I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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The Onion and the Mississippi Legislature: In a contest whether life outpaces satire

Today’s Onion headline: “New Anti-Abortion Legislation Requires Doctors To Scale 18-Foot Wall Surrounding Clinic.” The story begins:

JACKSON, MS—In an effort to make certain that physicians who perform the procedure are fully qualified to do so, a new state law passed Tuesday will require Mississippi doctors to climb an 18-foot wall before entering any medical facility providing abortions.

The Clinic Fortification and Physician Excellence Act calls for the construction of concrete barriers nearly two stories tall and 4 feet thick around all clinics offering abortion services, and for physicians working at these sites to scale such barricades unassisted, a landmark piece of legislation that supporters hailed as a victory for women’s health.

h/t Anderson.

Yes, I am still alive

Two weeks ago, my laptop died an ignominious death. I discovered I had a much calmer– almost zen– reaction to a longer than usual period of borrowed computers, loaners, and the like, than I’d expected.

I was really frustrated that I could not post on Anderson’s site to ask about Hazel Brannon Smith and Ira Harkey. Didn’t they win Pulitzer Prizes? Am I remembering this wrongly?

There’s a lot I’ve had to say about the senate election (and the Supreme Court’s order today). I hope work allows me enough time to post about it. But, in any event, I’m more or less back.

Now, with all that off my chest, I’m going to go check about Ira Harkey and Hazel Smith.

Justice Sotomayor: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Screen Shot 2014-07-03 at 11.38.52 PM Under the Affordable Care Act, a religious organization employer that wishes to be exempt from the requirement to provide contraceptives need only fill out a form that notifies the government and the insurer that they are not going to pay for contraceptives, so the insurer can ensure that employees get such coverage. The form is very simple. It is reproduced above. Wheaton College objected to this procedure.  It filed suit under RFRA and alleged that the requirement to fill out this form was an unfair burden on their exercise of religion, because it would implicate them in an employee obtaining contraceptives.  They sought an injunction during the litigation, which the district court and then the Seventh Circuit denied Getting an injunction against enforcement of a federal statute pending appeal requires that the right asserted be clear.  The district court and the circuit court thought not. Today, the United States Supreme Court granted a stay pending appeal.  The order and dissenting opinion is here.  Lyle Denniston wrote about it at SCOTUS Blog. Justice Sotomayor, joined by Ginsburg and Kagan, wrote a vigorous dissent, focusing, first, on the degree to which this result seems to suggest that we were all being mislead by the language in the majority opinion in Hobby Lobby asserting that the holding was a narrow one.   Justice Sotomayor writes:

Wheaton nonetheless asserts that the exemption itself impermissibly bur- dens Wheaton’s free exercise of its religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory that its filing of a self-certification form will make it com- plicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects. Wheaton has not stated a viable claim under RFRA. Its claim ignores that the provision of con- traceptive coverage is triggered not by its completion of the self-certification form, but by federal law. Even assuming that the accommodation somehow bur- dens Wheaton’s religious exercise, the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling interests in public health and women’s well-being.  And the Court concluded that the accommodation “constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Ibid. Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position.   That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

Justice Sotomayor also notes that this form of relief is and should be extraordinarily rare:

Even if one accepts Wheaton’s view that the self- certification procedure violates RFRA, that would not justify the Court’s action today. The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where “the legal rights at issue are indisputably clear.” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted).

I was dubious about the assertions in the Hobby Lobby opinion that the holding was a narrow one, and expected at some time in the near future, the narrowing language would drop away.  But after the order list yesterday, and this order today, I’ll have to say I’m surprised that the narrowing language didn’t last a week.

RFRAs, the Establishment Clause, and Land Use Regulation (no! seriously!)

I’ve been giving a lot of thought about Religious Freedom Restoration Acts (RFRA), state and federal, since this Spring (with the passage of Mississippi’s own such act) and this week (with the Hobby Lobby case using the federal act).

Recall that we were told that the state act was fine because the federal act was fine.

What the language of the federal and state RFRA does is this:  It says that, if someone can show that a neutral statute of general application is a “substantial burden” on the exercise of their religious faith, the statute fails unless it can survive strict scrutiny review, which is the most onerous form of constitutional review.  Although the professor’s rubric that strict scrutiny is “strict in theory, fatal in fact,” may be slightly exaggerated, it’s not exaggerated by much.  If a court reaches the point of deciding a statute is a “substantial burden,” that statute is well on the way to being held illegal as applied under the language in RFRAs.

This Spring, my reaction to the passage of the Mississippi RFRA was a little bit visceral, a little bit little-c conservative (do we really know what this thing will do?), and a little bit willing to accept the arguments from supporters of LGBT rights that this was a serious blow to their efforts toward full citizenship.

I’m still where I was on the last point, but, having spent some time trying to become better informed, I’m a lot less reliant on a visceral hostility and more willing to phrase the middle point like this:  OK, given the federal experience and the literature, is this really something we want, and are we sure we know what it will do?

But I want to thrash this out with a more neutral question than gay rights or parades of horribles involving race and folks who believe in Christian identity or who believe as Christians that part of their faith is a Biblical basis for segregation.

Reading about the subject, I decided to seek out the writing of Douglas Laycock, a professor at the University of Virginia Law School, who is to a great extent the intellectual father of RFRAs.

One of his major articles, and a major issue for him, is about when (in his opinion) land use regulation can burden religious worship such that it would violate the RFRAs he is advocating.   The article, “State RFRAs and Land Use Regulation,” 32 U.C. Davis L. Rev. 755 (1999), is available online through Professor Laycock’s site at Virginia.

Laycock presents several problems for which he advocates RFRAs.  He is absolutely convinced that there is a national problem of using zoning laws to discriminate against churches, and that the great power of things like neighborhood associations (HA!), who oppose any development, is making it hard for new churches to open, and he thinks that historic preservation ordinances or statutes are a problem by tying the hands of churches who happen to have buildings designated as historic.  He also thinks that minority churches are particularly likely to get mistreated.

But he’s somewhat slippery about what “mistreated” might be.  I agree with him that there is a problem with the (very few) places he names where public officials are saying, “We don’t want new churches,” and where zoning is used to discriminate against churches as opposed to other similar uses.

But he goes far beyond that.  He makes pretty clear that churches should be privileged and that RFRAs are designed in part to accomplish that.

I’ll make an assertion of what I believe, and would hope the Establishment Clause of the Constitution would support:  That a government entity enforcing land use planning laws should treat a church like any other similar entity, such as a movie theater.    Laycock admits that a city would have an interest in regulating street parking and saying to a church it must have adequate parking to build, but he goes farther than that:  He suggests that ordinances that tie a set number of lots to a set size of building (that apply to everyone) should probably not be applied to a church, because it is a church.

In my view, any arrangement that gives favored status to a church should run afoul of the Establishment Clause.  And, if RFRAs are designed to do that (I am growing to a relatively certain view that they are so designed), they ought to be unconstitutional.

So here’s a non-hot-button way to debate these things:  For land use purposes, should a church be treated the same as other similar uses, or, if the church or its members can concoct a reason to argue that a land use ordinance is a burden on their religious services, must that ordinance survive strict scrutiny when challenged based on a state’s RFRA?

And, if you think my question is unlikely to occur in the real world, recall that, in the case where the United States Supreme Court held that federalism barred Congress from imposing a national RFRA on the states, the church was arguing that a historic preservation ordinance that limited their ability to alter the outside of a historic church was a substantial burden on their religious faith.   Separate out whatever you think of historic preservation ordinances before you leap to answers here.  Is that really the sort of argument we want to allow?

The crazy comes out a Austin Barbour’s election phone press conference

Just before a telephone press conference with Austin Barbour, internet rabble-rouser Charles Johnson tweeted the number of the call and invited folks to crash it. Barbour said he would entertain questions at the end. Someone interrupted the call about 8:25 with this:

Q Ok, quick question, since black people harvested cotton, is it ok to harvest their votes. Why is it ok to harvest the votes of black people.

Q Since black people harvested cotton, why do you think it’s ok to harvest their votes. They’re not animals.

After the first “question,” Barbour stated that he would take questions at the end, no matter their “lunacy.” The question was repeated, and Barbour pretty quickly terminated the call. The remaining folks on the line talked around and around thereafter, some coming to the conclusion that the questioner was a Cochran supporter, others announcing suspicion that the questioner was a “liberal.”

It finally dawns on the McDaniel supporters that the call might be recorded (DUH!) and they better not share their views here.

They finally have something rational to be suspicious about but it took their paranoia about 4 minutes of jawing for it to kick in.

Finally, a couple of reporters end up talking, with a Sun Herald reporter telling one from Bruce why the call had abruptly ended.

Talking Points Memo and Jackson Jambalaya both have posted the recording.

A criticism of the Religious Freedom Restoration Act as applied to the states

The more I think about this, the more I think passage of the state version of RFRA this Spring was a very dumb move.

There’s this:  The case I’m quoting below, Bourne, involved a church challenging a city’s historic preservation ordinance on the grounds that it was an indirect burden on their exercise of religion.

At least to the extent it was applied to the states, here’s what Justice Kennedy wrote about the act:

The stringent test RFRA demands of state laws reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved. If an objector can show a substantial burden on his free exercise, the State must demonstrate a compelling governmental interest and show that the law is the least restrictive means of furthering its interest. Claims that a law substantially burdens someone’s exercise of religion will often be difficult to contest. See Smith, 494 U.S., at 887, 110 S.Ct., at 1604 (“What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?”); id., at 907, 110 S.Ct., at 1615 (“The distinction between questions of centrality and questions of sincerity and burden is admittedly fine …”) (O’CONNOR, J., concurring in judgment). Requiring a State to demonstrate a compelling interest and show that it has adopted the least restrictive means of achieving that interest is the most demanding test known to constitutional law. If “ ‘compelling interest’ really means what it says …, many laws will not meet the test…. [The test] would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Id., at 888, 110 S.Ct., at 1605. Laws valid under Smith would fall under RFRA without regard to whether they had the object of stifling or punishing free exercise. We make these observations not to reargue the position of the majority in Smith but to illustrate the substantive alteration of its holding attempted by RFRA. Even assuming RFRA would be interpreted in effect to mandate some lesser test, say, one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. This is a considerable congressional intrusion into the States’ traditional prerogatives and general authority to regulate for the health and welfare of their citizens.
The substantial costs RFRA exacts, both in practical terms of imposing a heavy litigation burden on the States and in terms of curtailing their traditional general regulatory power, far exceed any pattern or practice of unconstitutional conduct under the Free Exercise Clause as interpreted in Smith. Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of  their treatment of religion. In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry. If a state law disproportionately burdened a particular class of religious observers, this circumstance might be evidence of an impermissible legislative motive. Cf. Washington v. Davis, 426 U.S. 229, 241, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). RFRA’s substantial-burden test, however, is not even a discriminatory effects or disparate-impact test. It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs. In addition, the Act imposes in every case a least restrictive means requirement—a requirement that was not used in the pre-Smith jurisprudence RFRA purported to codify—which also indicates that the legislation is broader than is appropriate if the goal is to prevent and remedy constitutional violations.
City of Boerne v. Flores, 521 U.S. 507, 533-35, 117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997).

Chefs and cooks (including my son T.H.) toasting New York welcome table benefit

This is the kitchen crew toasting the completion of the Big Gay Welcome Table benefit in New York City. My son T.H., who went up as part of John Currence’s crew, is closest to the camera on the left, with Currence visible just beyond him, and cookbook writer Virginia Willis just left of center.

This is from a really nice article at Buzzfeed about the event and about John Currence.

SCOTUS blog: Post-Hobby Lobby orders lists suggests that employers can object to all forms of birth control

Lyle Denniston at SCOTUS blog reports:

The Supreme Court sent a fairly strong signal on Tuesday that its ruling giving some for-profit businesses a right not to provide birth control services to their female workers goes beyond the specific methods at issue in that decision.  It issued a series of orders on six cases, each of which involved owners who objected to all of the pregnancy-related services mandated under the new federal health care law.

As he notes, in three cases, the Court reversed decisions and remanded for reconsideration in light of the Hobby Lobby decision.  Two Sixth Circuit cases (Autocam Corp and Eden Foods) had rejected employer objections to covering all forms of birth control services (including sterilization) covered by the mandate.  A District of Columbia case had also rejected all forms of birth control services.

In another District of Columbia case, Catholic brothers and their food service companies objected to all forms of birth control.  The brothers won their challenge, the government appeal, and review was denied.  The Court denied review in similar cases the employer had won from the Sixth Circuit (two cases) and the Tenth Circuit where the employer, objecting to all services, also won.

What this suggests is that the majority is perfectly fine with an employer who rejects all form of birth control services.

Kingfish has a memo for the state Republican party outlining the steps up to a contest

Previously, I posted describing the process for a contest.  There’s a useful memo from state Republican party chair and counsel outlining the process up to that contest (which will play out in the next few weeks) that has been posted at Jackson Jambalaya.

To sum the memo up:  Yesterday or before 2PM today, each county executive committee must have certified their returns to the state party.  Because the voter ID process continues through today– voters have the right to come in as late as today to show an ID if they had to vote by affidavit because they did not bring an ID– any votes coming in after certification are to be sent as an update.  This odd double-step is occurring because the statute on certification was not amended when the voter ID law passed setting the seven day deadline for voters to come in.

At this point, the boxes become available to candidates to review for irregularities in the count.  The candidates must give the county committees three days notice in a request to review so the other candidate can have a representative present.  The circuit clerk supervises this part of the process.  Review must be completed by 12 days after the county certified the results.

Today at 2PM, the state committee meets to canvas the results.  They just tabulate and add up the results; this is not a certification process.

Monday, July 7th, the state committee will transmit the county totals to the secretary of state.  At that point, a candidate can file a challenge with the state executive committee.

That’s the process described in the state party memo.   I do not see a deadline for filing the contest with the state committee.

However, once the contest is filed with the state committee, the candidate filing the contest has only ten days to go to court, in a process outline in my prior post.  

Hobby Lobby and Religious Freedom Restoration Acts (including the one in Mississippi)

I have read most of Justice Ginsburg’s dissent in the Hobby Lobby case and some of the majority opinion, and the upshot seem to be this:  When Congress passed the Religious Freedom Restoration Act, it made clear its intent to overturn a couple of United States Supreme Court cases.  But, Justice Ginsburg argues, what the majority is doing here goes far beyond restoration and creates a right that will allow someone like Hobby Lobby to use assertions of religious freedom even when it violates rights of third parties who do not share those beliefs.

While this point seems obvious on a moments reflection, it bears repeating:  What the Court holds is that women who wish to have contraceptives can be denied that right because the owners of the business were they work don’t want them to have it.    The majority suggests the possibility that the government can pay for the contraceptives although refuses to opine whether that’s even legal under the act.   I’m sure if the Obama administration does this by regulation it will add to the screaming emanating from the House of Representatives about his lawlessness.

It is obvious that these notions are going to be argued in cases under the state act.

I may try to write more later, although this is another busy week.  I’d like to see comments.