August 01, 2012
Corporate Exercise of Religion and Other Thoughts on the RFRA Claim in the Mandate Litigation
There has been a curious silence in the news and on the blogs about the preliminary injunction in Newland v. Sebelius. True, there are some unique issues involving the nature of the plaintiffs, but the case may indicate the direction that courts which get over the ripeness hump and do reach the RFRA claim might tend (and, as in all things, ripeness will come with time). Here are two questions that interested me.
First, on the issue of substantial burden, I was struck by the fact that Judge Kane did not really answer the question at all. He seemed to assume the substantial burden -- or perhaps to hold the "difficult questions" about substantial burden in abeyance. One of those difficult questions, he said, was: "Can a corporation exercise religion?" Three reactions:
- The answer to this question, posed in this way, must be yes. The Catholic Church is a non-profit corporation, and it certainly can exercise religion -- the free exercise component of the holding in Hosanna Tabor would make no sense if it and other religious non-profits could not. Indeed, some folks have made something like the claim that corporate free exercise, rather than individual free exercise, is the foundational right.
- Though the doctrine is controversial, we do say that corporations have rights of free speech. See Citizens United. If a corporation can speak in a way that is protected by the Speech Clause, why can it not exercise religion in a way that is protected by the Free Exercise Clause? And by extension, why can it not suffer substantial burdens on its free exercise under RFRA?
- Still, there is an interesting issue about who is exercising religion when what we've got is a publicly traded corporation. Suppose the shareholders do not care at all about the religious issue that the corporation has taken a stand on. What does it mean to say in that circumstance that the corporation is exercising religion?
Second, I was surprised at the court's skepticism with respect to the question of compelling interest. The court found that the plaintiffs were likely to succeed on the merits because the government did not show that its interest in the mandate was compelling. The reason: the many exceptions created by both Congress and HHS itself. "[T]his massive exemption completely undermines any compelling interest in applying the preventive care coverage mandate to Plaintiffs." More reactions:
- The court did not need to reach out and decide the question of compelling interest. Here the court really could have just assumed that the mandate advanced a compelling interest and moved right to least restrictive means. That the court found that the plaintiffs were likely to succeed on the compelling interest issue is noteworthy.
- Perhaps the most interesting thing of all to me: (richly deserving the hot pink highlight) note that the court decided the question of compelling interest by making the argument which I have claimed could ground a free exercise challenge as well. That is, that because the regulation contains hundreds of exceptions, it is not generally applicable and therefore falls outside the Smith framework (I have called this the individualized assessment exception to Smith, but for a much more thorough treatment of it, you will need to wait for my book, Tragedy & History: The Quality of Religious Liberty, due out in the spring (sorry for this and all future plugs, of which there will be many)).
- Of course, as a practical matter, courts may just avoid the constitutional question and just focus on RFRA. But to the extent that any do reach the free exercise question, the fact that the individualized assessment argument is already in the air as applied to the RFRA claim might be important.
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One would think that the Courts cannot and should not avoid The Constitutional question in regards to the Freedom of Assembly, which exists for all persons, including members of a Religious Faith Group, or a not for profit institution that is made up of a group of persons.
Posted by: N.D. | Nov 13, 2012 9:31:57 AM
Hosanna Tabor was not exactly consistent with the spirit of the Law, for although it is true that being a member of a Faith Community does not depend on whether one is male or female, or one's ancestry, or one's handicap, and thus it is not unjust discrimination to discriminate between those who believe in the tenants of a particular Faith Group, and those who don't, the Obama Administration decided to change the nature of the debate in the hope that they could redefine who does and does not qualify as a minister of Faith, to limit Religious Liberty. Ironically, although it is true that a Faith Group is not engaging in unjust discrimination when they discriminate between those persons who believe in the tenants of their Faith and those who don't, had Ms.Perich told the truth from the beginning, that she did, in fact, believe in the tenants of the Hosanna-Tabor Evangelical Church, and was in fact, let go due to a disability, this case would have illuminated the fact that the spirit of Law was not followed in her particular case, and that Hosanna-Tabor Evangelical did not follow The Spirit of The Law by firing Ms.Perich due to her disability.
Posted by: N.D. | Nov 13, 2012 10:25:41 AM