Tracking the latest developments in the fight for a fair America
By Marci A. Hamilton
There was a time when the Religious Freedom Restoration Act (RFRA), the law at the base of the Hobby Lobby and Conestoga Wood Specialties contraception mandate cases at the Supreme Court, appeared shiny and noble. It was all about our beloved American religious liberty. As it turns out, though—and these cases have made clear—it is in fact a black box.
And who delivered this shiny black box to us? Congress, which blindly trusted religious lobbyists—specifically the self-named Coalition for the Free Exercise of Religion—to be honest about religious liberty doctrine, the state of religious liberty across the country, and their true intentions if RFRA passed. Yet, the Coalition was not forthcoming about any of these.
Congress leapt to be our religious savior by enacting RFRA, instead of asking the obvious question of the religious lobbyists: so what laws do you intend to break? Read more
By Brent Ferguson
Counsel, The Brennan Center for Justice
at NYU School of Law
Intriguingly, last week’s Supreme Court argument over corporations’ claims of religious rights unfolded without any mention of the last blockbuster case to touch on corporate constitutional rights—Citizens United. Yet whether and how the justices choose to incorporate the 2010 political speech case in resolving this term’s religious dispute will matter a great deal to the place of corporations in American society.
In last week’s consolidated cases, two companies, Hobby Lobby and Conestoga Wood Specialties—and their religiously devout owners—challenged the Affordable Care Act’s mandate that any employee health coverage they provide include access to certain forms of contraception. Use of these contraceptives, they claim, is religiously objectionable, and providing access amounts to complicity in the contraceptives’ use. The challengers argue that the coverage mandate therefore violates their right to freely exercise their religion under the federal Religious Freedom Restoration Act (RFRA) and under the First Amendment.
A key preliminary question is whether a for-profit corporation can exercise religion in the first place. Can a legal entity created for economic benefit acquire the ability and right to worship? The Supreme Court has never before answered this question directly. In the Hobby Lobby case, however, a federal appeals court said that the highest court indirectly did, when in Citizens United it held that the First Amendment required lifting limits on corporate spending in political campaigns. The lower court read Citizens United to be the sanctification of a corporate free speech right under the First Amendment, and reasoned that there was no sense in denying corporations a religious exercise right under the same amendment. Read more
By Michelle D. Schwartz
AFJ Director of Justice Programs
These are not encouraging times for those of us who care about reducing gun violence.
Mass shootings are met with shrugs.
Legislation to improve background checks has scarcely seen the light of day since it was filibustered nearly a year ago.
And the nominee to be Surgeon General finds himself in the gun lobby’s crosshairs because he has reached the seemingly self-evident conclusion that gun violence is a public health issue.
So I was relieved last week to receive some good news on the gun violence prevention front from a place I don’t generally turn for solace these days—the United States Supreme Court.
Federal law prohibits anyone convicted of “a misdemeanor crime of domestic violence” from possessing firearms. In United States v. Castleman, the court considered which crimes fit that definition. As the New York Times wrote:
The case concerned James A. Castleman, a Tennessee man who in 2001 was convicted of assault in state court for causing bodily injury to the mother of his child. Court records do not say precisely what he did or what injuries the woman sustained.
When Mr. Castleman was indicted under the federal gun law, he argued that it did not apply to him because his state conviction did not qualify as a crime of domestic violence. Though the federal law defines a “misdemeanor crime of domestic violence” as one involving the use of physical force, he argued that the state law under which he was charged did not require proof of such force.
In a unanimous decision, the Court disagreed with Castleman—and with the district and circuit courts below—and held that “Castleman’s conviction for having ‘intentionally or knowingly cause[d] bodily injury to’ the mother of his child qualifies as a ‘misdemeanor crime of domestic violence.’”
In her opinion for six justices (concurrences were filed by Justice Scalia and by Justice Alito for himself and Justice Thomas), Justice Sotomayor wrote that, for purposes of this statute, “the requirement of ‘physical force’ is satisfied . . . by the degree of force that supports a common-law battery conviction.” Such acts of violence may be relatively minor, and could include hitting, slapping, shoving, grabbing, pinching, hair pulling, and “a squeeze of the arm that causes a bruise.” “[A]n act of this nature is easy to describe as ‘domestic violence,’” Justice Sotomayor wrote, “when the accumulation of such acts over time can subject one intimate partner to the other’s control.”
This decision is a victory for victims of domestic abuse. It is a victory for those who advocate for domestic violence victims and for gun violence prevention.
But this decision is deeply personal for me, too.
That’s because it means that my hero and late boss, Senator Frank R. Lautenberg of New Jersey, will continue saving lives.
The law at issue in Castleman is often referred to as the “Lautenberg Amendment” because Senator Lautenberg authored it in 1996. It was one of the Senator’s proudest accomplishments, and he spoke frequently—really, really frequently—of how the law had prevented convicted domestic abusers from purchasing firearms on approximately 200,000 occasions. It’s hard to know how many lives have been saved as a result, but a Department of Justice study cited in Justice Sotomayor’s opinion offers a clue: “When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed.”
While working for Senator Lautenberg, I had the privilege of working on an amicus brief he, along with Senators Feinstein and Murray, filed in United States v. Hayes, another case urging a narrow interpretation of the Lautenberg Amendment. In Hayes, as in Castleman, the Court (by a 7-2 majority) rejected that narrow interpretation.
In her opinion for the Court in Hayes, Justice Ginsburg quoted Senator Lautenberg in pointing to the impetus for this law:
Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” 142 Cong. Rec. 22985 (1996) (statement of Sen. Lautenberg). By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of § 922(g)(9) sought to “close this dangerous loophole.” Id., at 22986.
Thanks to the decision in Castleman, that dangerous loophole will stay closed, and, I hope, more families will be spared the devastating consequences that can ensue from the toxic combination of domestic violence and firearms.
By Gretchen Borchelt
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center
The companies seeking to deny women access to a benefit guaranteed under the health care law—coverage of all FDA-approved methods of birth control and related education and counseling without cost-sharing—made some questionable claims yesterday before the Supreme Court. Two in particular are worth exploring, especially since they’ve gotten short shrift in the post-argument analysis.
The first troubling argument was that the government does not have as compelling an interest in requiring insurance coverage for birth control as compared to other health care services. Paul Clement (the lawyer representing the companies) framed his opening by talking about how “religiously sensitive” it is to require birth control coverage. Justices Sotomayor and Kagan questioned this notion, asking how far an exemption for companies with religious objections would go. What about an owner who has religious objections to vaccinations or blood transfusions? Are those “religiously sensitive”? Should a boss be able to deny employees coverage of those health care services because of a religious belief? Clement responded that this case is “easier than” those cases because birth control is “so religiously sensitive, so fraught with religious controversy” and the government may have a “stronger compelling interest [in those cases] than it does” in this case. Read more
By Kyle C. Barry
AFJ Legislative Counsel
When the Senate Judiciary Committee convenes its hearing this morning, not one of the 17 judicial nominees waiting for a confirmation hearing will appear. Instead, they will keep on waiting, even though 14 of them were nominated more than 50 days ago, and even though 8 of those 14 are nominated to vacancies that are now “judicial emergencies.” Indeed, one nominee to the Eastern District of North Carolina, Jennifer May-Parker, has been pending in the Judiciary Committee for nearly 300 days. If confirmed, she would fill the longest district court vacancy in the country. Another, Jill Pryor from Georgia, has been waiting for a confirmation hearing since she was nominated to the Eleventh Circuit Court of Appeals more than two-years ago.
Particularly in places where nominees would fill emergencies—which means that, according to the Administrative Office of the U.S. Courts, caseloads are too big for courts to handle—these delays have led to dire situations where judges are overworked and the provision of justice is put on hold. So why not use today’s hearing, as the Committee would normally do, to move these nominees through the process and bring them one step closer to actually serving the American people?
The answer is as simple as it is arcane: blue slips.
During his tenure as Chairman of the Judiciary Committee, Sen. Patrick Leahy, D-Vt., has extended a powerful courtesy to Senators with judicial nominees pending in their home states: Home state Senators are asked to indicate that they approve a nominee on a blue sheet of paper. And until both Senators return a favorable blue slip, there will not be a confirmation hearing and the nomination will lay dormant. Ideally, this policy can ensure that Senators have sufficient input on who will serve as a federal judge for their constituents. But Senate Republicans have exploited the blue slip, using it to manufacture gridlock and prevent the president from appointing supremely qualified nominees. As of last week, each of the 14 nominees who should have been ready for a hearing were still waiting for at least one blue slip, and each is from a state with at least one Republican Senator.
What blue-slips are is plain; why they are withheld is less so. Senators don’t have to give a reason for withholding blue slips. They can unilaterally derail nominations without any explanation. The case of Jennifer May-Parker is particularly mysterious. In 2009, North Carolina Senator Richard Burr specifically recommended her to fill the vacancy for which she is now pending. But while Senator Kay Hagan returned her blue slip long ago, Burr has withheld his support without explanation. Similarly, Republican Georgia Senators Saxby Chambliss and Johnny Isakson wrote to President Obama endorsing Jill Pryor for a federal judgeship in 2012, but have so far blocked her nomination to the Eleventh Circuit.
To be sure, not every blue slip delay indicates outright objection—just yesterday, Florida Senator Marco Rubio finally returned his blue slip on a Southern District of Florida nominee who should have cleared the hearing hurdle today. And sometimes the delay can originate with the Committee’s ranking member, Sen. Chuck Grassley, R-Iowa, who insists that Republicans withhold blue slips until he’s done reviewing background investigation paperwork. But with more than 100 announced vacancies, and with more than 50 nominees waiting to be confirmed, both the Judiciary Committee and the full Senate should be advancing nominees as expeditiously as possible. It is bad enough that Senate Republicans have decided to force cloture votes on even the most noncontroversial judicial nominees, turning the Senate floor into a bottleneck through which nominees can only trickle through. There is no excuse for confirmation hearings to also suffer such needless delay.