Author: Thomas Healy


Hoisted on its Own Petard

As Adam Liptak reported in the NY Times today, the Supreme Court is poised to grant cert Tuesday in a case challenging the Affordable Care Act’s contraception mandate as a violation of religious liberty.  The case raises important questions about the free exercise rights of for-profit corporations and is, in that sense, a sequel to Citizens United, albeit involving religion instead of speech.  But it is also interesting for what it reveals about the ongoing power struggle between the Supreme Court and Congress.  In particular, the case shows how Congress’ efforts to counteract an unpopular Supreme Court decision may come back to haunt it.

Consider the following chronology of events:

1990 – A (mostly) conservative majority of the Supreme Court holds that neutral, generally applicable laws that incidentally burden religious practice are subject only to rational basis review under the Free Exercise Clause, instead of the strict scrutiny that had been applied for nearly three decades.

1993 – Spurred by public outrage over that decision, Congress, in a rare show of bipartisan unity, responds by passing the Religious Freedom Restoration Act, which attempts to restore the standard of strict scrutiny for any state or federal action that substantially burdens religious exercise. Read More


Is Julian Assange a Journalist?

As part of a panel discussion this weekend on the question of “Who is a Journalist Now?” I provided an overview of the federal shield law currently pending before Congress.  Most debate about the proposal has focused on whether it covers bloggers and the exception it makes for cases involving national security.  In this post, I want to focus on an aspect of the proposed law that has received less attention:  the WikiLeaks exception.

Among the exceptions included in the Senate version of the bill is language denying protection to “any person or entity whose principal function, as demonstrated by the totality of such person or entity’s work, is to publish primary source documents that have been disclosed to such person or entity without authorization.”  Although not mentioned by name, WikiLeaks is the clear target of this provision.  Many members of Congress have expressed opposition to giving WikiLeaks a testimonial privilege, and it was largely as a result of the website’s 2010 release of classified war documents that the last attempt to pass a federal shield law failed.

But although a federal shield law may have no chance of passing without the exclusion of WikiLeaks, the exception raises an interesting question:  Is WikiLeaks – and by extension, Julian Assange – engaged in journalism?  Or are its activities fundamentally different from that of traditional media? Read More


The End of the Endorsement Test?

Because there are no arguments at the Supreme Court today and because I was too busy to post last week, I want to take this opportunity to offer some thoughts about Wednesday’s argument in Town of Greece v. Galloway, the case involving legislative prayer before a municipal body.

Most accounts of the argument suggest that the Court is likely to uphold the town’s practice of opening its meetings with a prayer in spite of the fact that the prayers have been overwhelmingly sectarian in nature.  I agree with this prediction.  Although Justice Kennedy seemed uncomfortable with the idea of relying exclusively on history to support legislative prayer, it seems doubtful that he would join the four liberal members of the Court to strike down the practice.  Even some of the liberal justices expressed concern at the prospect of embroiling the Court in the difficult question of what makes a prayer sectarian.  As Justice Kagan stated near the end of the argument, “it’s hard because the Court lays down these rules and everybody thinks that the Court is being hostile to religion and people get unhappy and angry and agitated in various kinds of ways.”

But what interests me more than the likely outcome of the case is the test the Court will use to analyze the town’s practice.  The Second Circuit struck down the prayer under the endorsement test, which holds that governmental action violates the Establishment Clause when it sends a message of endorsement or disapproval of religion.  The endorsement test was introduced by Justice O’Connor in the mid-1980s and has been embraced by a majority of the Court in several cases over the years.

During Wednesday’s argument, however, the endorsement test was barely mentioned.  Part of this was due to the strategy of the plaintiff’s lawyer, Professor Douglas Laycock, who focused his argument entirely on the issue of coercion.  The town’s practice of sectarian prayer amounts to coercion, Laycock argued, because citizens who bring petitions before the town council will feel pressured into participating in the prayer so as to avoid offending the council members they are petitioning. Read More