The “sleeper case” of the 2013 Term: Harris v. Quinn and the future of unions

Hobby Lobby is all the rage. We get it. Religious freedom, women’s rights, and the all-too-frequently heard “Corporations are people too” will be conversation fodder for the rest of the summer. If you really want to sound smart though, you’re going to want to tell your friends that Harris v. Quinn was the sleeper case of the 2013 term. Public-sector unions are *almost* dead. Here’s what you need to know:

5-cent explanation: The question in this case was – Can public-sector, home-health care workers in Illinois who serve Medicaid recipients be forced to pay union fees even if they choose to not be a part of the union?

10-cent explanation: Illinois has a Medicaid program where recipients who would otherwise need to be in a healthcare facility can hire a home-health care worker (aka personal assistant or PA) to take care of them instead. This has seemingly worked in two ways. For one, it’s cheaper to pay a PA than using alternative options. Second, patients win because they’re more comfortable and tend to have a higher quality of life when cared for in their home.

Some PAs in Illinois formed a union for collective bargaining purposes. So why is it a problem that some of them don’t want to pay union dues? Because whether or not you’re a member, you have to pay a portion of the dues since the union advocates on the behalf of all Illinois PAs. This rule is based on a court decision from 1977, Abood v. Detroit Board of Education, that is the foundation of public employee unions. Abood is critical to understanding this case in that Harris tested the precedent set more than 35 years ago.

Here are the arguments from both sides of Harris:

The Harris/PA/Petitioner argument:
These workers’ First Amendment rights have been violated. They are being coerced to financially support a union that wants to “petition the government” for them, but in ways that some of those workers oppose. A union is inherently political in that it inevitably affects the size of government, which is arguably the core philosophical division between Republicans and Democrats and thus kind of a big deal. Abood should be overruled.

The Quinn/Union/Defendant argument:
Abood is the gold standard. As Justice Kagan noted during oral arguments, overruling it would be “a radical restructuring of the way workplaces are run” throughout the country. Also consider that doing away with it would be akin to constitutionally compelling a right-to-work law. *Organized labor rolls over in grave* Moreover, the union’s role is to improve the working conditions of those it represents, not engage in shaping matters of public concern. Abood stands and the PAs pay.

The Decision in Harris v. Quinn:
The Supreme Court voted in favor of Harris in a 5-4 decision. According to Justice Alito, who wrote for the majority, there’s a key distinction to be made between a PA and a typical public employee. Whereas the latter is formally employed by the state, the state’s sole connection to the PA is payment for services and the patient controls all other aspects of the employment (evaluations, remediation, dismissals, etc.). Therefore, a PA is not a public employee, but rather a “partial public employee” that does not fall under the Abood precedent. Thus, no decision needs to be made on the immediate future of Abood and the Court finds it is a violation of their First Amendment rights to force PAs to financially support a labor organization they do not wish to join.

The Court dodged a major ruling and unions aren’t dead… yet. Alito’s opinion painted a target on Abood, and unions, bigger than the target Republicans have on Obamacare. The proverbial gauntlet has been thrown. In his majority opinion, Alito goes through the entire history of Abood, ripping it apart and dismantling it at multiple points, setting up potential arguments nicely for future litigants who want a second try at dealing a final blow to labor unions. Given the blow issued to the California public school teachers and unions weeks before this decision, prevailing winds indicate rough times are ahead for public and private sector unions. Abood’s days are likely numbered.

Final note for our Illinois readers: observe Alito’s shot at the IL pension crisis. In a footnote in his opinion (p. 18), he acutely alerts us to his political views when he jabs, “public-sector unions have helped create a situation in which the state’s pension funds report a liability of more than $100 billion, at least 50% of it is unfunded.” Ouch.

Find more about Harris v. Quinn here and here.

This post was written by ‘Bystandr Elliot Louthen.


SB’s holiday party prep part II: 5 reasons Hobby Lobby was decided Right/Wrong

We all have parties, BBQ’s, and events to go to this 4th of July weekend.  We’re guessing the recent Supreme Court Hobby Lobby decision may come up, so we created the following “talking points” to make you sound informed and engaged in current civic affairs.  Because, after all, nothing says “America” like stuffing our faces with charred hot dogs and cold beer while arguing politics.  We’ve provided two basic background concepts to know about before you jump into the waters of controversy and, based on your personal feelings about the decision, five support statements you could use to win the argument, sound smart, or better understand the case.

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Sums up ‘Merica, nicely.

Two things to know before the debate:

  1. RFRA – If you’re going to wade into the waters of this discussion with intelligent people, you should know this statute.  The Religious Freedom Restoration Act was passed in 1993.  It emboldened a person’s 1st Amendment right of free exercise of his/her religious practices (Within range.  You still can’t claim your religion requires you to sacrifice animals or people) and aimed to prevent laws that substantially burden such practices.  If a law imposes a burden, it can only do so in the narrowest of ways and must be for a compelling government interest.  RFRA is a statute, which means it’s a law passed by Congress and signed by the President.  Shocking in light of the current Congress, RFRA was passed unanimously in the House and was three votes shy of unanimity in the Senate.
  1. Burwell v. Hobby Lobby is a case about a statute, not a constitutional question.  The question in this case is whether or not the Greens and the Hahns – two families who created private, for-profit corporations that openly preached and practiced their pro-Christian beliefs at home and work – were “substantially burdened” (RFRA text) by the Affordable Care Act’s contraception mandate?  The mandate said any company who had more than 50 employees must provide insurance that offers 20 contraceptives to women.  Four of the 20 contraceptives were not in line with the Christian values of the Greens and Hahns because they were either abortifacients – abortion inducing – or significantly hampered the creation of life.

Forcing the families to offer insurance that covers such contraceptives violated RFRA in that the substantial burden was forced on them in two ways.  First, they could’ve opted out of covering these contraceptives but would’ve had to pay a penalty to the government for doing so since the ACA is a mandate.  Or, instead they could’ve stopped offering their employees insurance altogether and pushed them into the Obamacare insurance exchange where they could find coverage that would offer those contraceptives.  However, this option would’ve also required the families’ pay millions and they believe it’s important to offer their employees insurance benefits.  Forced to choose between the two options, the families sued the government for putting them into such a bind arguing they were substantially burdened by the government since both options meant they were going to have to pay or sacrifice their pro-life values.

Option #1:  You think the Hobby Lobby decision was wrong.  Here’s likely why:

  1.  A private, for-profit corporation got an accommodation in this decision.  Hobby Lobby and Conestoga Wood’s religious beliefs exempt both from the ACA contraceptive mandate.  If they can get an exception that prevents covering this kind of health care, who else can?  Ginsburg said “reading the Act (RFRA) expansively raises a whole host of ‘me too’ problems.”
  2. Giving women access to all 20 forms of birth control is a compelling government interest – less infants born into substandard economic situations to unwed or wed but-now’s-not-a-good-time mothers sound pretty compelling.  Additionally, unemployment is still 6%, the federal deficit is in the trillions.  Your opponent likely uses these final points in other opposing arguments.  Blammo.
  3. RFRA’s language specifically states “persons” cannot be substantially burdened by government regulations that impinge free religious expression.  Corporations may be extensions of people but they’re not flesh and blood persons.  When was the last time you bar mitzvah’d, fasted, or knelt down in a pew to pray with a corporation?  Don’t lump Citizens United into this case.  It’s different.
  4. No case-law or historical precedent supports a decision like this.  Previous similar cases involved an Amish man who believed paying Social Security taxes violated his religious beliefs.  He lost.  A Native American couple took peyote at a spiritual ceremony, were fired from their jobs, and denied access to unemployment benefits.  They lost too.  Both also used free expression claims to fight government action.  The shift in this decision from past practice to empowering corporations with free exercise rights sounds pretty “activist” for a majority composed of four justices who regularly use that word against the minority.
  5. Among those “me too” problems could be situations in which privately held corporations with similar religious values wish to impose their beliefs onto their employees.  Take the diner that wishes to discriminate against minorities or gays because of scripture the form their free exercise of that belief takes is to fire, not hire, or ban such people.  Are they the people we want to give a confidence boost to with this decision?  No.  Especially not when this hypothetical turned real last fall in Arizona.

Option #2:  You’re happy with the Hobby Lobby decision.  Here’s likely why: 

  1. The federal Dictionary Act definition of ‘person’ includes “corporations…as well as individuals.”  RFRA was created to provide broad protection for religious liberty and never meant to put the Greens or the Hahns in a situation that forces them to choose between respecting a federal mandate or their religious values.  Protecting the free exercise rights of private companies protects the religious liberty of the humans who own and control them.
  2. I don’t know about you, but paying millions of dollars sounds like a “substantial burden” to most people, including the Greens and the Hahns.  Take Hobby Lobby for example, the penalty costs for not covering the contraceptives mandate would likely be $475 million per year.  If they dropped covering their employees to avoid paying the penalty, they’d still have to pay $26 million.  That’s a burden, no doubt.
  3. Exemptions from the contraceptive mandate by religious employers already exist, as do other grandfather clauses, companies with less than 50 employees, and more.  This decision was narrowly carved out to also include Hobby Lobby, Conestoga and the Hahn family’s other company Mardel, not anyone else who wants to now arbitrarily say “me too!”
  4. Hobby Lobby and Conestoga object to some, not all, of the contraceptives the mandate requires employers’ cover.  It’s not like women who work at either place can’t get any birth control after this decision.  Additionally, if you object to such religious exercise, check to see if a company’s religious beliefs are listed on their mission statement, website, hamburger wrappers (In-n-Out Burger), or materials before applying for a job there or patronizing the business.  It’ll save you the trouble of finding out the hard way later.
  5. This decision concerns only the contraception mandate of the Affordable Care Act and should not be projected into broader, more ominous applications.  As Alito said “it’s not a shield for employers who might cloak illegal discrimination as a religious practice.”

Happy holiday!  Good luck out there, ‘Bystandr’s!

SB’s interview with SCOTUSblog: On teaching & mentoring, press passes, and the future

Tom Goldstein is going to a concert, and isn’t afraid to brag about it.

He held up two printed tickets with bar codes. “Don’t be jealous that I’m going to Katy Perry tonight.”

“Too late,” I responded.

Founder, Tom Goldstein, second from the right and SCOTUSblog writer Lyle Denniston, center, cover the Court.  Like bosses.

Founder, Tom Goldstein, second from the right, and SCOTUSblog writer Lyle Denniston, center, cover the Court. Like bosses.

SCOTUSblog is my first and often last stop for Supreme Court news.  I read it for personal interest and I use the site in my practice as a teacher to help young adults understand the judiciary.  SCOTUSblog inspired this website.  I wanted to talk to him while I was in D.C. about the role SCOTUSblog plays in teaching readers about the Supreme Court in the final weeks of the Court’s term.  This is a hectic time for him but he graciously invited me to his law office on Wisconsin Avenue to talk on a day sandwiched between two big decision days. Continue reading

On ABC v. Aereo

5-cent explanation:  Does Brooklyn, NY-based Aereo violate copyright laws when they provide equipment, at a cost of roughly $8 a month, to get local stations routed to consumers computers, tablets, or phones, to record and play programming on a cloud-based server?

10-cent explanation:  Aereo might be on to something – A la carte programming that saves viewers hundreds of dollars by abandoning packages and contracts with the majors cable companies.  Since this case first ignited attention in January, studies revealing people tend to only watch 7-8 channels out of the hundreds they’re offered through their cable companies have raised eyebrows.  Wise to this reality, young people in particular have cut ties with their cable providers opting instead for Apple TVs, Rokus, Slingboxes and now Aereo.   Continue reading

How two SCOTUS decisions could thwart electronic privacy erosion

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As Lucius Fox said, this does feel “wrong.”

By Cara L. Gallagher

Considering the median age of the nine Supreme Court Justices is around 65, Generation X, Y and Millenials should sit up and pay attention, not only the specifics of the two 4th Amendment cases involving cell phone searches (Riley v. CA and U.S. v. Wurie), but also the decisions.  Many of us have smart phones today.  Such devices and the applications we use are no doubt as much of an extension of us, in the royal sense, as our limbs.  If forced to choose which we’d rather sacrifice, the answer likely rests on how many of the limbs would have to go in order to still functionally operate a smart phone.

Smart phones are ubiquitous among 14-50 year olds, but not among the Justices. Continue reading

On police searches of cell phones and the 4th Amendment: Riley v. CA & U.S. v. Wurie

5-cent explanation: Can police search the contents of an arrestee’s cell phone (text messages, pictures, videos, call records, etc.) during routine traffic stops?

10-cent explanation: Two cases, both related to the searches of cell phones – one involved a flip phone, the other a smart phone – were argued in front of the U.S. Supreme Court on April 29, 2014 that questioned whether police could look inside the contents of a person’s phone without a warrant.

David Riley and Brima Wurie of California and Boston, respectively, both were found guilty on felony charges after evidence taken from their cellular phones was linked to criminal activity.  Wurie’s case is a bit different in that her phone was not a smart phone but a flip phone.  Her call records led police to find pounds of illegal drugs in her home, which were taken without a warrant and used against her in court. Riley is the case getting the most attention in that his phone was a smart phone commonly used by people today. Continue reading