News Abortion

Another Federal Appeals Court Rules Against Contraception Mandate as SCOTUS Mulls Action

Jessica Mason Pieklo

With a strong split in the federal appeals courts over the issue of for-profit corporate religious rights, Supreme Court intervention is practically inevitable.

On Friday, a divided Seventh Circuit Court of Appeals ruled in favor of two for-profit companies and their owners, holding that they are both likely to win their constitutional challenges to the birth control benefit in the Affordable Care Act. The decision is the fifth federal appellate court decision to rule on the mandate, and the broadest of all those rulings so far.

The decision came in the consolidated cases of construction company Korte & Luitjohan Contractors and its two owners, and vehicle safety parts manufacturing company Grote Industries and its six family owners. Both companies and their owners filed lawsuits challenging the benefit as a violation of their First Amendment religious exercise rights and as a violation of the Religious Freedom Restoration Act (RFRA), and lost their challenges at the district court. Their appeals were combined and heard together by the Seventh Circuit in May.

Friday’s decision is the first to find both owners individually and their for-profit companies are protected from the mandate under the RFRA. “In short,” the court wrote, “[the] RFRA operates as a kind of utility remedy for the inevitable clashes between religious freedom and the realities of the modern welfare state, which regulates pervasively and touches nearly every aspect of social and economic life.” From this broad explanation of the RFRA’s goal, the Seventh Circuit finds no problem interpreting the statutory language of the statute, which prohibits the federal government from placing a substantial burden on a “person’s exercise of religion,” to apply to secular, for-profit companies.

The dissent notes the scope of the majority’s opinion has the potential to “reach far beyond contraception” and to “invite employers to seek exemptions from any number of federally-mandated employee benefits to which an employer might object on religious grounds.” To illustrate the point, the dissent offers three hypotheticals: one involving an employee who develops amyotrophic lateral sclerosis (ALS), a progressive neurological condition that could be cured by embryonic stem cell research; one involving a secular, for-profit company owned by Christian Scientists who want to provide health-care coverage for only facilities that conform to the “cure by prayer” approach to medicine embraced by the business’ owner; and a scenario in which a gay employee requests leave from his boss under the Family and Medical Leave Act so that he and his husband may attend the birth of their child via surrogacy. Because the RFRA applies to any federal law, the dissent argues, under the analysis advanced in the majority opinion in each of those hypotheticals, employers could successfully argue their religious exercise rights were infringed on by facilitating the treatment or time off.

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All in all, five federal appellate courts have now ruled on the constitutional challenges. Courts of appeals in the Third and Sixth Circuit courts have ruled against for-profit religious rights, while appeals courts in the Tenth Circuit, D.C. Circuit, and now Seventh Circuit all have found in favor of such rights.

The Supreme Court is scheduled to consider three challenges to the mandate during its conference on November 26. Last week, attorneys in the Gilardi v. United States Department of Health and Human Services case filed a petition for review of a recent Sixth Circuit decision ruling against two for-profit companies in Ohio, bringing the total number of petitions before the Supreme Court on the mandate to four. With the split in the appellate courts and the pending petitions before the Roberts Court this month, it’s all but certain the Supreme Court will take up the issue sometime this term.

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.

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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.”

Analysis Human Rights

Activists Seek Justice as Verdict Looms for Officer Involved in Freddie Gray’s Death

Michelle D. Anderson

Freddie Gray, 25, died from spinal cord injuries in April 2015, a week after police arrested and took him into custody. Last year, Baltimore City State's Attorney Marilyn J. Mosby brought criminal charges against six of the officers involved with his arrest. Since then, three officers' trials have been completed without convictions.

The bench trial of Lt. Brian Rice, the highest-ranking Baltimore Police Department officer involved in the 2015 death of Freddie Gray, began on Thursday, July 7. Rice faces involuntary manslaughter, second-degree assault, and reckless endangerment; the state dropped a misconduct charge after acknowledging Rice was not directly involved in Gray’s arrest. The closing arguments in his trial are scheduled for this Thursday; the judge is expected to share his verdict Monday.

The Rice trial started just as the public began grappling with the deaths of Philando Castile and Alton Sterling—and the subsequent murder of five police officers at a Dallas protest.

Castile and Sterling, both Black men, died during encounters with police in Falcon Heights, Minnesota, and Baton Rouge, Louisiana, triggering nationwide protests against police brutality and implicit racial bias that have continued into this week.

And just like the days following Gray’s death, social media sites like Twitter and Facebook were flooded with images, videos, and hashtags demanding justice.

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Gray, 25, died from spinal cord injuries in April 2015, a week after police arrested and took him into custody. Activists and some Maryland legislators accused police of giving Gray an intentional “rough ride,” when inmates or persons in custody are transported in police vans without a seat belt and subjected to frantic driving, ultimately causing them injury. Last year, Baltimore City State’s Attorney Marilyn J. Mosby brought criminal charges against six of the officers involved with his arrest. Since then, three officers’ trials have been completed without convictions—and as activists on the ground in Baltimore wait for more verdicts, they are pushing for reforms and justice beyond the courtroom.

The first police trial, which involved charges against Officer William Porter of involuntary manslaughter, second-degree assault, reckless endangerment, and misconduct in office, ended in a mistrial in December 2015 after jurors failed to reach a verdict.

Baltimore City Circuit Court Judge Barry Glenn Williams acquitted Officer Edward M. Nero of all charges in May. Mosby had charged Nero with misconduct, second-degree assault, and reckless endangerment for putting Gray into the police van without a seat belt.

But many viewed the trial of Caesar R. Goodson Jr., who drove the van, as the most critical of the six. Last month, Judge Williams announced that Goodson, too, had been acquitted of all charges—including second-degree depraved-heart murder, the most serious of those brought against the officers.

Kwame Rose, a Baltimore activist, told Rewire he was not surprised.

“The judicial system of America shows that police are never held accountable when it comes to the death of Black people,” said Rose, who was arrested in September and December during peaceful protests related to Gray’s death.

During Goodson’s trial, Williams said there were several “equally plausible scenarios,” that could have transpired during Gray’s arrest. He also rejected the state’s argument that police intentionally gave Gray a “rough ride,”according to a New York Times account.

Ray Kelly, community relations director for the No Boundaries Coalition of West Baltimore grassroots group and a community interviewer for the West Baltimore Community Commission on Police Misconduct, said he was disappointed by the Goodson verdict. However, he noted that he was heartened by Mosby’s decision to bring criminal charges against the officers in the first place. “It’s a small change, but it is a change nonetheless,” Kelly said in a recent interview with Rewire.

In addition to the charges, Gray’s death eventually sparked a major “pattern or practice” investigation by the U.S. Department of Justice (DOJ). Local activists, including the No Boundaries Coalition, which issued in March a 32-page report that detailed police misconduct in Baltimore and helped to trigger the DOJ, expected the findings of the DOJ investigation in late June.

However, the document has yet to be released, said Kelly, who is a native of the same West Baltimore neighborhood where Gray was detained.

Kelly is expecting a consent decree—similar to the ones in Ferguson, Missouri, and Cleveland, Ohio—and a continued partnership with federal officials in the near future.

For Kelly, the trials—and the lack of convictions—have proved what leaders in groups like the No Boundaries Coalition have been saying in their advocacy. One of those messages, Kelly said, is that the community should continue to focus less on the judicial process for theoretically punishing officers who have committed wrongdoing and more on initiating policy changes that combat over-policing.

Baltimore Bloc, a grassroots group, seemed to echo Kelly’s sentiment in a statement last month. Two days after the Goodson verdict, Baltimore Bloc activists said it was a reminder that the judicial system was not broken and was simply doing exactly what it is designed to do.

“To understand our lack of faith in the justice system, you must first recognize certain truths: the justice system works for police who both live in and out of the city; it works against Black people who come from disinvested, redlined Black communities; and it systematically ruins the lives of people like Keith Davis Jr., Tyrone West and Freddie Gray,” Baltimore Bloc leadership said, referencing two other Baltimore residents shot by police.

The American Civil Liberties Union, citing the U.S. Supreme Court decision in Illinois v. Wardlow, said in a May blog post that police had legal case for stopping and arresting Gray, but also said the action constituted racially biased policing and diminished rights for Black and Latino citizens.

“The result is standards of police conduct that are different in some places than other places. It is a powerful example of institutionalized and structural racism in which ostensibly race-neutral policies and practices create different outcomes for different racial groups,” ACLU leaders said.

Right before issuing its statement in May, ACLU released a briefing paper that said at least 21 individuals had been killed in police encounters across Maryland in 2015. Of those fatal encounters, which included Gray, 81 percent were Black and about half were unarmed.

The ACLU said it was impossible for the agency to determine whether any officers were disciplined for misconduct in most cases because the police refused to release crucial information to the public.

The ACLU began compiling information about police custody deaths after learning that Maryland officials were not tracking those cases. In 2015, state politicians passed a law mandating law enforcement agencies to report such data. The first set of statistics on police custody deaths is expected in October, according to the ACLU. It is unclear whether those will include reports of officer discipline.

In line with those efforts, activists across Maryland are working to bring forth more systemic changes that will eliminate over-policing and the lack of accountability that exist among police agencies.

Elizabeth Alex, the regional director for CASA Baltimore, a grassroots group that advocates on behalf of local, low-income immigrant communities, told Rewire many activists are spending less energy on reforming the judicial process to achieve police accountability.

“I think people are looking at alternative ways to hold officers and others accountable other than the court system,” Alex said.

Like the No Boundaries Coalition, CASA Baltimore is part of the Campaign for Justice, Safety & Jobs (CJSJ), a collective of more than 30 local community, policy, labor, faith, and civil rights groups that convened after Gray’s death. CJSJ members include groups like the local ACLU affiliate, Baltimore United for Change, and Leaders of a Beautiful Struggle.

CJSJ leaders said the Goodson verdict underlined the critical need for “deep behavioral change” in the Baltimore Police Department’s culture. For the past year, the group has pushed heavily for citizen representation on police trial boards that review police brutality cases. Those boards make decisions about disciplining officers. For example, the city’s police commissioner might decide to discipline or fire an officer; that officer could go to the trial board to appeal the decision.

This spring, recent Baltimore City mayoral candidate and Maryland Sen. Catherine Pugh (D-Baltimore), helped pass an omnibus police accountability law, HB 1016. Part of that bill includes a change to Maryland’s Law Enforcement Officer’s Bill of Rights (LEOBR) giving local jurisdictions permission to allow voting citizens on police trial boards. Republican Gov. Larry Hogan signed the changes into law in May.

That change can only happen in Baltimore, however, if the Baltimore Fraternal Order of the Police union agrees to revise its contract with the city, according to WBAL TV. The agreement, which expired on June 30, currently does not allow citizen inclusion.

In light of the current stalled negotiations, Baltimore Bloc on July 5 demanded Baltimore City Council President Bernard C. “Jack” Young instead introduce an amendment to the city charter to allow civilian participation on trial boards. If Young introduced the amendment before an August deadline, the question would make it onto the November ballot.

Kelly, in an interview with Rewire, cited some CJSJ members’ recent meeting with Baltimore Police Commissioner Kevin Davis as a win for Baltimore citizens. During that meeting, held on June 29, Davis outlined some of his plans for implementing change on the police force and said he supported local citizens participating on police trial boards, Kelly said.

This year, the Baltimore Police Department has also implemented a new use-of-force policy. The policy emphasizes de-escalation and accountability and is the first rewrite of the policy since 2003, according to the Sun.

The ACLU has welcomed the policy as a step in the right direction, but said the new rules need significant improvements, according to the Sun.

For example, the policy requires reporting to the department when an officer flashes or points a weapon at a suspect without shooting; the data will be reviewed by the police commissioner and other city officials. However, it doesn’t require the same from officers who use deadly force.

Notably, the policy requires officers to call a medic if a person in custody requests medical assistance or shows signs that they need professional help. Gray had requested a medic, but officers were skeptical and didn’t call for help until he became unresponsive, according to various news reports.

Rose, who recently received legal assistance from the ACLU to fight criminal charges related to his arrests last year, said citizens should continue to demand accountability and “true transparency” from law enforcement.

In the meantime, with four trials—including Rice’s case—remaining and no convictions, many are looking to see if Mosby will change her prosecution strategy in the upcoming weeks. Roya Hanna, a former Baltimore prosecutor, has suggested Mosby showed poor judgment for charging the six officers without “adequate evidence,” according to the Sun.

Meanwhile, Baltimore City’s police union has urged Mosby to drop the remaining charges against officers.

The trial of Officer Garrett E. Miller is slated to begin July 27; Officer William Porter, Sept. 6, and Sgt. Alicia D. White, Oct. 13. All officers charged pleaded not guilty.

Baltimore Bloc, citing its dissatisfaction with her performance thus far, demanded Mosby’s removal from office last month.

Kelly, who counts Baltimore Bloc among his allies, has a different outlook. Calling’s Mosby’s swift decision to charge the six officers last year  “groundbreaking,” the Baltimore activist said the ongoing police trials are justified and help give attention to police misconduct.

“She should follow through on the charges ….We need that exposure,” Kelly said. “It keeps the debate open and sparks the conversation.”