Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 4, 2013

Where the D.C. Circuit's analysis of whether a corporation may assert a RFRA claim went off track

By Kevin C. Walsh

A split panel of the D.C. Circuit held last week in Gilardi v. HHS that the HHS contraceptives mandate violates the Religious Freedom Restoration Act. This post is not about the merits of that holding (with which I agree), but about the court's determination that "secular corporations" may not assert a RFRA claim. I think that the court's analysis was flawed and that it reached a wrong decision on this issue. The basic flaw was a failure to examine what constitutes an exercise of religion under RFRA. As I have previously argued, once one recognizes that "a religiously based refusal to do something otherwise required by law is an 'exercise of religion'" within the meaning of RFRA, it is not too difficult to see that corporations can engage in the exercise of religion because they can decide for religious reasons not to do something otherwise required by law.

First, some background: 

Gilardi v. HHS was brought by two brothers and their two closely held corporations. These corporations collectively employ approximately 400 employees and sponsor a self-insured health plan that has historically excluded contraceptives, sterilization, and abortion. En route to holding that enforcement of the contraceptives mandate against the corporations violates the RFRA, the court held that the corporations themselves could not assert a claim under RFRA but that the brothers who controlled the corporations could. Judge Brown wrote the principal opinion, joined by Judge Edwards with respect to the issue of who may assert a RFRA claim and joined by Judge Randolph with respect to the merits. Judge Edwards dissented on the merits while Judge Randolph thought it unnecessary to decide whether the corporations themselves could assert a RFRA claim.

Now, some analysis:

RFRA provides that "[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c). As the Tenth Circuit explained in Hobby Lobby v. Sebelius, and as appellants argued, "person" generally encompasses corporations pursuant to 1 U.S.C. § 1 (the Dictionary Act). Judge Brown observes, however, that "the focus on personhood [alone] is too narrow; instead, we must construe the term 'person' together with the phrase 'exercise of religion.'"

Until this point, the analysis is correct. The right question to ask is whether a corporation is a "person" that can engage in an "exercise of religion" under RFRA. And to answer this question we need to know what counts as an exercise of religion. The analysis goes off track, however, when Judge Brown surveys Free Exercise Clause caselaw. Nowhere in Judge Brown's analysis does she examine what constitutes an "exercise of religion" under Free Exercise Clause caselaw even though that is the avowed object of her inquiry. Although Judge Brown asserts that "RFRA provides us with no helpful definition of 'exercise of religion,'" Congress declared that the purpose of RFRA was "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." Presumably, then, Sherbert and Yoder are good cases to look to for an understanding of what constitutes a proteted "exercise of religion" under RFRA. In each of those cases, the exercise of religion was a religiously based refusal to do something otherwise required by law. Judge Brown's analysis, however, mistakenly proceeds under the (unargued for) notion that the exercise of religion is limited to worship. She writes that "[w]hen it comes to the free exercise of religion . . . the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent." The issue is not whether corporations can worship; the issue, instead, is whether a corporation can refuse for religious reasons to do something otherwise required by law. And a corporation can do this. (See after the jump for relevant excerpts from prior blog posts on this topic.)

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Monday, October 21, 2013

Professor Hobbs of Wellesley and the theological structure of American constitutional law?

By Kevin C. Walsh

Michael Perry's recent post about the possible convergence between magisterial morality and constitutional morality with respect to capital punishment brought me back to thinking about the ways in which the Supreme Court of the United States itself functions as a magisterium of sorts (or, as Steven Smith has explained, an anti-magisterium).

There is little doubt about the Court's magisterial pretensions in at least some areas of constitutional law (equal protection and substantive due process come most quickly to mind, but free speech seems to be another obvious area as well). Yet one difficulty the Court faces is the perception that its magisterial pronouncements are occasionally best understood as registering changes in culture that have already taken place rather than as faithfully transmitting a sacred legal deposit from the past. 

As my Richmond colleague Corinna Lain has encapsulated this phenomenon in the title of her recent Georgetown Law Journal article, there are many areas of contemporary constitutional law in which the Supreme Court engages in Upside-Down Judicial Review. As Corinna explains, upside-down judicial review flips the so-called countermajoritarian difficulty on its head: "Instead of a countermajoritarian Court checking the majoritarian branches, we see a majoritarian Court checking the not-so-majoritarian branches, enforcing prevailing norms when the representative branches do not. Here marks the start of a distinctly majoritarian, upside-down understanding of judicial review." [116] Furman v. Georgia is one of Corinna's case studies. She documents how "four of the five Justices in Furman's majority based their decision in whole or in part on the notion that the death penalty was already on its way out the door. The Supreme Court was just turning out the lights." [137] And she shows how these Justices' perceptions matched those of contemporary commentators.

Michael Perry's argument for the present unconstitutionality of capital punishment is not an argument from majoritarianism. But the argument incorporates reference to changing practices by examining whether capital punishment is "(a) excessive and (b) evidenced as such by the fact that it is unusual (i.e., in the Samuel Johnsonian sense of 'not common; not frequent; rare')." Rejecting Professor John Stinneford's explication of "unusual" in the Eighth Amendment to mean "contrary to long usage," Professor Perry contends that the question is not whether capital punishment was unusual in the past, but rather "whether capital punishment has become unusual, whether it is unusual now."

I have not done the sort of investigation and analysis that would warrant confidence in formulating a critique of Professor Perry's argument on its own terms. But putting the aside the question of whether the argument misfires, it is worth asking whether the way in which it takes aim at its target can lead to a "magisterial" justification for killing the death penalty. It seems not. If the Supreme Court were to follow Professor Perry's logic in justifying constitutional abolition of the death penalty (and to be honest and open about doing so in its opinion),its pronouncement would not be magisterial in the sense of exercising a living teaching authority under the Constitution as much as it would be more or less mechanically registering the verdict of the times. 

To be clear, providing a "magisterial" justification for the unconstitutionality of the death penalty is not an explicit goal of Professor Perry's analysis. Whether his argument can or cannot accomplish that, however, is simply an interest of mine (and hopefully of others interested in the nature of constitutional pronouncements by the Supreme Court).

Which brings me to Professor Hobbs of Wellesley, to whom I have been introduced by Philip Rieff, and about whom I otherwise know very little personally (though his web bio reveals a very productive and respected scholar of hermeneutics). Hobbs is a professor of religion quoted by Rieff to describe Hobbs's account of the relationship between "religion" and "values." In the quotation that follows, I substitute "constitutional law" for "religion" in Rieff's quotation of Hobbs. 

One Professor Hobbs, professor of [constitutional law] at Wellesley, tells us all we need to know about values in a few invaluable sentences: "[Constitutional law] no longer needs God or gods. It has a theological structure that embodies the values of each culture. When the culture changes, then the [constitutional law] changes. Values have to keep up. That's all there is to it." [Rieff, My Life Among the Deathworks, at 11.]

Rieff continues, now in his own voice: "Is that all? Keeping up can be lowering. All depends on who and what the Joneses of value are." To what extent does this modified quotation from Professor Hobbs describe the constitutional values enforced by the Supreme Court of the United States? And "who and what [are] the Joneses of value" in contemporary constitutional law?

[ed. note--post updated with link to Professor Hobbs's web bio]

Thursday, October 17, 2013

Ellsworth on the selfishness of man and the righteous ruler

By Kevin C. Walsh

Following up on my earlier post introducing Oliver Ellsworth to readers of this blog, I now share an excerpt of Professor William Casto's biography that describes how, according to Casto, Ellsworth's Calvinism informed his understanding of the authority of government officials:

In 1800 when Ellsworth was on a diplomatic mission to France, he explained his understanding of human nature in a revealing conversation with Comte de Volney, a French philosopher. After Volney outlined a comprehensive plan for reorganizing the government of France, Ellsworth remarked, "there is one thing Mr. Volney for which you have made no provision . . . The Selfishness of Man." This pessimistic view of human nature is little more than a restatement of the doctrine of original sin that pictured humankind as inherently depraved. Even the phraseology is taken from the New Divinity that defined sin exclusively in terms of selfishness. For example, Joseph Bellamy wrote in his principal work, "From this same root--this disposition to love ourselves supremely, live to ourselves ultimately, and delight in that which is not God wholly--proceeds all our evil carriage toward our neighbor."

At first glance this doctrine of inherent depravity would seem to present an insurmountable obstacle to good government. After all, governors are themselves men. Therefore government would seem to be inevitably depraved. The Calvinists avoided this logical conclusion by invoking what was literally a deus ex machina. Government officials were not ordinary men. They were part of God's predestined plan, and they were selected by God to rule over men. This idea of divine selection was a common idea among Connecticut Calvinists and harmonized the apparent conflict between original sin and good government.

That Ellsworth embraced this idea of divine rule is evident in a closed 1789 senate debate in which, according to a fellow senator:

Ellsworth . . . got on the subject of Kings. Declared that the Sentence in the Primer ofFear God and honor King was of great importance that Kings were of divine appointment, that Saul the head & shoulders taller than the rest of the people was elected by God and anointed by his appointment.

This apparent reference to the divine right of kings should not be taken literally. If Ellsworth was a monarchist, he surely would not have espoused monarchy on the floor of the senate in 1789. He simply was too good a politician to commit such a gaffe. When Connecticut Calvinists used biblical verse to discuss government, they frequently used "king" as a generic word to signify government or government official. Therefore Ellsworth was saying that government officials--at least some of them--were "elected by God and anointed by his appointment."

This Calvinist idea of a Righteous Ruler explains many aspects of Ellsworth's public character. He clearly was an elitist who undoubtedly viewed himself as having been handpicked by God. He clearly sought to foster a righteous Calvinist order, and he undoubtedly viewed his opponents as unregenerate sinners. At the same time, we will see that Bellamy's The Wisdom of God permitted him to accept compromises and to work with fellow politicians who, according to Calvinist theology, were depraved.

[Casto, Oliver Ellsworth and the Creation of the Federal Republic at 24-25]

I welcome pointers toward sources that would assist in further understanding this account of government. Did Calvinists like Ellsworth rely on a deus ex machina, or is there more to the account than that? Would the idea of a righteous ruler have extended to judges in a system of separated powers? Or would it have been limited to those who could exercise will rather than judgment within their office?

 

 

 

Tuesday, October 15, 2013

"Catholic Priest Sues Defense Department Over Shutdown"

By Kevin C. Walsh

That is the headline from a BLT post today reporting that "[a] Catholic priest claiming he was barred from ministering at a U.S. Navy base because of the government shutdown is suing the Department of Defense, claiming violations of his First Amendment rights" (and RFRA, one should also note). According to the complaint, "[p]laintiffs seek a preliminary and permanent injunction preventing government interference with religious services by military chaplains to their congregants. Plaintiffs further seek a declaratory judgment that the Anti-Deficiency Act as applied to the sermons and counseling of the United States Military Chaplains violates the Free Speech, Free Association, and Free Exercise Clauses of the First Amendment of the United States Constitution and the Religious Freedom Restoration Act of 1993." Plaintiffs are represented by Thomas More Law Center, which has issued a press release about the case (including a photo of what looks to be a sign on the chapel door).

As some of the astute commenters at the Volokh Conspiracy have noted in commenting on Jonathan Adler's post (where I learned about this lawsuit), it would be helpful to have some clarification of the underlying facts and background. Consider, for example, paragraphs 41-43 of the complaint:

41. The doors to the Kings Bay Chapel were locked on October 4, 2013, with the Holy Eucharist, Holy water, Catholic hymn books, and vessels all locked inside. Father Leonard and his parishioners, including Fred Naylor, were prohibited from entering.

42. The Department of Defense placed a sign outside of the Kings Bay Chapel stating that due to the government shutdown, there will be no Catholic Services until further notice.

43. The Kings Bay Chapel remains open to other faiths and is being used for their religious services. The Department of Defense has allowed the Protestant community to continue their services in the chapel during the government shutdown, without threat of penalty.

The chapel was locked but only for Catholics? Or is the chapel being used, but only for Protestant services because those are supplied by on-payroll chaplains instead of contractors?

The complaint also alleges that the cancellation of on-base Mass and confessions, among other things, effectively means that some base personnel cannot attend Mass or confession because of timing and other difficulties associated with attending the parish in town eight miles away. That sounds like a substantial burden on the exercise of religion, and it is hard to see how the government would satisfy strict scrutiny, so the RFRA claim may succeed. A better plaintiff would probably be one of the individuals who is now unable to attend Mass. But if Fr. Leonard is not even permitted on base to hear individual confessions, for example (see paragraph 40 of the complaint), his own exercise of religion is substantially burdened.  The RFRA claim is in Count I of the complaint. The next three counts assert free exercise, free assembly, and free speech claims. I am not familiar enough with the background of how the military supplies chaplains in order to have confidence in a legal analysis about those claims without learning more. (On special problems relating to access to military bases and the First Amendment, see United States v. Albertini, 472 U.S. 675 (1985)).I do wonder, though, about the interpretation of the Pay Our Military Act described in the complaint at paragraphs 51-52:

51. The Secretary of Defense issued a statement on October 5, 2013, providing guidance for the implementation of the Pay Our Military Act and “instructions for identifying those civilian personnel within the Department who ‘are providing support to members of the Armed Forces’ within the meaning of the Act. Secretary of Defense, October 5, 2013 Mem. available at http://www.defense.gov/pubs/POMA-implementation-guidance.pdf last visited Oct. 14, 2013.

52. The Memorandum states that after consulting with the Department of Justice, the Department of Defense reads the Pay Our Military Act’s standard of “support to members of the Armed Forces” to “require[ ] a focus on those employees whose responsibilities contribute to the morale, well-being, capabilities, and readiness of covered military members during the lapse of appropriations.” Id.; see Dept. of Defense Press Release, October 5, 2013, Statement by Secretary Hagel on the Pay Our Military Act, available at http://www.defense.gov/Releases/ReleaseID=16293 last visited Oct. 11, 2013.

Why wouldn't the chaplain services contribute to the "morale" and "well-being" of covered military members? Maybe the problem here is not with the rule but with its application?

Merits aside and procedural/jurisdictional glasses on, I am surprised that the complaint does not explicitly mention 28 U.S.C. § 2201 (providing a cause of action for declaratory relief) or explicitly mention the statutory provision in RFRA supplying the cause of action under that statute, but mistakenly cites 42 U.S.C. § 1983 as supplying a cause of action for the free assembly count. (Section 1983 supplies a cause of action against state officials, not federal officials. And insofar as the complaint seeks damages, stinginess with Bivens remedies is likely to be a problem, particularly because of the military context.)

Monday, October 14, 2013

Thank you, New Orleans City Council, for the clock, bell, and tower

By Kevin C. Walsh

I had the good fortune to spend this weekend in New Orleans celebrating a nephew's baptism. One of the highlights was a Sunday morning trip to the French Quarter, including wanderings around Jackson Square and St. Louis Cathedral. At 7:45 a.m. some of the bars still had partiers from the night before, but most of the quarter was in clean-up mode getting ready for the new day. Everything really came to life in the Square around 8 a.m. (although not the performance artist in metallic makeup who was performing as a statue).

The cathedral is a beautiful church with a fascinating history,and it has provided a form of continuity to a plaza that has witnessed transition from French to Spanish to French to American rule. It should be no surprise to learn that the clock tower was put up before the Establishment Clause was held to be incorporated against the states, but it was surprising to me to learn that the city government paid for part of the Cathedral. According to the Cathedral's website, the City Council paid for the Cathedral's clock and bell, as well as for part of the tower holding them:

In 1819 a New Orleans clockmaker, Jean Delachaux, was authorized by the trustees to obtain a suitable clock to be placed in the facade of the Cathedral.

As this was a project of general civic interest, the City Council agreed to the expense of buying the clock and its bell and also to share in the cost of erecting a central tower to house them. Delachaux brought the clock and bell with him from Paris and Latrobe records in his journal an incident which occurred when he was about to place the clock's bell in the tower:

When the new bell was ready to be put into the tower, I wrote him (Pere Antoine) a letter in Latin to apprise him of the circumstance, in order that, if the rites of the Church required any notice of it, he might avail himself of the occasion and do what he thought necessary. He thanked me, and I had the bell brought within the Church. After High Mass, he arranged a procession to the bell and regularly baptized her by the name of Victoire, the name embossed upon her by the founder.

 

Friday, October 11, 2013

A church plan exemption as part of a deal to end the government shutdown

By Kevin C. Walsh

NBC News reports that a "big development" in yesterday's Obama-House GOP meeting was that President Obama "opened the door to giving Republicans a concession to reopen the government--with the understanding that the concession would be something the GOP would have ALREADY GOTTEN during normal budget talks (maybe like repeal of the medical device tax)." (emphasis in original)

Another proposal for the negotiators to consider is giving a concession that accomplishes through legislation what would otherwise be accomplished through litigation.

The particular proposal I have in mind would be to expand the religious employer exemption from the contraceptives mandate to employers who participate in church plans. The legal rationales for such a proposal have already been laid out in comments filed by the Church Alliance this past April in response to the Notice of Proposed Rulemaking. To those comments, I would add the observation that the strength of the legal claims in Little Sisters of the Poor v. Sebelius provides another reason to consider such an exemption. If church plans and plan members are going to prevail anyway, but only after some (deserved) embarrassment to the Administration, it would be better to get something for it now instead.

A church plan exemption would not put an end to all of the litigation, by any means, and it is less (in my view) than RFRA already requires. But it would be a visible "get" for GOP negotiators and a costless "give" for the Administration (at least insofar as the interest groups who would be upset by the "give" recognize that the likelihood of the Administration actually prevailing in the Little Sisters case is rather low).

Wednesday, October 2, 2013

An interview with Sister Constance Veit, l.s.p.

By Kevin C. Walsh

Over at National Review Online, Kathryn Jean Lopez has an interview with Sister Constance Veit, l.s.p.,communications director of the Little Sisters of the Poor, about the Little Sisters' lawsuit attempting to prevent enforcement of the federal contraceptives mandate against the Little Sisters' homes and the Christian Brothers entities with whom they cooperate in providing health benefits plans for the homes' employees.

(By the way, if any legislator or staffer reading Sr. Constance's interview is interested in a legislative proposal that would help the Little Sisters and others, and that might actually stand a chance of attracting bipartisan support (a face-saver for Republicans and Democrats alike), just let me know. I drafted a letter about the proposal to one public official yesterday, but have had trouble figuring out how to get it to him or his staff in a way that it would actually be read during this shutdown.) 

Tuesday, October 1, 2013

The limited political competence of the institutional church and the religious obligations of Christians in the political spehere

By Kevin C. Walsh

As Michael observes, this new interview with Pope Francis is remarkable. Pope Francis's interview contains a "separate spheres" description of the relationship between church teaching and the obligations of political officials that, as he acknowledges, differs in "accent" from the way this relationship has previously been described.

For those concerned with the development of Catholic legal theory, it is becoming increasingly clear that renewed attention must be given to the relationship between Catholic social teaching and positive law. As I read Pope Francis's interview, it is important to distinguish between the limited political competence of the institutional church, on the one hand, and the religious obligations of Christians in the political sphere, on the other. The lay Christian's obligations as a citizen of the earthly city are underdetermined in specificity by the Church's social teaching. But as Gaudium et Spes instructs, the laity must not forget that "it is generally the function of their well-formed Christian conscience to see that the divine law is inscribed in the life of the earthly city." 

From the perspective of Catholic legal theory more particularly, perhaps there is an analogy here with the way in which the positive law is underdetermined in specificity by the natural law. The positive law must always be shaped by reference to the natural law, but it underdetermines the content of positive law. As John Finnis has explained, "[n]atural law theory's central strategy for explaining the law's authority points to the under-determinacy (far short of sheer indeterminacy) of most if not all of practical reasons's requirements in the field of open-ended (not merely technological) self-determination by individuals and societies." Collected Essays of John Finnis, Vol. IV, Essay V, p. 114.

In what follows, I situate Pope Francis's comments in relation to observations of the Second Vatican Council in Gaudium et Spes and Pope Benedict XVI in Caritas in Veritate.

Continue reading

Monday, September 30, 2013

Dignity in Windsor, at the VC and in NJ

By Kevin C. Walsh

A few posts over at The Volokh Conspiracy at the end of last week raised some good questions about the basis for, and going-forward import of, the Supreme Court’s invalidation of DOMA in United States v. Windsor. In two posts (so far), Neomi Rao has probed the Windsor majority opinion’s use of “dignity,” while Dale Carpenter has provided a different take on the basis for Windsor. And Will Baude has written a post analyzing Friday’s New Jersey trial court ruling that New Jersey must extend the designation of “marriage” to its civil unions (which in New Jersey provide the same legal benefits under New Jersey law as marriage). These posts highlight the confusion that Windsor has spawned by its lack of a clear legal basis. (But see Ernest A. Young, United States v. Windsor and the Role of State Law in Defining Rights Claims, 99 Va. L. Rev. Online 39, 40 (2013) (“[T]he trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite  evident on the face of Justice Kennedy’s opinion.”).)

Some of this confusion stems, in my view, from Justice Kennedy’s description of state marriage law as conferring “dignity and status of immense import” upon those authorized to marry by state law. This understanding locates in the State much greater power than it possesses in a limited government. Properly understood, the State can undermine or promote human dignity through its laws (and in many other ways as well), but the State does not “confer” dignity. Once one assigns to the State a power that it is neither authorized nor suited to exercise, the boundaries that one then seeks to place around exercises of that power risk being arbitrary. (A similar dynamic comes into play when one assigns an attribute to the State that it does not, properly speaking, possess. Perhaps for this reason, the confusion surrounding Windsor resembles something of the confusion surrounding the Supreme Court’s use of “dignity” in its sovereign immunity jurisprudence.)

Whatever the sources of the confusion in Windsor, it is becoming increasingly clear that Windsor itself is a significant source of confusion for courts trying to figure out its legal import. This is apparent in last Friday's ruling from New Jersey, Garden State Equality v. Dow. The court in Dow ruled that the equal protection guarantee of the New Jersey Constitution requires New Jersey to extend the designation of "marriage" to same-sex couples that previously were eligible for civil unions in the state. The court's ruling rests on an interpretation and extension of the New Jersey Supreme Court's 2006 decision in Lewis v. Harris. In that case, the New Jersey Supreme Court held that the same state-law rights and benefits provided to married couples in New Jersey must also be provided to same-sex couples eligible for domestic partnerships. The problem with the domestic partnership scheme at issue in that case was that domestic partners received fewer state-law rights and benefits than married couples in New Jersey. The court in Lewis held that there was no fundamental right to marry, but that the state constitution's equal protection guarantee protected against discrimination in the form of fewer benefits for same-sex couples.

Following Lewis v. Harris, the New Jersey legislature enacted civil union legislation that provided same-sex couples in civil unions with identical state-law rights and benefits as enjoyed by married couples. This appears to have remedied the state-constitutional equal protection violation found in Lewis v. Harris. And that is where matters stood until Windsor.

After Windsor held the federal DOMA unconstitutional, various agencies of the federal government determined that same-sex couples who were married under state law would receive federal benefits as married couples under federal law. But these agencies did not treat state civil unions like marriages. Accordingly, same-sex couples in civil unions in New Jersey were not entitled to the same federal benefits as same-sex couples in marriages in other states that recognized same-sex marriage.

Friday's ruling in Garden State Equality v. Dow holds that, in the wake of Windsor, New Jersey must allow same-sex couples to marry under New Jersey law in order to be entitled to the same federal-law rights and benefits as married couples, as required by the equal protection guarantee of the New Jersey Constitution as construed in Lewis v. Harris. Here is how the Dow court summarizes its reasoning:

Under the New Jersey Supreme Court's opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples. The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples. The New Jersey legislature chose the latter option when it adopted the Civil Union Act. Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples. Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State.

The ineligibility of same-sex couples for federal benefits is currently harming same-sex couples in New Jersey in a wide range of contexts: civil union partners who are federal employees living in New Jersey are ineligible for marital rights with regard to the federal pension system, all civil union partners who are employees working for businesses to which the Family and Medical Leave Act applies may not rely on its statutory protections for spouses, and civil union couples may not access the federal tax benefits that married couples enjoy. And if the trend of federal agencies deeming civil union partners ineligible for benefits continues, plaintiffs will suffer even more, while their opposite-sex New Jersey counterparts continue to receive federal marital benefits for no reason other than the label placed upon their relationships by the State. This unequal treatment requires that New Jersey extend civil marriage to same-sex couples to satisfy the equal protection guarantees of the New Jersey Constitution as interpreted by the New Jersey Supreme Court in Lewis. Same-sex couples must be allowed to marry in order to obtain equal protection of the law under the New Jersey Constitution.

The court's reasoning is confusing. If the Civil Union Act remedied the violation of New Jersey's equal protection guarantee by ensuring identical state-law rights and benefits, then how does the new availability of federal-law rights and benefits to those who are married under federal law because married under state law affect the requirements of the equal protection guarantee of the New Jersey Constitution for couples who do not have a state-constitutional-right to marry? The court's reasoning seems to conclude that the New Jersey Constitution requires access to the federal law benefits enjoyed by married same-sex couples in other states. But if the only reason that those couples are entitled to those federal-law benefits is because the state in which those couples were married has chosen to confer the dignity and status of marriage on those couples, then why should a different state's constitutional equal protection guarantee require entitlement to federal-law benefits when that state has not chosen to confer the dignity and status of marriage on those couples?

Further, consider the following:

- "Under the New Jersey Supreme Court's opinion in Lewis v. Harris, 188 N.J. 415 (2006), same-sex couples are entitled to the same rights and benefits as opposite-sex couples." But what "same rights and benefits"? Under state law? Federal law? Both? It is hard to believe that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- "The Lewis Court held that the New Jersey Constitution required the State to either grant same-sex couples the right to marry or create a parallel statutory structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples." All the same rights and benefits under state law? Under federal law? Both? Again, it is difficult to imagine that Lewis v. Harris required the New Jersey legislature to provide same-sex couples with the same benefits under federal law as married opposite-sex couples.

- "The New Jersey legislature chose the latter option when it adopted the Civil Union Act." Since the Civil Union Act did not do anything to provide same-sex couples with the benefits of marriage under federal law, the New Jersey legislature chose a system in which same-sex couples could obtain all the same rights and benefits under state law that are available to opposite-sex married couples. So when the court says that Lewis required a choice between same-sex marriage and "a parallel structure that allows those couples to obtain all the same rights and benefits that are available to opposite-sex married couples," that parallel structure was measured by reference to state-law rights.

- "Since the United States Supreme Court decision in United States v. Windsor, __ U.S. ___, 133 S.Ct. 2675 (2013), invalidated the Defense of Marriage Act, several federal agencies have acted to extend marital benefits to same-sex married couples. However, the majority of those agencies have not extended eligibility for those benefits to civil union couples. As a result, New Jersey same-sex couples in civil unions are no longer entitled to all of the same rights and benefits as opposite-sex married couples." But same-sex couples in civil unions in New Jersey were not previously entitled to all of the same rights and benefits under federal law as opposite-sex married couples in New Jersey. And that did not violate the New Jersey Constitution. Same-sex couples in civil unions in New Jersey were entitled to the same rights and benefits under state law before Windsor, and they remain entitled to the same rights and benefits under state law after Windsor.

- "Whereas before Windsor same-sex couples in New Jersey would have been denied federal benefits regardless of what their relationship was called, these couples are now denied benefits solely as a result of the label placed upon them by the State." WIndsor held unconstitutional the refusal of federal-law marriage benefits to those upon whom the state conferred the dignity and status of marriage. Same-sex couples in New Jersey are not couples upon whom the state has conferred the dignity and status of marriage. Wasn't that the basic function of the Lewis court's distinction between interpreting the New Jersey Constitution to require "marriage" on the one hand, versus interpreting the New Jersey Constitution to allow civil unions with identical rights and benefits as marriage under a different label, on the other?

Tuesday, September 24, 2013

The Little Sisters of the Poor: Ordinarily in Their Homes for the Elderly Poor, but Today in Federal Court

By Kevin C. Walsh

Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters' charism is one of hospitality, in which the Sisters strive to "be little in order to be close to the most humble, and [to] be close to make them happy."

Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph's Home in Richmond (including two Sisters from St. Martin's Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes' residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.  

Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”

That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).

Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph's Home's chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as "religious employers." But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.

The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.   

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