update: Braidwood Management v. EEOC was actually decided on June 21, 2023, not last week. I’m not sure why it came up on my radar this week. There was no certification petition in the case. I’ll leave this post for completeness, but you can skip it.
That’s enough about the Supreme Court. Let’s focus on the Fifth Circuit, the only court in the country making a difference. Last week, the Fifth Circuit decided two cases involving Braidwood Management. Both cases are scheduled to go to the Supreme Court.
In the first case, Braidwood Management v. EEOC RFRA argued that it provides a defense to Title VII claims.
On the merits and as we explain, we conclude that RFRA requires Braidwood to be exempt from Title VII at the individual level because, post-Bostock, compliance with Title VII would have placed a substantial burden on the ability of homosexuals and transgender people to operate in accordance with their religious beliefs. Moreover, even after Bostock, the EEOC never met its burden to show that it had a compelling interest in denying Braidwood an exemption.
I wrote about this issue many years ago. In connection with Indiana RFRA. Circuits were split on whether state RFRA provides a defense against state employment discrimination laws. Now the Supreme Court will have to resolve the outstanding issues. Vostok.
The panel also argued that governments do not always have a strong interest in eradicating all forms of discrimination.
The Supreme Court may one day rule that preventing commercial businesses from discriminating on factors related to sexual orientation or gender identity is a government interest strong enough to override religious liberty in all cases, but it has never ruled that way. . . . But there is no need to go that far because the EEOC is not up to the burden. Braidwood does not appear to have a strong interest in individually denying exemptions. The agency doesn’t even attempt to argue the point, other than to imply a generalized interest in prohibiting all forms of sex discrimination in all potential cases.
I made a similar point. Amicus briefing Submitted to 303 Creative. The court sidestepped the issue, but it will return.
Going forward, until SCOTUS states otherwise, the Fifth Circuit will allow employers to file RFRA claims to defend against Title VII complaints. Specifically, they will argue that the government has no compelling interest in enforcing discriminatory laws in a way that substantially burdens free exercise.
In the second case, Braidwood Management v. millerWe found violations of the Appointments Clause in connection with the task force administering the ACA’s contraceptive mandate.
With regard to one of the problematic administrative agencies, the United States Preventive Services Task Force, we are concerned about the unreviewable power it wields: making preventive care recommendations that insurers are required by law to cover. It is agreed that the authority to issue shall be granted to members to the principal officers of the United States Preventive Services Task Force. States not validly appointed under Article II of the United States Constitution. And because Secretary of Health and Human Services Xavier Becerra failed to plausibly resolve the task force’s constitutional concerns, the district court properly ordered defendants to refrain from enforcing the preventive care order to the fullest extent possible. Task Force Recommendations.
However, the panel does not issue universal blanks for actions taken by these members. As a result, the status quo is maintained. Nonetheless, this issue will likely be another Appointments Clause case that the Supreme Court will have to resolve.
While the Supreme Court is wrapping up its hearing on the OT 2023 case filed in the Fifth Circuit, the hearing on the OT 2024 case filed in the Fifth Circuit is heating up.
Oh, and if you missed it, the 5th Circuit. Split 8-8 Whether Louisiana’s VRA case will be heard first in General Court:
In the en banc vote, eight justices voted in favor of an initial en banc hearing (Jones, Smith, Elrod, Willett, Ho, Duncan, Engelhardt, Oldham) and eight judges voted against (Richman, Stewart, Southwick, Haynes, Graves, Higginson, Douglas, Ramirez). Judge Wilson did not participate in the consideration of this petition.
As I said before, the en banc Fifth Circuit is more or less evenly divided. Don’t be fooled by the individual panels.
