Analysis Law and Policy

D.C. Circuit Court of Appeals Muddies Water in Contraception Mandate Litigation

Jessica Mason Pieklo

A ruling Friday by the D.C. Circuit Court of Appeals highlights the political nature of the fight over the birth control benefit in the Affordable Care Act.

On Friday, a divided D.C. Circuit Court of Appeals ruled against the Obama administration in yet another challenge to the birth control benefit in the Affordable Care Act, finding that two Catholic brothers can individually challenge the law but that their businesses lack standing to do so.

Francis and Philip Gilardi own Freshway Foods, a 400-person secular, for-profit produce company based in Ohio. Devout Catholics, they argued the contraception mandate violated their religious liberties as individuals and the religious exercise rights of their business. A lower court denied their request for an injunction blocking enforcement of the mandate; Friday’s decision reversed that denial, in part, and sent the case back to the lower court for further consideration. The 2-1 majority found that Freshway, as a secular organization, cannot exercise religion under the Religious Freedom Restoration Act (RFRA) and therefore lacks standing to challenge the mandate. But a different majority of judges found that the Gilardis as individuals could bring a claim under the RFRA.

The majority opinion was authored by Judge Janice Rogers Brown, who is among the most conservative judges on the federal bench. Brown’s opinions demonstrate a history of hostility toward reproductive privacy claims, and this is not her first look at the issue of contraceptive equity. While a justice on the California Supreme Court, Brown was the sole dissent in a decision that found Catholic Charities was in violation of California’s contraception prescriptive equity statute by failing to provide its employees insurance coverage for contraception. In her dissent, Brown said that if female employees felt discriminated against by Catholic Charities’ refusal to provide insurance coverage for contraception, they should “move to more congenial employment.”

Brown’s opinion Friday demonstrated the same disdain for equality in employment benefits and hinted that just because the court was not going to go so far as to confer First Amendment religious exercise rights to corporations in this opinion, that doesn’t mean they won’t in the future. “But that the Court has never seriously considered such a claim by a secular corporation or other organizational entity is not to say it never will,” Brown wrote.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Brown also rejected extending Citizens United v. Federal Election Commission so far as to find those rights free exercise rights, an extension adopted by the Tenth Circuit in Hobby Lobby. But the Supreme Court is currently considering taking up the Hobby Lobby case, so the potential for extending Citizens United so far as to find constitutional corporate religious exercise rights remains. “Perhaps Appellant’s constitutional arithmetic, Citizens United plus the Free Exercise Clause equals a corporate free exercise rights, will ultimately prevail,” Brown wrote. “But we must be mindful that Citizens United represents the culmination of decades of Supreme Court jurisprudence recognizing that all corporations speak. When it comes to the free exercise of religion, however, the Court has only indicated that people and churches worship. As for secular corporations the Court has been all but silent.”

But if Brown and her colleagues were unwilling to find explicit corporate religious exercise rights, they seemed willing to imply them by allowing the Gilardi brothers to move forward with their challenge individually, claiming that if “a company is owned and controlled by a few like-minded individuals who share the same religious values and run the company pursuant to those values,” the company then serves as the owners’ proxy or surrogate. This “pass-through” theory, in which corporations are merely vessels by which their owners express their personal beliefs, is just the formula for a religiously conservative libertarian like Brown. “The burden on religious exercise does not occur at the point of contraception purchase; instead, it occurs when a company’s owners fill the basket of goods and services that constitute a health care plan,” wrote Brown. “In other words, the Gilardis are burdened when they are pressured to choose between violating their religious beliefs in managing their selected plan or paying onerous penalties.”

If Brown’s distinction between the corporation and its owners sounds meaningless, that’s because it is. Brown characterizes the Obama administration’s argument that free exercise rights are individual freedoms and thus not transferable to corporations as “perplexing and troubling,” despite a history of Supreme Court precedent that clearly states businesses may not use religious liberty claims to shield themselves from civil rights laws. And her reasoning highlights an important undercurrent to the ruling from the D.C. Circuit Court of Appeals: the fight over President Obama’s judicial nominees. Republicans insist the D.C. Circuit vacancies do not need to be filled, but in reality they see blocking nominees to the court as the clearest path to maintaining a conservative edge on the nation’s second most powerful court.

The Gilardi case is one of more than 70 across the country currently pending challenging the contraception mandate. In similar challenges by secular, for-profit businesses, the Third Circuit and the Sixth Circuit previously ruled that a for-profit company cannot exercise religion while the Tenth Circuit, in contrast, held that the rule substantially burdened the religious exercise of craft supply chain Hobby Lobby. The Roberts Court has been asked to review those decisions and is expected to enter into the legal battle as early as this term.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

News Law and Policy

Court Upholds Contempt Order Against Kentucky Clerk Kim Davis

Nicole Knight Shine

Kim Davis, the Kentucky clerk who refused to sign same-sex couples' marriage licenses, is still in contempt of court.

Kim Davis, the Kentucky clerk who served jail time for refusing to issue same-sex marriage licenses, lost a legal bid to remove a contempt of court order on Wednesday.

Davis gained notoriety last year for her decision to stop issuing marriage licenses, saying it would violate her Christian beliefs, after the landmark U.S. Supreme Court Obergefell v. Hodges ruling legalizing marriage equality. Her actions sparked national outrage and served as a rallying point for advocates who claimed to be defending religious freedom.

Four couples represented by the American Civil Liberties Union sued Davis in federal court, and a judge found her in contempt of court and jailed the Rowan County Clerk for five days after she flouted a court order to issue marriage licenses.

Davis sought to remove the contempt of court order, but a Sixth Circuit Court of Appeals decision on Wednesday kept in place the district court ruling, meaning the order will remain on her record.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

The three-judge panel also granted Davis’ motion to vacate the injunction against her and drop her appeal of the lawsuit. Davis’ attorneys had argued that the appeal was no longer necessary with Kentucky’s new “religious liberty” law, which removes county clerks’ names from marriage licenses and was instated after the uproar around Davis’ decision.

ACLU LGBT Project Staff Attorney Ria Tabacco Mar hailed the appellate panel’s decision upholding the contempt order in a statement, saying, “It will serve as a reminder to other government officials that placing their personal views ahead of the Constitution and the rule of law is not acceptable.”

Mat Staver, founder and chairman of Liberty Counsel, which represented Davis, also claimed victory in a statement, noting, “County clerks are no longer forced to compromise their religious liberty and conscience rights.”