Archive | December 2, 2013

1C. How RFRA May Make Religious Exemption Claims More Appealing to Courts Than They Were in the Constitutional Exemption Era

(For an introduction to this series of posts, see here.)

The RFRA religious exemption regime may seem less exemption-friendly than the Sherbert/Yoder-era constitutional exemption regime, precisely because it is only statutory. If Congress (or, for a state RFRA, a state legislature) dislikes an exemption that courts have recognized, it can pass a new statute rejecting that exemption. Congress can even block such exemptions proactively, for instance by saying up front that some statutes won’t be subject to religious exemptions. (Some state legislatures have indeed done that.)

The 1993 Congress could not bind future Congresses — only a constitutional amendment can do that — and it didn’t purport to try. RFRA makes clear that future statutes could be excluded from RFRA’s scope if “such law explicitly excludes such application by reference to [RFRA].” It also seems likely that they would also be excluded if “the plain import of a later statute directly conflicts with an earlier statute” (though courts are reluctant to find such direct conflicts because of the “powerful presumption against implied repeals”). As a result, exemptions recognized under RFRA, unlike exemptions recognized under the Free Exercise Clause in the Sherbert/Yoder era, are at the mercy of the legislature.

It’s possible, though, that the RFRA regime may sometimes prove to be more religious-exemption-friendly than the old constitutional exemption regime, precisely because it is statutory. A court may be reluctant to accept a close constitutional claim precisely because accepting it would permanently bind the legislature. Even a judge who thinks that granting a religious exemption from (say) a peyote ban might not cause that much harm, and who thinks the legislature might not have considered this particular question when it banned peyote, may be hesitant to tie the legislators’ hands by declaring that [...]

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Jim Hannah on “Abandoned Practices” of Dead or Disbarred Lawyers

I spent Thanksgiving weekend in Ohio, where our local paper ran a quite interesting story about the chaos that can ensue for his/her clients when a lawyer dies or is disbarred. If the lawyer is part of a firm, the other lawyers at the firm generally have an obligation to continue the representation; but if the lawyer works alone, there’s nobody automatically designated to take over. Lawyers are encouraged, and sometimes required, to name a “surrogate” lawyer in the case of their death, but like all death-planning this does not always happen, and apparently the surrogates are often not compensated.

Two additional thoughts about the article:

1: It’s nice to see a long, interesting, insightful article by a local journalist. I’d never heard of the author, Jim Hannah, but I’ll be keeping an eye out for his future work.

2: One interesting question is whether there’s a case for state intervention here — either by requiring surrogates to be named (as I gather many states do) or providing state compensation for them (perhaps coming out of bar dues).

The obvious libertarian take is that such a regulation is unnecessary or even counterproductive. The risk that your lawyer will suddenly die or be disabled is one of the risks you take when you retain a solo practitioner, and presumably makes solo practitioners slightly cheaper.

That said, consumer information about lawyers is pretty bad, and the market for lawyers is already so heavily regulated that it may be too late to analyze marginal regulations in pure libertarian terms. (In economic terms this is the problem of the “second best.”) I do think such regulations are probably a bad idea, but I’m not sure I can prove it. [...]

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URL Shortening in Legal Briefs, and Now Legal Opinions

Most readers will be familiar with URL shortening services — redirection services that give users a short web address that points to a longer one. I’ve come across URL shortening in legal briefs more and more, and I have used such links in briefs myself. The shortening avoids an unsightly excessively-long URL when you are linking to content on the web, and it’s also easier for the reader who might hand-type the URL into a browser. In the opening brief in United States v. Auernheimer, for example, I linked to instead of to the ugly

In the last two years, federal court decisions have started to use URL shortening links, too. Judge Kozinski uses them extensively in today’s dissent in Minority Television Project v. FCC, a case on the First Amendment implications on banning certain kinds of ads on public TV. An excerpt:

Third, advertisements are speech. Viewers often see commercials as no more than annoying interruptions, but the Supreme Court has recognized that advertisements often carry important, sometimes vital, information. See, e.g.,Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (lawyer advertising); Virginia State Bd. of Pharmacy. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (prescription drug prices); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (beer labels). Advertisements can be for annoying, useless or decadent products, but they can also encourage people to get breast exams,; join the peace corps,; get a smoke alarm,; prevent forest fires,; vote,, etc., etc. Excluding advertising from public broadcasting deprives viewers of the opportunity to obtain such important information.

A quick Westlaw search finds 9 judicial opinions before today’s decision that use Google’s URL shortener, Several of them use the service for maps, such as this excerpt from [...]

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Constitutional Law Scholars’ Noel Canning Amicus, Part II: “Recess” and “Session”

The second issue addressed in our amicus brief is what the Recess Appointments Clause means by “recess” and “session.” Our brief discusses the original meanings of these terms, as well as the structure, purpose, and history that clarify the meanings of those terms in context. Most importantly, we argue that the Senate cannot be in “recess” and in “session” at the same time.

Several of these points were made very well a few years ago in several amicus briefs filed by Senator Ted Kennedy (with Laurence Tribe and Marty Lederman serving as his counsel), as well as more recently in a series of excellent blog posts by Michael Stern, at Point of Order. Others are made in a forthcoming article (not online yet) by Mike Rappaport.

Here’s how we put the argument in the brief:

II. The Text Implies, and Long Practice Confirms, That Recesses Occur Between Sessions, Not During Them

The recent lower court decisions addressing the merits all conclude that Presidents may not use recess appointments to fill vacancies during so-called “intrasession recesses,” regardless of how one interprets the word “happen.” We acknowledge that the text of the Recess Appointment Clause standing alone does not explicitly preclude the concept of “intrasession recesses.” Nonetheless, it is best read—in light of parliamentary practice and the purpose of the Clause—to implicitly foreclose such appointments. That this is the most natural meaning of the text is confirmed by long practice. If, however, the Court abandons the formal definition of “recess,” it should likewise abandon a formal definition of “session,” meaning that recess appointments will generally last for weeks, not years.

A. The Constitution’s Text and Purpose Imply that Recess Appointments Are Limited To Intersession Recesses

It is something of a misnomer to refer to “intrasession” and “intersession” recesses, as the parties


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1B. Why Have RFRA-Like Religious Exemption Regimes?

(For an introduction to this series of posts, see here.)

The previous post in this series has explained what RFRA is, and what general rules it sets forth. For nearly all the remaining posts, I’ll take RFRA as given, and not deal with the broader question of whether having such a statute is a good idea. (That’s a perfectly sensible question to ask, but it’s not one that the Court will have to confront in Hobby Lobby.) Still, I think it’s helpful to think a bit about what the main arguments for RFRA are — whether you accept them or not — since this may help us understand how the Court will interpret RFRA.

RFRA begins with the findings that, “the framers of the Constitution, recognizing free exercise of religion as an unalienable right, secured its protection in the First Amendment to the Constitution,” and “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” To this point, this might sound like a justification for massive protection. Does your religion require you not to pay any taxes to what you see as a corrupt, un-Godly government? Well, tax laws may burden this religious exercise as surely as laws intended to discriminate against your religion, and, hey, your free exercise of religion is an “unalienable right.”

But of course our legal system has never accepted any such view of free exercise. Likewise if your religion requires you to make pilgrimages to a visitation of the Virgin Mary on my property, or to take my property and give it to the poor, or to kill me for blaspheming, or to do many other things that the legal system forbids with no regard for religious objections.

Even if we set aside religious actions [...]

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1A. What Is the Religious Freedom Restoration Act?

(For an introduction to this series of posts, see here.)

1. Say that you feel a religious obligation to use a prohibited drug — hoasca (the drug at issue in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)), peyote, marijuana, or LSD.

Or say that you’re a landlord who feels a religious obligation not to rent to unmarried couples (or same-sex couples), even though state law bars marital status discrimination or sexual orientation discrimination in housing.

Or say that you feel a religious obligation to help someone commit suicide, in violation of state law — or a religious obligation not to testify against your parent, your child, or a coreligionist, even when you have a legal duty to do so.

Should you be entitled to an exemption from the generally applicable law, because of your religious beliefs? Or should the government be free to apply the law to you just as it does to others?

Until about 1960 (more or less), the rule was what one might call the statute-by-statute exemption model — religious objectors got exemptions if and only if the statute provided for one, as, for instance, draft law historically had. Judges got into the act only insofar as they created common-law exemptions from judge-made common-law rules, and these exemptions were trumpable by statute. The clergy-penitent privilege, which is an exception from the duty to testify, was one example.

But then in Braunfeld v. Brown (1961) the Supreme Court seemed to suggest that the Free Exercise Clause might sometimes constitutionally mandate exemptions. And in Sherbert v. Verner (1963), the Court expressly adopted the constitutional exemption model, under which sincere religious objectors had a presumptive constitutional right to an exemption. Wisconsin v. Yoder (1972) reaffirmed this, and the period from 1963 to 1990 is [...]

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Hobby Lobby, the Employer Mandate, and Religious Exemptions

Last week, the Supreme Court agreed to decide two new religious exemption cases, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialty Store v. Sebelius. There are a lot of moving parts in the legal analysis of those cases, so I thought I’d blog several posts about them, one on each of the main issues in the case. The two cases will be consolidated, so I’ll just speak about “Hobby Lobby,” rather than mentioning both case names. I hope the posts will be useful both for people who want to read them all this week, and for future reference when the questions get discussed again in the coming months, as Hobby Lobby is briefed, argued, and decided.

First, a general roadmap. Hobby Lobby and Conestoga Wood are closely held, family-owned corporations. The owners of the corporations believe for religious reasons that it is wrong to use any devices or products that sufficiently risk killing a fertilized embryo, including by preventing implantation of the embryo. (To my knowledge, they are unanimous on this within each family.)

They also believe that it is wrong for them to be complicit in such killing of embryos, including by providing insurance plans for their employees that cover those contraceptives that prevent implantation. They are thus not opposed to all contraception methods — their beliefs are essentially a sort of life-begins-at-conception Protestant, not Catholic — but they are opposed to some.

They thus claim that the federal Religious Freedom Restoration Act of 1993 entitles them to an exemption from the contraceptive insurance requirement imposed by the Affordable Care Act and its implementing regulations. (Hobby Lobby also argues that the Free Exercise Clause also entitles them to such an exemption, but I won’t focus on this argument.) Under that law,

Government may substantially


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