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.

Comments

[JesusHadBlondeHairBlueEyes]

Let's hope this is the beginning of the end of the unaccountable, corrupt, 4th branch of government, the Administrative State.

Many years ago, I can't recall the specifics but I'm sure I read on this site, that Thomas had grumbled about whether or not the Administrative State in it's current, unmoored, incarnation is even constitutional.

Let's hope this case isn't only a crack in the wall, but the shattering of a keystone.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What I would like is to get rid of the Presidency.

* Congress has to "advise and consent" all senior executive appointments anyway; why not call them interviews and hire them directly?

* Congress already calls them in for performance reviews as if Congress were their boss, not the President; why not cut out the middle man?

* Congress already has to approve military officer appointments, at least the senior ones (thus whenever someone right out of boot camp saluted any enlisted, the standard response was "I work for a living, I know who my parents are, and it didn't take an act of Congress to make me honest"); why not hire the commander in chief for a war while they're at it?

It's too damned easy for Congress to pass the buck to the Presidency and all those agencies. Congress represents We the People far better than any President.

[Martinned2]

Congratulations, you've just invented a parliamentary system of government.

[Dan Schiavetta]

It's a better system than ours. For one thing, it prevents an idiot from becoming President. Secondly, there's no split government, with the legislature constantly sabotaging the executive, or vice versa.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Oh you innocent little babe in the woods, to think that no Prime Minister has ever been an idiot!

And some of us, including the framers of 1787, thought a split government was good, forcing more consensus.

[Krayt]

Sabotaging each other’s political initiatives is normal and is part of checks and balances. Using the power of government for endless initiatives to hurt a political opponent is not.

And in any case, many people are panicked now, rightly, that parliaments in Europe are being dominated by right wing coalitions including fascists.

Ohhhh, you meant no split government is a good thing, when “we” are the government. I remember.

There may be a flaw in your government design.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Congratulations, you didn’t read it. There is no prime minister, no cabinet. The only executives are civilians, hired and fired at will, and only in charge of what they are hired for -- a specific agency, a specific war.

[ReaderY]

You can’t run a major country without a bureaucracy.

Congress can sidestep all of these issues by the simple expedient of, every quarter or so, passing a routine pro-forma bill formally approving all regulations published in the federal register in the previous period, with such exceptions as Congress cares to make. Regulations would go into effect only after formal approval.

With that simple change, all the talk of the evils of the administrative state would go away. The bureaucracy would continue more or less as it did before. But nobody could claim it is running free of Congressional oversight. And every now and then, Congress could exercise this oversight by removing a published regulation from the approved list.

While this change would be simple, it would make a real practical difference. Currently, Congress has to pass a bill that survives a Presidential veto to remove a questionable regulation. It will often need a supermajority to go against something the Administration wants. But if Congress has to affirmatively approve a regulation for it to go into effect, it could knock out a questionable regulation much more easily. Each House could adopt rules that (if they wish) could permit a minority to remove regulations from the routine omnibus fast-track bill and exile them to a slow track and possible oblivian. This would make it much easier for Congress to disapprove a regulation. So it’s a very meaningful practical change, not just a symbolic one.

[Brett Bellmore]

"But nobody could claim it is running free of Congressional oversight."

If it was a pro forma bill passed without actual oversight? Sure, you could still complain about it.

I would change your proposal to allow regulatory agencies to propose new laws, which would only take effect if Congress actually enacted them.

[Rev. Arthur L. Kirkland]

Steven Hotze (owner of Braidswood) sounds like an authoritarian, obsolete, drawling, superstition-addled bigot and delusional, hateful, antisocial conspiracy theorist. Is it reasonable to expect that Josh Blackman roots for him in the relevant litigation without reservation?

(Is this the same Steven Hotze who has been indicted for felonies involving unhinged election fraud claims? If so, have those charges been resolved?)

[Kleppe]

If he's delusional, hateful, and antisocial, you should get along with him famously.

[Rev. Arthur L. Kirkland]

We are approaching the point at which Republicans and conservatives don’t like anyone who has not been convicted of or charged with at least one felony or war crime.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

We are approaching the point at which Democrats and lefties don't convict anyone who is not a Republican or conservative, and do convict all who are.

[Sarcastr0]

What the heck are you talking about?

[Rev. Arthur L. Kirkland]

You sound disaffected and inaccurate enough to be considered to follow Blackman and Calabresi onto this blog’s roster.

[ReaderY]

It ‘s been a common subtext of Justice Alito’s opinions on eeligion questions, that religious people in this country are being unfairly persecuted and desperately need the Court’s protection to protect them from being horribly discriminated against.

I in general disagree with this. The core Religion Clause rights are sui generis rights not connected to concepts of discrimination and unfairness. And the traditional view has been that religion has a role in society that gets specially accommodated and respected, not that it is being hounded and persecuted.

But frankly, when I read Rev. Kirkland, I start seeing that Justice Alito has a point. Rev. Kirkland has probably been Justice Alito’s strongest intellectual weapon, his best advocate on this blog in getting me to consider the potential reasonableness of Justice Alito’s point of view.

Sometimes when I read Rev. Kirkland I ask myself if maybe Justice Alito is right, maybe everything has changed since the last century and religion has moved from a respected institution traditionally accommodated (with a reasonable eye to society’s core needs and some limits), to a hounded and persecuted minority with every government action religious people don’t like needing careful scrutiny as a potential act of persecution.

If everybody on the left has become like Rev. Kirkland, Justice Alito certainly would be right.

[Rev. Arthur L. Kirkland]

It is difficult to understand how anyone could believe or try to contend that religious claimants are persecuted in America.

Religion is fading in America and has lost respect, but that seems attributable to (1) decades of criminal, severe, selfish, and depraved conduct among religious institutions and religious Americans, (2) the increasing perception among younger Americans that religious claimants are roundly bigoted, separatist, and backward, and (3) advances in science and education, rather than to any criticism of religion by others.

Religion benefits from a remarkable level of special treatment and privilege in America.

Religion does not, however, improve bigotry to transform bigotry into anything other than bigotry.

Supernatural arguments should not be accepted or advanced in reasoned debate among adults, particularly in the contexts of public affairs, legitimate education, and science.

The 'head we win, tails you lose' approach -- religious claimants can discriminate against everyone else, but no one can discriminate against a religious claimant -- is a relatively new and, I believe, unsustainable standard in modern America.

Religious claimants are not a hounded and persecuted minority in America. Some religious people have been among the groups targeted by successive waves of intolerance and ignorance in America for many years -- Catholics, Jews, and Muslims, for example, have joined Blacks, gays, Italians, Asians, the Irish, atheists, women, Hispanics, eastern Europeans, agnostics, other Asians, atheists, other Hispanics, and others on that list. But what makes America great is that the bigots don't win in America, and American life has improved for all of those groups.

Religious Americans do not like many of the changes associated with American progress. Diminution of unearned privilege. Diminution of bigotry, especially toward gays, women, Blacks, agnostics, and Muslims. Preference for reason over superstition and science over dogma. Diminution of church attendance and reported religious belief. But that does not indicate any persecution of religion. It is the normal, desirable operation of the modern marketplace of ideas. If religious Americans don't like the way religion is viewed in America -- young people, for example, increasingly associate religion with bigotry, for good reason -- they should work on persuasion and improvement, not on blaming progress, science, reason, and modernity for their problems.

[vinny]

I’m no lawyer *but* I think the case was filed last week; idk how to submit evidence but see below in the filing date. Regardless if it was decided ‘24 or ‘23 it seems it was filed very recently.

https://www.ca5.uscourts.gov/opinions/pub/23/23-10326-CV0.pdf

Ps: See, statisticians can help sometimes on something’s probably

[Rev. Arthur L. Kirkland]

If your religion compels you to oppose medications and other medical treatment, you picked an especially shitty god, likely because you are an exceptionally shitty person. Plus, your god is an illusory manifestation of silly, childish nonsense.

Carry on, gullible right-wingers unable to handle the reality-based world.

[ReaderY]

An interesting thing abouf 303 Creative is they chose not to draw a distinction between racial discrimination, the only kind to which full strict scrutiny has been held to apply, and other kinds. While it was a speech case, not a religion case, if they wanted to reaffirm this distinction they could potentially have decided it without reaching the question of whether it also overrides racial discrimination laws.

But they didn’t. By not reaching the question the 5th Circuit decided, the 303 Creative opinion implied that racial discrimination laws can be overridden by First Amendment considerations.