The Volokh Conspiracy

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Two Braidswood Cases From The Fifth Circuit Are Bound For SCOTUS (Updated)

A RFRA defense to Title VII and a new Appointments Clause challenge.


Update: Braidwood Management v. EEOC was actually decided on June 21, 2023, not last week. I'm not sure why that case popped up on my radar this week. There was no cert petition on that case. I'm going to leave this post up for the sake of completeness, but you can skip over it.

Enough about the Supreme Court. Let's focus on the only court in America that makes a difference: the Fifth Circuit. Last week, the Fifth Circuit handed down a pair of cases involving Braidwood Management. Both of these cases are destined for the Supreme Court.

The first case, Braidwood Management v. EEOC held that RFRA provides a defense to a Title VII claim:

On the merits, and as we explain, we decide that RFRA requires that Braidwood, on an individual level, be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Moreover, the EEOC wholly fails to carry its burden to show that it has a compelling interest in refusing Braidwood an exemption, even post-Bostock.

I wrote about this issue many years ago with regard to the Indiana RFRA. The circuits were split about whether state RFRAs provided a defense to state employment discrimination laws. Now, the Supreme Court will have to resolve the issue left open in Bostock.

The panel further held that the government does not always have a compelling interest in eradicating all forms of discrimination:

Although the Supreme Court may some day determine that preventing commercial businesses from discriminating on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held that. . . . But we need not go so far, because the EEOC fails to carry its burden. It does not show a compelling interest in denying Braidwood, individually, an exemption. The agency does not even attempt to argue the point outside of gesturing to a generalized interest in prohibiting all forms of sex discrimina-tion in every potential case.

I made a similar point in an amicus brief submitted in 303 Creative. The Court ducked the issue, but it will come back.

Going forward, in the Fifth Circuit–until SCOTUS says otherwise–employers can defend against a Title VII complaint by raising a RFRA claim. Specifically, they would claim that the government does not have a compelling interest to enforce the discrimination law in a way that substantially burdens free exercise.

The second case, Braidwood Management v. Miller, found an Appointments Clause violation with respect to the task force that administers the ACA's contraception mandate:

With respect to one of the challenged administrative bodies, the United States Preventive Services Task Force, we agree that the unreviewable power it wields—the power to issue preventive-care recommendations that insurers must cover by law—renders its members principal officers of the United States who have not been validly appointed under Article II of the United States Constitution. And because Xavier Becerra, in his capacity as the Secretary of the Department of Health and Human Services, has not validly cured the Task Force's constitutional problems, the district court properly enjoined the defendants from enforcing the preventive-care mandates to the extent they came at the recommendation of the Task Force.

The panel, however, does not issue a universal vacatur of the actions taken by these members. As a result, the status quo remains. Still, this issue will likely be yet another Appointments Clause case that the Supreme Court will have to resolve.

As the Supreme Court cleans its Fifth Circuit cases of the OT 2023 docket, the Fifth Circuit cases for the OT 2024 docket are heating up.

Oh, and if you missed it, the Fifth Circuit split 8-8 on whether to initially hear Louisiana's VRA case before the en banc court:

In the en banc poll, eight judges voted in favor of initial hearing en banc (Jones, Smith, Elrod, Willett, Ho, Duncan, Engelhardt, and Oldham) and eight voted against (Richman, Stewart, Southwick, Haynes, Graves, Higginson, Douglas, and Ramirez). Judge Wilson took no part in the consideration of this petition.

As I've said before, the en banc Fifth Circuit, is more-or-less evenly divided. Don't let individual panels fool you.