Nahmod Law

A Rare Unanimous Religion Clauses Decision by the Supreme Court

It is rare for the Justices of the Supreme Court to hand down a unanimous decision in a Religion Clauses case. But it happened on January 11, 2012, in Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S. Ct. — (2012). This case involved the so-called “ministerial exception” to otherwise generally applicable federal law.

Perich, formerly a “called teacher” for the Hosanna-Tabor Evangelical Church and School (a member of the Lutheran Church-Missouri Synod), had filed a claim with the EEOC contending that she was terminated in violation of the Americans with Disabilities Act. Thereafter, the EEOC filed suit against Hosanna-Tabor (Perich intervened in this EEOC lawsuit) alleging that Perich had been fired in retaliation for previously threatening to file an ADA lawsuit. According to the Church, this threat contravened Church law.

Hosanna-Tabor countered that it was protected by a ministerial exception under the First Amendment’s Religion Clauses because the EEOC’s and Perich’s claims involved the employment relationship between a church and a minister.

The Decision

Reversing the Sixth Circuit, which had determined that Perich did not qualify as a minister, the Supreme Court in an unanimous decision written by Chief Justice Roberts, found that she did indeed qualify as a minister and that Hosanna-Tabor was protected by the ministerial exception from suit for retaliation. Read the rest of this entry »

I blogged over two years ago on the Commerce Clause–see post of September 26, 2009–where I provided a doctrinal and historical perspective that readers might want to consult for background.

The Florida Case and the Patient Protection and Affordable Care Act

In this post I want to say some things about the high-profile case currently pending before the Supreme Court from the Eleventh Circuit, Florida v. U.S. Dept of Health and Human Services, 648 F.3d 1235 (11th Cir. 2011), cert granted, 132 S. Ct. — (2011). As I discuss below, this case in essentially about constitutional trust regarding the limits of Congressional power under the Commerce Clause. And it is, in my view, a rather easy Commerce Clause case!

In this very lengthy decision, a divided panel of the Eleventh Circuit held unconstitutional the individual mandate to purchase health care insurance set out in the politically controversial Patient Protection and Affordable Care Act (PDF). According to the panel, this provision, which requires the purchase of health care insurance–a requirement enforced by a monetary penalty for non-compliance to be included on the person’s federal tax return–exceeded Congress’s power under the Commerce Clause.

(Other aspects of this decision (a) upheld the Act’s  Medicaid expansion provisions against a Spending Power challenge, (b) held that the individual mandate was a penalty, not a tax, and thus Congress could not use the Taxing power to enact it, (c) held that the individual mandate was not a valid exercise of Congress’s power under the Necessary and Proper Clause and (d) held that the (unconstitutional) individual mandate could be severed from the rest of the Act.)

The panel, obviously aware of the importance and high-visibility of its decision, extensively canvassed the relevant Supreme Court Commerce Clause jurisprudence. It reached as far back as Chief Justice Marshall in Gibbons v. Ogden in the early 19th century. It went through the Court’s New Deal decisions which began to defer increasingly to Congressional exercises of the Commerce Clause power. It then continued with an analysis of the Court’s more recent decisions, including Lopez (gun-possession-near-schools) Morrison (The Violence Against Women Act) and Raich (growing marijuana for personal medical use). The Eleventh Circuit concluded that in light of these decisions, Congress had exceeded its power under the Commerce Clause. Read the rest of this entry »

THE BLOG IS BACK!

Introduction: The DeShaney case

In DeShaney v. Winnebago County, 489 U.S. 189 (1989), a tragic case involving an attempt under section 1983 and substantive due process to hold social service officials personally liable in damages for their failure to prevent a father from physically abusing his infant son, the Supreme Court ruled that the Due Process Clause does not impose affirmative duties on governments and their officials to prevent private harm. Put another way, the Constitution is a “charter of negative liberties.” This decision gave rise to dissenting Justice Blackmun‘s famous lament about “Poor Joshua.”

However, the Court in DeShaney did go on to suggest that there were two ways in which this no-duty rule could be end-run. The first was where the government or its officials had a special relationship with the injured person, such that the injured person was disabled by government from protecting himself or herself. The second was where the government or its officials created the danger to the injured person.

These exceptions, though, are quite difficult for plaintiffs to satisfy, as the following three circuit court decisions illustrate. In addition, qualified immunity often protects a individual defendant from damages liability regardless of the possible existence of an affirmative duty.

Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010)

Police officers handcuffed a very intoxicated man at 1:33 a.m. after being called by employees of a bar, placed him in a squad car, told friends and relatives of the man that they would take him to his hotel but, instead, at 2:08 a.m., released him at his insistence at a gas station parking lot five or six miles from the hotel. About a half hour later the man was struck by a hit-and-run driver while walking to the hotel and subsequently died. Thereafter, the plaintiffs, on behalf of the decedent, filed a § 1983 substantive due process damages action against the officers. Reversing the district court’s denial to the defendants of summary judgment based on qualified immunity, the Fifth Circuit avoided deciding whether the decedent and the defendants had a special relationship, or had created the decedent’s danger, such that the defendants may have violated the decedent’s substantive due process rights. Instead, it held that in August 2007 the claimed right was not clearly established and that the defendants were therefore protected by qualified immunity. There was no case law on point at the time indicating that a special relationship could be created when a person was released from police custody. In addition, the Fifth Circuit, unlike other circuits, had not adopted the state-created danger theory in DeShaney cases. Read the rest of this entry »

Borough of Duryea v. Guarnieri: § 1983, Public Employees and the Petition Clause

The Supreme Court in 2011 handed down Borough of Duryea v. Guarnieri, 131 S. Ct. — (2011), which expressly rejected the minority position of the Third Circuit–see San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)–and adopted that of the other circuits. Specifically, the Court held that a public employee who claims government employer retaliation in violation of the Petition Clause must demonstrate that his or her petition raises a matter of public concern and is not just a private grievance. Otherwise, the public employee may not rely on the Petition Clause.

The Decision

In the case before the Court, the § 1983 plaintiff, a former police chief, alleged retaliation because he had both filed a grievance and brought his § 1983 action against the defendant borough. A jury awarded compensatory damages to the plaintiff and the Third Circuit affirmed, relying on its position that the Petition Clause may be used in public employee retaliation cases even if grievances and lawsuits giving rise to the alleged retaliation involved matters of private concern.

The Court, in an opinion by Justice Kennedy, reversed. It assumed that both grievances and lawsuits were generally protected by the Petition Clause but emphasized that its decision in this case related only to Petition Clause claims by public employees against their government employers. It then went on to rule that in the public employment setting, the Petition Clause was no broader in scope than the Free Speech Clause which had long had a public concern requirement. See Connick v. Myers, 461 U.S. 138 (1983).

(See also Pickering v. Board of Educ., 391 U.S. 563 (1968), dealing with balancing where public employee speech involves a matter of public concern, and Garcetti v. Ceballos, 547 U.S. 410 (2006), which excluded Free Speech Clause protection from government employer retaliation for public employee speech that is part of the employee’s job responsibilities; I extensively criticize Garcetti in my post of December 8, 2009).

Like speech, the Court argued, petitions could interfere with the efficient and effective operation of government; indeed, lawsuits were often even more disruptive than speech because they called for a government response. Further, judicial second-guessing and intervention imposed significant costs on government employers. Where a petition such as a grievance raised only an issue of private concern, the public employee was not acting as a citizen but was rather complaining to the government as employer, not as sovereign. Such a public employee should accordingly not be protected by the Petition Clause any more than a public employee raising an issue of private concern was protected by the Free Speech Clause under Connick. Read the rest of this entry »

Since August 27, 2010, I have published nine posts dealing with the First Amendment topic of government speech and now-retired Justice David Souter‘s engagement with the topic.

The government speech doctrine began in the Supreme Court with Rust v. Sullivan, 500 U.S. 173 (1991)–see post of September 7, 2010–handed down in Justice Souter’s first term, and continued through Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)–see post of December 30, 2010–handed down in Justice Souter’s last term.

My posts, which have separately addressed all of the Supreme Court’s government speech cases, were based on drafts of a  then-forthcoming Brigham Young University Law Review article.

The article, now published, is entitled Justice Souter on Government Speech and its cite is 2010 Brigham Young Univ. L. Rev. 2097.

It is now available for downloading through the link below. I hope you find it informative.

Here is the link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1795624.

Justice Souter could not have imagined in his first year on the Court that Rust v. Sullivan, 500 U.S. 173 (1991), which he joined–see post of September 7, 2010–would be transformed into the paradigmatic government speech case. He also could not have foreseen where the government speech doctrine would lead.

As his views on government speech evolved, they became increasingly thoughtful, even if not daring and path-breaking like the dissents of Justices Holmes and Brandeis in the First Amendment‘s “clear and present danger” years.

Justice Souter became increasingly concerned with the adverse effects of expanding the scope of the government speech doctrine and the consequent immunization from First Amendment scrutiny of government-directed speech.

His attempt–see post of November 10, 2010–to ground the government speech doctrine on the marketplace of ideas rationale was noteworthy. In addition, his emphasis on political accountability and the related need to know that government is both speaking and communicating a particular message was insightful.

Finally, he warned in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), of the need to reconcile the government speech doctrine with the Establishment Clause in order to ensure that the former did not swallow up the latter. See post of December 30, 2010.

For his contributions to, and wise cautionary observations about, the government speech doctrine, now-retired Justice David Souter deserves our appreciation.

Pleasant Grove City v. Summum: Justice Souter’s Last Government Speech Opinion

In Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), the Court, in an opinion by Justice Alito, held that a city’s rejection of a privately donated monument offered by the Summum sect for permanent display in a public park did not violate the First Amendment despite the city’s acceptance decades earlier of a privately donated Ten Commandments monument in the same public park. The city’s rejection of the Summum monument was not impermissible viewpoint discrimination because its previous acceptance of the Ten Commandments monument was government speech.

The Government Speech Function of Monuments

The Court looked to tradition and history to determine that the Ten Commandments monument was indeed government speech:

“Governments have long used monuments to speak to the public. Since ancient times, kings, emperors, and other rulers have erected statues of themselves to remind their subjects of their authority and power. Triumphal arches,  columns, and other monuments have been built to commemorate military victories and sacrifices and other events of civic importance. A monument, by definition, is a structure that is designed as a means of expression.When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure.” 129 S. Ct. at 1132-33.

Then, contending that a reasonable observer would know that a monument on government land was necessarily representative of the government’s message, the Court analogized public property owners to other property owners:

“It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely–and reasonably–interpret them as conveying some message on the property owner’s behalf.”

Government Speech Need Not Communicate a Particular Message

Finally, the Court observed that a monument could be government speech even if it did not communicate a particular message. It said:

“Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention by the briefing in this case illustrate this phenomenon.

What, for example, is ‘the message’ of the Greco-Roman mosaic of the word ‘Imagine’ that was donated to New York City’s Central Park in memory of John Lennon? Some observers may ‘imagine’ the musical contributions that John Lennon would have made if he had not been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and may ‘imagine’ a world without religion, countries, possessions, greed, or hunger. Or, to take another example, what is ‘the message’ of the ‘large bronze statue displaying the word “peace” in many world languages’ that is displayed in Fayetteville, Arkansas?”

129 S.Ct. at 1135 (citations omitted). Read the rest of this entry »

Justice Souter’s Penultimate Government Speech Case: Garcetti v. Ceballos

In Garcetti v. Ceballos, 547 U.S. 410 (2006), an exceptionally important public employee free speech case discussed at greater length in a prior post, the Court held that a deputy district attorney’s First Amendment rights were not violated when he was allegedly retaliated against by his supervisors for writing a memo to them complaining of problems in the prosecution of a criminal case. The Court declared that public employee speech engaged in pursuant to that employee’s official duties was not protected from employer discipline by the First Amendment.

Writing for the Court, Justice Kennedy indicated that there was a government speech element present whenever public employees spoke pursuant to their official duties:

The significant point is that the memo was written pursuant to Ceballos’ official duties. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

547 U.S. at 421-22. Read the rest of this entry »

Scotus Review: The 2009 Term

On October 29, 2010, my colleague, Professor Christopher Schmidt, and I presented a review of the Supreme Court‘s important decisions from its 2009 Term (through June, 2010).

Our presentations took place at Chicago-Kent and were sponsored by the Kent chapters of the American Constitution Society and the Federalist Society. Kent’s Institute for Law and the Humanities, of which I am a co-director, also sponsored.

The two presentations, 30 minutes each, were followed by 15 minutes of questions and discussion.

Cases Covered

Professor Schmidt spoke first about U.S. v. Comstock (Necessary and Proper Clause); McDonald v. City of Chicago (Second Amendment and incorporation); and Citizens United v. FEC (corporate campaign expenditures and the First Amendment).

I spoke next about the following First Amendment free speech and religion cases: Holder v. Humanitarian Law Project (speech and material support for terrorists); U.S. v. Stevens (animal cruelty videos, the subject of my more extensive video presentation at the Chicago Bar Association, as noted in a previous post);  Christian Legal Society v. Martinez (college religious student group recognition and forum analysis); and  Salazar v. Buono (cross as war memorial and its sale by government).

These presentations are accessible through the following link:

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Real Player is free – download it here for PCs or here for Macs

I spoke about animal cruelty, crush videos and the Supreme Court‘s First Amendment decision in U.S. v. Stevens, 130 S. Ct. 1577 (2010), on October 21, 2010, at the Chicago Bar Association. I was asked to do so by the CBA’s Animal Law Committee.

My videotaped presentation, which I am pleased to make available to readers of this blog, lasts about forty minutes. It is followed by twenty minutes of discussion, also videotaped.

The first part of my presentation deals with the Free Exercise Clause, the second part with obscenity and child pornography under the Free Speech Clause, the third part with the Stevens decision itself and the last part with crush video legislation pending in Congress.

I hope you find it both interesting and informative.

video link (Requires Real Player)

Real Player is free – download it here for PCs or here for Macs