Tuesday, November 26, 2013

Supreme Court to Hear Religious Exemptions Cases

“He’s as decent as a minister!
He’s as sober as a judge!
He subscribes to ev’ry charity!
And his hobby’s making fudge!”

The Supreme Court announced today that it would hear a pair of cases challenging the ‘contraception mandate’ of the Affordable Care Act as applied to certain for-profit corporations owned by persons with stated religious objections to contraceptives.  Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialty Stores v. Sebelius will likely be heard in March 2014 and decided by the Court in June 2014.

Among the many things the Affordable Care Act does is require health care plans for employees to cover certain preventive health care services, which by regulation include a number of forms of contraception by women.  The same implementing regulations exempt non-profit religious organizations with objections to providing some or all contraceptive services, and they establish an alternative mechanism for their employees to have contraceptive coverage.  For-profit corporations, however, are not exempt.

Numerous suits have been filed in courts across the country to this coverage mandate; the ACLU has a useful and largely comprehensive summary here.  Plaintiffs have relied on a federal statute, the Religious Freedom Restoration Act (“RFRA), and the Free Exercise Clause of the U.S. Constitution, claiming that those entitle them to exemption from the coverage requirements to  which they religiously object.  Courts have split on these claims.  In the Hobby Lobby case, the U.S. Court of Appeals for the Tenth Circuit ruled that RFRA exempted both for-profit corporations (such as Hobby Lobby, which has some 13,000 employees) and the corporations’ individual owners from the federal coverage requirement.  In the Conestoga Wood case, in contrast, the federal appeals court for the Third Circuit held that neither the Free Exercise Clause of the Constitution nor RFRA shielded a for-profit, secular corporation, employer of about 950 people, or its owners from the obligations of the Affordable Care Act.  In that court’s view, for-profit, secular corporations do not have rights under the First Amendment or RFRA to the free exercise of religion.

The Supreme Court granted review in both cases, thus enabling it to address the scope of both the First Amendment’s guarantee of religious freedom and the extent of such freedom under RFRA, a federal statute passed by Congress to protect the exercise of religion more after the Court held that the Free Exercise Clause was not violated by neutral laws of general applicability, which here the government argues the Affordable Care Act’s coverage mandate is.  Although there is scant Supreme Court precedent for attributing religious exemption rights to secular, for-profit corporations, how this Court as constituted by the current Justices will likely rule is far from clear.  We may have to await oral arguments, probably in March, to get a better sense of how the Justices view this is

Thursday, November 7, 2013

European Court Rules Civil Unions Cannot Exclude Same-Sex Couples

“We're still strivin' for the sky, no taste for humble pie”

In Case of Vallianatos and Others v. Greece, the European Court of Human Rights ruled by a vote of 16-to-1 on November 7, 2013, that Greece violated same-sex couples’ right to equality taken in conjunction with their right to respect for private and family life by excluding same-sex couples from the civil unions Greece adopted in 2008 for “de facto partnerships” of different-sex couples.  Each of the plaintiff couples was awarded 5000 Euros compensation for the non-monetary harms they suffered from the discriminatory exclusion.

The Greek civil unions law was enacted to provide a more flexible legal framework than marriage for cohabiting couples and the children of those couples who were raising children.  Other than Lithuania, Greece is the only country in the Council of Europe to “provide for a form of registered partnership designed solely for different-sex couples, as an alternative to marriage (which is available only to different-sex couples).”

The Court reaffirmed that same-sex couples “are in a comparable situation to different-sex couples as regards their need for legal recognition and protection of their relationship.”  Yet the civil unions law treats them differently based on their sexual orientation, the Court ruled.  (Thus far U.S. courts have largely recognized that marriage laws limited to different-sex couples embody sexual orientation discrimination, rejecting the shallow argument that they don’t because a gay man could marry a woman and a lesbian could marry a man.)   This sexual orientation discrimination required justification.  Greece chiefly relied on asserted interests in the protection of non-marital children and “strengthening the institutions of marriage and the family in the traditional sense.”  While the Court accepted that protecting “family in the traditional sense” was a legitimate aim, the sexual orientation discrimination in the law meant that the exclusion of same-sex couples from civil unions had to be “necessary” to serve those interests.

Looking at the actual provisions of the civil unions law, the Court concluded that it “was primarily aimed” not at regulating child-rearing but “at affording legal recognition to a new form of non-marital partnership.”  For example, different-sex couples could enter civil unions regardless of whether they had children.  Same-sex couples, in contrast, had no options under Greek law for having their relationship legally recognized.  This conflicted with an emerging trend in the law of European Union member countries, nine of which allowed same-sex couples to marry civilly and seventeen of which provided for “some form of civil partnership for same-sex couples.”

Judge Paulo Pinto de Albuquerque, a member of the Faculty of Law of the Catholic University of Portugal, dissented in part because he believed the same-sex couples should have been required to “exhaust their remedies” by first presenting their claims to the courts of Greece.