New fallout from Hobby Lobby

By on Jul 8, 2014 at 8:15 pm

Five major advocacy groups working to promote gay rights, reacting to the Supreme Court’s decision last week in Burwell v. Hobby Lobby, on Tuesday backed off from support for a pending bill in Congress to make it illegal to discriminate in the workplace based on sexual orientation.  Some gay rights activists have been working for such a bill for decades, and finally succeeded in the Senate in November.

The withdrawal of support was announced jointly in this statement by the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, National Center for Lesbian Rights, and Transgender Law Center.  The text of the religious exemption in the bill to which they object can be read here(UPDATE: Another group, the National Gay and Lesbian Task Force Action Fund, has announced a similar stand.)

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Today at 1:00 p.m. the American Bar Association’s Section of Labor and Employment Law is sponsoring a webinar on the following labor and employment cases from the OT13 Term: Continue reading »


Anyone who follows the Supreme Court knows that its docket is driven by its interest in resolving circuit splits.  But harder questions lurk behind that observation.  Does the Court usually agree with the majority of circuits’ views on a contested questions, does it side with the minority, or does it reach an entirely independent conclusion?  Do some circuits fare better than others and, if so, which ones?  Are courts that handle a disproportionate number of cases in a particular area (e.g., the Second Circuit and securities litigation) more likely to be affirmed?  A number of scholars have set out to address those questions, which are surprisingly hard to answer.

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Tuesday round-up

By on Jul 8, 2014 at 7:26 am

Commentators continue to parse last week’s decision in Burwell v. Hobby Lobby, in which a divided Court held that closely held companies with strong religious objections are not required to comply with the Affordable Care Act’s birth-control mandate.  At the Nonprofit Law Prof Blog, Lloyd Mayer contends that “the Hobby Lobby decision does not clearly resolve the cases involving religious nopnrofits that are not flatly exempt from the contraceptives services coverage requirement but instead accommodated,” while at Forbes Daniel Fisher suggests that the decision “pushes the law a bit farther than many legal scholars are comfortable with” because it “allow[s] the plaintiff also to determine what  constitutes a ‘substantial burden’ upon it.”  In an op-ed for the National Law Journal (registration required), Ira Lupu examines what effect the decision might have on benefits for same-sex spouses, while at The Hill’s Congress Blog Ciara Torres-Spelliscy likens the Court to “the modern day Dr. Frankenstein,” which has “breathed legal life into the corporate form and then slowly lost control.”  At ACSblog, Charlotte Garden draws comparisons between Hobby Lobby and the Court’s decision the same day in Harris v. Quinn, holding that Illinois home-health care workers are not full-fledged “public employees” and therefore cannot be required to pay agency fees to a union:  she suggests that both “decisions share an important characteristic: they allow some to shift the costs of their ideological or religious commitments onto workers who may disagree.”  At Dorf on Law, Michael Dorf continues his series on the decision with a post that focuses on “what may strike many as a peculiar aspect of the Hobby Lobby case: the idea that religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions.”  At Hamilton and Griffin on Rights, Marci Hamilton provides a “Hobby-Lobby-To-English Translation Dictionary,” while at his Election Law Blog, Rick Hasen criticizes comments by a federal judge/blogger who had in turn criticized the Hobby Lobby decision.
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Petition of the day

By on Jul 7, 2014 at 10:26 pm

The petition of the day is:

Deemer v. Beard

Issue: Whether the favorable termination requirement of Heck v. Humphrey applies when federal habeas relief was unavailable as a practical matter to a Section 1983 plaintiff.



Dr. Eastman is the Henry Salvatori Professor of Law & Community Service and former Dean at Chapman University’s Fowler School of Law.  He is also the Founding Director of the Claremont Institute’s Center for Constitutional Jurisprudence, which filed an amicus curiae brief in the Hobby Lobby case.

Others in this symposium have already parsed the Court’s decision in Burwell v. Hobby Lobby Stores, Inc., its application of the Religious Freedom Restoration Act to closely held corporations, and what the decision portends for the so-called accommodation for groups like the Little Sisters of the Poor that is currently being litigated.  I want to focus on the reactions to the decision, for the vitriolic criticism and outright lies that have been leveled against the Supreme Court’s holding are eye-opening.  No doubt egged on by Justice Ginsburg’s own false claim in her dissent that the decision “would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage,” pro-abortion groups have accused the Court of preventing women from having access to birth control and of giving bosses the power to force their personal beliefs on their women employees.  Another entry in this symposium claims that the decision was “stunningly bad for women’s health and starkly dismissive of women’s own religious beliefs,” giving corporations “a license to discriminate against their female employees by overriding those employee’s rights to contraceptive coverage.”  The New York Times even editorialized that the decision granted “owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.”  And that’s just the reaction from the mainstream left.  The fringe left was utterly unhinged, among other things contending that Hobby Lobby is now worse than the Taliban in trying to impose its religious views on others.   Continue reading »

Monday round-up

By on Jul 7, 2014 at 11:23 am

The Court is now in the first full week of its summer recess, which means that wrap-ups of the Term abound.  In her review of the Term, NPR’s Nina Totenberg observes that the unanimity which often prevailed at the Court “is illusory, often just a technical agreement on the bottom line of a case — who won and who lost,” and that “who won or lost is not all that important in Supreme Court cases, because it is the legal principle laid down by the majority that must be followed by the lower courts.”  At The Economist, Steven Mazie suggests that the Court “quietly pave[d] the way for big changes” in the future, and he predicts that questions involving same-sex marriage are likely to return to the Court very soon.  The ACLU released its list (in a pdf) of major civil liberties decisions of the Term, while MoloLamken (also in a pdf) summarized major business cases of the Term.  Continue reading »

Posted in Round-up

UPDATED Monday 11:28 a.m.  The application has been docketed as 14A19.  The Court has now switched its numbering system for filings to the October Term 2014.   This post also has been updated to reflect the current situation in Pennsylvania.


Arguing that the Supreme Court has made clear that it does not want any same-sex marriages to go forward until it gets a chance to rule on the constitutionality of state bans, a county clerk in Pennsylvania has asked the Court to put a stop to those marriages in her state.  The plea by Theresa Santai-Gaffney, the Schuylkill County clerk, also seeks the right to pursue her challenge even though lower courts excluded her.

The same-sex marriage situation in Pennsylvania at this stage is similar to that in other states where a ban has been struck down in court, but state officials declined to appeal to get it reinstated.  The Court has once moved in to temporarily ban such marriages, in Utah, and the Schuylkill County clerk asked it to do so in Pennsylvania.

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In granting Wheaton College an injunction against the contraception mandate, the Supreme Court issued an order, accompanied by a one-sentence concurrence by Justice Scalia “in the result,” and a lengthy dissent by Justice Sotomayor joined by Justices Ginsburg and Kagan.  Following its usual practice in such matters, there was no mention of how the other Justices voted, including Justice Breyer.  (Marty Lederman and I debate the effect of the order here and here.)

The dissent argued that the injunction was procedurally inappropriate and inconsistent with the Court’s very recent opinion in Hobby Lobby.  That decision was five to four.  The dissenters were the three dissenting Justices identified in Wheaton College, plus Justice Breyer.  That raises two questions:  did Justice Breyer join the Wheaton College majority; and if so, why?

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This week at the Court

By on Jul 6, 2014 at 12:01 am

The Court is in its summer recess.

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