Free Exercise Clause

Burwell v. Hobby Lobby Stores; Conestoga Wood Specialties Corp. v. Sebelius

Issues

  1. Does the Religious Freedom Restoration Act protect for-profit corporations?
  2. Does the contraceptive-coverage Mandate of the Patient Protection and Affordable Care Act of 2010 violate corporations’ religious exercise rights?

 

As part of the Affordable Care Act ("ACA"), the Department of Health and Human Services ("HHS") adopted a mandate requiring that employment-based health plans covered by the Employment Retirement Income Security Act ("ERISA") include twenty contraceptive methods. Two corporations, Hobby Lobby and Conestoga Wood, sued, objecting on religious grounds to the inclusion of four of the methods because they prevent the implantation of a fertilized egg. The corporations argue that the Mandate offends their religious rights under the Religious Freedom Restoration Act ("RFRA") and the Free Exercise Clause. The government argues that corporations do not have these rights; and, in any case, the Mandate is statutorily and constitutionally permissible. The Supreme Court will consider whether for-profit corporations can sue under RFRA or the Free Exercise  Clause,  and whether this mandate violates corporations’ right to exercise religion. The Court’s ruling may significantly impact foundational principles of corporate law and the scope of corporations’ First Amendment rights. This case will also impact the Affordable Care Act’s power to mandate health plans.

Questions as Framed for the Court by the Parties

Sebelius v. Hobby Lobby Stores

The Religious Freedom Restoration Act of 1993 (RFRA) 42 U.S.C. 2000bb et seq., provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest. 42 U.S.C. 2000bb-1(a) and (b). The question presented is whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by federal law, based on the religious objections of the corporation's owners.

 

Conestoga Wood Specialties Corp. v. Sebelius

Whether the religious owners of a family business, or their closely-held business corporation, have free exercise rights that are violated by the application of the contraceptive-coverage Mandate of the Patient Protection and Affordable Care Act of 2010 (“ACA”).

Under the Patient Protection and Affordable Care Act (“ACA”), employment-based health care plans covered by the Employee Retirement Income Security Act (“ERISA”) are required to provide coverage for certain preventative health services. SeeHobby

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Carson v. Makin

Issues

Can a state restrict students’ access to a state-sponsored financial assistance program when the aid would fund attending private religious schools with religious teaching?

This case asks the Supreme Court to balance state public school funding schemes and First Amendment religious freedoms. Maine enacted a law for School Administrative Units without public secondary schools that allows them to provide tuition assistance for students to attend approved, nonsectarian private schools. Carson, Gillis, and Nelson (collectively “Carson”) contend that the nonsectarian requirement constitutes religious discrimination in violation of the Free Exercise Clause of the First Amendment. Makin, in her official capacity as the Commissioner of the Maine Department of Education, counters that Maine’s public school funding scheme is permissible because its purpose of funding secular public education implicates only religious “use” and not religious “status.” The outcome of this case has heavy implications for religious freedom, state school funding schemes, and accessibility to schooling.

Questions as Framed for the Court by the Parties

Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Maine’s constitution mandates the state legislature to require towns to provide “support and maintenance” of public schools at the towns’ own expenses. Carson v. Makin at 25. To do so, the legislature divided the state into 260 school administrative units (“SAUs”) and required that each SAU “make suitable provisions” to maintain and support public schools. Id. Less than half of the SAUs contain a public secondary school. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Catholic Charities Bureau, Inc., et al., v. Wisconsin Labor & Industry Review Commission, et al.

Issues

Does Wisconsin violate the First Amendment’s religion clauses by denying a religious organization a tax exemption available under the state’s unemployment compensation system to organizations that are church-controlled and operated for primarily religious purposes?

This case asks the Court to determine whether Wisconsin violates the Constitution’s First Amendment by denying a particular religious organization a tax exemption under Wisconsin’s unemployment compensation system. Catholic Charities argues that the Wisconsin Supreme Court’s interpretation and application of the statute to deny the organization an exemption violates the First Amendment’s Establishment and Free Exercise Clauses. Specifically, Catholic Charities argues that the court’s decision violates the church’s autonomy, entangles the state in religious matters, and discriminates among religions for their church organizational structure and their distinct religious beliefs and practices. Wisconsin, on the other hand, maintains that the exemption and its interpretation effectuate no constitutional violations. Wisconsin argues that the exemption and the court’s interpretation do not infringe on the church’s autonomy, do not cause the state to become excessively entangled in religion, and do not discriminate among religions. This case directly calls for a balancing of church and state interests while also having implications for both charities and unemployment insurance on a large scale.

Questions as Framed for the Court by the Parties

Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior. 

In 1932, Wisconsin passed the nation’s first unemployment compensation statute, Wisconsin Statute § 108.02(15). Catholic Charities Bureau, Inc. v. State at 16. The statute implemented unemployment compensation coverage for unemployed workers.

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Espinoza v. Montana Department of Revenue

Issues

Does the Montana constitutional provision barring all religious entities from participating in a generally available benefit program—a student scholarship fund—violate the Religion Clauses of the First Amendment or violate the Equal Protection Clause of the Fourteenth Amendment?

Court below

This case asks the U.S. Supreme Court to consider the extent to which there is “room for play in the joints” between the Religion Clauses in the First Amendment of the U.S. Constitution, namely the Free Exercise Clause and the Establishment Clause. While the Free Exercise Clause forbids the government from burdening religious practice, the Establishment Clause forbids the government from advancing it. But in some instances, the government may operate in the sphere of religion—what is known as the “room for play between the joints”—without running afoul of either provision. Article X, Section 6(1) of the Montana Constitution excludes religious entities from participating in some generally applicable funding programs. In drafting the provision, legislators sought to erect a greater barrier between church and state. However, the provision may also have unduly burdened religious practice. Kendra Espinoza, Jeri Ellen Anderson, and Jaime Schaefer—mothers who wish to use state-administered scholarship funds to send their children to religious schools—argue that Article X, Section 6(1) violates the Religion Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by forbidding scholarship recipients from using the funds to cover tuition expenses at religiously-affiliated schools. The Montana Department of Revenue counters that Article X, Section 6(1) does not violate the Free Exercise Clause or the Equal Protection Clause and does not create hostility toward religion in violation of the Establishment Clause. Instead, the Department contends that Article X, Section 6(1) creates a greater barrier between church and state. The outcome of this case will impact other religious entities’ ability to participate in government benefit programs, and it will impact the national debate over school choice programs.

Questions as Framed for the Court by the Parties

Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

In 2015, the Montana State Legislature (the “Legislature”) established a Tax Credit Program wherein a taxpayer could receive dollar-for-dollar tax credit up to $150 for the taxpayer’s donations to a Student Scholarship Organization (“SSO”) in Montana.

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Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal

Issues

Whether public health and safety concerns and the potential for non-religious use are sufficiently compelling reasons for the government to prevent the religious group, UDV, from using a tea containing a Schedule 1 hallucinogenic for religious ceremonies.

 

The Religious Freedom Restoration Act of 1993 (“RFRA”) generally prohibits the federal government from restricting the use of controlled substances in bona fide religious ceremonies. A small North American sect of the Brazilian group, “O Centro Espirita Beneficiente Uniao Do Vegetal” (“UDV”) has challenged the government’s enforcement of a ban on DMT, a Schedule I narcotic and principle ingredient of “ hoasca ” a tea imported from South America that is central to UDV’s religious rituals. The government argues that its restriction on UDV falls within narrow RFRA exceptions because of the health risks associated with the use of DMT, the potential for diversion of the substance to non-religious uses, and the 1971 United Nations Convention ban on the importation of DMT. In this  case  the Supreme Court will decide whether RFRA's prohibition extends to the use and importation of Schedule I narcotics, which are those substances the federal government deems most harmful.

Questions as Framed for the Court by the Parties

Whether the Religious Freedom Restoration Act of 1993 (RFRA) requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty.

In May, 1999, federal customs officials seized goods labeled “tea extract” en route to Sante Fe, New Mexico, to Jeffrey Bronfman, President of the United States Chapter of a Brazilian religious group known as O Centro Espirita Beneficiente Uniao Do Vegetal (“UDV”) — roughly translated, “The Beneficial Spiritualist Center of the Union of the Vegetable.” See Gonzales v. O Centro Espirita Beneficiente Uniao De Vegetal, No. 04-1084 (U.S.

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Kennedy v. Bremerton School District

Issues

Does a prayer said by a public-school football coach in front of students constitute government speech unprotected by the First Amendment or private speech; and if it is private speech protected under the Free Speech and Free Exercise Clause, must a public school still prohibit it under the Establishment Clause?  

This case asks the Supreme Court to decide whether a public school can prohibit a football coach from praying at midfield after a game ends. Petitioner Joseph A. Kennedy argues that he has a First Amendment right to pray on school grounds as long as he does so in his capacity as a private citizen and not as a coach. Respondent Bremerton School District contends that Kennedy impermissibly engaged in religious expression while in the course of performing his duties as a public-school employee. Therefore, Bremerton School District argues that it is properly within their discretion to prohibit Kennedy’s conduct as government speech. Bremerton School District further asserts that even if Kennedy’s prayer is properly considered private speech, they are compelled to prohibit it as a violation of the Establishment Clause. This case holds implications for the nature of the coach-student relationship, the scope of religious expression on public grounds, and the appropriate balance between free speech and religious pluralism.

Questions as Framed for the Court by the Parties

(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Joseph A. Kennedy (“Kennedy”) is a practicing Christian who served as a football coach at Bremerton High School in Bremerton, Washington, from 2008 to 2015. Kennedy v. Bremerton School District, at 1010.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe and Professor Michael Heise for their guidance and insights into this case.

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Mahmoud v. Taylor

Issues

Does a public school burden a family’s religious exercise when it requires elementary school children to participate in instruction on gender and sexuality, against the family’s religious convictions, without notice or opportunity to opt out?

This case asks whether a public school violates the Free Exercise Clause when it includes books containing LGBTQ characters in its curriculum and does not allow families to exempt their children’s exposure to such books on religious grounds. Petitioners argue that their children’s exposure to books that contain LGBTQ characters and themes burdens their religious exercise and that their claims should be examined under strict scrutiny, a rigorous standard of review. Respondents counter that free exercise claims must be supported by evidence of coercion, not mere exposure to ideas that go against one’s religion, and that their actions need only meet a rational basis standard of review. This case holds major implications for the future of LGBTQ education and the scope of religious and parental rights.

Questions as Framed for the Court by the Parties

Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.

The Free Exercise Clause of the First Amendment states that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” Mahmoud v.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission

Issues

Does compelling a business owner to engage in artistic expression which goes against his deeply-held religious beliefs in accordance with Colorado’s public accommodation anti-discrimination law violate either the Free Speech Clause or the Free Exercise Clause of the First Amendment?

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. Colorado’s Anti-Discrimination Act (“CADA”) prohibits commercial businesses from denying service to patrons based on protected characteristics, including sexual orientation. Masterpiece Cakeshop and its owner Jack Phillips contend that CADA violates their First Amendment rights to free artistic expression and religious belief. The Colorado Civil Rights Commission (“CCRC”) and Charlie Craig and David Mullins counter that Masterpiece Cakeshop’s First Amendment rights are not at issue, as CADA applies in all cases of commercial discrimination, and that merely invoking such rights should not exempt Petitioner from complying with the anti-discrimination law. The outcome of this case has heavy implications for LGBTQ rights, creative expression, and religious freedom.

Questions as Framed for the Court by the Parties

Whether applying Colorado’s public-accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.

In July 2012, Respondents Charlie Craig and David Mullins visited Petitioner Masterpiece Cakeshop, a Colorado bakery, to request that its owner, Petitioner Jack Phillips, create a cake for their same-sex wedding. Craig v. Masterpiece Cakeshop, Inc. at 1. Phillips declined their request, explaining that he would not make a custom wedding cake for them because of his Christian beliefs, but that he would be happy to sell them any other baked goods. Id.

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Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Oklahoma Statewide Charter School Board v. Drummond

Issues

(1) Whether a privately owned school that participates in a state’s charter school program is a government entity or engages in state action; and (2) whether a state can exclude a privately owned school from its charter school program solely because it is religious.

This case asks the Supreme Court to determine if a state can exclude religious schools from participating in its charter school program. The state of Oklahoma operates a charter school program to which St. Isidore, a Catholic institution, applied. The Oklahoma Virtual Charter School Board (the “Board”) granted St. Isidore’s application. The Oklahoma Supreme Court ordered the state to revoke St. Isidore’s charter school contract because it is a religious school, and charter schools are public entities that must be nonsectarian under Oklahoma law. The Board contends that Oklahoma charter schools are not public entities engaged in state action, and thus the prohibition on sectarian charter schools violates its Free Exercise rights. Drummond contends that charter schools are public entities engaging in state action that a state can require to be nonsectarian without violating the Free Exercise Clause. This case touches upon important questions regarding the increasing prevalence of charter schools and their impact on equitable student achievement outcomes, as well as on protecting parental choice. 

Questions as Framed for the Court by the Parties

(1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) whether a state violates the First Amendment's free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or instead a state can justify such an exclusion by invoking anti-establishment interests that go further than the First Amendment's establishment clause requires.

The Archdiocese of Oklahoma City and the Diocese of Tulsa applied to establish St. Isidore of Seville Catholic Virtual School (“St. Isidore”) as an online charter school. Drummond v. Oklahoma Statewide Virtual Charter School Board at 4. St.

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Ramirez v. Collier

Issues

Does Texas’s prohibition against a spiritual advisor 1) touching a capital prisoner or 2) singing or saying prayers during an execution violate either the free exercise clause or the Religious Land Use and Institutionalized Persons Act? 

This case asks the Supreme Court to decide whether prisoners have the right to have their spiritual advisors conduct religious actions within execution chambers. Although the Supreme Court has established that there is a right to have a spiritual advisor present, this case asks the court to further define the extent to which spiritual advisors can facilitate religious practice while present. Petitioner John Henry Ramirez argues that not allowing touch or audible prayer by a spiritual advisor severely burdens his religious liberty. Respondents, including Texas Department of Criminal Justice Executive Director Bryan Collier, counter that forbidding these actions is the least restrictive option the prison has for permitting an inmate’s religious exercise while maintaining safety and security during executions. The decision in this case will affect prisons’ execution procedures and religious rights of prisoners.

Questions as Framed for the Court by the Parties

(1) Whether, consistent with the free exercise clause and Religious Land Use and Institutionalized Persons Act, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from laying his hands on his parishioner as he dies, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest; and (2) whether, considering the free exercise clause and RLUIPA, Texas’ decision to allow Ramirez’s pastor to enter the execution chamber, but forbidding the pastor from singing prayers, saying prayers or scripture, or whispering prayers or scripture, substantially burden the exercise of his religion, so as to require Texas to justify the deprivation as the least restrictive means of advancing a compelling governmental interest.

In 2008, a Texas state court convicted petitioner John Henry Ramirez (“Ramirez”) of capital murder for stabbing a man 29 times outside a convenience store and robbing him of $1.25. Ramirez v. Collier, at 1. Although Ramirez has always believed in God, while in prison he became a devout Christian.

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