July 18, 2019

Archives for July 16, 2015

The Culture of Law (Part 2): It’s an Inside Job

rhodesWe tend to think of culture as something external to ourselves — as something out there, set in motion and maintained by the cumulative energy of all those other people we live and work with.

Not so. Culture is not out there somewhere; it’s right here inside us — in our brains, to be precise. Culture isn’t about what everybody else is doing, it’s about our own brain cells (neurons) and the ways they’re linked together (neural pathways), plus all the hormones and electrical charges that keep the brain system running. Culture, in other words, is ultimately a personal biological and neurological reality.

In a series a couple years ago, I likened law culture to another biological concept:

Biologist Rupert Sheldrake posits the existence of “morphic fields.”

A morphic field is the controlling energy field of a biological entity – either an individual or collective system. The field is made up of both organic and psychological elements. The field is invisible, but its impact is observable. For example, both genetics (organic) and individual and collective conscious and unconscious factors (psychological) invisibly affect our behavior.

When we enter the legal profession, we enter its morphic field. Lawyers work in the field of law – get it? There are certain expectations, dynamics, outlooks, disciplines, judgments, commonly accepted wisdom, urban legends, etc. that come with the territory of being a lawyer.

In law school, we allowed our psyches to be affected by those things – we learned to “think like a lawyer.” Our neural pathways were literally rewired, our consciousness was altered, and our physiology was affected as well, so that we were biologically and chemically different beings when we graduated than we were when we started. No kidding. This brain- and body-retraining process continued when we went to work.

I didn’t know it at the time, but I was describing neurological cultural patterning. No, I’m not making this stuff up, and this series will look more deeply at how all this happens. But now, as we’re getting started, it’s useful to note several very practical implications all this has for lawyer personal wellbeing and career satisfaction. Here’s the short list:

As we saw last time, brain-originated culture is ultimately about promoting peace of mind — what one prominent brain researcher calls “concordance.” We have an innate biological need for an ongoing, functional match between how things work in our cultural context and our personal needs and expectations.

The culture of law as it existed when we entered the profession becomes our default cultural setting. Our brains, in their pursuit of concordance, continuously seek to reinforce that default culture and conform our experience to it.

The trouble is, as much as our brains would like the default to stay in place, the external world is always changing, which stresses our neurological peace, which in turn stresses our personal wellbeing and professional performance.

If we want to change our experience of the culture of law to promote concordance, we need to get to that default brain cultural setting and change it, and keep doing so as new stressors arise. To do that, we need to consciously promote our brain in developing new neurons and new neural pathways. No kidding.

Coming up, we’ll look at how law culture is shaped in lawyers’ brains, and how our brains keep our default cultural setting in place unless and until we actively exert our power to change it.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Tenth Circuit: Utilizing Religious Accommodation Is Not Substantial Burden on Religious Exercise

The Tenth Circuit Court of Appeals issued its opinions in Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell on Tuesday, July 14, 2015.

Plaintiffs in the three companion cases are non-profit religious organizations who contend that the religious exemption to the Affordable Care Act’s birth control mandate substantially burdens their free exercise of religion. The Affordable Care Act requires employer-sponsored health plans to meet minimum coverage requirements, including covering preventive health care services. Coverage of women’s preventive health care services must include all FDA approved contraceptives, sterilization procedures, and patient education and counseling. An exemption for nonprofit religious employers was created in the Act, and a religious employer can receive the exemption if it (1) has religious objections to providing some or all of the contraceptive services mandated by the Act, (2) is organized and operates as a non-profit entity, (3) holds itself out as a religious organization, and (4) self-certifies that it satisfies the first three criteria. In order to utilize the exemption, organizations must submit a form to their health insurance issuer or third-party administrator notifying the insurer that the organization is exempt from the contraception mandate. This triggers a requirement that the insurer fulfill the contraception mandate without sharing costs with the exempt organization.

The religious organizations objected to the exemption procedures, contending that by sending the form to their insurers, they were complicit in the provision of contraception because sending the form triggers the insurers’ responsibility to provide contraception coverage. Plaintiffs argued that by sending the form and triggering the insurers’ coverage requirement, their right to free exercise of religion was substantially burdened. The district courts reached different conclusions in each of the three cases before the Tenth Circuit, denying a preliminary injunction in the Little Sisters case but granting it in the Southern Nazarene and Reaching Souls cases.

In the Little Sisters case, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the businesses’ religious exercise. The court’s analysis of the preliminary injunction factors “began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied” and found it was the court’s duty to determine how the regulations operate as a matter of law. The district court concluded the accommodation scheme does not require Little Sisters to provide or participate in the provision of contraceptive coverage.

In Southern Nazarene, the district court analyzed the plaintiffs’ likelihood of success on the merits and determined the form imposed a substantial burden on plaintiffs’ sincere religious exercise. The court determined the government failed to show a compelling governmental interest or showed its approach was the least restrictive approach, and granted the preliminary injunction.

In Reaching Souls, the district court also analyzed the plaintiffs’ likelihood of success on the merits. The court rejected the government’s argument as a “variation of a proposition rejected” in Hobby Lobby, and emphasized that regardless of whether signing the form actually triggered the provision of contraceptive services, the plaintiffs believed signing the form signaled their tacit approval or complicity. The district court granted a preliminary injunction.

Before reaching the merits of the appeals, the Tenth Circuit highlighted the unusual nature of the plaintiffs’ claims. The Tenth Circuit distinguished the Hobby Lobby case and other RFRA cases, since those plaintiffs could not avail themselves of the religious employer exemption. The Circuit quoted its closest analog case, United States v. Friday, noting “‘Law accommodates religion; it cannot wholly exempt religion from the reaches of the law.'”

The Tenth Circuit admonished the religious organizations, noting that whether the form constitutes a substantial burden is a legal question to be left to the courts, not a subjective matter for an organization to decide. Finding the accommodation permissible under the RFRA, the Tenth Circuit noted that the plaintiffs do not “trigger” contraceptive coverage by opting out of direct provision because federal law, not the act of plan participants, mandates contraceptive coverage. Rather than becoming complicit in the contraceptive scheme, opting out relieves the plaintiffs of all complicity. The Tenth Circuit characterized the form completion as a de minimus administrative task. Although the plaintiffs and the dissent argue that by opting out the plaintiffs cause the legal responsibility for providing coverage to shift to the insurer, the Tenth Circuit found that shifting the responsibility to the insurer relieved the organization of its obligation to provide coverage. The Circuit noted that such arrangements are common and among permissible methods of religious accommodation in a pluralist society.

Analyzing the RFRA, the Tenth Circuit again stressed that “whether a law substantially burdens religious exercise . . . is a matter for courts—not plaintiffs—to decide.” Courts need not question whether a religious petitioner correctly perceived the commands of his or her faith, but rather whether a challenged law or policy substantially burdens religious exercise. The Tenth Circuit noted “accepting any burden alleged by Plaintiffs as ‘substantial’ would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.” The Tenth Circuit found that accommodations such as the exemption at issue may eliminate burdens on religious exercise or reduce them to de minimus administrative tasks.

The Tenth Circuit rejected the plaintiffs’ argument that delivering the form “triggers” contraceptive coverage, emphasizing that federal law, not the form or delivery, mandates coverage. It found that the arrangement shifting responsibility of coverage “is typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds.” The Tenth Circuit instructed that a religious accommodation reconciles rule of liberty with rule of law, so that when a religious institution is faced with a conflict between following the law or following religious belief, the religious objector can seek exception from the law without having to break it. The Tenth Circuit noted that shifting the burden from an objecting party to a non-objecting one is the point of accommodation.

The Tenth Circuit next turned to the plaintiffs’ arguments that the act of opting out makes them feel complicit in the overall contraceptive coverage scheme. The Tenth Circuit was not persuaded. Instead, it found that the exemption serves to ensure that plaintiffs are not complicit in the delivery of contraceptive services: “Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it.” Since the only involvement of plaintiffs in the scheme of contraceptive coverage is the act of opting out, the Tenth Circuit found this did not impose a substantial burden, noting that all opt-out schemes require some affirmative action and having to file paperwork does not alone substantially burden religious exercise. The Tenth Circuit that plaintiffs’ religious objections cannot hamstring government efforts to ensure plan participants receive the coverage to which they are legally entitled.

Turning next to the plaintiffs’ First Amendment arguments, the Tenth Circuit found no merit in plaintiffs’ contention that the exemption requirement simultaneously compels and silences their speech in violation of the First Amendment. The Tenth Circuit applied the same analysis to the First Amendment claims as it applied to the RFRA claims. The Tenth Circuit found the ACA neutral and generally applicable, and determined the exemption “was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice.”

The Tenth Circuit affirmed the district court’s denial of a preliminary injunction in Little Sisters and reversed the district court’s grant of a preliminary injunction in Southern Nazarene and Reaching Souls. Judge Baldock dissented.

Tenth Circuit: Unpublished Opinions, 7/15/2015

On Wednesday, July 15, 2015, the Tenth Circuit Court of Appeals issued one published opinion and ten unpublished opinions.

United States v. Malik

United States v. Scott

United States v. Mendez

United States v. MacKay

Jones v. Patton

Bryant v. Sagamore Insurance Co.

Santos v. Colvin

Grigsby v. Lemuz

Williams v. Owners Insurance Co.

United States v. Eastham

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.