Category archives: The Courts

Michigan Marriage and the Rule of Law

by Leanna Baumer

March 28, 2014

Regardless of one’s underlying position on what state marriage policy should be, most Americans agree that establishing that policy should be a process rooted in legal and democratic means. Yet, for all the present Administration’s blustering about respect and tolerance for a diversity of viewpoints on marriage, very little of that respect has been extended to existing state policy on marriage or the process by which those views have been enshrined in law.

In the latest move to ignore state marriage law, the Department of Justice (DOJ) has announced it will recognize the relationships of Michigan same-sex couples who obtained marriage licenses in the period between a federal District Court ruling striking down the state’s marriage amendment on March 21st and an emergency stay of the ruling issued by the 6th Circuit Court of Appeals on March 22nd. In the Saturday morning hours between District Judge Bernard Friedman’s Friday night ruling and the subsequent Saturday afternoon stay, several hundred couples were “wed.”

Given the murky legal status of these marriages, Michigan’s Governor Rick Snyder has said the state will not recognize the unions while the state continues its appeal of the District Court ruling at the 6th Circuit Court of Appeals. Michigan Attorney General Bill Schuette has explained repeatedly that his job, regardless of his personal beliefs, is to defend the will of the 2.7 million Michigan voters who voted in 2004 to affirm marriage as the institution it has always been understood to be: the union of one man and one woman.

That deference to the people and the law, unfortunately, has not been replicated by Attorney General Schuette’s federal counterpart. Today’s statement from U.S. Attorney General Eric Holder instead underscores the willingness of the federal government to ignore the will of voters, state law, and the limits of last summer’s Supreme Court ruling in United States v. Windsor. Indeed, Windsor required respect for state policies on marriage — not a new federal mandate for Administratively-imposed same-sex marriage recognition.

Summary of Oral Arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Sebelius

by Travis Weber

March 27, 2014

The post-oral-argument predictions in the Hobby Lobby case will continue to pour out as various entities (more or less interested in the outcome) make guesses about which way the Supreme Court will rule now that the justices have had a chance to quiz the attorneys for each side. The truth is, no one knows what will happen. Nevertheless, several things were noteworthy and other things not noteworthy, about this morning’s arguments. My review of the arguments (with emphasis on noteworthy sections) is below (page numbers are those listed on the Supreme Court’s official transcript).

Arguments began with Paul Clement, the attorney for Hobby Lobby and Conestoga, presenting his clients’ case first. After some initial questions about whether Congress meant to include corporations within the Religious Freedom Restoration Act’s (RFRA) protections (pp. 4-9), the justices’ opposition to Hobby Lobby’s position predictably centered on what other claims corporations might bring should the Court rule for the Green family and against the government. Justices wondered whether a ruling for Hobby Lobby would lead to corporations objecting on religious grounds to providing vaccinations, blood transfusions, and the like. Hobby Lobby’s attorney Paul Clement disputed this implication, pointing out that the Court could be trusted to wade through these issues under RFRA. Furthermore, if the “parade of horribles” was likely to occur, where was it? RFRA has been around since 1993. Clement pointed that none of the claims over which the justices expressed concern had been brought (or they were brought but didn’t succeed) “notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by RFRA” (pp. 14-15).

Clement was then questioned about how a corporation could exercise religion (pp. 17-21), but the argument drifted off into a discussion of what costs Hobby Lobby would incur if it refused to cover the contraceptives (pp. 17-29). A discussion subsequently ensued about grandfathered health plans, and then moved to the concept of burden shifting between the objecting employer and its employees (pp. 29-38). Clement noted that exemptions are allowed in the conscience law context — if a doctor objects to providing an abortion, the woman is not prevented from obtaining the procedure, but she must go to another provider (p. 38). Clement also pointed out that the government has available to it a less restrictive alternative than the current HHS mandate — allowing employees of objecting corporations to go on the exchanges and subsidizing them like it does for employees at companies with fewer than 50 workers (p. 40).

At this point, the government’s attorney, Solicitor General Donald Verrilli, took over and opened by arguing that the requested accommodation’s impact on third parties must be examined (pp. 43-46). He was then pressed by the justices on why the government insisted on hampering for-profit corporate religious exercise but not other religious exercise (pp. 46-49). When Verrilli said the Court had never ruled that corporations had a right to exercise religion, Justice Alito asked if “there’s something about the corporate form per se that is inconsistent with [a] free exercise claim” (p. 46). He followed: “Do you agree … that for­profit corporations must do nothing but maximize profits, they cannot have other aims … including religious aims?” (p. 47) Verrilli said no, but the point was made.

Verrilli then argued that ruling for Hobby Lobby would permit other problematic claims (pp. 52-53). He was pressed about the ability of corporations to have a racial identity (which courts have held), but said such a scenario was different from this case, which involves “exercise of religion — something the courts have never recognized corporations can do (p. 54). However, neither have the courts said corporations can’t engage in religious exercise. He was then pressed by Justice Kennedy about exemptions being given by the government apart from RFRA concerns (pp. 56-58). Verrilli explained that churches were exempt (as they have always been considered special under the law), but argued that the other companies and groups that do not have to pay were not actually subject to “exemptions” but were just categorized differently under the law (pp. 58-59). He was then pressed to explain when the grandfathered plans would end (pp. 59-60) — such continual “grandfathering” with slow and piecemeal implementation demonstrates the lack of a compelling government interest in enforcing the HHS mandate.

Justice Breyer then questioned Verrilli and asked him to explain how the government might meet the contraceptive needs of women less restrictively than enforcing the HHS mandate (pp. 64-69). Justice Kennedy quizzed Verrilli and said that according to the government’s logic, it seemed that a for-profit corporation could be forced to pay for abortions. Verrilli had to admit his logic allowed such a result, but he attempted to minimize the implication by noting there was no such law mandating abortions on the books at this time (p. 75). He followed by pointing out that the federal and state laws regarding abortion don’t consider the “particular forms of contraception” at issue in this case to cause abortions (pp. 75-77).

Verrilli had trouble batting away hypotheticals from Justices Alito and Breyer showing the problems corporations may face in bringing religious exercise claims (should the government win in this case) challenging laws banning kosher or halal slaughter methods (pp. 78-81). He concluded by pointing out that companies were going into the public sphere, and this would be the first time a company could be permitted to override statutory benefits under a Free Exercise or RFRA claim (p. 81). At the last moment, Verrilli was questioned by Justice Scalia about the government’s claim that it was not drawing a distinction between for-profits and non-profits (p. 82). Justice Scalia quite rightly noticed differences with how the government was treating the two groups (p. 82).

Paul Clement then had the last word. During his few minutes of rebuttal argument, Clement pointed out that Congress has applied the abortion conscience laws to all providers, including for-profit providers. But if Congress changed those laws, the government (according to its argument today) would take the position that RFRA does not apply to protect providers objecting on conscience grounds (p. 83). Clement also reminded the Court that if the government is going to burden religious exercise, its regulation has to do so in the least restrictive way. In this regard, Title X already provides for contraception coverage, so the government could provide contraceptive coverage through Title X (pp. 83-86). He also reminded the Court of one point Hobby Lobby already made in its brief — the government could simply pay for the contraceptives (p. 86). Clement concluded by noting that Congress has already spoken in an abundantly clear manner on the issue of religious freedom when it passed RFRA, but “[h]ere the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear” (p. 87).

With that, the arguments were concluded. A written decision in the case is expected in June 2014.

Why you should care about Elane Photography

by Travis Weber

March 19, 2014

Sometime in the next few weeks, the U.S. Supreme Court is expected to decide whether it will hear the case of Elane Photography v. Willock. The owners of Elane Photography are Christians, and their views and beliefs are reflected in how they run their business. Yet the New Mexico Supreme Court ruled that Elane Photography violated New Mexico’s anti-discrimination law provisions regarding sexual orientation when its owners refused to agree to photograph a same-sex commitment ceremony. Elane Photography’s owners are merely asking the government to not compel them to participate in actions which violate their religious beliefs. Consequently, when the government forces them to participate in the same-sex ceremony by photographing it (with the threat of a fine if they refuse), the government is forcing and compelling Elane’s owners to speak a certain message in violation of the First Amendment.

Even supporters of same-sex marriage see the danger of the government’s position and its use of anti-discrimination law in this case. Writing in the Wall Street Journal, Eugene Volokh (professor at UCLA law school) and Ilya Shapiro (with the Cato Institute) point out that a ruling against Elane Photography here sets a dangerous precedent that allows the government to compel speech in the cause of furthering equality through powerful and broad anti-discrimination laws. The next victim may be someone quite unlike Elane’s owners. It could be “a freelance writer who declines to write a press release for a religious organization with which he disagrees.” According to the New Mexico Supreme Court’s reasoning in Elane Photography, this writer has violated anti-discrimination law because his refusal to write such a press release is discrimination based on religion, just like Elane Photography’s refusal to photograph the commitment ceremony is being viewed by the government as discrimination. Yet a photographer, writer, speaker, publisher, or other artist “must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.”

As Volokh and Shapiro state, “a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech… . The First Amendment secures an important right to which all speakers are entitled — whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.”

Elane Photography highlights an important point — individuals with different views regarding the definition of marriage can still agree that free speech must trump “forced equality.” Indeed, the freedom from such “compelled speech” is protected by the First Amendment to the U.S. Constitution. When speech motivated by religious beliefs is forced to pass muster with the government’s censors and Americans are forced to speak a certain message under the threat of fines and force of law, all who love individual liberty and free speech (regardless of personal views) must stand up and pay attention.

Why Do Courts (and the Media) Ignore Federal Precedent on Marriage?

by Peter Sprigg

January 16, 2014

Advocates for changing the fundamental definition of marriage as the union of a man and a woman in order to include homosexual relationships have been encouraged by two recent decisions by federal district court judges.

On December 20, Judge Robert J. Shelby ruled that Utah’s state constitutional amendment defining marriage as the union of one man and one woman violates the U.S. Constitution. On January 14, Judge Terence C. Kern said the same thing about the Oklahoma marriage amendment.

However, one odd aspect of both rulings is their failure to cite one of the most relevant precedents regarding the constitutionality of state definitions of marriage as a male-female union.

Only two federal appellate courts have ever ruled on the constitutionality of a state law defining marriage as the union of a man and a woman. One was the U.S. Court of Appeals for the Ninth Circuit, which in 2012 ruled (on narrow grounds specific to California) that California’s marriage amendment “Proposition 8” was unconstitutional.

However, in one of two major decisions on marriage in 2013, the U.S. Supreme Court vacated the Ninth Circuit ruling, on grounds that the proponents of Proposition 8 had lacked proper standing to appeal a district court decision. (Liberal state officials had refused to defend their own constitution at all.)

With the Ninth Circuit’s ruling having been effectively wiped off the books, the only remaining federal appeals court precedent involves a challenge to Nebraska’s marriage amendment. In that case, too, a district court judge, Joseph F. Bataillon, ruled in 2005 that the amendment was unconstitutional.

However, a year later, a unanimous three-judge panel of the U.S. Court of Appeals for the Eighth Circuit overturned Judge Bataillon’s decision and upheld the Nebraska amendment. This 2006 decision thus remains the highest federal court ruling with a written opinion on state definitions of marriage as one man and one woman.

Yet oddly, neither Judge Shelby in Utah nor Judge Kern in Oklahoma saw fit to even mention this decision. Neither judge’s district is in the Eighth Circuit (both are in the Tenth), so the Bruning case is not binding upon them — but given the relative dearth of such cases that have reached the federal appellate level, it seems odd that it not be mentioned at all.

Below are some excerpts from the opinion, written by Chief Judge James B. Loken:

Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006)

. . .

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. See Hernandez v. Robles [New York, 2006]; Morrison v. Sadler, [Indiana, 2005]. Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship to legitimate state interests.” Romer, 517 U.S. at 632.3

The district court rejected the State’s justification as being “at once too broad and too narrow.” But under rational-basis review, “Even if the classification … is to some extent both underinclusive and overinclusive, and hence the line drawn … imperfect, it is nevertheless the rule that … perfection is by no means required.” Vance v. Bradley (1979). Legislatures are permitted to use generalizations so long as “the question is at least debatable.” The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature — or the people through the initiative process — may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. “We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.” [Vance].

. . .

Appellees argue that § 29 [the marriage amendment] does not rationally advance this purported state interest because “prohibiting protection for gay people’s relationships” does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29’s only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws — to encourage heterosexual couples to bear and raise children in committed marriage relationships.

. . .

In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.)

. . .

We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.

Supreme Court to Review Cases Challenging the HHS Mandate on Religious Liberty Grounds

by Emily Minick

November 26, 2013

Today Family Research Council (FRC) and Alliance Defending Freedom (ADF) released the results of a new poll conducted to determine how Americans feel about Obamacare and the HHS mandate. The results of the survey show that 59 percent of likely voters “oppose the mandate requiring the coverage of preventive care services for women which includes all FDA approved contraceptives, including drugs that can destroy a human embryo, and sterilization services without a direct cost to the patient.”

These poll results are extremely relevant given the Supreme Court today decided to hear two cases this session challenging the HHS mandate on religious liberty grounds. The Supreme Court granted cert to Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. represented by Alliance Defending Freedom and the Beckett Fund for Religious Liberty, respectively.

Several Congressional and Senate Members also released statements today on the Supreme Court’s decision and the new poll released by FRC and ADF:

Rep. Diane Black along with Democrat Rep. Dan Lipinski and Rep. Joe Pitts

Rep. Chris Smith

Senator Roy Blunt

Rep. John Fleming

Rep. John Boehner

The HHS mandate’s assault on religious freedom is still a great concern to many Americans. Congress must also act to protect individuals and businesses who do not want to violate their moral beliefs in order to purchase healthcare in this country.

Pillard Pilloried

by Sherry Crater

November 15, 2013

Cornelia Pillard, President Obama’s nominee to the D.C. Circuit Court of Appeals, was rejected  this week by the Senate in a 56-41 cloture vote.  Pillard’s radical views were not considered an appropriate fit for one of the nation’s most powerful courts that rules on administration orders and regulations and from which some judges ultimately become Supreme Court justices.

A professor at Georgetown University Law Center, Cornelia “Nina” Pillard is spreading her radical viewpoints to the young people under her tutelage.  As a student in her class, one might hear her expounding on abstinence-only sex education as being unconstitutional. Or, she might be complaining that ultrasound images are deceptive images of a fetus as an autonomous entity. Of course, it is well understood that ultrasound images do show an autonomous being, albeit a dependent one. The images depict a fetus that is just too dependent and too human for Cornelia Pillard’s liking.

Pillard has also written that abortion is necessary to “free” women “from historically routine conscription into maternity,” a view that certainly does not resonate with the vast majority of moms who consider motherhood a sacred honor and privilege. We can breathe a sigh of relief that sanity prevailed and the Senate rejected this nominee who compares motherhood to the draft.

It is time to move on from Pillard’s negative legal views of pregnancy and the need to destroy the unborn to a more positive conversation about protecting babies in utero who have been shown to feel pain after 20 weeks from fertilization.  Twelve states have now passed fetal pain bills banning abortion after 20 weeks. The Pain Capable Unborn Child Protection Act that also bans late abortion has passed in the House of Representatives, and Sen. Lindsay Graham has introduced the companion bill in the Senate with 41 co-sponsors.  When it comes to babies, protection trumps destruction!

Private Employers Nationwide Face New Quandary of Conscience

by Leanna Baumer

September 26, 2013

This summer, the Supreme Court in United States v. Windsor struck down the federal definition of marriage that limited federal benefits to those couples in natural marriages of one man and one woman. In the wake of that ruling, a surge of federal agency announcements have expanded access for same-sex couples to federal benefits from many agencies such as the Internal Revenue Service, Medicare, the Department of Defense, and the Veterans Administration. Though Justice Kennedy issued an opinion in Windsor with clear federalism themes, reiterating the need to “[defer] to state-law policy decisions with respect to domestic relations,” the federal government has instead imposed a new de facto federal definition of marriage that doesn’t respect the diversity of state laws on this topic. In other words, federal marriage benefits will be given to couples who are not legally married under the state law of a super majority of the states.

The latest agency to ignore the majority of states’ laws on this topic is the Department of Labor. Last week, DOL issued guidance informing all private employers across the nation that they must now extend spousal health and retirement benefits organized under the Employment Income Retirement Security Act of 1974 (ERISA) to same-sex spouses—even if they live in a state that does not recognize same-sex “marriage.”

Unlike previous agency guidance, Labor’s announcement means that many private business owners and companies must now adhere to the Obama Administration’s new federal definition of marriage in determining their benefit policies, despite possible religious or moral objections to extending marriage benefits to same-sex partners. And, since the majority of private pension plans and all self-funded employee health benefits plans are organized under ERISA, the impact of this law is dramatic (reaching over 700,000 private retirement plans and 2.3 million health plans).  

If you’re a shop owner who is willing to hire any individual, no matter their sexual orientation, but who believes in natural marriage and only wishes to extend spousal benefits to those traditionally married couples, how will you comply with federal law?  Some legal commentators have suggested that a private employer could have standing to sue over this agency guidance, though the outcome of such a challenge would be uncertain. 

In addition to the burden this places on private employers, the Labor guidance continues to trample on the will of the American people in most states who have maintained laws respecting only natural marriages. By requiring companies in states that don’t recognize same-sex “marriages” to extend benefits to same sex partners, the federal government has enacted the very “contradictory marriage regimes within the same State” that the Windsor Court condemned in its June 2013 ruling. 

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