folks who squawk when a conservative justice merely speaks to a conservative group that doesn’t litigate in the Supreme Court are silent at the extraordinary spectacle of a justice’s permitting a repeat litigant to name a lecture series in her honor.

EPPC Amicus Brief on Meaning of “Exercise of Religion” in RFRA


I’ve already highlighted the compelling argument in the Ethics and Public Policy Center’s amicus brief that the protections of the Free Exercise Clause apply to a for-profit corporation’s exercise of religion. EPPC’s brief also dismantles the Obama administration’s bizarre argument that the courts may look only to case law that precedes the Court’s 1990 decision in Employment Division v. Smith to determine what Congress meant by the term “exercise of religion” in the federal Religious Freedom Restoration Act.

EPPC’s brief offers three basic responses to this argument:

First (pp. 6-13): Whereas the original definition of “exercise of religion” in RFRA expressly incorporated the meaning of the same term in the Free Exercise Clause, Congress in 2000 amended that definition to decouple it from the Free Exercise Clause in order to give it a potentially broader meaning. Responding to lower-court rulings that had (wrongly) held that the Free Exercise Clause requires a showing of interference with a belief that is “central” to and “mandated” by religious belief, Congress redefined “exercise of religion” in RFRA to mean “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” Further, it set forth a rule of construction “in favor of a broad protection of religious exercise, to the maximum extent permitted.”

What’s more, the legislative history of the 2000 enactment confirms both the intended breadth of the new definition and RFRA’s applicability to for-profit corporations. As EPPC’s brief spells out (some citations omitted):

In its Report …, the House Judiciary Committee noted that the bill broadened RFRA by clarifying that the “burdened religious activity need not be compulsory or central to a reli­gious belief system as a condition” for a claim under either Act.  The Committee then made the following observation in a footnote attached to that comment:

“One issue raised during the Subcommittee Markup was whether a business corporation could make a claim under H.R. 1691.  The re­quirement of H.R. 1691 that the claimant demonstrate a substantial burden on religious exercise is equally applicable whether a claim­ant is a natural person or a corporation.  Most corporations are not engaged in the exercise of religion, but religious believers, such as people in the Kosher slaughter business, should not be precluded from bringing a claim under H.R. 1691 simply because they incorporated their activities pursuant to existing law.”

(Emphasis added.) The Government is thus simply wrong when it says that “‘nowhere’ in RFRA’s legislative history ‘is there any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corporations.’”  The legislative history shows that, in amending RFRA’s definition of “exercise of reli­gion,” Congress foresaw and intended what the text plainly indicates—that RFRA applies to an exercise of religion by a for-profit corporation. 

(I’ve set forth here a simplified, but accurate, account that avoids getting into the intricacies of the interplay between RFRA and the Religious Land Use and Institutionalized Persons Act of 2000, or RLUIPA. The reader interested in the intricacies should read pages 7-13 of EPPC’s brief.)

Second (pp. 14-16): Neither in its original version or in its amended version was RFRA’s definition of “exercise of religion” to be “artificially truncated as embracing only those specific results that had been recognized in [the Supreme] Court’s pre-1990 case law.

Third (16-20): Even if it were necessary to identify a basis in this Court’s pre-1990 case law for concluding that a for-profit corporation can engage in the exer­cise of religion, the Court’s 1961 decision in Gallagher v. Crown Kosher Super Market of Massachusetts, Inc. would supply that basis, as a majority of the justices concluded that the corporate plaintiff, a for-profit kosher supermarket that was challenging a law requiring it to close on Sundays, had asserted a cognizable burden on free-exercise rights.

JEP Files Supreme Court Amicus Brief in Hobby Lobby and Conestoga Wood


Today, the Judicial Education Project filed an amicus brief in support of the plaintiffs challenging the Affordable Care Act’s contraceptive mandate. The plaintiffs are two hardworking families who built businesses from the ground up in accordance with their religious beliefs, and who object on religious grounds to providing certain contraceptives mandated by Kathleen Sebelius’s Department of Health and Human Services. 

This is a very significant case for the United States. At stake are conscience rights, not only for these plaintiffs, but for all people of faith whose religious beliefs govern the way they do business or earn a living. Our brief argues that the reasons given by the government for forcing these objectors to provide free contraceptives to employees are insufficiently important to require overriding the objectors’ conscience rights. 

To sum up, if the government can pick and choose who gets a religious exemption and who doesn’t, and explain that choice based on the vaguest of goals, religious liberty is basically a dead letter. The Supreme Court has a chance to make sure that doesn’t happen.

Read our brief here.

EPPC Amicus Brief: The Free Exercise Clause and For-Profit Corporations


As promised, I’m going to highlight some key arguments from EPPC’s amicus brief in the pending HHS mandate cases. Let me start with the brief’s argument (pp. 20-29) that the protections of the Free Exercise Clause (and, a fortiori, of the federal Religious Freedom Restoration Act) apply to a for-profit corporation’s exercise of religion. The remainder of this post consists of excerpts from the brief (with various citations omitted and a few paragraph breaks added in for ease of online reading):

In addressing the question of whether corporations may exercise religion within the meaning of the Free Exercise Clause, the proper analysis, and the one in­dicated by the text of the clause, is the same one that the Court took in First National Bank of Boston v. Bellotti (1978) with respect to the Free Speech Clause.  Like the Free Speech Clause, the Free Exercise Clause protects an activity without specifying or limiting whose activity is protected. 

Accordingly, the appropriate inquiry is (1) to identify the behavior that is embraced within the scope of the clause’s language, (2) to determine whether corpora­tions are capable of performing that behavior, and (3) to examine whether there is any reason why the performance of that behavior by a corporation should remove those instances of such behavior from the scope of the clause.  That analysis confirms that the Free Exercise Clause protects the exercise of religion by a for-profit corporation.…

[T]he irreducible elements of the conduct that qualifies as the “free exercise” of religion under the First Amendment are (1) action or abstention from action (2) motivated by (3) adherence to a reli­gious belief.… 

The Government … disputes only the third el­ement, arguing that for-profit corporations are incapable of having religious beliefs.  This is so, the Government contends, because in light of the distinction between a corporation and its owners, there is “no basis on which to impute the individual-respondents’ religious beliefs to the corporate-respondents.”  This contention fails.

As an initial matter, it is difficult to fathom how the Government’s argument could support its prof­fered distinction between “religious non-profit insti­tutions” (which it concedes have free exercise rights, despite their corporate form) and “for-profit corporations” (which it claims lack such rights, because of their corporate form).  If the problem is that the religious views of the founders and owners of a corporation cannot be imputed to a corporation, then that point would equally apply to religious non-profits.  But as the Government con­cedes, this Court has repeatedly and ex­plicitly recognized the free exercise rights of corpo­rate plaintiffs who happened to be religious non-profits.  

Moreover, the Government’s concession that some corporations exercise religion within the meaning of the Free Exercise Clause confirms that there is nothing intrinsic to the corporate form that precludes for-profit corporations from exercising religion.  Yet under the Government’s view, while a religious non-profit would be engaged in the corporate exercise of religion by running a religious bookstore propagating its views, there would be no corporate exercise of religion if that very same bookstore instead were owned by a closely-held for-profit corporation whose devout owners had committed the corporation to the same mission.  It makes no sense to say that the first cor­poration would have RFRA and free exercise rights, but that the second corporation—even though it is engaged in the same activities—would not….

Keep reading this post . . .

EPPC Amicus Brief in HHS Mandate Cases


I’m delighted to report that the Ethics and Public Policy Center—the think tank I head—is today filing an amicus brief in the pending HHS mandate cases in the Supreme Court. The brief, which is the outstanding work of Daniel P. Collins and Enrique Schaerer of the law firm of Munger, Tolles & Olson, demolishes the Obama administration’s claim that for-profit corporations are inherently incapable of an “exercise of religion” for purposes of the protections afforded by the federal Religious Freedom Restoration Act and the Free Exercise Clause.

In a series of posts, I’m going to highlight some key arguments from the brief.


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