SEVENTH CIRCUIT REVIEW
SEVENTH CIRCUIT REVIEW
Volume 10, Issue 1
Fall 2014
CONTENTS
Masthead
About the SEVENTH CIRCUIT REVIEW
iii
iv
Bankruptcy Law
Seventh Circuit Holds That Bankruptcy
Trustee’s “Strong-Arm” Powers Are Not
Strong Enough for the IRS
Paul T. Geske
1
Marriage Solemnization and the First
Amendment’s Neutrality Principle: Who
May Solemnize a Marriage?
Claudia L. Cortes
32
Unreasonable Religious Accommodation?:
Fighting Irish Challenge the Opt-Out
Form to the Affordable Care Act’s
“Contraceptive Mandate”
Emily A. Herbick
88
Constitutional Law
Criminal Procedure
Plead Guilty, You Could Face Deportation:
Seventh Circuit Rules Misadvice and
Nonadvice to Non-Citizens Has Same Effect
Under the Sixth Amendment
Dana Cronkite 145
Katz and Dogs; The Best Path Forward in
Applying United States v. Davis’ Good Faith
Exception to the Exclusionary Rule and How
the Seventh Circuit Has Gone Astray
Arlo Walsman 170
i
Intellectual Property Law
KA BOW! Seventh Circuit Knocks Down
Trademark Claim
ii
Sarah B. Virani 229
SEVENTH CIRCUIT REVIEW
SEVENTH CIRCUIT REVIEW
Volume 10, Issue 1
Fall 2014
Chicago-Kent College of Law
Illinois Institute of Technology
565 West Adams Street, Chicago, Illinois 60661
Hal R. Morris
Professor
McKenna M. Prohov
Executive Editor – Teaching Assistant
Editorial Staff
Claudia L. Cortes
Dana Cronkite
Paul T. Geske
Emily A. Herbick
Sarah B. Virani
Arlo Walsman
© 2014 Chicago-Kent College of Law, Illinois Institute of Technology.
iii
SEVENTH CIRCUIT REVIEW
SEVENTH CIRCUIT REVIEW
Volume 10, Issue 1
Fall 2014
ABOUT THE SEVENTH CIRCUIT REVIEW
Purpose
The SEVENTH CIRCUIT REVIEW is a semiannual, online journal
dedicated to the analysis of recent opinions published by the United
States Court of Appeals for the Seventh Circuit. The SEVENTH
CIRCUIT REVIEW seeks to keep the legal community abreast of
developments and trends within the Seventh Circuit and their impact
on contemporary jurisprudence. The articles appearing within the
SEVENTH CIRCUIT REVIEW are written and edited by Chicago-Kent
College of Law students enrolled in the SEVENTH CIRCUIT REVIEW
Honors Seminar.
The SEVENTH CIRCUIT REVIEW Honors Seminar
In this seminar, students author, edit, and publish the SEVENTH
CIRCUIT REVIEW. The REVIEW is entirely student written and edited.
During each semester, students identify cases recently decided by the
Seventh Circuit to be included in the REVIEW, prepare initial drafts of
case comments or case notes based on in-depth analysis of the
identified cases and background research, edit these drafts, prepare
final, publishable articles, integrate the individual articles into the
online journal, and “defend” their case analysis at a semester-end
roundtable. Each seminar student is an editor of the REVIEW and
responsible for extensive editing of other articles. Substantial
assistance is provided by the seminar teaching assistant, who acts as
the executive editor.
iv
The areas of case law that will be covered in each journal issue will
vary, depending on those areas of law represented in the court’s
recently published opinions, and may include:
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






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Americans with Disabilities Act
antitrust
bankruptcy
civil procedure
civil rights
constitutional law
copyright
corporations
criminal law and procedure
environmental
ERISA
employment law
evidence
immigration
insurance
products liability
public welfare
securities
This is an honors seminar. To enroll, students must meet one of the
following criteria: (1) cumulative GPA in previous legal writing
courses of 3.5 and class rank at the time of registration within top 50%
of class, (2) recommendation of Legal Writing 1 and 2 professor
and/or Legal Writing 4 professor, (3) Law Review membership, (4)
Moot Court Honor Society membership, or (5) approval of the course
instructor.
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SEVENTH CIRCUIT REVIEW
Volume 10, Issue 1
Fall 2014
SEVENTH CIRCUIT HOLDS THAT BANKRUPTCY
TRUSTEE’S “STRONG-ARM” POWERS ARE NOT
STRONG ENOUGH FOR THE IRS
PAUL T. GESKE
Cite as: Paul T. Geske, Seventh Circuit Holds That Bankruptcy Trustee’s “StrongArm” Powers Are Not Strong Enough for the IRS, 10 SEVENTH CIRCUIT REV. 1
(2014), at http://www.kentlaw.iit.edu/Documents/Academic Programs/7CR/v10
-1/geske.pdf.
INTRODUCTION
In the 2014 case In re Equipment Acquisition Resources, Inc.,1 the
U.S. Court of Appeals for the Seventh Circuit became the first federal
circuit court to hold that bankruptcy trustees cannot use the “strongarm” powers of 11 U.S.C.A. 544(b)2 to avoid a fraudulent transfer
where the transferee is the federal government.3 More specifically, the
Seventh Circuit held that the doctrine of sovereign immunity makes it
impossible for the trustee to satisfy the requirements of Section 544(b)
in actions against a federal government entity.4 This holding is
counterintuitive, because another provision of the Bankruptcy Code,
Section 106(a)(1), abrogates federal sovereign immunity as to Section
544.5 The interplay of these two Code6 sections is nuanced, and the
 J.D. candidate, May 2015, Chicago-Kent College of Law, Illinois Institute of
Technology.
1
In re Equip. Acquisition Res., Inc., 742 F.3d 743 (7th Cir. 2014).
2
11 U.S.C.A. § 544(b) (West 2014).
3
Equip. Acquisition Res., 742 F.3d at 746.
4
Id.
5
11 U.S.C.A. § 106.
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Seventh Circuit’s opinion creates some tension between the two
provisions.
Equipment Acquisition Resources is important, not just because it
is controversial, but also because it goes to the heart of how courts
construe statutes. The Seventh Circuit’s opinion in Equipment
Acquisition Resources and the opinions of prior courts on the same
issue demonstrate what courts value when construing statutes, and
how those values promote or obstruct bankruptcy policy. Additionally,
the Seventh Circuit’s discussion of sovereign immunity is instructive
as to how courts view the relationship between individuals and the
government. Even so, the Seventh Circuit’s approach and its ultimate
holding are vulnerable to criticism on several grounds.
In its opinion, the Seventh Circuit stated that it was simply
interpreting Sections 544(b) and 106(a) according to their plain
meaning.7 However, this approach fails to acknowledge that there are
other legitimate interpretations of the provisions’ supposedly plain
meaning, as every court to have confronted this issue prior to
Equipment Acquisition Resources has disagreed with the Seventh
Circuit. Also, the Seventh Circuit’s holding renders Section 106(a)—
the section waiving sovereign immunity—partially meaningless. If, as
the Seventh Circuit held, 544(b) cannot avoid transfers to federal
government entities with sovereign immunity, then why did Congress
decide to abrogate sovereign immunity with regard to all of Section
544? Further, the policy grounds on which the Seventh Circuit’s
decision rests are hollow and speculative, and contrary to traditional
bankruptcy objectives. The court’s decision should therefore be
overruled, and not followed in other circuits.
Part I of this article begins by briefly discussing the source of the
bankruptcy trustee’s strong-arm powers in the Bankruptcy Code. Part
II examines the factual and procedural background of Equipment
Acquisition Resources. Part III then analyzes the Seventh Circuit’s
opinion in Equipment Acquisition Resources alongside the other
6
Unless otherwise stated, all references to the “Code” or to a “Section” refer to
the Bankruptcy Code contained in Title 11 of the United States Code.
7
Equip. Acquisition Res., 742 F.3d at 747.
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district court cases that have addressed the same issue. Part IV
assesses the strength of the Seventh Circuit’s reasoning, and argues
that other courts should not follow the Seventh Circuit’s holding.
I. BACKGROUND
Understanding the holding of Equipment Acquisition Resources
requires some background knowledge, including a familiarity with the
legal doctrines and Bankruptcy Code provisions that form the
framework of the case. This first Part briefly explains the law on the
central issue in Equipment Acquisition Resources, and then discusses
the holdings of other courts that have addressed the same question.
A. Bankruptcy Code Provisions
1. Section 544(b): The Strong-Arm Powers
Section 544(b) of the Bankruptcy Code, commonly referred to as
the source of the “strong-arm” powers,8 is one of the most important
tools in the bankruptcy trustee’s tool-belt. Broadly speaking, this
section gives the trustee the power to avoid a fraudulent transfer by the
debtor, if the transfer would be voidable by one of the debtor’s
creditors under state law.9 In other words, Section 544(b) empowers
the trustee by allowing him or her to exercise the rights that creditors
of the debtor have under state fraudulent transfer law.10 After
avoidance, the trustee can then claw back, or recover, the transferred
assets for the benefit of the bankruptcy estate and the debtor’s
creditors.11
8
See, e.g., Leibowitz v. Parkway Bank & Trust Co. (In re Image Worldwide,
Ltd.), 139 F.3d 574, 576-77 (7th Cir. 1998); In re Munford, Inc., 98 F.3d 604, 609
(11th Cir. 1996) (“Section 544(b) is commonly referred to as the ‘strong arm’
clause.”).
9
5 COLLIER ON BANKRUPTCY ¶ 544.06(2) (Alan N. Resnick & Henry J.
Sommer eds., 16th ed. 2014).
10
Id.
11
11 U.S.C.A. § 550(a).
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Turning first to the language of Section 544(b)(1), the provision
states, in relevant part, that “the trustee may avoid any transfer of an
interest of the debtor in property or any obligation incurred by the
debtor that is voidable under applicable law by a creditor holding an
unsecured claim . . . .”12 The “applicable law” referred to in 544(b)(1)
is non-bankruptcy, state law.13 And most often, the state statute the
trustee invokes is some form of the Uniform Fraudulent Transfer Act
(“UFTA”), which has been adopted by the legislatures of 43 states.14
In sum, 544(b)(1) effectively “allows the trustee to use the applicable
state’s law of fraudulent conveyances to set aside obligations incurred
by the bankrupt.”15
There are some important limitations on the trustee’s ability to
invoke state fraudulent transfer law through Section 544(b). First, the
trustee’s rights are no greater than those of a creditor acting under state
law.16 It is often said that the trustee steps into the shoes of the
creditor. Courts have explained this limitation as follows:
It is well established that the effect of this section is to
clothe the trustee with no new or additional right in the
premises over that possessed by a creditor, but simply
puts him in the shoes of the latter, and subject to the
same limitations and disabilities that would have beset
the creditor in the prosecution of the action on his own
behalf; and the rights of the parties are to be
determined, not by any provision of the Bankruptcy
Act, but by the applicable principles of the common
law, or the laws of the state in which the right of action
12
Id. § 544(b).
See, e.g., Kittay v. Korf (In re Palermo), 739 F.3d 99, 101-02 (2d Cir. 2014);
Sherwood Partners, Inc. v. Lycos, Inc., 394 F.3d 1198, 1201 (9th Cir. 2005); In re
Valley Mortgage, Inc., No. 10–19101–SBB, 2013 WL 5314369, at *1 (Bankr. D.
Colo. 2013) (“Generally, ‘applicable law’ is interpreted to include state law causes
of action”).
14
5 COLLIER ON BANKRUPTCY ¶ 544.06(2).
15
In re Xonics Photochemical, Inc., 841 F.2d 198, 202 (7th Cir. 1988).
16
5 COLLIER ON BANKRUPTCY ¶ 544.06(3).
13
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may arise. In other words, the Bankruptcy Act merely
permits the trustee to assert the rights which the
creditor could assert but for the pendency of the
bankruptcy proceedings, and if, for any reason arising
under the laws of the state, the action could not be
maintained by the creditor, the same disability will bar
the trustee.17
Because the trustee can only act to the extent that a creditor of the
debtor could act under state law, bankruptcy courts look to state law in
defining the properties and limits of the trustee’s strong-arm powers.18
Accordingly, in Section 544(b) avoidance actions, the court focuses on
the creditor’s powers under state law, and not the Bankruptcy Code
alone.19
Another important limitation on the trustee’s strong-arm powers is
the requirement that some creditor actually exist who could bring a
claim under the state’s fraudulent transfer law.20 This “actual creditor”
requirement is derived from the language of 544(b). The trustee or
debtor in possession must plead the existence of a creditor who could
17
Davis v. Willey (In re Willey) 263 F. 588, 589 (N.D. Cal. 1920). The Davis
court was actually describing the statute that preceded Section 544, because the
present Bankruptcy Code did not exist in 1920. Nonetheless, the predecessor to
Section 544 was functionally equivalent to the current version.
18
See, e.g., In re Archdiocese of Milwaukee, 483 B.R. 855, 862-63 (Bankr.
E.D. Wis. 2012) (“The trustee's rights under § 544(b) are limited to the ‘rights of an
existing unsecured creditor because § 544(b) rights are completely derivative of
those of an actual unsecured creditor.’ Further, the trustee will be able to attack the
transfer only to the extent a creditor with an allowable claim can avoid the transfer
under applicable state law.”) (internal citations omitted); In re Fleming Packaging
Corp., No. 03–82408, 2007 WL 1021884, at *9 (Bankr. C.D. Ill. 2007) (“When
bringing an avoidance action under Section 544(b) . . . the extent of the trustee's
rights is determined entirely by state law.”).
19
See supra note 18 and accompanying text.
20
5 COLLIER ON BANKRUPTCY ¶ 544.06(1) (“If there are no creditors against
whom the transfer is voidable under the applicable law, the trustee is powerless to
act under section 544(b)(1).”).
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have avoided the transfer at issue.21 That creditor must have been in
existence when the purported fraudulent transfer took place and on the
date of the bankruptcy filing.22 The creditor’s claim against the debtor
also must be one which would be allowed in bankruptcy.23 Courts and
commentators sometimes refer to this creditor as the “golden creditor,”
because it is a lynchpin of Section 544(b) analysis.24 However, courts
generally do not require the trustee to specifically name or rely on one
particular creditor.25 As discussed below, the actual creditor
requirement was central to the court’s decision in Equipment
Acquisition Resources.26
2. Reach-back Period
In addition to Section 544, there is another primary means for
avoiding fraudulent transfers under the Bankruptcy Code: Section
548.27 Whereas Section 544 is the source of the trustee’s state law
avoidance powers, Section 548 is the source of the trustee’s
bankruptcy law fraudulent transfer avoidance powers. Section 548
mirrors state fraudulent transfer law, bringing the Bankruptcy Code
into agreement with state law.28
However, sections 544 and 548 differ in at least one important
way. Section 548 has a shorter, two-year reach-back period; in other
words, the trustee may only avoid transfers “made or incurred on or
21
Leibowitz v. Parkway Bank & Trust Co. (In re Image Worldwide, Ltd.), 139
F.3d 574, 577 (7th Cir. 1998); In re Leonard, 125 F.3d 543, 544 (7th Cir. 1997).
22
5 COLLIER ON BANKRUPTCY ¶ 544.06(1).
23
Id. The law as to allowance of claims is outside the scope of this article, but
it is sufficient to note that allowance is an additional requirement to establish
standing under Section 544(b).
24
See, e.g., Faulkner v. Kornman (In re The Heritage Org., L.L.C.), 413 B.R.
438, 459 (Bankr. N.D. Tex. 2009); Turner v. Phoenix Fin., LLC (In re Imageset,
Inc.), 299 B.R. 709, 715 (Bankr. D. Me. 2003).
25
5 COLLIER ON BANKRUPTCY ¶ 544.06(1).
26
See infra, Part III.A.
27
11 U.S.C.A. § 548 (West 2014).
28
5 COLLIER ON BANKRUPTCY ¶ 548.01.
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within 2 years before the date of the filing of the petition.”29
Conversely, state fraudulent transfer law, namely the UFTA, has a
four-year reach-back period.30 Therefore, the Section 544 strong-arm
powers are an essential tool for avoidance because they give the
trustee access to the longer reach-back period under state law, and the
ability to avoid transfers that the trustee otherwise could not avoid
under Section 548 of the Bankruptcy Code alone.31
3. Section 106(a): The Bankruptcy Code’s Abrogation of Sovereign
Immunity
Sovereign immunity is a primordial common law doctrine which
bars suit against sovereign entities.32 Immunity from suit is an attribute
that is “inherent in the nature of sovereignty . . . .”33 Thus, the states
and federal government are “not to be amenable to the suit of an
individual without [their] consent.”34 The American legal system
29
§ 548(a)(1).
UNIF. FRAUDULENT TRANSFER ACT § 9 (“A [claim for relief] [cause of
action] with respect to a fraudulent transfer or obligation under this [Act] is
extinguished unless action is brought: (a) under Section 4(a)(1), within 4 years after
the transfer was made or the obligation was incurred or, if later, within one year
after the transfer or obligation was or could reasonably have been discovered by the
claimant; (b) under Section 4(a)(2) or 5(a), within 4 years after the transfer was
made or the obligation was incurred . . . .” (emphasis added)).
31
See, e.g., In re Dolata, 306 B.R. 97, 115 (W.D. Penn. 2007) (comparing
Section 548(a)(1) with Pennsylvania’s fraudulent transfer statute and noting that they
are “expressly distinguishable” in that “transfers that may be subject to attack under
§ 548(a)(1) are limited to those that are made within one year [now two years] of the
date of a debtor's bankruptcy petition filing, whereas a transfer generally remains
assailable under [Pennsylvania’s statute] provided that an avoidance action is
brought thereunder within four years of such transfer . . . .”) (internal citations
omitted).
32
See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 69 (1999); Charles
Alan Wright, et al., 14 FED. PRAC. & PROC. JURIS. § 3654 (3d ed.) (“It now is well
settled by numerous judicial precedents—although for a century the rule was stated
only in dicta—that the United States may not be sued without its consent.”)
33
Hans v. Louisiana, 134 U.S. 1, 13 (1890).
34
Id.
30
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inherited this principle from English common law at the time of the
nation’s founding.35 The United States Supreme Court has observed
that “[w]hen the Constitution was ratified, it was well established in
English law that the Crown could not be sued without consent in its
courts.”36 At present, the prevailing view on the Supreme Court is that
the framers understood and accepted sovereign immunity, and that it is
implicit in the framework of the Constitution.37
Sovereign immunity operates to deprive a court of subject matter
jurisdiction over the suit unless the sovereign consents to be sued.38
Generally, only Congress can consent to, waive, or abrogate the
federal government’s sovereign immunity.39 Where Congress
abrogates sovereign immunity through a legislative act, it must do so
explicitly and unequivocally.40 Waivers are strictly construed, and any
ambiguity as to the waiver is construed in favor of the sovereign.41
In the past, the states and the federal government invoked
sovereign immunity as a bar against actions brought by debtors and
35
Alden v. Maine, 527 U.S. 706, 715-16 (1999) (“Although the American
people had rejected other aspects of English political theory, the doctrine that a
sovereign could not be sued without its consent was universal in the States when the
Constitution was drafted and ratified.” (citing Chisholm v. Georgia, 2 Dall. 419,
437-46 (1793) (Iredell, J., Dissenting))).
36
Id.
37
Id.
38
Charles Alan Wright, et al., 14 FED. PRAC. & PROC. JURIS. § 3654 (3d ed.)
(“The natural consequence of the sovereign immunity principle is that the absence of
consent by the United States is a fundamental defect that deprives the district court
of subject matter jurisdiction.”).
39
2 COLLIER ON BANKRUPTCY ¶ 106.01 (Alan N. Resnick & Henry J. Sommer
eds.,16th ed. 2014) (“[F]ederal and state governmental bodies enjoy sovereign
immunity from suit except when their immunity has been abrogated by Congress,
waived by some action taken by the governmental body or eliminated by a specific
provision of the Constitution itself.”); U.S. v. Nordic Vill., Inc., 503 U.S. 30, 33-34
(1992).
40
Nordic Vill., 503 U.S. at 33-34.
41
Id. at 34 (“the Government's consent to be sued ‘must be construed strictly in
favor of the sovereign, and not enlarge[d] . . . beyond what the language requires’”)
(internal quotation marks and citations omitted).
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trustees.42 However, the Bankruptcy Code now contains an explicit
abrogation of sovereign immunity in Section 106.43 This section went
into effect with the Bankruptcy Reform Act of 1994, which amended
Section 106 to its current form. 44 Section 106 now explicitly
enumerates each section of the Bankruptcy Code for which the
abrogation applies.45 Section 106(a)(1) states, in relevant part,
“Notwithstanding an assertion of sovereign immunity, sovereign
immunity is abrogated as to a governmental unit to the extent set forth
in this section with respect to . . . [s]ection[] . . . 544 of this title.”46
Section 106(a)(2) gives courts the power to “hear and determine any
issue arising with respect to the application of such section[] to
governmental units.”47 The phrase “governmental unit” is a defined
term under the Code, broadly including all federal, state, and local
government entities.48 And Section 106(a)(3) provides that “[t]he court
may issue against a governmental unit an order, process, or judgment
under such sections or the Federal Rules of Bankruptcy Procedure,
including an order or judgment awarding a money recovery, but not
including an award of punitive damages.”49
According to the House Reports and legislative history for Section
50
106, Congress enacted Section 106 because the statute that preceded
42
2 COLLIER ON BANKRUPTCY ¶ 106.01.
11 U.S.C.A. 106(a) (West 2014).
44
Pub.L. No. 103–394, § 113, 108 Stat. 4106 (1994).
45
§ 106(a).
46
Id.
47
Id. § 106(a)(2).
48
Id. § 101(27) (“The term ‘governmental unit’ means United States; State;
Commonwealth; District; Territory; municipality; foreign state; department, agency,
or instrumentality of the United States (but not a United States trustee while serving
as a trustee in a case under this title), a State, a Commonwealth, a District, a
Territory, a municipality, or a foreign state; or other foreign or domestic
government.”).
49
Id. § 106(a)(3).
50
H.R. Rep. No. 595, 95th Cong., 1st Sess. 317 (1977), reprinted in App. Pt.
4(d)(i); S. Rep. No. 989, 95th Cong., 2d Sess. 29-30 (1978).
43
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it failed to unambiguously abrogate sovereign immunity.51 In Hoffman
v. Connecticut Department of Income Maintenance and United States
v. Nordic Village, Inc., the Supreme Court held that Section 106’s
predecessor failed to successfully abrogate sovereign immunity,
because its language was not sufficiently explicit. 52 However,
following the 1994 amendments, there is now no disagreement;
Section 106 unambiguously abrogates sovereign immunity as to the
Code sections listed in 106(a).53
B. Prior Court Decisions Addressing the Issue
While the Seventh Circuit was the first federal circuit court of
appeals to consider the issue of whether a trustee can use Section
544(b) to avoid fraudulent transfers to the federal government,54 it was
not the first court to do so. A number of district courts have also
passed on the issue. In re C.F. Foods, L.P.55 is the first and one of the
most frequently cited of such cases. In C.F. Foods, two partners
formed a Pennsylvania limited partnership for the purpose of engaging
in business as a candy wholesaler.56 The partners solicited
investments, promising returns of eighteen to thirty percent.57 In
reality, the business was a vehicle for fraud. In 1988 the business
reported that it had $140 million in sales even though it actually had
51
WILLIAM L. NORTON, NORTON BANKRUPTCY LAW & PRACTICE § 14:4 (3d
ed.) (“The Committee Report points out that the amendment was intended to
overrule both Hoffman v. Connecticut Dept. of Income Maintenance and U.S. v.
Nordic Village Inc.”); 2 COLLIER ON BANKRUPTCY ¶ 106.
52
See Hoffman v. Connecticut Dept. of Income Maint., 492 U.S. 96 (1989);
U.S. v. Nordic Vill., Inc., 503 U.S. 30 (1992).
53
See supra note 51.
54
In re Equip. Acquisition Res., Inc., 742 F.3d 743, 748 (7th Cir. 2014) (“This
is an issue of first impression for any circuit court of appeals.”).
55
Liebersohn v. IRS (In re C.F. Foods, L.P.), 265 B.R. 71 (Bankr. E.D. Penn.
2001).
56
Id. at 74.
57
Id.
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only $5 million in revenue.58 In order to perpetuate and cover up the
fraud, the partners recorded fake transactions and sales figures.59
Based on the reported sales figures, the partners incurred federal
personal income tax liability, and they used partnership assets to cover
this liability.60 Between 1996 and 1998, the partnership made nine
payments to the IRS for the partners’ benefit, totaling $3,190,259.38.61
In May of 1999, C.F. Foods entered involuntary Chapter 7
bankruptcy.62 The bankruptcy trustee subsequently filed an adversary
proceeding against the IRS, seeking to recover the tax payments as
fraudulent transfers.63 The trustee asserted that the transfers were
fraudulent under Pennsylvania’s Uniform Fraudulent Transfer Act,64
which the trustee invoked through Section 544(b).65 In response, the
IRS took the position that it was immune from the avoidance claim
due to sovereign immunity.66 The IRS argued that outside of
bankruptcy, unsecured creditors would be barred by sovereign
immunity from asserting state law avoidance claims against the federal
government; and because the trustee steps into the shoes of a state law
creditor, the trustee should be similarly barred from bringing a claim
under Section 544 and Pennsylvania’s fraudulent transfer act.67 Put
differently, the IRS contended that Congress had not made the
necessary explicit waiver of sovereign immunity as to any state
fraudulent transfer statutes—Section 106(a) only applied to the
Bankruptcy Code and not state law, and as a result, the trustee should
be barred from asserting the avoidance claim.68
58
Id. at 75.
Id.
60
Id.
61
Id. at 75 n.4.
62
Id. at 73.
63
Id. at 74.
64
12 PA. CONS. STAT. ANN. § 5101, et seq. (West 2014).
65
C.F. Foods, 265 B.R. at 77.
66
Id. at 81.
67
Id. at 82-83.
68
Id.
59
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Although the court thought there was some “allure” to the IRS’s
argument, it ultimately held in favor of the trustee.69 After examining
the legislative history of Section 106, the court found that Congress
had unequivocally asserted its power to abrogate the federal
government’s sovereign immunity from actions brought under Section
544.70 This abrogation also covered state law causes of action
subsumed by Section 544(b).71 The Court reasoned that “[b]y
including § 544 in the list of Bankruptcy Code sections set forth in §
106(a), Congress knowingly included state law causes of action within
the category of suits to which a sovereign immunity defense could no
longer be asserted.”72 This reading of 106(a) was correct, said the
court, in light of the statute’s “unambiguous language.”73 The court
conceded that its decision resulted in some incongruity by giving the
trustee greater rights in bankruptcy than a creditor would have outside
of bankruptcy.74 But, as the court observed, this result was consistent
with the broad rights possessed by the trustee by virtue of Section
544.75 Further, the court also justified its decision on policy grounds,
noting that any recovery of assets for the bankruptcy estate benefits all
of the debtor’s creditors as a whole.76
In addition to C.F. Foods, several other district courts have
considered this issue prior to Equipment Acquisition Resources, and
each court’s decision falls in line with the C.F. Foods holding. For
example, In re Custom Contractors, LLC also involved a trustee’s
69
Id. at 86.
Id.
71
Id.
72
Id. at 85.
73
Id. at 86.
74
Id. at 85-86.
75
Id.
76
Id. (“even if there was any ambiguity to § 106(a)—and I find that there is
none—other considerations still weigh heavily against the result sought by the IRS.
Any recovery by the bankruptcy trustee will benefit all of the debtor's creditors,
including the IRS.”).
70
12
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complaint to avoid and recover transfers from the debtor to the IRS.77
The complaint alleged that the debtor, a limited liability company, had
transferred $199,956.25 to the IRS on behalf of one of its principals.78
The company made the transfer to satisfy the principal’s personal
income tax liability at a time when he was struggling to pay his own
bills, even though the company owed the principal no money.79
The bankruptcy trustee in Custom Contractors sought to avoid the
transfers through Section 544(b)(1) and the Florida Uniform
Fraudulent Transfer Act (FUFTA).80 The IRS then moved to dismiss,
raising the same argument that it had in C.F. Foods—that the trustee
could not avoid the transfers because no creditor outside of bankruptcy
could bring a state law claim against the IRS under the FUFTA due to
sovereign immunity.81 The court again rejected the IRS’s argument.82
Citing to C.F. Foods, the court held that the “unambiguous language of
§ 106” abrogated the federal government’s sovereign immunity as to
state fraudulent transfer laws invoked pursuant to the trustee’s strongarm powers.83 The court reasoned that a contrary reading of the statute
“requir[ing] a trustee to demonstrate that the United States has waived
sovereign immunity in every instance the trustee seeks to rely on state
law for the purpose of § 544 would render the general abrogation of
sovereign immunity under § 106 almost meaningless.”84
Another case following the lead of C.F. Foods and Custom
Contractors is In re DBSI, Inc.85 As in the cases discussed above, the
bankruptcy trustee brought a Section 544(b) claim to avoid and
77
Menotte v. U.S. (In re Custom Contractors, LLC), 439 B.R. 544, 545
(Bankr. S.D. Fla. 2010).
78
Id. at 545-46.
79
Id.
80
Id. at 546; FLA. STAT. ANN. 726.105, et seq. (West 2014).
81
Custom Contractors, 439 B.R. at 546-47.
82
Id. at 549.
83
Id. at 548-49.
84
Id. at 549 (emphasis added).
85
Zazzali v. Swenson (In re DBSI, Inc.), No. 10-54649(PJW), 2011 WL
607442 (Bankr. D. Del. 2011).
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recover transfers that the debtor made to the IRS on behalf of the
company’s insiders, and the IRS moved to dismiss the claim on
sovereign immunity grounds.86 Here again, the IRS emphasized the
actual creditor requirement of Section 544(b), and argued that a
creditor could not bring an avoidance action against the IRS because
Congress had not explicitly waived sovereign immunity as to the
state’s fraudulent transfer statute.87
Again, the court sided with the trustee, citing approvingly to C.F.
Foods and Custom Contractors and finding their reasoning
persuasive.88 The court looked at the interaction between Sections 106
and 544, and found that “[i]nterpreting § 106(a)(1) to include an
abrogation of the applicable nonbankruptcy causes of action available
to a trustee under § 544(b)(1) comports with the purpose and use of
that provision.”89 The court underscored two reasons that formed the
basis of its holding. First, there is a “long history of empowering
bankruptcy trustees to bring certain state law causes of action,” and
Congress would have been aware of this history when it enacted
Section 106 and abrogated sovereign immunity as to Section 544.90 It
follows, therefore, that when Congress enacted Section 106 it intended
to abrogate sovereign immunity as to state law avoidance actions
brought under Section 544.91
Second, the court found that the IRS’s reading of Section 106 was
problematic because it “would render § 106 practically
meaningless.”92 The court explained:
[According to the IRS], Congress’ abrogation of sovereign
immunity as to § 544 is only one part of the equation . . .
[T]here must also be a waiver or abrogation of sovereign
86
Id. at *1.
Id. at *3.
88
Id. at *4.
89
Id. at *5.
90
Id. at *4.
91
Id. at *5.
92
Id.
87
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immunity with respect to the particular “applicable law” . . . .
However, neither [this state’s] legislature nor any state would
have authority to abrogate the sovereign immunity of the
United States as a defense to a creditor claim under the state's
version of the Uniform Fraudulent Transfer Act or otherwise.
Thus, the IRS’ argument would apparently render
meaningless Congress’ abrogation of sovereign immunity as
to § 544.93
Put differently, accepting the IRS’s argument would mean introducing
a second hurdle of sovereign immunity, requiring another act of
abrogation or waiver in addition to Section 106.94 The court reasoned
that this outcome was undesirable, because it would render Section
106 ineffective as to Section 544(b) without some extra act abrogating
sovereign immunity for state laws.95
The line of cases that began with C.F. Foods continued unbroken
through the end of 2013 with In re Valley Mortgage, Inc.96 In Valley
Mortgage, the debtor was a corporation used to perpetrate a massive
Ponzi scheme.97 Between 2005 and 2007, the debtor’s president and
majority owner wrote eight checks totaling $161,341.40 to the U.S.
treasury to cover his personal income taxes.98 After the Ponzi scheme
came to light, the corporation went into receivership and filed for
bankruptcy.99 Once in bankruptcy, the debtor in possession sought to
avoid the checks to the IRS as fraudulent transfers.100 Because the last
93
Id. (quoting Sharp v. U.S. (In re SK Foods, L.P.), No. 09–29162–D–11,
2010 WL 6431702, at *2 (Bankr. E.D. Cal. 2010) (unreported)).
94
Id.
95
Id.
96
VMI Liquidating Trust Dated December 16, 2011 v. U.S. ex rel. IRS (In re
Valley Mortgage, Inc.), No. 10–19101–SBB, 2013 WL 5314369, at *1 (Bankr. D.
Colo. 2013).
97
Id.
98
Id.
99
Id.
100
Id. at *2 (“Here, the Debtor filed for bankruptcy on April 19, 2010. The last
transfer in question to the Defendant occurred in July of 2007. Thus, all of the
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of the transfers occurred in 2007, more than two years prior to
bankruptcy, Section 544(b) was the only viable means for
avoidance.101 The debtor therefore invoked the Colorado Uniform
Fraudulent Transfer Act102 and sought to avoid the transfers as actually
and constructively fraudulent.103
The IRS raised a sovereign immunity defense, 104 and once again
the court rejected it.105 The court held that the waiver of sovereign
immunity in Section 106(a) applied to Section 544(b) “regardless of
whether the application of 544(b)(1) is predicated on a state law cause
of action . . . .”106 In construing Sections 106 and 544 together, the
court reasoned that it would be improper to exclude 544(b) from
Congress’ waiver of sovereign immunity as to all of Section 544:
Congress chose to explicitly waive sovereign immunity with
respect to the entirety of section 544. . . . If Congress
intended to retain a sovereign immunity defense to actions
brought under section 544(b)(1), Congress certainly could
have done so. This Court refuses to read into section 106(a)
an exclusion to the waiver of sovereign immunity which
Congress did not specifically provide. To do so would be
alleged fraudulent transfers to the Defendant occurred more than two years prior to
the Debtor's bankruptcy petition and are therefore outside of [Section 548’s] statute
of limitations.”).
101
Id. at *4 (“[I]n order for the Debtor to assert a timely claim to recover
alleged fraudulent transfers, it must rely on [the state fraudulent transfer law’s]
longer statute of limitations because the limitations period in section 548 of the Code
has expired.”).
102
COLO. REV. STAT. ANN. § 38-8-101, et seq. (West 2014).
103
Valley Mortgage, 2013 WL 5314369, at *4.
104
Id. (“the [IRS] argues that if sovereign immunity prohibits an unsecured
creditor from bringing a non-bankruptcy state law claim against the Defendant, then
sovereign immunity similarly prohibits a trustee who steps into the shoes of an
unsecured creditor from brining the same non-bankruptcy state law claim”).
105
Id.
106
Id.
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improper and result in a judicially created amendment to an
otherwise clear and unambiguous statute.107
The Court also noted that its decision was in line with “numerous
other courts” that had also held that the waiver of sovereign immunity
in Section 106 extended to state law causes of action brought via
Section 544.108
The cases discussed above are representative of an unbroken
chain of court decisions from C.F. Foods in 2001 through Valley
Mortgage in 2013. These cases illustrate the persuasive legal
arguments and reasoning that motivated the court in each case to
follow the lead of the C.F. Foods position. C.F. Foods, Valley
Mortgage, and all the cases decided in between are consistent, and the
courts’ opinions are cogent. In each case, the court relied on classic
techniques of statutory interpretation, starting with language of the
statutes,109 and construing it in a way that harmonized with Congress’
intent and the Bankruptcy Code as a whole. Nonetheless, the Seventh
Circuit found reason to part ways with this line of cases.
II. CASE BACKGROUND
Before discussing the Seventh Circuit’s opinion in Equipment
Acquisition Resources in Part III below, this Part provides the factual
and procedural background underlying the court’s decision. This Part
begins by setting forth the facts that led up to the suit, followed by a
107
Id.
Id. Interestingly, one of the decisions the court cited to was the U.S. District
Court for the Northern District of Illinois’s opinion in United States v. Equipment
Acquisition Resources, Inc. (In re Equip. Acquisition Res., Inc.), 485 B.R. 586 (N.D.
Ill. 2013), rev’d, In re Equip. Acquisition Res., Inc., 742 F.3d 743 (7th Cir. 2014),
which was reported prior to the appeal of that case to the U.S. Court of Appeals for
the Seventh Circuit. At the time of Valley Mortgage, the Northern District’s decision
had not yet been reversed, and it fell in line with C.F. Foods and its progeny.
109
See generally U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989)
(“The task of resolving the dispute over the meaning of [a statute] begins where all
such inquiries must begin: with the language of the statute itself.”).
108
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brief discussion of the case’s disposition in the bankruptcy court and
district court prior to appeal to the Seventh Circuit.
A. Factual & Procedural Background
The debtor who initiated the bankruptcy proceedings was a
corporation named Equipment Acquisition Resources, Inc. (EAR).110
EAR was organized as an S-corporation111 under the laws of Illinois,
and engaged in the business of semiconductor manufacturing
equipment sales and servicing.112 In the years leading up to
bankruptcy, EAR, through its officers and agents, engaged in what
would later be described in pleadings as a “massive fraud.”113 EAR
allegedly sold equipment at inflated prices, then leased the equipment
back, misrepresented the value of the equipment, and pledged the
same pieces of equipment to multiple creditors in order to obtain
loans.114
After the fraud was exposed, EAR’s shareholders elected one
person to act as the sole director of EAR’s board and simultaneously
serve as the company’s chief restructuring officer.115 The restructuring
officer filed for Chapter 11 bankruptcy on October 23, 2009.116 Postfiling, the restructuring officer conducted an investigation and
110
In re Equip. Acquisition Res., Inc., 742 F.3d 743, 744-45 (7th Cir. 2014).
Because EAR was organized as an S-corp., corporate income passed
through to the owners who then reported that income on their individual tax returns.
Id. (“Subchapter S corporations do not pay taxes on corporate income; instead, the
tax liability is passed through to the corporation's shareholders.”); see generally
MELVIN ARON EISENBERG, CORPORATIONS AND OTHER BUSINESS ORGANIZATIONS:
CASES AND MATERIALS 496 (8th ed. 2000) (“Under flow-through taxation, a firm is
not subject to taxation. Instead, all of the firm’s income and expenses, and gains and
losses, are taxable directly to the firm’s owners. Distributions are not taxed.”).
112
Equip. Acquisition Res., Inc. v. U.S. (In re Equip. Acquisition Res., Inc.),
451 B.R. 454, 457 (Bankr. N.D. Ill. 2011), rev’d, In re Equip. Acquisition Res., Inc.,
742 F.3d 743 (7th Cir. 2014).
113
Id.
114
Id.
115
Id.
116
Id.
111
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discovered that, during the lead-up to bankruptcy, between October 15,
2007 and December 3, 2008, EAR made nine transfers to the IRS
totaling $4,737,261.36.117 EAR had apparently made these payments
on behalf of its shareholders in order to cover the shareholders’
income tax liability, which they incurred as a result of their receipt of
corporate profits.118
Now in bankruptcy, EAR, acting as debtor in possession, sought
to avoid the payments as constructively fraudulent transfers and
recover the funds.119 On January 20, 2010, EAR initiated an adversary
proceeding with the filing of a complaint against the United States.120
EAR subsequently amended its complaint to also include the
shareholders as defendants.121 Of the nine tax payments, eight
occurred within a two-year period prior to the filing of the bankruptcy
petition.122 EAR sought to avoid these pursuant to the bankruptcy
avoidance powers in Section 548.123 As to these payments, EAR and
the IRS eventually reached a settlement, under which the IRS agreed
to disgorge the payments.124 The ninth payment, however, was the real
117
Id.
When companies offer to pay their principals’ income taxes as an additional
form of compensation,
118
“the IRS finds itself in the position of defendant in a fraudulent transfer action.
If an S corporation, which ordinarily owes no income taxes, pays the income
taxes for its shareholders, the S corporation arguably receives no value for this
payment. If at the time of such payments, the S corporation was insolvent,
undercapitalized, or knew it will incur debts beyond its ability to pay when
such debts come due, and the S corporation ends up in bankruptcy, the
payments may be challenged as constructive fraudulent transfers, both under
the Bankruptcy Code and under state law . . . .”
Alec P. Ostrow, Taxes and Transfers and Trusts, 2014 NORTON ANN. SURV.
BANKR. L. 2 (2014).
119
Equip. Acquisition Res., 451 B.R. at 457.
120
Id.
121
Id.
122
Id.
123
Id.
124
Id. at 458.
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source of contention between the parties. This payment had occurred
more than two years prior to bankruptcy. So, EAR could only avoid
the transfer through Section 544(b), which gave EAR access to state
fraudulent transfer law, here the Illinois Uniform Fraudulent Transfer
Act,125 and that law’s longer reach-back period.126
The IRS filed its answer on January 13, 2011 and raised ten
defenses.127 In response to EAR’s Section 544(b) claim, the IRS raised
the defense of sovereign immunity, taking the familiar position that an
actual creditor bringing a claim outside of bankruptcy would not be
able to avoid a transfer to the IRS using the Illinois Uniform
Fraudulent Transfer Act, and therefore neither could EAR.128
B. Disposition in the Lower Courts
The bankruptcy court described the issue as hinging on the
interplay between Sections 544 and 106, and undertook a thorough
statutory interpretation inquiry, examining the language of Section
106.129 In construing the statute, the court acknowledged that it was
not the first court to confront this issue.130 Indeed, the opinion quotes
heavily from the courts’ decisions in C.F. Foods and Custom
Contractors, and cites to their progeny, such as DBSI among others.131
Ultimately, the bankruptcy court found that “[t]he plain language of §
106(a)(1) is clear, precise, unambiguous, and straightforward,” and
that “when it abrogated sovereign immunity as to § 544 causes of
action, Congress intended to include those state law causes of action
available under § 544(b)(1).”132 Accordingly, the court denied the
125
744 ILL. COMP. STAT. ANN. 160/5(a)(2) (West 2014).
Equip. Acquisition Res., 451 B.R. at 461.
127
Id. at 457.
128
Id. at 458.
129
Id. at 461-63.
130
Id. at 463.
131
Id. at 463-65.
132
Id. at 468.
126
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IRS’s motion to dismiss, and ordered the United States to pay back a
portion of the fraudulently transferred funds.133
The IRS appealed to the U.S. District Court for the Northern
District of Illinois, arguing that the bankruptcy court erred and that the
district court should vacate the order requiring the United States to
return the funds.134 The district court framed the issue as whether the
limits of Section 544(b) prevented avoidance notwithstanding the
abrogation of sovereign immunity in Section 106.135 In siding with
EAR and affirming the bankruptcy court’s holding, the district court
broadly held that “106(a)(1) simply eliminates the obstacle [of
sovereign immunity] wherever it appears ‘with respect to’ § 544.”136
Like prior courts, the Northern District court held that the IRS’s
sovereign immunity defense failed when put up against the “plain
language of §§ 106(a)(1) and 544(b)(1).”137
III. DISCUSSION OF THE SEVENTH CIRCUIT’S OPINION IN EQUIPMENT
ACQUISITION RESOURCES
Although Equipment Acquisition Resources was a case of first
impression for the Seventh Circuit, the court did not consider the case
on a blank slate. As shown in Part I, there was already a significant
body of case law when the case reached the Seventh Circuit.138 This
Part examines how the Seventh Circuit interpreted Sections 106 and
544 and decided Equipment Acquisition Resources in light of the
existing case law.
133
Id.
U.S. v. Equip. Acquisition Res., Inc. (In re Equip. Acquisition Res., Inc.),
485 B.R. 586, 591 (N.D. Ill. 2013), rev’d, In re Equip. Acquisition Res., Inc., 742
F.3d 743 (7th Cir. 2014).
135
Id. at 592.
136
Id. at 593.
137
Id.
138
See supra, Part I.B.
134
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A. Seventh Circuit’s Decision
Judge Flaum authored the Seventh Circuit’s opinion.139 The
opinion begins by examining the nature of Section 544 avoidance
actions, and focusing on the provision’s limits.140 The court
emphasized that the trustee’s strong-arm powers are circumscribed by
the confines of state law and the actual creditor requirement.141 First,
the court stated the legal standard for the “actual shoes” restriction,
reinforcing that the bankruptcy trustee’s strong-arm powers are
“derivative of state law,” and the trustee can only do in bankruptcy
“what a creditor would have been able to do outside of bankruptcy.”142
Second, the court called attention to the actual creditor requirement:
“If there are no creditors against whom the transfer is voidable under
the applicable law, the trustee is powerless to act under section
544(b)(1).”143 Since these two restrictions exist simultaneously, said
the court, “if the actual creditor could not succeed for any reason . . .
then the trustee is similarly barred and cannot avoid the transfer.”144
The Seventh Circuit’s opinion then proceeded to the substantive
merits of EAR’s claim, and it is here that the court parted ways with
the lower courts and prior case law. The court reasoned that EAR’s
claim failed due to the limits inherent in Section 544 itself, despite
106(a)’s explicit abrogation of sovereign immunity.145 More
specifically, the court held that EAR could not even satisfy the actual
creditor requirement of Section 544(b), which “by its very terms,
requires EAR to show that a creditor exists who could use a state’s
‘applicable law’ to recover the payment from the IRS.”146 The court
139
In re Equip. Acquisition Res., Inc., 742 F.3d 743, 744 (7th Cir. 2014).
Id. at 746.
141
Id.
142
Id.
143
Id. (quoting 5 COLLIER ON BANKRUPTCY ¶ 544.06[1] (Alan N. Resnick &
Henry J. Sommer eds., 16th ed. 2014)).
144
Id.
145
Id. at 747.
146
Id.
140
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found that “there is no question that no [such] creditor exists in this
case . . . [A]n unsecured creditor would have been barred [by
sovereign immunity] from bringing an Illinois fraudulent-transfer
action against the IRS outside of bankruptcy.”147 An argument that
focuses on Section 106(a) instead of 544 “misses the point,” said the
court.148 Rather, “[n]othing in § 106(a)(1) gives the trustee greater
rights to avoid transfers than the unsecured creditor would have under
state law. By concluding that § 106(a)(1) did just that, the courts below
erred.”149 In short, the court rested its decision not on whether
Congress had successfully abrogated sovereign immunity in Section
106(a), but on the “unambiguous language” of § 544(b).150
The court further stated that EAR would fail to satisfy the actual
creditor requirement of Section 544(b) for other reasons, even if there
were no sovereign immunity questions.151 The court reasoned that
certain clauses of the U.S. Constitution pose other significant obstacles
to recovering money from the federal government.152 Specifically, the
Appropriations Clause in Article I Section 9 states that “No Money
shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law . . . .”153 Courts have read this clause to
“mean[] simply that no money can be paid out of the Treasury unless it
has been appropriated by an act of Congress.”154 Therefore, the court
stated, sovereign immunity issues notwithstanding, this clause would
prevent a creditor from using a state law to recover money from the
federal government; absent an act of Congress, the recovery payment
would violate the Appropriations Clause.155 Similarly, the court held
147
Id.
Id.
149
Id. at 748.
150
Id. at 749.
151
Id. at 747-48.
152
Id. at 748.
153
U.S. CONST. art. I, § 9, cl. 7.
154
Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 424 (1990).
155
Equip. Acquisition Res., 742 F.3d at 748 (“states cannot enforce their laws
so as to retrieve money from the federal coffers . . . .”).
148
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that the Supremacy Clause is yet another barrier.156 Under this clause,
the Constitution and federal law is “the supreme law of the land,” and
the states may not tax the federal government or empower their
citizens to recover federal taxes.157 For these reasons, said the Seventh
Circuit, it would be unconstitutional for a state law creditor to recover
tax payments from the federal government.158
The Seventh Circuit also justified its decision on policy
grounds.159 The court speculated that allowing recovery against the
IRS might make federal agencies more vulnerable to state-law-based
recovery actions.160 State legislatures could loosen the requirements
for avoidance under state law, which would allow recovery against the
IRS in various unforeseen situations.161 This result would be contrary
to the IRS’s interest in financial stability.162 Additionally, the court
observed that in cases where there is ambiguity as to whether
Congress intended to waive sovereign immunity, the ambiguity should
156
The Supremacy Clause of Article IV states:
“This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
U.S. CONST. art. VI, cl. 2.
157
See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) (“[S]tates have
no power, by taxation or otherwise, to retard, impede, burden, or in any manner
control, the operations of the constitutional laws enacted by congress to carry into
execution the powers vested in the general government.”).
158
Equip. Acquisition Res., 742 F.3d at 748.
159
Id. at 750.
160
Id.
161
Id. (“state legislatures could relax the criteria for what constitutes a
fraudulent transfer, rendering federal tax revenue even more vulnerable to
unexpected recovery actions.”).
162
Id. (quoting United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 12
(2008)).
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be construed in favor of the sovereign.163 In other words, “when it
comes to sovereign immunity ties go to the government.”164
For these reasons, the Seventh Circuit found that EAR could not
satisfy the actual creditor requirement of Section 544(b).165 And as a
consequence of the court’s holding, there is no state law creditor that
can possibly satisfy the Section 544(b) actual creditor requirement in
cases where the federal government is the transferee. Simply put, there
are no shoes into which the trustee or debtor in possession can step.
B. The Seventh Circuit’s Response to C.F. Foods
In its opinion, the Seventh Circuit also addressed C.F. Foods and
its progeny, acknowledging that its decision “diverge[d] from all of the
bankruptcy and district courts to consider the issue in the context of
the federal government.”166 The Seventh Circuit stated that those prior
cases erred by focusing too heavily on Section 106 and neglecting the
actual creditor requirement of 544(b).167
The court also responded to some of the individual points relied
on in prior opinions. For example, recall that C.F. Foods and other
courts reasoned that disallowing avoidance would render 106(a)
meaningless as to Section 544(b).168 The Seventh Circuit disagreed,
stating that Section 106(a) would still be applicable to 544(a), even if
inapplicable to 544(b).169 Unlike Section 544(b), 544(a) has no actual
creditor requirement; so a court considering a Section 544(a) claim
would not be concerned with whether an actual creditor could avoid a
transfer or would otherwise be barred by sovereign immunity.170 The
court’s position here draws some support from the fact that all the
163
Id.
Id.
165
Id. at 750-51.
166
Id. at 748.
167
Id. at 748-49.
168
See supra Part I.B.
169
Equip. Acquisition Res., 742 F.3d at 749.
170
Id.; compare 11 U.S.C.A. § 544(b) (West 2014) with § 544(a).
164
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sections named in 106(a) are referenced generally, according to their
section number, without any sign as to whether abrogation is limited to
particular lettered subsections.171 It would be strange, the court
reasoned, to expect Congress to specify that 106(a) applies only to
544(a) and not 544(b), when none of the other sections listed in 106(a)
are that specific.172 It is therefore at least possible that Congress
intended to abrogate sovereign immunity only as to Section 544(a) and
not all of Section 544.173
Nevertheless, the Seventh Circuit surmised that, after its holding,
there would still be situations where the abrogation in 106(a) would
apply to 544(b).174 Specifically, the waiver of sovereign immunity
might be meaningful in cases where the trustee seeks to recover a tax
payment from the debtor to a state or local governmental unit.175 In
that situation, if the state waived or abrogated its own sovereign
immunity to suits in state court, then 544(b) would allow the trustee to
bring an avoidance claim against the state in bankruptcy court as
well.176
The court rejected prior courts’ reliance on Congress’ intent and
the legislative history.177 History and intent cannot overcome the
“unambiguous language” of Section 544, said the Seventh Circuit.178
The Seventh Circuit also questioned the C.F. Foods court’s reading of
the legislative history. The House Report showed that Congress
171
Equip. Acquisition Res., 742 F.3d at 749 (“All of the fifty-nine provisions
listed in § 106(a)(1) cite to a Code provision generally, without listing particular
subsections. Yet, as the United States correctly points out, many of the listed
provisions have subsections that do not implicate sovereign immunity. We believe
the better conclusion is that Congress simply listed undivided Code sections if any
part of that section included something for which sovereign immunity should be
waived.”).
172
Id.
173
Id.
174
Id.
175
Id.
176
Id.
177
Id.
178
Id.
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amended Section 106 to make it more clear and unambiguous.179 But,
according to the Seventh Circuit, assuring that the Bankruptcy Code
successfully abrogates sovereign immunity is a separate question,
unrelated to the issue of whether the trustee can satisfy the actual
creditor requirement in Section 544(b).180
IV. ARGUMENT
As compared to the outcome in Equipment Acquisition Resources,
the holdings in C.F. Foods and its progeny are better at reconciling the
Bankruptcy Code, promoting bankruptcy policy, and honoring
Congress’ intent underlying Section 106. Accordingly, I argue that
Equipment Acquisition Resources should be overruled and other courts
should not look to it for guidance.
The Seventh Circuit’s faith in the supposed plain and
unambiguous meaning of Section 544 is misplaced. Many of the other
courts that considered this same issue prior to Equipment Acquisition
Resources also purported to rely on the plain meaning of Sections 544
and 106.181 Therefore, it is possible, if not likely, for different courts to
reach opposite outcomes while professing to interpret a law’s plain
meaning and merely apply it to the facts.182 As one court remarked,
179
Id. at 750.
Id.
181
See supra Part I.B.
182
For other cases questioning the value of a plain meaning approach in
situations where there is disagreement over a statute’s interpretation, see, for
example, In re Philadelphia Newspapers, LLC, 422 B.R. 553, 565 (Bankr. E.D.
Penn. 2010) (observing that “five bankruptcy courts have now addressed th[is] issue
and they are sharply divided. In four decisions courts have expressly based their
ruling on the ‘plain meaning’ of the text of [this Rule] but have evenly split on that
‘plain meaning.’”); In re Turner, 384 B.R. 537, 540 (Bankr. S.D. Ind. 2008), rev’d,
574 F.3d 349 (7th Cir. 2009) (“Bankruptcy courts have reached conflicting
conclusions as to the ‘plain meaning’ of § 707(b)(2)(A)(iii).”); In re Curry, 362 B.R.
394, 397 (Bankr. N.D. Ill. 2007) (“[I]t is difficult to see how recognition that [the
statute] ‘is susceptible to conflicting interpretations,’ can nonetheless lead to a
conclusion that any ultimate interpretation is ‘supported by the plain meaning . . . .’”
(internal citations omitted)).
180
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“like beauty, clarity is often in the eye of the beholder.”183 The
problem here is in the Seventh’s Circuit’s heavy reliance on the plain
meaning approach at the expense of other sources of meaning. If a
statute’s meaning is actually patent, then a single outcome would be
inevitable. Instead, where judges reach different and conflicting
interpretations, the only conclusion is that the meaning is not actually
plain.
In Equipment Acquisition Resources, the interaction between
Sections 544 and 106 is not plain. The Seventh Circuit focused on the
actual creditor requirement of Section 544(b), and found that a creditor
would be barred by sovereign immunity from avoiding a transfer to
the government notwithstanding Section 106.184 Conversely, C.F.
Foods and others reasoned that even if a creditor acting under state
law would be barred by sovereign immunity, that bar disappears in the
world of bankruptcy.185 The answer to this issue is not simple, and
courts may need to look beyond the statute’s language to other sources
of meaning, such as the statute’s purpose and Congress’ intent. It is too
facile for a court to imply that a solution is clear or obvious when
qualified judges acting in good faith come to different conclusions.
Heavy reliance on a statute’s language may also cause judges to
give short shrift to Congress’ intent and a statute’s purpose. As to
Section 106, the legislative history and House Reports show that
Congress specifically amended the statute to more explicitly and
unambiguously abrogate sovereign immunity after two Supreme Court
cases held that Section 106’s predecessor did not successfully abrogate
sovereign immunity.186 The legislative history thus shows that
Congress was careful to ensure that Section 106 successfully
abrogated sovereign immunity as to the enumerated sections. Further,
as the C.F. Foods court observed, the fact that Congress decided to
183
Price v. Delaware State Police Federal Credit Union U.S. Trustee (In re
Price), 370 F.3d 362, 368 (3d Cir. 2004) (observing that “notwithstanding their
perception of a plain meaning, [] courts have arrived at polar opposite results”).
184
See supra notes 139, 145-150 and accompanying text.
185
See supra notes 55, 70-75 and accompanying text.
186
See supra notes 50-52 and accompanying text.
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include Section 544 in subsection 106(a)(1) strongly suggests that
Congress knew that it was including the strong-arm powers in the
scope of the waiver. But because the Seventh Circuit focused more on
the actual creditor requirement of Section 544, its holding ignores the
significance of this legislative history.
The Seventh Circuit’s approach also has the undesirable effect of
creating disharmony in the Bankruptcy Code. The court’s holding
renders Section 106(a) practically superfluous and inapplicable as to
Section 544(b)—a critical source of the trustee’s power to avoid
fraudulent transfers. Courts should avoid interpretations of statutes
that create “surplusage.”187 As to this argument, the Seventh Circuit
countered that 544(b) still has some application in cases involving
transfers to state governments that have waived their own sovereign
immunity.188 This point of view is plausible because 106(a) applies to
any “governmental unit,” including state and local governments.189
However, this interpretation creates an absurd result when the
transferee is the federal government. As the court in DBSI pointed out,
only Congress can waive the federal government’s sovereign
immunity; thus the Seventh Circuit’s holding will require Congress to
take the additional step of waiving sovereign immunity as to actions
brought under each individual state’s fraudulent transfer act.190
Equipment Acquisition Resources should be overruled for policy
reasons as well. The Seventh Circuit noted that its holding furthered
the policy of ensuring the IRS’s financial stability, because states
might amend their fraudulent transfer statutes to make it too easy to
187
See, e.g., U.S. v. Hernandez, 79 F.3d 584, 596 (7th Cir. 1996) (“[W]e
recognize the time-honored rule that we are to avoid, if possible, a construction of a
statute that renders any term surplusage.”); Washington Market Co. v. Hoffman, 101
U.S. 112, 115-16 (1879) (“It is a cardinal rule of statutory construction that
significance and effect shall, if possible, be accorded to every word. . . . ‘a statute
ought, upon the whole, to be so construed that, if it can be prevented, no clause,
sentence, or word shall be superfluous, void, or insignificant.’ This rule has been
repeated innumerable times.”).
188
See supra notes 171, 174-176 and accompanying text.
189
11 U.S.C.A. § 106(a)(1) (West 2014).
190
See supra notes 85, 92-95 and accompanying text.
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avoid transfers to the IRS.191 However, at present this justification is
entirely based on speculation. There is no indication that this is likely
to happen, especially since most states have adopted the UFTA at the
recommendation of the model act’s drafters.192
Further, there is a strong bankruptcy policy in favor of promoting
what is best for the debtor’s creditors as a whole, and ensuring that
there is equity among them.193 Yet the Seventh Circuit’s holding favors
one of a debtor’s creditors—the IRS—over all others. The cases in this
article demonstrate that business-owners’ personal tax liability can be
substantial when profits are large. However, the Seventh Circuit’s
holding removes those assets from the bankruptcy estate and thus from
the pot of money which is eventually distributed to the debtor’s
creditors. Therefore, this holding is contrary to the two bankruptcy
policies of maximizing the debtor’s estate and ensuring equity among
creditors. For these reasons, courts should not follow Equipment
Acquisition Resources and should instead adopt the reasoning of C.F.
Foods and its progeny.
CONCLUSION
When the federal government becomes a target for avoidance, a
conflict arises between Sections 106(a) and 544(b) of the Bankruptcy
Code. Various courts, including the Seventh Circuit, have attempted to
resolve this tension by relying on the Code provisions’ plain meaning.
However, the differing court decisions on this issue demonstrate that
the meaning of these statutes is not plain, and a resolution is not
obvious. As such, this article asserts that courts should be willing to
look to other sources of meaning, such as Congress’s intent and
191
See supra notes 158, 160-162.
See supra note 14 and accompanying text.
193
See, e.g., Graham v. Huntington Nat’l Bank (In re Medcorp, Inc.), 472 B.R.
444, 450 (Bankr. N.D. Ohio 2012) (“The policy rationale of [avoidance] is to
maximize the estate assets available to a debtor's general body of unsecured creditors
. . . .”); First Union Nat’l Bank v. Gibbons (In re Matter of Princeton-N.Y. Investors,
Inc.), 219 B.R. 55, 65-66 (Bankr. D.N.J. 1998) (discussing the bankruptcy goal for
“the Trustee to maximize the bankruptcy estate for creditors' benefit . . . .”).
192
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traditional bankruptcy policy. Following this approach, courts should
hold that sovereign immunity is abrogated as to state law causes of
action brought by the trustee under Section 544(b). This outcome
better harmonizes the Bankruptcy Code, promotes bankruptcy policy,
and honors Congress’s intent while staying within the boundaries of
the statutes’ language.
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MARRIAGE SOLEMNIZATION AND THE FIRST
AMENDMENT’S NEUTRALITY PRINCIPLE: WHO
MAY SOLEMNIZE A MARRIAGE?
CLAUDIA L. CORTES*
Cite as: Claudia L. Cortes, Marriage Solemnization and the First Amendment’s
Neutrality Principle: Who May Solemnize a Marriage?, 10 SEVENTH CIRCUIT REV.
32 (2014), at http://www.kentlaw.iit.edu/Documents/Academic Programs/7CR/v10
-1/cortes.pdf.
INTRODUCTION
The First Amendment’s Establishment Clause prohibits the
government from establishing, endorsing, or favoring a religion.1 The
Establishment Clause’s most fundamental principle is government
neutrality towards religion.2 This principle of neutrality “is not merely
a prohibition against the government’s differentiation among religious
sects,” denomination, or beliefs.3 The principle of neutrality also
requires that the government not prefer religion in general over
nonreligion.4 By remaining neutral towards religion, the government
is, however, not prohibited from accommodating religious practices—
that is, exempting individuals and entities from government-imposed
* J.D. candidate, May 2015, Chicago-Kent College of Law, Illinois Institute of
Technology; Notes & Comments Editor, CHICAGO-KENT LAW REVIEW, 2014–15;
MPA, University of Illinois at Chicago; B.A., Political Science, Elmhurst College.
1
U.S. CONST. amend. I.
2
Van Orden v. Perry, 545 U.S. 677, 709 (2005).
3
Id. at 709-10.
4
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 696
(1994) (internal quotation marks omitted) (citations omitted).
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regulations that burden the free exercise of religion.5 Religious
accommodations, the United States Supreme Court has explained, are
not inherently incompatible with the neutrality principle, as they seek
neither to neither advance nor inhibit religion, but simply to “permit
religious exercise to exist without sponsorship and without
interference.”6 Indeed, “in order to guard against governmental
intrusion into the religious lives of citizens,”7 the principle of
neutrality may even require that the government accommodate
religion.8 Notwithstanding the permissibility of religious
accommodation, when the government accommodates religion, it must
do so in a way that does not “devolve into an unlawful fostering of
religion,”9 as that would run afoul of the neutrality principle and
violate the Establishment Clause.
In Center for Inquiry, Inc. v. Marion Circuit Court Clerk, the
United States Court of Appeals for the Seventh Circuit addressed
Indiana’s Marriage Solemnization Statute’s compliance with the
neutrality principle.10 The State of Indiana recognizes a marriage only
after a state-authorized individual conducts a marriage ceremony and
performs certain duties imposed by the state.11 This is known as
marriage solemnization and its effect is to create a legally recognized
5
Scott E. Williams, Religious Exemptions and the Limits of Neutrality, 74 TEX.
L. REV. 119, 120 (1995); Corp. of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987).
6
Grumet, 512 U.S. at 710; Amos, 483 U.S. at 334.
7
Williams, supra note 5, at 119.
8
Id.; Amos, 483 U.S. at 334.
9
Amos, 483 U.S. at 334-35 (internal quotation marks omitted) (citations
omitted).
10
758 F.3d 869 (7th Cir. 2014).
11
IND. CODE ANN. § 31-11-4-3, 16 (West 2014). For instance, the stateauthorized individual must, within thirty days after the date of the marriage, file the
marriage license the couple had to obtained prior to the marriage “with the clerk of
the circuit court who issued” it. Id. at § 16 (a)(3).
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civil marriage.12 Indiana’s Marriage Solemnization Statute, aside from
authorizing certain government officials to solemnize a civil marriage,
conferred the authority to legalize a marriage—that is, solemnization
authority—upon certain religious groups as well as upon members of
the clergy,13 as a form of religious accommodation. According to the
State of Indiana, the Solemnization Statute accommodated members of
the clergy who generally perform marriages under the commandments
of their faiths as well as those religions that regard marriage as a
fundamental tenet.14 As a result, the marriage ceremonies of the
accommodated religions under the Solemnization Statute resulted in
the solemnization of a marriage, that is, a legal marriage.15 The
marriage ceremonies of those religions not accommodated under the
Statute, in contrast, could not result in a legally valid marriage.16
Therefore, the couple wishing to get married, in addition to having a
religious ceremony had to appear before an individual with
solemnization authority to have their marriage solemnized.17 While
members of the religions not included in the Solemnization Statute
could still have their marriages solemnized, the Statute was an
impediment to the members of those religions to have their marriage
solemnized in ceremonies conducted by officials who share their
fundamental beliefs, values, and traditions.18
12
See Andrew C. Stevens, By the Power Vested in Me? Licensing Religious
Officials to Solemnize Marriage in the Age of Same-Sex Marriage, 63 EMORY L.J.
979, 981 (2014).
13
IND. CODE § 31-11-6-1 held unconstitutional by Ctr. for Inquiry, Inc., 758
F.3d 869.
14
Brief of Appellees-Defendants – Supplemental Appendix, Ctr. for Inquiry,
Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869 (7th Cir. 2014) (No. 12-3751), 2013 WL
663844, at *22-23.
15
Provided that the religious official presiding over the ceremony complied
with the requirements the state imposed on him. IND. CODE § 31-11-4-16.
16
See Ctr. for Inquiry, Inc., 758 F.3d at 872-73.
17
Brief of Appellants-Plaintiffs – Short Appendix at 10, Ctr. for Inquiry, Inc.
v. Marion Cir. Ct. Clerk, 758 F.3d 869 (7th Cir. 2014) (No. 12-3751); Ctr. for
Inquiry, Inc., 758 F.3d at 873.
18
See Ctr. for Inquiry, Inc., 758 F.3d at 873.
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Had Indiana’s Solemnization Statute in Center for Inquiry been
challenged by one of the religions not accommodated under the
Statute, the question of whether the Statute complied with the
neutrality principle would have been a straightforward one for the
Seventh Circuit. The Supreme Court has repeatedly stated that “the
clearest command of the Establishment Clause is that one religious
denomination cannot be officially preferred over another.”19 A
religious accommodation thus violates the Establishment Clause if it
“singles out a particular religious sect [or sects]” for the
accommodation without a proper justification.20 The Solemnization
Statute’s preference for certain religious creeds was immediately
apparent. The Statute preferred religions in which members of the
clergy perform the marriage ceremonies over religions in which nonclergy leaders conduct the marriage ceremonies.21 It also preferred
religions that accord marriage a sacred status over religions that,
although not attaching a sacred status to marriage, still celebrate
marriage.22 Further, the Statute’s preference for certain religions was
unwarranted as the value that it each religion attaches to marriage
cannot be a proper justification for the differential treatment.23 The
19
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 714
(1994) (internal quotation marks omitted) (citations omitted).
20
Id. at 706; Cutter v. Wilkinson, 544 U.S. 709, 724 (2005); see infra note 23.
21
Ctr. for Inquiry, Inc., 758 F.3d at 874.
22
Id. Buddhists, for example, could not have their marriage solemnized in their
religious ceremonies as Buddhism does not have members of the clergy and the
Statute did not identify Buddhism as an accommodated religion. See id.
23
The neutrality principle does not require that a religious accommodation be
indiscriminately conferred upon all religions. For example, the neutrality principle
does not require that an accommodation for observance of the Sabbath Day be
extended to all religions as not all religions observe the Sabbath Day. However,
whereas here, different religions share a practice—marriage—an accommodation
may not be extended to some religions and not to others based on the value that each
religion attaches to marriage. See generally Fowler v. R.I., 345 U.S. 67, 69-70
(1953); Grumet, 512 U.S. at 715-16 (the government may not penalize or
discriminate against individuals or groups because they hold religious views the
government does not regard as valuable or desirable). Accordingly, the analysis of
this Note proceeds from the understanding that marriage is a practice shared by
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challenge to the Solemnization Statute, however, was brought by
Center for Inquiry, Inc. (“CFI”), a non-religious, secular entity which
promotes ethical living without a belief in a Supreme Being and which
teaches a set of human values “upon which its members are to base
their lives, actions, relationships and decisions.”24 The system of
beliefs of CFI is generally known as “secular humanism” and its main
“commitment [is] to improve human welfare in the world.”25 Like
religious organizations, CFI celebrates important life events, including
marriages.26 CFI’s marriage ceremonies are designed to represent and
celebrate CFI’s values and philosophies.27 Given, however, that the
Solemnization Statute did not extend the authority to solemnize a
marriage to CFI, its marriage ceremonies, just as those of the religions
not accommodated under the Statute, could not result in a legal
marriage.28 Thus, in Center for Inquiry, the Seventh Circuit faced the
more difficult question of whether Indiana’s Solemnization Statute ran
afoul of the neutrality principle by failing to confer solemnization
authority upon CFI.
In holding that Indiana’s Solemnization Statute violated the
neutrality principle by failing to extend the authority to solemnize a
marriage to CFI, the Seventh Circuit had to address two main issues.
First, the Seventh Circuit had to determine whether CFI’s beliefs
qualified as “religious” for purposes of the First Amendment. Second,
the Seventh Circuit had to address the well-accepted premise that
states may, consistent with the neutrality principle, accommodate
religious groups without having to extend similar accommodations to
secular entities.29 In addressing these questions, the Seventh Circuit
various religions and from the premise that the value each religion attaches to
marriage cannot be a proper justification for conferring solemnization authority only
upon some religions.
24
Brief of Appellants, supra note 17, at 5-6.
25
Id. at 6 (citations omitted).
26
Id. at 9.
27
Id.
28
Id. at 10.
29
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U.S. 327, 338 (1987); Cutter v. Wilkinson, 544 U.S. 709, 724 (2005).
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had guidance from its own as well as Supreme Court precedent, but no
conclusive answers. This Note posits that, in concluding that CFI’s
beliefs were the equivalent of religion, the Seventh Circuit properly
employed a broad definition of religion, which has strong roots in
Supreme Court’s and Seventh Circuit’s jurisprudence. This Note also
defends the Seventh Circuit’s omission of Supreme Court precedent
that arguably supports a narrower definition of religion as even a
reference to such precedent would have caused confusion as to what is
generally regarded as the proper test for ascertaining what qualifies as
a religion for purposes of First Amendment analysis. Moreover, the
application of a narrower definition of religion would have threatened
to leave many of the rich and diverse beliefs Americans see as their
“religion” without protections under the First Amendment. Lastly, this
Note discusses Supreme Court precedent not addressed by the Seventh
Circuit that appeared to support Indiana’s contention that it was not
obliged to include CFI in the Solemnization Statute to comply with the
neutrality principle. This Note explains that such a precedent did not
require a different result.
I. NEUTRALITY AND RELIGIOUS ACCOMMODATIONS
A.
The Neutrality Principle
The First Amendment’s Establishment Clause states that
“Congress shall make no law respecting an establishment of
religion.”30 The “touchstone” of the Establishment Clause is “the
principle that the First Amendment mandates government neutrality
between religion and religion, and between religion and
nonreligion.”31 This principle, known as the neutrality principle,
prohibits the government from treating people differently “based on
30
U.S. CONST. amend. I.
McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 860 (2005) (internal
quotation marks omitted) (citations omitted); Everson v. Bd. of Ed. of Ewing Twp.,
330 U.S. 1, 18 (1947).
31
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the Gods or gods they worship, or do not worship.”32 There are two
fundamental dimensions to the neutrality principle.33 First, neutrality
requires that the government “neither favor nor disfavor religion in
general, as compared to nonreligion.”34 Consistent with this
requirement, the government may not “pass laws or impose
requirements which aid all religions as against non-believers.”35
Likewise, the government may not “act[ ] with the ostensible and
predominant purpose of advancing [or inhibiting] religion” as there is
“no neutrality when the government’s ostensible object is to take
sides.”36 Second, the neutrality principle requires the government to
treat religions equally, unless there is a secular justification for
differential treatment.37 In its Establishment Clause jurisprudence, the
Supreme Court has explained that the “clearest command of the
Establishment Clause is that one religious denomination cannot be
officially preferred over another.”38
32
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 714
(1994).
33
Dhananjai Shivakumar, Neutrality and the Religion Clauses, 33 HARV. C.R.C.L. L. REV. 505, 515 (1998); Daniel O. Conkle, The Path of American Religious
Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future,
75 IND. L.J. 1, 8 (2000).
34
Conkle, supra note 33, at 8.
35
Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Welsh v. U.S., 398 U.S. 333,
356 (1970) (Harlan, J., concurring) (stating that the government, “having chosen to
exempt . . . cannot draw the line between theistic or nontheistic religious beliefs on
the one hand and secular beliefs on the other”).
36
McCreary Cnty., Ky, 545 U.S. at 860.
37
Grumet, 512 U.S. at 714.
38
Id. (internal quotation marks omitted) (citations omitted); Gillette v. U.S.,
401 U.S. 437, 449 (1971) (“An attack founded on disparate treatment of ‘religious’
claims invokes what is perhaps the central purpose of the Establishment Clause–the
purpose of ensuring government neutrality in matters of religion.”).
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B.
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Religious Accommodations
The neutrality principle, however, does not forbid the government
from accommodating religion.39 The Supreme Court “has long
recognized that the government may (and sometimes must)
accommodate religious practices and that it may do so without
violating the Establishment Clause.”40 When the government
accommodates a religious practice, it exempts a religious person or
entity from government-imposed regulatory requirements that burden
that person’s or entity’s exercise of religion.41 The government may,
for instance, on the basis of religion, exempt individuals from
participating in war;42 allow non-for-profit religious organizations to
discriminate in certain employment practices;43 permit prison inmates
to form religious study groups;44 grant property tax exemptions to
religious entities;45 and allow religious organizations to solemnize
their own marriages.46 At first sight, such accommodations may appear
to run afoul of the neutrality principle as they may be seen as a
government-conferred benefit on the religious, in the form of an
exemption from compliance with a law.47 Religious accommodations,
39
Cutter v. Wilkinson, 544 U.S. 709, 719-20 (2005); Corp. of Presiding Bishop
of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334-35
(1987); Amos, 483 U.S. 327 at 348 (O’Connor, J., concurring); Sherbert v. Verner,
374 U.S. 398, 422 (1963) (Harlan, J., dissenting).
40
Amos, 483 U.S. at 334 (internal quotations marks omitted) (citations
omitted); Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-45
(1987).
41
Amos, 483 U.S. at 338; Michael W. McConnell, Accommodation of
Religion: An Update and a Response to the Critics, 60 GEO. WASH. L. REV. 685, 686
(1992).
42
Welsh v. U.S., 398 U.S. 333 (1970); U.S. v. Seeger, 380 U.S. 163 (1965).
43
Amos, 483 U.S. at 329-30.
44
Cutter, 544 U.S. 709; Kaufman v. McCaughtry, 419 F.3d 678 (7th Cir.
2005).
45
Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664 (1970).
46
Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869 (7th Cir. 2014).
47
This Note does not address the controversy surrounding religious
accommodations. For a discussion see Robin Fretwell Wilson, The Calculus of
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however, are not incompatible with the neutrality principle because
their inherent objective is not to “advance[ ] religion nor . . . [to]
inhibit[ ]” it,48 but simply to “lift[ ] a [government-placed] regulation
that burdens the exercise of religion.”49
Supreme Court jurisprudence explains the manner in which
religious accommodations fit into the concept of neutrality. Together,
the Religious Clauses of the First Amendment to the Constitution
provide that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof.”50 The first clause,
the Establishment Clause, prohibits the government from establishing,
preferring, or endorsing a religion. The second clause, the Free
Exercise Clause, prohibits the government from interfering with the
practice of religious beliefs. The two clauses are in tension51 and “if
expanded to a logical extreme, [each] would tend to clash with the
other.”52 For example, “limits on governmental action that might make
sense as a way to avoid establishment could . . . [nevertheless] limit
freedom” of religion if governmental action is necessary to allow the
Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes
Between Religion and the State, 53 B.C. L. REV. 1417 (2012); Steven G. Gey, Why Is
Religion Special?: Reconsidering the Accommodation of Religion Under the
Religion Clauses of the First Amendment, 52 U. PITT. L. REV. 75 (1990); McConnell,
supra note 41, at 685-742; Frederick Mark Gedicks, An Unfirm Foundation: The
Regrettable Indefensibility of Religious Exemptions, 20 U. ARK. LITTLE ROCK L.J.
555 (1998).
48
Walz, 397 U.S. at 672.
49
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U.S. 327, 338 (1987).
50
U.S. CONST. amend. I.
51
McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 875 (2005) (explaining
by way of illustration how “[t]he two clauses compete: spending government money
on the clergy looks like establishing religion, but if the government cannot pay for
military chaplains a good many soldiers and sailors would be kept from the
opportunity to exercise their chosen religions”) (citations omitted). For a discussion
that the clauses do not conflict, see Carl H. Esbeck, When Accommodations for
Religion Violate the Establishment Clause: Regularizing the Supreme Court’s
Analysis, 110 W. VA. L. REV. 359, 362-65 (2007).
52
Walz, 397 U.S. at 668-69.
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free exercise thereof.53 However, the Supreme Court has explained
that in between the “joints”54 of the Religious Clauses “there is
[ample] room for play,” 55 which “permit[s] religious exercise to exist
without sponsorship and without interference.”56 That is to say, in
between the Religious Clauses, there is “corridor”57 or “space . . .
neither compelled by the Free Exercise Clause nor prohibited by the
Establishment Clause,”58 in which the government may act to
accommodate religious beliefs. When the government acts within that
corridor, it operates with “benevolent neutrality,”59 which is tolerable
and even desirable under the Establishment Clause.
In accommodating religion, the government does not, however,
have carte blanche to accommodate religious individuals and entities
to its liking. To the contrary, the government must ensure that religious
accommodations do not “devolve into unlawful fostering”60 of religion
in general or of a particular religious sect or denomination. At that
point, the accommodation would no longer be benevolently neutral,
but would violate the requirements of the neutrality principle and
result in an impermissible establishment of religion.61 This was the
precise issue the Seventh Circuit faced in Center for Inquiry. There,
the court had to decide whether Indiana’s Marriage Solemnization
Statute crossed the boundaries of benevolent neutrality by allowing
only certain religious denominations to solemnize marriages.
53
McCreary Cnty., Ky., 545 U.S. at 875.
Id.
55
Walz, 397 U.S. at 669; Corp. of Presiding Bishop of Church of Jesus Christ
of Latter-day Saints v. Amos, 483 U.S. 327, 334 (1987).
56
Walz, 397 U.S. at 669.
57
Cutter v. Wilkinson, 544 U.S. 709, 720 (2005).
58
Id. at 719.
59
Amos, 483 U.S. at 334 (internal quotation marks omitted) (citations omitted).
60
Id. at 334-35 (internal quotation marks omitted) (citations omitted).
61
See McConnell, supra note 41, at 686-88.
54
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II. STATE REGULATION OF MARRIAGE AND SOLEMNIZATION STATUTES
A.
State Regulation of Marriage
The regulation of marriage is “the province” of the states, rather
than of the federal government.62 Accordingly, the states “prescribe the
conditions upon which the marriage relation between its own citizens
shall be created.”63 While the laws regulating marriage vary across the
states,64 there are certain requisites for a valid marriage that the states
share. Generally, states require individuals wishing to get married to
apply for and obtain a marriage license from a designated government
entity.65 The state’s issuance of the license, itself, does not ordinarily
result in a legally binding marriage.66 In most states, marriage
solemnization is required to create a legally recognized civil
marriage.67 Marriage solemnization refers to a ceremony or a “ritual
by which . . . [two individuals] take on their new status” as husband
and wife.68 As a general rule, the solemnization of the marriage must
be conducted by a state-authorized individual, who also performs
certain duties (such as signing the marriage license) the state has
62
Loving v. Va., 388 U.S. 1, 7 (1967); Sosna v. Iowa, 419 U.S. 393, 404
(1975); Maynard v. Hill, 125 U.S. 190, 205 (1888).
63
Penoyer v. Neff, 95 U.S. 714, 734-35 (1878); Hill, 125 U.S. at 205 (stating
that state legislatures “prescribe[ ] . . . the procedure or form essential to constitute
marriage”).
64
See Robert E. Rains, Marriage in the Time of Internet Ministers: I Now
Pronounce You Married, but Who Am I to Do So?, 64 U. MIAMI L. REV. 809, 842-77
(2010); Ctr. for Inquiry, Inc. v. Clerk, Marion Cir. Ct, No. 1:12-CV-00623-SEB,
2012 WL 5997721, at *10 (S.D. Ind. Nov. 30, 2012) rev’d sub nom. by Ctr. for
Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869 (7th Cir. 2014).
65
Rains, supra note 64, at 838-39. See, e.g., GA. CODE ANN. § 19-3-30 (West
2010); NEV. REV. STAT. ANN. § 122.040 (West 2013).
66
Stevens, supra note 12, at 987.
67
Id. See, e.g., FLA. STAT. ANN. § 741.07 (West 2014); COLO. REV. STAT.
ANN. § 14-2-109 (West 2012); MONT. CODE ANN. § 40-1-301 (West 2014).
68
Rains, supra note 64, at 839.
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imposed on him in order for the marriage to be complete.69 In some
states, it is a crime to solemnize a marriage without the state’s
authority.70
B.
Solemnization Statutes and Religious Accommodations
Typically, states bestow the authority to solemnize a marriage in
their solemnization statutes upon specific individuals or entities.71
Such statutes invariably confer the authority to solemnize a marriage
upon certain government officials, such as judges and justices of the
peace.72 At least thirteen states also permit public notaries,73 the couple
aspiring to get married,74 or any person to solemnize a marriage.75 The
solemnization statutes usually also authorize religious officials to
solemnize marriages.76 The states’ decision to confer solemnization
authority upon religious officials has gone unchallenged throughout
the history of this country.77 Thus, courts have had no opportunity to
address how religious solemnization of a civil marriage fits into the
Religious Clauses and the principle of neutrality. Religious
solemnization of marriages, however, has existed since colonial times
and it, in the present day, may best be described as a permissible
69
Id. at 842-77. See, e.g., GA. CODE ANN. § 19-3-30; HAW. REV. STAT. § 57213 (West 2014); MICH. COMP. LAWS ANN. § 551.7 (West 2014).
70
Stevens, supra note 12, at 987.
71
See Rains, supra note 64, at 842-77. See, e.g., ALASKA STAT. ANN. §
25.05.261 (West 2014); ARK. CODE ANN. § 9-11-213 (West 2007); CAL. FAM. CODE
§ 400 (West 2013).
72
Stevens, supra note 12, at 987; supra note 55.
73
See, e.g., FLA. STAT. ANN. § 741.07; S.C. CODE ANN. §§ 20-1-20, 26-1-90
(2014).
74
See, e.g., COLO. REV. STAT. ANN. § 14-2-109; MONT. CODE ANN. § 40-1301; 23 PA. CONS. STAT. ANN. § 1502 (West 2014).
75
See, e.g., COLO. § 14-2-109; MONT. § 40-1-301; 23 PA. § 1502; N.Y. §
11(4).
76
Id.
77
Stevens, supra note 12, at 987-88.
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accommodation of religion.78 Indeed, “long before marriage was a
civil institution regulated by . . . [the states], it was a religious contract
and commandment.”79 Given that “marriage as an institution owes its
origins to religious roots, it is both natural and logical that when state
government[s] regulate[ ] entry into marriage, [they] accommodate[ ]”
religious traditions regarding marriage practices.80 In other words,
since the requirement that a state-authorized official solemnize a
marriage before it can be legal may interfere with the religious
practices of individuals to have their marriage solemnized by a
religious official of their faith, the states may justifiably lift such
governmental interference by allowing religious officials to also
solemnize a marriage.
C.
Marriage Procedure in Indiana and the Marriage
Solemnization Statute, Indiana Code §31-11-61
In the State of Indiana, individuals may be legally married only
after obtaining a marriage license and having their marriage
solemnized.81 The individuals aspiring to get married may obtain a
marriage license from the clerk of the circuit court in which any of
them resides or in the circuit in which the marriage will occur.82 The
marriage license includes an original and a duplicate marriage
certificate.83 After securing the marriage license and certificates, the
78
See Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 872-74 (7th
Cir. 2014); Woods-Bateman v. Hawai’i, No. CIV.07-00119 HG LEK, 2008 WL
2051671, at *11 (D. Haw. May 13, 2008) (“In providing for the licensing of
individuals to perform religious ceremonies, the State of Hawaii is accommodating
the deeply held beliefs of many of its citizens who prefer the marriage be solemnized
by a leader of their religion.”).
79
Brief of Appellees, supra note 14, at *32 (citing to Joel A. Nichols,
Misunderstanding Marriage and Missing Religion, 2011 MICH. ST. L. REV. 195, 202
(2011)). See also Stevens, supra note 12, at 984.
80
Id.
81
IND. CODE § 31-11-4-1, 3, 13.
82
Id. § 31–11–4–3.
83
Id. § 31–11–4–15.
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couple to be married “must present . . . [the] license to an individual . .
. authorized” under Indiana’s Solemnization Statute to solemnize a
marriage.84 To solemnize a marriage, the state-authorized individual
presides over a ceremony, in which the couple takes each other as
husband and wife.85 In addition, the state-authorized individual, within
30 days of the ceremony, signs and files the license, along with the
duplicate marriage certificate, with the clerk who issued the license.86
This completes the marriage solemnization process and creates a
legally binding marriage.
Until July 2014, Indiana’s Solemnization Statute vested the
authority to solemnize a marriage in the following individuals and
entities:
(1) A member of the clergy of a religious organization (even
if the cleric does not perform religious functions for an individual
congregation), such as a minister of the gospel, a priest, a bishop,
an archbishop, or a rabbi.
(2) A judge.
(3) A mayor, within the mayor’s county.
(4) A clerk or a clerk-treasurer of a city or town, within a county
in which the city or town is located.
(5) A clerk of the circuit court.
(6) The Friends Church, in accordance with the rules of the
Friends Church.
(7) The German Baptists, in accordance with the rules of their
society.
(8) The Bahai faith, in accordance with the rules of the Bahai
faith.
(9) The Church of Jesus Christ of Latter Day Saints, in accordance
with the rules of the Church of Jesus Christ of Latter Day Saints.
84
Ctr. for Inquiry, Inc. v. Clerk, Marion Cir. Ct, No. 1:12-CV-00623-SEB,
2012 WL 5997721, at *1 (S.D. Ind. Nov. 30, 2012).
85
Rains, supra note 64, at 839.
86
IND. CODE § 31–11–4–16.
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(10) An imam of a masjid (mosque), in accordance with the rules
of the religion of Islam.87
Under Indiana’s Solemnization Statute, anyone who solemnized a
marriage ceremony without the authority of the state committed a
Class B misdemeanor.88
III. CENTER FOR INQUIRY, INC. V. MARION CIRCUIT COURT CLERK
On June 11, 2012, the Indiana branch of CFI, sought a temporary
and permanent injunction in the United States District Court for the
Southern District of Indiana “to bar . . . the Clerk of the Marion Circuit
Court . . . and the Marion County Prosecutor . . . from enforcing
Indiana’s Solemnization Statute.”89 CFI asserted, inter alia,90 that the
Solemnization Statute was facially unconstitutional because it created
a preference for religion over nonreligion, in violation of the
Establishment Clause.91 More specifically, CFI contended that the
Solemnization Statute ran afoul of the neutrality principle because it
preferred religion over nonreligion by extending the authority to
solemnize marriages only to certain religious organizations.92
87
Id. § 31–11–6–1.
Id.
89
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *1.
90
In addition to the First Amendment claim, CFI alleged that Indiana’s
Solemnization Statute was unconstitutional under the Equal Protection Clause of the
Fourteenth Amendment because it extended the authority to solemnize a marriage to
religious leader and thus, allowed religious persons to be married by religious
leaders of their choice while denying the same rights to non-religious persons. Id. at
*5 (citations omitted). The Equal Protection claim is beyond the subject of this Note.
The Seventh Circuit addressed the Equal Protection claim only briefly and concluded
that the Solemnization Statute was also unconstitutional under the Equal Protection
Clause because it discriminated arbitrarily among religious and secular ethical
beliefs. Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 875 (7th Cir.
2014).
91
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *5.
92
Id.
88
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A.
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Fall 2014
Center for Inquiry, Inc. and its Secular Marriage
Celebrations
CFI is an international not-for-profit organization with
approximately 24,000 members93 and nineteen branches in the United
States, including one in Indiana.94 CFI “describes itself as a humanist
group that promotes ethical living without a belief in a deity.”95 Its
mission is to promote a purely secular society based on science96 by
advocating that it is “possible to have strong ethical values based on
critical reason and scientific inquiry rather than theism and faith.”97
Accordingly, CFI rejects blind faith and promotes the use of scientific
methods instead.98 CFI believes that “integrity, trustworthiness,
benevolence, and fairness”99 are the core values of “effective morality
and a model for living a good life.”100 Based on these values, CFI
“maintain[s] and teaches a set of beliefs upon which its members are
to base their lives, actions, relationships and decisions.”101 This system
of beliefs is usually denominated “secular humanism”102and it “play[s]
the same role in . . . [CFI] members’ lives as religious methods and
values play in the lives of adherents.”103
To provide its members with ceremonies that express their
philosophies and values, CFI conducts “secular celebrations.”104 These
93
Id. at * 2.
Center for Inquiry, CFI Branches, http://www.centerforinquiry.net/about/
branches (last visited Nov. 17, 2014).
95
Ctr. for Inquiry, Inc., 758 F.3d at 871.
96
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *2 (citations omitted).
97
Ctr. for Inquiry, Inc., 758 F.3d at 871.
98
Center for Inquiry, About Center for Inquiry, http://www.centerforinquiry.
net/ about (last visited Nov. 17, 2014).
99
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *3 (citations omitted).
100
Id.
101
Brief of Appellants, supra note 17, at 6.
102
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *2.
103
Ctr. for Inquiry, Inc., 758 F.3d at 871.
104
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *3.
94
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secular celebrations usually mark important life events105 such as
funerals, memorials, and marriages.106 Since 2009, when CFI began its
secular celebrations, certified CFI members, also known as secular
celebrants, preside over these ceremonies.107 In Indiana, Reba Boyd
Wooden, a certified secular celebrant and the leader of CFI’s Indiana
branch, conducted marriage ceremonies for CFI members, but was
unable to solemnize their marriages because CFI was not included in
Indiana’s Solemnization Statute.108 Although the Solemnization Statute
vested solemnization authority on members of the clergy, Ms. Wooden
could still not solemnize a marriage, as Indiana does not recognize
CFI’s leaders as clergy because CFI is not a religious organization.109
CFI was, however, unwilling to declare itself a religious organization
and get its leaders clergy credential in order to be able to solemnize
marriages.110And, while in other states, CFI’s leaders may solemnize a
marriage under the title of public notaries,111 Indiana’s Solemnization
Statute also did not confer solemnization authority upon notaries. After
Ms. Wooden was unable to solemnize the marriage of her longtime
friends and mentees,112 Ms.Wooden, her friends and mentees,113 and
CFI challenged the Solemnization Statute on the grounds that it
violated the neutrality principle as it preferred religion over
nonreligion by extending solemnization authority only to religious
105
Center for Inquiry, CFI Secular Program, http://www.centerforinquiry.net/
education/secular_celebrants/ (last visited Nov. 17, 2014).
106
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *3.
107
Id. at *4.
108
Id. at *3-4.
109
Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 872 (7th Cir.
2014).
110
Id. at 871.
111
Center for Inquiry, CFI Celebrant Certification, http://www.centerfor
inquiry. net/education/celebrant_certification/ (last visited Nov. 17, 2014); Ctr. for
Inquiry, Inc., 758 F.3d at 871.
112
Ctr. for Inquiry, Inc., 2012 WL 5997721, at *3.
113
In October 2012, while the lawsuit was still pending in the district court,
Ms. Wooden’s friends and mentees had their marriage solemnized by a stateapproved individual and, consequently, withdrew as parties in the lawsuit. Id.
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groups.114 CFI asked that the District Court for the Southern District of
Indiana enter a preliminary and permanent injunction to prevent the
Clerk of the Marion Circuit Court and the Marion County Prosecutor
from enforcing the Statute against them.115
B.
The Decision of the District Court
On November 30, 2012, the district court denied CFI’s request for
injunctive relief and entered judgment in favor of the Clerk of the
Marion Circuit Court and the Marion County Prosecutor.116 In its
opinion, the district court covered constitutional ground that is beyond
the scope of this Note.117 Relevant to the subject of this Note, the court
explained that Indiana could place reasonable regulations on marriage,
designating the procedures by which a marriage becomes legally
effective as well as the persons authorized to solemnize a marriage.118
Given that marriage has deep religious roots, the court explained, it
was “both natural and logical” for Indiana to “accommodate[ ] those
deep religious traditions.”119 The Solemnization Statute, the district
court continued, simply accommodates religions that regard marriage
as a fundamental tenet, allowing those religions to “place their ‘stamp
of approval’ on marriages”120 and preserving their “ability . . . to . . .
114
Id. at *5.
Id. at *1.
116
Id. at *14.
117
Although CFI challenged Indiana’s Solemnization Statute under the
Establishment Clause, the district court also assessed the constitutionality of the
Statute under the Free Exercise Clause, expressing doubt that CFI’s claim fell within
Establishment Clause jurisprudence. Id. at *8-10. This Note does not address
whether CFI’s claim fell within the purview of the Establishment Clause or the Free
Exercise Clause. For a discussion of which of the two Clauses should guide the
analysis in claims of the nature brought by CFI, see the concurring and dissenting
opinions in Welsh v. U.S. and majority and concurring opinions in Cutter v.
Wilkinson.
118
Id. at *10.
119
Id.
120
Id.
115
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carry out their religious missions.”121 Finding that CFI was not a
religion and that CFI had no stance on marriage, the court concluded
that CFI was, therefore, not entitled to a similar accommodation.122
The district court further stated that CFI could not characterize its
beliefs as a religion simply to avoid the inconveniences of marriage
regulation. The district court then explained that in Wisconsin v. Yoder,
a religious accommodation case, the Supreme Court had stated that
“‘the very concept or ordered liberty precludes allowing [everyone] to
make . . . [their] own standards’” to trigger the protection of the
Religious Clauses and avoid state regulation.123 Thus, the district court
stated that it could not “commandeer the Indiana legislature” to
include CFI in the Solemnization Statute simply because CFI preferred
to solemnize its own marriages.124 Members of CFI, after all, the court
explained, had “numerous avenues through which they . . . [could]
legally wed.”125 They could continue with their secular celebrations
and then have their marriage solemnized by, for example, a judge as
the Solemnization Statute only prohibited CFI and others “from
signing marriage certificates.”126 In short, the court held that the
Statute could not amount to an establishment of religion as it only had
the “legitimate purpose of alleviating significant governmental
interference with pre-existing religious beliefs about marriage.”127
C.
The Appeal to the Seventh Circuit
CFI appealed the decision of the district court to the Seventh
Circuit. Before the Seventh Circuit, CFI argued that CFI’s beliefs were
121
Id.
Id. at *7, 10.
123
Id. at *9 (citations omitted).
124
Id.
125
Id.
126
Id.
127
Id. at *12.
122
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“equivalent to a religion”128 because CFI’s beliefs are sincere and
“address[ ] matters of ‘ultimate concern’ that occupy a ‘place parallel
to that filled by . . . God in traditionally religious persons.’”129 Because
CFI had to be “deemed to be analogous to a religion, its exclusion
from the benefits bestowed by the Solemnization Statute represent[ed]
a preference for particular sects or creeds.”130 CFI further argued that
Indiana’s defense that it excluded CFI from the Solemnization Statute
because CFI takes no stance on religion was simply a pretext to avoid
the Establishment Clause claim. Given that Indiana was willing to
allow CFI’s secular celebrants to solemnize marriages if CFI declared
itself a religious organization, thereby rendering its leaders clergy, it
was apparent, CFI argued, that Indiana excluded CFI not because of
CFI’s stand on marriage, but because it was not a religious entity.131
Regardless of CFI’s position on marriage, however, CFI argued that
CFI members, like adherents of traditional religions, “desire to have
their wedding ceremonies reflect their values and beliefs.”132 For CFI
members, as for members of religions, “it is important to have
someone perform the [solemnization] ceremony who shares their
ethics and beliefs and who is able to assist them in in structuring a
ceremony in a way that affirms their philosophy.”133
In defending the constitutionality of the Solemnization Statute,
Indiana reiterated the holding of the district court that the
Solemnization Statute was a religious accommodation under which
CFI could not be included because CFI could not be said to be a
religion.134 Indiana further argued that states may constitutionally
accommodate religious beliefs without having to extend the same or
substantially similar accommodations to non-religious groups.
128
Reply Brief of Appellants-Plaintiffs, Ctr. for Inquiry, Inc. v. Marion Cir. Ct.
Clerk, 758 F.3d 869 (7th Cir. 2014) (No. 12-3751), 2013 WL 1208815, at *9.
129
Id. at *10-11 (citations omitted).
130
Id. at *14.
131
Id. at *7, 8, 14.
132
Id. at *17.
133
Brief of Appellants, supra note 17, at 9.
134
Brief of Appellees, supra note 14, at *14-5.
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Quoting to Supreme Court precedent specifically addressing religious
accommodations and their relation to the neutrality principle, Indiana
pointed out that the Supreme Court had already stated that religious
accommodations need not to “come packaged with benefits to secular
entities” in order to comply with the Establishment Clause.135 Relying
on Marsh v. Chambers, a case in which the Supreme Court upheld the
opening of legislative sessions with Christian prayer, Indiana
explained that “[j]ust as legislative bodies may,” under Marsh, “invite
clergy to give a prayer without also inviting secular humanists to give
non-religious speeches, so may states continue to delegate to religious
clergy . . . the function of solemnizing marriages without also
delegating that function to other” non-religious groups.136
The Seventh Circuit was thus not asked to determine whether
conferring solemnization authority to religious groups may
accommodate religious marriage practices. The parties did not dispute
that the Solemnization Statute qualified as a religious accommodation.
Rather, the court was left with the question of whether the neutrality
principle required that CFI be included in the Solemnization Statute.
IV. THE SUPREME COURT’S AND SEVENTH’S CIRCUIT JURISPRUDENCE
ON RELIGIOUS ACCOMMODATIONS AND THE NEUTRALITY
PRINCIPLE
The Supreme Court has long recognized that religious
accommodations are permissible, and sometimes even required, under
the Establishment Clause.137 In stating that religious accommodations
are not inherently incompatible with the Establishment Clause, the
Supreme Court has explained that “[t]he course of constitutional
neutrality . . . cannot be an absolutely straight line.”138 Instead, the
135
See id. at *43.
Id. at *22-23.
137
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 705
(1994); Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U.S. 327, 334 (1987); Hobbie v. Unemployment Appeals Comm’n of
Fla., 480 U.S. 136, 144-45 (1987).
138
Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 669 (1970).
136
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principle of neutrality provides a corridor in which the government has
room to act to ensure that the objectives of both Religious Clauses are
fulfilled—those objectives being the guarantee to free exercise of
religion without state interference and without sponsorship.139 Indeed,
in the absence of religious accommodations, the basic purposes of the
Religious Clauses could be frustrated as rigid government regulation
(that, which would allow for no accommodations on the basis of
religion) could interfere with the practice of religion and, thereby,
inhibit neutrality towards religion.140 However, the Supreme Court has
also stated that religious accommodations are constitutional under the
Establishment Clause only if they comply with the principle of
neutrality, preferring neither religion over nonreligion nor any
particular religious beliefs.141
A.
The Supreme Court’s Definition of Religion
In assessing the compliance of a religious accommodation under
the neutrality principle, an initial challenge may be to determine
whether the beliefs allegedly excluded from a given accommodation
can be deemed to be a “religion.” This was one of the very challenges
the Seventh Circuit faced in Center for Inquiry.142 The United States
Constitution does not define religion and the Supreme Court has never
adopted or announced a constitutional definition of religion.
Nonetheless, the Court has provided ample guidance on what may
constitute religion for purposes of the First Amendment. Far from
exhibiting a static conception of the meaning of religion, the Court’s
understanding of religion has, for the most part, evolved with time.
At the beginning of the Supreme Court’s jurisprudence on the
meaning of religion, the Court followed the traditional view that
religion necessarily requires a belief in a deity. In Davis v. Beason, for
example, the Court stated that “the term ‘religion’ has reference to
139
Cutter v. Wilkinson, 544 U.S. 709, 719-20 (2005).
Walz, 397 U.S. at 669.
141
Grumet, 512 U.S. at 696.
142
Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 873 (7th Cir. 2014).
140
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one’s views of his relation to his Creator.”143 However, the Court’s
view of religion evolved with the passing of time. In Torcaso v.
Watkins, the Court explained that the term “religion” needs not to be
based on a belief in the existence of God to get First Amendment
protections.144 In stating so, the Court acknowledged the religious
diversity that existed in the country at the time, explaining in a
footnote that Americans were practicing religions that did not, in a
general sense, teach a belief in the existence of God, among them
“Buddhism, Taoism, Ethical Culture, [and] Secular Humanism.”145
In two subsequent cases of remarkable importance in the
jurisprudence of the meaning of religion, United States v. Seeger146
and Welsh v. United States,147 the Supreme Court dramatically
expanded the definition of religion. Seeger and Welsh called the Court
to interpret the meaning of “religious training and belief” in a statute
that exempted conscientious objectors from participating in war.148
Pursuant to the statute, an individual could claim conscientious
objector status if “by reason of religious training and belief . . . [the
individual was] conscientiously opposed to participation in war in any
form.”149 The statute defined “religious training and belief” as “an
individual’s belief in a relation to a Supreme Being involving duties
superior to those arising from any human relation, but d[id not] not
include essentially political, sociological, or philosophical views or a
merely personal moral code.”150
To avoid rendering the statute unconstitutional by limiting its
reach to only those religious beliefs rooted in a belief in a Supreme
143
133 U.S. 333, 342 (1890) abrogated on other grounds by Romer v. Evans,
517 U.S. 620 (1996).
144
367 U.S. 488, 495 (1961).
145
Id. at 495 n.11.
146
380 U.S. 163 (1965).
147
398 U.S. 333 (1970).
148
Seeger, 380 U.S. at 165; Welsh, 398 U.S. at 346.
149
Welsh, 398 U.S. at 335 (internal quotation marks omitted) (citations
omitted).
150
Id. at 337. (internal quotation marks omitted) (citations omitted).
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Being, the Court interpreted “religious training and belief” in Seeger
to mean “a sincere and meaningful belief which occupies in the life of
its possessor a place parallel to that filled by the God.”151 Five years
later, in Welsh, the Court expanded the definition of religion even
further. There, to avoid rendering the statute unconstitutional by
limiting its reach to only religious beliefs, the Court read “religious
training and belief” to include “deeply and sincerely h[e]ld beliefs that
are purely ethical or moral in source and content but that nevertheless
impose upon . . . [an individual] a duty of conscience to refrain from
participating in any war at any time.”152
The broad and liberal definition of religion the Court reached in
Seeger and, later, in Welsh is not, however, without any boundaries. In
Wisconsin v. Yoder,153 the Supreme Court discussed some limits on
what may be deemed a religion under the First Amendment. There, the
Court stated that “philosophical and personal” beliefs do not trigger
the protections of the Religion Clauses.154 Thus, “[a] way of life,
however virtuous and admirable,” the Court explained, does not
constitute religion, and “may not be interposed as a barrier to
reasonable state regulation.”155 In Yoder, the Court exempted from
compliance with Wisconsin’s compulsory school attendance law
Amish individuals who, for religious reasons, refused to send their
children to school past the eighth grade.156 In allowing the religious
exemption, the Court explained that “if the Amish had asserted their
claims [against compulsory education] because of their subjective
evaluation and rejection of the . . . secular values accepted by the
majority, their claims would” not have been entitled to an
accommodation.157 Instead, the Court noted, “the record . . .
support[ed],” that the Amish’s reasons for refusing to send their
151
Seeger, 380 U.S. at 176.
Welsh, 398 U.S. at 340.
153
406 U.S. 205 (1972).
154
Id. at 216.
155
Id. at 215.
156
Id. at 206.
157
Id. at 216.
152
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children to school past the eighth grade were “not merely a matter of
personal preference, but one of deep religious conviction, shared by an
organized group, and intimately related to daily living.”158
In Yoder, the Supreme Court thus clarified that personal
philosophies and “ways of life” do not amount to religious beliefs
under the First Amendment, perhaps to limit a broad reading of Welsh
that would have permitted such a result.159 The Court also appeared to
stay that “one essential characteristic of religion is that it comprises an
‘organized’ community practicing a distinct way of life which is in
turned based on its particular values.”160 Given, however, that none of
the individuals challenging the constitutionality of the statute in
Seeger and Welsh claimed to be to be part of an organized religious
group, it is unlikely that Yoder makes affiliation with a religious group
a requirement of religion. A better reading of Yoder is that the Court
considers affiliation with an organized religious group mere evidence
of religion.161 Importantly, Yoder “seems to leave intact” Seeger’s and
Welsh’s holding that sincerely held “beliefs [that] function in a position
parallel to that of traditional religious beliefs”162 are the equivalent of
religion for First Amendment purposes. Hence, Welsh, Seeger, and
Yoder, taken together, establish that secular beliefs that are sincerely
held and that occupy a place in the life of an individual similar to that
of religion may be regarded as religious and thus, be entitled to a
158
Id.
See generally B. Douglas Hayes, Secular Humanism in Public School
Textbooks: Thou Shalt Have No Other God (Except Thyself), 63 NOTRE DAME L.
REV. 358, 361 (1988); L. Scott Smith, Esq., Constitutional Meanings of “Religion”
Past and Present: Explorations in Definition and Theory, 14 TEMP. POL. & CIV. RTS.
L. REV. 89, 97 (2004); James M. Donovan, God Is As God Does: Law,
Anthropology, and the Definition of “Religion,” 6 SETON HALL CONST. L.J. 23, 53
(1995).
160
Smith, supra note 159, at 97.
161
John C. Knechtle, If We Don’t Know What It Is, How Do We Know If It’s
Established?, 41 BRANDEIS L.J. 521, 526 (2003); Mason v. Gen. Brown Cent. Sch.
Dist., 851 F.2d 47, 54 (2nd Cir. 1988) (stating that exemptions on the basis of
sincere religious beliefs are permitted without regard to church affiliation); Hanna v.
Sec'y of the Army, 513 F.3d 4, 15 (1st Cir. 2008).
162
Hayes, supra note 159, at 361.
159
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religious accommodation. A way of life and personal philosophies, in
contrast, are not entitled to religious protections under the First
Amendment.
B.
The Seventh Circuit’s Definition of Religion
The Supreme Court has not been alone in determining what
beliefs may qualify as religious for purposes of the First Amendment.
The Seventh Circuit has also had opportunity to address the definition
of religion. In Kaufman v. McCaughtry,163 for example, the Seventh
Circuit provided a test for determining what constitutes a religion for
First Amendment analysis. There, the Seventh Circuit explained that
whether a set of beliefs “is a ‘religion’ for First Amendment purposes
is a somewhat different question than whether its adherents believe in
a supreme being, or attend regular devotional services, or have a
sacred Scripture.”164 For First Amendment analysis, the Seventh
Circuit continued, the beliefs of a person represent that person’s
religion if the person “sincerely holds” those beliefs and such beliefs
deal “with issues of ‘ultimate concern’ that . . . occupy a ‘place parallel
to that filled by . . . God in traditionally religious persons.”165 Citing to
Torcaso, Welsh, and Seeger, the Seventh Circuit explained that its
definition of religion was consistent with the Supreme Court’s “broad
definition of ‘religion,’” which includes theistic, atheistic and nontheistic beliefs.166
C.
The Supreme Court’s Jurisprudence on Religious
Accommodations and the Neutrality Principle
As previously discussed, neutrality does not prevent the
government from accommodating religion. But, it does forbid the
government from deviating from the corridor in between the two
163
419 F.3d 678 (7th Cir. 2005).
Id. at 681.
165
Id. (internal citations omitted).
166
Id. at 682.
164
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Religious Clauses, in which permissible religious accommodations
may exist. Since neutrality is a principle, and not a rule or a test, there
are no factors or prongs to determine when the deviation from that
corridor has been enough to turn an otherwise valid religious
accommodation into an impermissible advancement or establishment
of religion. Recognizing the lack of factors or prongs, the Supreme
Court has aptly stated that “[a]t some point, [an] accommodation may
devolve into ‘an unlawful fostering of religion.’”167 The lack of set
rules does not mean, however, that there are no parameters that help
establish that an accommodation violates the neutrality principle. To
the contrary, it is well settled that an accommodation that has the
intention or effect of preferring one religion over another or religion in
general over nonreligion is outside of the boundaries of benevolent
neutrality permitted by the Establishment Clause.168 In deciding
whether an accommodation prefers certain religious denominations or
religion in general over nonreligion, the best guidance is provided in
judicial precedent that has applied the principle of neutrality, even if
not explicitly, to contested religious accommodations. The following
Supreme Court cases illustrate the demands of the neutrality principle
on religious accommodations and help understand the holding of the
Seventh Circuit in Center for Inquiry.
1.
United States v. Seeger
United States v. Seeger represents one of the best examples in
Supreme Court jurisprudence on the requirement that the government
stays neutral towards religion when accommodating religion. Seeger is
of particular importance to this Note because it also involved a
challenge to a religious accommodation by individuals, who, similar to
CFI members, held, at best, untraditional religious beliefs. There, three
conscientious objectors challenged section 6(j) of the Universal
167
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U.S. 327, 334-35 (1987) (internal citations omitted) (emphasis added).
168
Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 70507 (1994).
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Military Training and Service Act of 1948 under, inter alia, the
Establishment Clause.169 Section 6(j), the conscientious objector
statute, “exempte[d] from combatant training and service in the armed
forces . . . those persons who by reason of their religious training and
belief [we]re conscientiously opposed to participation in war in any
form” as a form of religious accommodation.170 For purposes of the
statute, “religious training and belief,” was defined as “an individual’s
belief in a relation to a Supreme Being involving duties superior to
those arising from any human relation, but (not including) essentially
political, sociological, or philosophical views or a merely personal
moral code.”171 According to the conscientious objectors, the statute
violated the Establishment Clause because the definition of “religious
training and belief” preferred religion over nonreligion as well as
certain religions over others.172
The three objectors had applied and failed to qualify for the
conscientious objector exemption.173 In their application for the
exemption, they stated that they were conscientiously opposed to
participation in war on reason of “religious belief and training,” but
defined their religious beliefs in non-traditional ways.174 One of the
objectors, for example, “submitted a long memorandum . . . in which
he defined religion as the ‘sum and essence of one’s basic attitudes to
the fundamental problems of human existence.’”175 Most importantly,
the objectors could not say that they held their beliefs in relation to a
169
U.S. v. Seeger, 380 U.S. 163 (1965).
Id. at 164-65.
171
Id. at 165 (internal quotations omitted).
172
Id.; see Brian A. Freeman, Expiating the Sins of Yoder and Smith: Toward
A Unified Theory of First Amendment Exemptions from Neutral Laws of General
Applicability, 66 Mo. L. Rev. 9, 35 (2001) (explaining that section 6(j) “[n]ot only . .
. den[ied] conscientious objector status to those whose objection was not grounded
on religious belief, but also . . . den[ied] that status . . . to those whose objection was
grounded on religious belief, if they were not members of a denomination possessing
an article of faith opposing war”).
173
Id. at 166-69.
174
Id. at 166-69, 186.
175
Id. at 168 (internal citations omitted).
170
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Supreme Being, namely an orthodox God.176 Seeger, one of the
objectors, for instance, had expressed “‘skepticism or disbelief in the
existence of God’”177 and, explained, instead that he believed in
“devotion to goodness and virtue for their own sakes . . . [as well as] in
a purely ethical creed.’”178 Thus, the Seeger Court had to determine
whether the beliefs of the three objectors fell within the statute’s
definition of “religious training and belief.” To do so, the Court had to
interpret the meaning of “religious training and belief”.179
The Court first noted that the statute defined “religious training
and belief” restrictively, requiring that a person hold beliefs involving
a relationship with a traditionally conceived Supreme Being, before
the person could be exempted from participating in war. The objectors’
convictions, though sincere and fundamental in their lives, did not
conform to this notion of religion.180 After engaging in statutory
interpretation, the Court concluded, however, that Congress could not
have meant to restrict the exemption only to those who believed in a
traditional Supreme Being, that is, a God. In the statute’s legislative
history, the Court found evidence that Congress was aware of the
myriad of conceptions that individuals have of a Supreme Being.181 As
the Court explained, “[s]ome believe in a purely personal God, some
in a supernatural deity; others think of religion as a way of life
envisioning as its ultimate goal the day when all men can live together
in perfect understanding and peace.”182 Congress, the Court reasoned,
must have chosen the word “Supreme Being” rather than God in order
to include all these conceptions of a Supreme Being and “keep[ ] with
its long-established policy of not picking and choosing among
religious beliefs.”183 Thus, “religious training and belief,” the Court
176
Id. at 166-69.
Id. at 166 (internal citations omitted).
178
Id.
179
Id. at 173.
180
Id. at 166-69.
181
Id. at 174-85.
182
Id. at 174.
183
Id. at 175.
177
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ultimately decided, meant “a sincere and meaningful belief which
occupies in the life of its possessor a place parallel to that filled by the
God.”184 Pursuant to this definition, the objectors’ beliefs qualified as
“religious.”185
While the Court’s interpretation of “religious training and belief”
resulted in a remarkably strained reading of the statute—one which the
legislative history questionably supported186—the Court saw its
interpretation as necessary to save the statute’s constitutionality.
Construing the statute in this way, the Court explained, “avoid[ed]
imputing to Congress an intent to classify different religious beliefs,
exempting some and excluding others, and . . . [was] in accord with
the well-established congressional policy of equal treatment for those
whose opposition to service is grounded in their religious tenets.”187
Although the Court did not explicitly refer to the neutrality principle,
its interpretation of “religious training and belief” clearly alludes to the
constitutional requirement that the government remain neutral in its
accommodation of religious beliefs. As the Court stated, Congress
could not have intended to include some religious beliefs while
excluding others, as that would have been prohibited by the
Constitution.188 Indeed, commentators have argued that the Seeger
Court turned the statute’s intent “upside-down” as to eliminate its
preferentialism for religion and ensure that the statute conformed with
the requirement of neutrality.189 Moreover, by defining religion to
184
Id.
Id.
186
Id. at 188. (Douglas, J., concurring) (“The legislative history of this Act
leaves much in the dark. But it is, in my opinion, not a tour de force if we construe
the words ‘Supreme Being’ to include the cosmos, as well as an anthropomorphic
entity. If it is a tour de force so to hold, it is no more so than other instances where
we have gone to extremes to construe an Act of Congress to save it from demise on
constitutional grounds. In a more extreme case than the present one we said that the
words of a statute may be strained ‘in the candid service of avoiding a serious
constitutional doubt.”) (internal citations omitted).
187
Id. at 176.
188
Id.
189
See, e.g., Freeman, supra note 172, at 35-36.
185
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include beliefs not founded in a belief in a god, the Court was already
hinting to the fact that the government cannot, consistent with the
neutrality principle, accommodate religious beliefs, but not systems of
belief that are comparable to religion. In a later decision, Welsh v.
United States, the Supreme Court, came to that exact conclusion.
2.
Welsh v. United States
In Welsh v. United States,190 the Supreme Court was again called
to interpret the definition of “religious training and belief” for
purposes of the same conscientious objector statute that had been at
issue in Seeger. Welsh involved another conscientious objector, Welsh,
who also sought exemption from the Selective Service pursuant to the
conscientious objector statute.191 While Seeger and Welsh were almost
factually identical, there was a fundamental difference between the
two cases. In Seeger, the government had denied the conscientious
objectors’ claims because the conscientious objectors could not say
that they held their religious beliefs in relation to a traditionally
conceived Supreme Being.192 In Welsh, in contrast, the government
had denied Welsh’s claim because the government “‘could find no
religious basis for . . . [Welsh’s] beliefs, opinions, and convictions.’”193
Welsh had insisted that his beliefs, which prohibited him from taking a
human life, were not religious, but ethical and moral and that he held
his beliefs “‘with the strength of . . . religious convictions.’”194 Thus,
the Court in Welsh was “faced [with] the more serious problem of
determining which beliefs were ‘religious’ within the meaning of the
statute.”195
Once again, to avoid rendering the statute unconstitutional, the
Court interpreted “religious training and belief” to include beliefs not
190
398 U.S. at 335, 338 (1970).
Id. at 335.
192
Id. at 337-38.
193
Id. (internal citations omitted).
194
Id. at 343.
195
Id. at 338.
191
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rooted in religion, but that, nevertheless, “occupy in the life of . . . [an]
individual a place parallel to that filled by . . . God” in religious
adherents.196Accordingly, the Court held that “if an individual deeply
and sincerely holds beliefs which are purely ethical or moral in source
and content but which nevertheless impose upon him duty of
conscience to refrain from participating in any war at any time, such
individual is entitled to conscientious objector exemption,”197 as those
beliefs are his religion.198 Welsh was thus entitled to the exemption.199
In arriving at the conclusion that the exemption extended to nonreligious beliefs parallel to religion, the Court reiterated most of its
analysis and rationale in Seeger.200 Although, the Court did not
explicitly mention the neutrality principle, its opinion restated Seeger’s
overriding principle that the government may not make distinctions
among beliefs.201 Based on the premise that the government must
remain neutral towards religion, and relying on its analysis of the
legislative history of the statute in Seeger, the Court then concluded
that Congress could not have meant to exclude parallel religious
beliefs from the purview of the statute, as that would have been clearly
unconstitutional.202
Justice Harlan concurred with the result achieved by the
majority,203 but disagreed that the majority’s opinion could be justified
in the name of the doctrine of construing legislative enactments in a
way that would avoid rendering them unconstitutional.204 The
doctrine, he explained, permits the Court to salvage statutes when
196
Id. at 340.
Id.
198
Id.
199
Id.
200
Id. at 339-40.
201
Id. at 340-41.
202
Id. at 339-40.
203
Id. at 362. Because the majority interpreted the conscientious objector
statute to include non-religious beliefs, Welsh’s conviction for failing to submit to
induction into the Armed Forces was reversed. Id. at 344.
204
Id. at 345 (Harlan, J., concurring).
197
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there is “reason to believe that Congress did not intend to legislate
consequences that are unconstitutional,”205 but not to usurp
congressional authority to evade an important constitutional issue.206
According to Harlan, the legislative history of the conscientious
objector statute unequivocally demonstrated that Congress intended to
limit the exemption only to religious individuals.207 Thus, the Court
could not “as matter of statutory construction . . . conclude that any
asserted and strongly held belief satisfie[d] . . . [the exemption’s]
requirements.”208 The pressing constitutional issue, Harlan stated, was
whether the conscientious objector statute was compatible with the
Establishment Clause.209 The First Amendment, he explained,
incorporates a neutrality principle, which requires that “legislation
must, at the very least, be neutral.”210 Congress was under no
obligation to create a conscientious objector exemption.211 Having
decided to create an exemption, however, Harlan explained, Congress
could not “draw the line between theistic or nontheistic religious
beliefs on the one hand and secular beliefs on the other.”212 The
conscientious objector statute, he explained, “created a religious
benefit” by “exempting individuals whose beliefs were identical in all
respects to those held by [Welsh] except that they derived from a
religious source.” 213 Such favoritism, he stated, is not permitted under
the Establishment Clause.”214
Harlan’s concurrence is particularly illustrative of the demands of
the neutrality principle on religious accommodations as it speaks
directly of the principle and explains that the Establishment Clause
205
Id. at 354.
Id. at 354-55.
207
Id. at 351-54.
208
Id. at 352.
209
Id. at 356.
210
Id. at 361.
211
Id. at 356.
212
Id.
213
Id. at 362.
214
Id. at 356.
206
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does not tolerate distinctions between religion and parallel secular
beliefs. More importantly, by discussing the constitutional infirmities
from which the conscientious objector statute suffered, Harlan’s
concurrence reveals the constitutional considerations that likely drove
the decision of the majority to interpret religion broadly in order to
prevent the conscientious objector statute from making unlawful
distinctions between religious and equivalent religious beliefs. In this
sense, Welsh, though a statutory interpretation case, becomes
important to the resolution of challenges to religious accommodations
in cases, like Center for Inquiry, Inc., that arise under the Constitution.
3.
Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-Day Saints v. Amos
In Corporation of Presiding Bishop of Church of Jesus Christ of
Latter-day Saints v. Amos,215 the Supreme Court spoke directly and
explicitly about the relationship between religious accommodations
and the neutrality principle. There, the Court upheld an exemption to
Title VII of the Civil Rights Act that allowed not-for profit religious
organizations to discriminate in hiring for any position on religious
grounds.216 Congress had enacted Title VII to prohibit employment
discrimination based on race, color, religion, sex and national
origin.217 As originally enacted in 1964, Title VII had an exemption
that allowed religious not-for profit employers to discriminate on
religious grounds in hiring for religious jobs only.218 As amended in
1972, the exemption, Section 702 of the Title, allowed religious notfor profit employers to discriminate on religious grounds in hiring for
any job, as form of religious accommodation.219
215
483 U.S. 327 (1987).
Id. at 339.
217
42 U.S.C.A. § 2000e-2 (West 2014).
218
Amos, 483 U.S. at 329.
219
Id.
216
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In Amos, the Church of Jesus Christ of Latter-Day Saints owned
and operated a gymnasium that was open to the public.220 Arthur Frank
Mayson worked for the gymnasium as an engineer.221 After sixteen
years of employment, the Church discharged him when “he failed to
qualify for . . . a certificate that he . . . [was a] member of the Church
and eligible to attend its temples.”222 The Church justified its actions
under Section 702, as amended.223 Mayson, along with a class of
plaintiffs, challenged the constitutionality of Section 702, alleging
that, as applied to secular activity, it violated the neutrality principle
because it resulted in state sponsorship of religion by granting
religious organizations benefits in employment practices that were not
extended to secular entities.224
The Supreme Court unanimously held that Section 702, as
amended, did not violate the principle of neutrality.225 Under the
Establishment Clause, the Court explained, “there is ample room . . .
for ‘benevolent neutrality which will permit religious exercise to exist
without [government] sponsorship.’”226 In enacting Section 702, the
Court explained, Congress was not abandoning neutrality, but
furthering it by “alleviat[ing] significant governmental interference
with the ability of not-for profit religious organizations to define and
carry out their religious missions.”227 More succinctly, the exemption
simply removed the burden of government regulation over
employment decisions that Title VII, as originally enacted in 1964, had
220
Id. at 330.
Id.
222
Id.
223
Id. at 331.
224
Id.
225
Id. at 339-40. The Supreme Court analyzed Section 702’s compliance with
the neutrality principle under the framework of the Lemon Test. Id. at 335-39. The
Lemon Test is a three-pronged test to evaluate the constitutionality of a law under
the Establishment Clause. See Lemon v. Kurtzman, 411 U.S. 192 (1973). The
applicability of the Lemon Test to religious accommodations is beyond the subject
of this Note.
226
Amos, 483 U.S. at 334 (citations omitted).
227
Id. at 339.
221
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placed on religious organizations.228 Where the “government acts with
the proper purpose of lifting a regulation that burdens the exercise of
religion,” the Court continued, there is “no reason to require that the
exemption comes packaged with benefits to secular entities” to be in
compliance with the neutrality principle.229
4.
Cutter v. Wilkinson
In Cutter v. Wilkinson,230 the Supreme Court further elaborated on
the role of neutrality in religious accommodations. There, the Court
addressed the constitutionality of Section Three of the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA) under the
Establishment Clause.231 Section Three of RLUIPA provides, in
pertinent part, that “[n]o government shall impose a substantial burden
on the religious exercise of a person residing in or confined to an
institution,” unless the burden furthers “a compelling governmental
interest,” by “the least restrictive means.”232 RLUIPA defines
“religious exercise” to include “any exercise of religion, whether or
not compelled by, or central to, a system of religious belief.”233 In
Cutter, prison inmates sued the Ohio Department of Rehabilitation and
Correction, alleging that Ohio prison officials, in violation of RLUIPA,
had burdened their exercise of “‘nonmainstream’ religions: the
Satanist, Wicca, and Asatru . . . and the Church of Jesus Christ
Christian.”234 Specifically, the inmates alleged that the prison officials
had denied them, inter alia, “‘access to religious literature . . .
opportunities for group worship that . . . [were] granted to adherents of
mainstream religions . . . [and access to] a chaplain trained in their
228
Id. at 335-36.
Id. at 338.
230
544 U.S. 709 (2005).
231
Id. at 709.
232
42 U.S.C.A. § 2000cc-1(a)(1)-(2) (West 2000).
233
Id. § 2000cc-5(7)(A).
234
Cutter, 544 U.S. at 712.
229
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faith.’”235 In response, the prison officials challenged RLUIPA’s
constitutionality under the Establishment Clause as an improper
advancement of religion.236
The Supreme Court unanimously held that Section Three of
RLUIPA, on its face, is an accommodation of religion permissible
under the Establishment Clause.237 The Court explained that Section
Three qualifies as a religious accommodation because it “alleviates
exceptional government-created burdens on private religious exercise”
in “state-run institutions.”238 Where the government acts to remove
“government-imposed burdens on religious exercise,” the removal “is
more likely to be perceived ‘as an accommodation of the exercise of
religion rather than as . . . [an advancement] of religion.’”239 Section
Three of RLUIPA, the Court continued, does not advance or establish
religion simply because it does not similarly accommodate the other
constitutional rights of the inmates, which may also be subject to
governmental burdens. Citing to Amos, the Court reiterated that
religious accommodations “need not come packaged with benefits for
secular entities”240 in order to comply with the neutrality principle.
Just at the government may exempt religious organizations from
regulations that burden the exercise of religion without having to also
exempt secular entities, the government may choose to accommodate
the free exercise of religion of inmates without having to also
accommodate the inmates’ free speech or right to assemble in order to
comply with the Establishment Clause.
Lastly, the Court pointed out that Section Three complied with the
Establishment Clause because it did not single out any religion for a
particular treatment. RLUIPA, the Court stated, “confers no privileged
status on any particular religious sect, and singles out no bona fide
235
Id. (internal quotation marks omitted).
Id.
237
Id. at 720.
238
Id. at 720-21.
239
Id. at 720 (citations omitted).
240
Id. at 724 (internal quotation marks omitted) (internal citations omitted).
236
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faith for disadvantageous treatment.”241 Given that “RLUIPA does not
differentiate among bona fide faiths,” the Court held that it complied
with the neutrality principle.242
D.
The Seventh Circuit’s Jurisprudence on Religious
Accommodations and the Neutrality Principle
The Seventh Circuit has also spoken about the relationship
between religious accommodations and the neutrality principle. A very
illustrative case is Kaufman.243 There, Wisconsin inmate James
Kaufman filed a First Amendment claim against prison officials after
they “refused to allow him to create an inmate group to study and
discuss atheism.”244 Notwithstanding the officials’ refusal to allow
Kaufman to start an atheist study group, the prison officials allowed
the gatherings of Christian, Muslims, Buddhist and other inmates to
study their respective religions.245 Among other things, Kaufman
alleged that the prison officials’ actions in accommodating only certain
religious beliefs violated the Establishment Clause.246 The prison
officials, however, maintained that no religious accommodation was
warranted for Kaufman’s beliefs because atheism, as Kaufman himself
insisted, is not a religion.247
The Seventh Circuit disagreed and held that the prison officials’
actions violated the Establishment Clause as they failed to comply
with the neutrality principle.248 The court began its analysis by first
concluding that Kaufman’s atheist beliefs constituted a religion for
241
Id.
Id. at 723.
243
419 F.3d 678 (2005).
244
Id. at 680.
245
Id. at 684.
246
Id. at 680-81.
247
Id.
248
Id. at 683-84. In concluding that the prison officials’ actions violated the
First Amendment, the Seventh Circuit applied the Lemon Test. See supra note 225
for an explanation of the Lemon Test.
242
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purposes of the First Amendment because they “play[ed] a central role
in his life”249 and it was undisputed that Kaufman deeply and sincerely
held those beliefs.250 The court then proceeded to explain that under
the Establishment Clause “the government may not aid one religion,
aid all religions or favor one religion over another.’”251 The First
Amendment, the court explained, simply “‘does not allow a state to
make it easier for adherents of one faith to practice their religion than
for adherents of another faith to practice their religion, unless there is a
secular justification for the difference in treatment.’”252 The prison
officials, however, could not advance a secular reason that would
support that “meeting[s] of atheist inmates would pose a greater
security risk [to the prison] than meetings of inmates of other
faiths.”253 While the Seventh Circuit recognized that Cutter had held
that religious accommodations need not to extend to non-religious
practices in order to be permissible, the court explained that Cutter did
not resolve the neutrality principle issue in the instant case.254 While
religious accommodations may be reserved only for religious groups,
it does not follow that set of secular beliefs that qualify as religious for
First Amendment purposes may be permissibly excluded from
religious accommodations.255 The court concluded that by
accommodating some religious beliefs, but not Kaufman’s beliefs, the
prison officials were “promoting” and favoring certain religions, in
violation of the Establishment Clause.”256
249
Id. at 682.
Id. See supra Section IV B, for a discussion of the test the Seventh Circuit
employed to determine whether atheism qualified as a religion for First Amendment
purposes.
251
Id. at 683 (citing to Berger v. Rensselaer Cent. Sch. Corp., 982 F.2d 1160,
1168-69 (7th Cir.1993)).
252
Id. (citing to Metzl v. Leininger, 57 F.3d 618, 621 (7th Cir.1995)).
253
Id. at 684.
254
Id.
255
Id.
256
Id.
250
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V. ANALYSIS: THE SEVENTH CIRCUIT DECISION
IN CENTER FOR INQUIRY
A.
The Seventh Circuit’s Holding
On July 14, 2014, in a unanimous opinion authored by Judge
Frank H. Easterbrook, the Seventh Circuit unanimously held that
Indiana’s Solemnization Statute violated the principle of neutrality.257
Although the court recognized that religious accommodations
inherently treat the accommodated religion differently, it stated that
such an explanation could “not be a complete answer” to CFI’s claims
that the Solemnization Statute preferred religion over comparable
secular beliefs.258 Given that “[n]eutrality is essential to the validity of
an accommodation,”259 religious accommodations, the court
explained, may neither treat religion favorably over parallel nonreligious beliefs nor confer special benefits on certain religious
sects.260 Indiana’s Solemnization Statute suffered from both defects.
The Statute conferred the authority to solemnize a marriage only to
certain religious organizations and it also withheld such authority from
individuals holding secular beliefs parallel to religion.261
B.
CFI’s Beliefs are the Equivalent of Religion for
First Amendment Purposes
To reach its holding, the Seventh Circuit first had to determine
whether CFI’s beliefs qualified as a “religion” under the First
Amendment. The State of Indiana extensively argued262 and, the
257
Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869 (7th Cir. 2014).
Id. at 872.
259
Id.
260
Id. at 872-73.
261
Id. at 872-74.
262
Id. at 871.
258
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district court opined,263 that CFI could not be treated as a religion
because CFI, itself, insisted that it was not a religion. CFI, however,
maintained that its beliefs, even if not religious in a conventional
sense, were the equivalent of religion because they occupy a place
parallel to religion in the lives of its members.264 Relying on its own as
well as Supreme Court precedent on the meaning of religion, the
Seventh Circuit properly determined that CFI’s beliefs were the
equivalent of religion for purposes of the First Amendment.
The court began its analysis by stating that under Seeger and
Welsh a “serious and sincere[ly] held moral system” that occupies a
place in the life of an individual parallel to that of religion must be
treated the same as religion.265 The court did not have to pause to
examine the sincerity with which members of CFI held their beliefs, as
that was never contested. In determining that CFI’s beliefs qualified as
a moral set of beliefs, the court deferred to CFI’s uncontroverted
assertion that its beliefs rest on “strong ethical values based on critical
reason and scientific inquiry.”266 The court showed the same deference
towards CFI’s uncontested assertion that “its methods and values play
the same role in its members’ lives as religious methods and values
play in the lives of adherents.”267 Any further analysis under Seeger
and Welsh would have been unnecessary. In Seeger, the Supreme
Court had clearly stated that “a sincere and meaningful belief which
occupies in the life of its possessor a place parallel to that filled by
God” is a person’s religion.268 CFI’s beliefs squarely fell within that
definition. Moreover, it was clear that CFI’s beliefs were not different
to those of Welsh, who had also explained his beliefs as ethical and
263
Ctr. for Inquiry, Inc. v. Clerk, Marion Cir. Ct, No. 1:12-CV-00623-SEB,
2012 WL 5997721, at *7 (S.D. Ind. Nov. 30, 2012).
264
Reply Brief of Appellants, supra note 128, at *9-11.
265
Ctr. for Inquiry, Inc., 758 F.3d at 873.
266
Id. at 871.
267
Id.
268
U.S. v. Seeger, 380 U.S. 163, 176 (1965).
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moral and had maintained that it held such beliefs “‘with the strength
of . . . traditional religious convictions.’”269
Given, however, that Seeger and Welsh defined religion under a
statute rather than under the Constitution, the Seventh Circuit’s
analysis necessarily had to go further. Indeed, Seeger and Welsh
defined religion for purposes of the conscientious objector statute, but,
as the Seventh Circuit explained, the Supreme Court interpreted
religion broadly as to allow the statute to pass constitutional muster.270
Justice Harlan’s concurrence in Welsh emphatically stated that the
conscientious objector statute had the fatal defect of preferring religion
over nonreligion and that without the majority’s contortionism to read
religion to include parallel moral and ethical beliefs, the statute would
have been helplessly unconstitutional.271 Thus, the fact that the
Supreme Court defined religion broadly in Seeger and Welsh to avoid
rendering the statute unconstitutional, “implie[s] that the constitutional
definition of religion also should be construed as broadly.”272 In fact,
in constitutional cases, the Supreme Court has also appeared to lean
towards a broad definition of religion.
Accordingly, and continuing with its analysis of whether CFI’s
beliefs qualified as religious, the Seventh Circuit cited to Torcaso, a
269
Welsh v. U.S., 398 U.S. 333, 343 (1970) (citations omitted).
Ctr. for Inquiry, Inc., 758 F.3d at 873.
271
Welsh, 398 U.S. at 354-59 (Harlan, J., concurring).
272
Jeffrey L. Oldham, Constitutional “Religion” A Survey of First Amendment
Definitions of Religion, 6 TEX. F. ON C.L. & C.R. 117, 130 (2001); Donovan, supra
note 159, at 52 (“[M]ost agree that we can expect the Seeger-Welsh reading, or some
form thereof, to apply to the constitutional use of “religion.”). See also Kaufman v.
McCaughtry, 419 F.3d 678, 681-82 (7th Cir. 2005) (citing and using Welsh’s and
Seeger’s definition of religion as the definition that governs First Amendment
constitutional analysis); Ben Clements, Defining “Religion” in the First
Amendment: A Functional Approach, 74 CORNELL L. REV. 532, 538-39 (1989) (“
[C]ourts and commentators have generally interpreted Seeger as signaling a broad
concept of religion for First Amendment purposes.”); Greenawalt, Religion as a
Concept in Constitutional Law, 72 CAL. L. REV. 753, 760-61 (1984) (“[T]he
Supreme Court’s broad statutory construction of religion [in Seeger and Welsh] . . .
has led other courts and scholars to assume that the constitutional definition of
religion is now much more extensive than it once appeared to be.”).
270
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constitutional case, and explained that in that case the Supreme Court
explained in a footnote that “secular humanism must be treated the
same as religion.”273 The Seventh Circuit’s reference to Torcaso was of
particular importance to the resolution of whether CFI’s beliefs were
religious because CFI’s beliefs are commonly known as secular
humanism and courts have consistently opined that secular humanism
is a religion under the First Amendment.274 And, while the footnote in
Torcaso may arguably be dicta, the footnote “trenchantly illustrated
the Court’s . . . [understanding] that nontheistic systems of belief can
be labeled ‘religion.’”275 The Seventh Circuit, however, justifiably
explained that, given that Torcaso “might be characterized as dicta,” it
could not rely on Torcaso to conclusively determine whether CFI’s
beliefs were religious.276 But, even when Torcaso may not be
conclusive to whether CFI qualified as a religion, the Seventh Circuit
stated that it needed to go no further than its decision in Kaufman to
hold that CFI’s beliefs qualified as a religion.
Kaufman, the Seventh Circuit continued, was a constitutional a
case, in which the Seventh Circuit had held that atheism qualified as a
religion for purposes of the First Amendment because atheism
“occup[ies] a ‘place parallel to that filled by . . . God in traditionally
religious persons.’”277 “What is true of atheism,” the Seventh Circuit
continued, “is equally true of secular humanism, and as true in daily
273
Ctr. for Inquiry, Inc., 758 F.3d at 873.
Patrick M. Garry, Religious Freedom Deserves More Than Neutrality: The
Constitutional Argument for Nonpreferential Favoritism of Religion, 57 FLA. L. REV.
1, 33 (2005).
275
Smith, supra note 159, at 95. In fact, Torcaso is often cited to convey the
Court’s emerging understanding that, under the auspice of the First Amendment,
religion refers to matters of ultimate concern in the lives of individuals, whether they
stem from a belief in a deity, theism, or purely secular beliefs. See, e.g., Daniel A.
Spiro, The Creation of A Free Marketplace of Religious Ideas: Revisiting the
Establishment Clause After the Alabama Secular Humanism Decision, 39 ALA. L.
REV. 1, 31 (1987).
276
Ctr. for Inquiry, Inc., 758 F.3d at 873.
277
Id. (citing to Kaufman, 419 F.3d at 681).
274
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life as in prison.”278 That CFI refuses to call itself a religious
organization and that its members insist that they are not religious, the
Seventh Circuit continued, is irrelevant to the question of whether CFI
is entitled to the protections of the First Amendment.279 In this regard,
the court explained, CFI is no different to the plaintiff in Kaufman who
also insisted that atheism was not a religion, but who, nevertheless was
entitled to the protections of the First Amendment because his atheist
beliefs occupied a place in his life comparable to religion.280 CFI
embraces a secular moral system of beliefs, the court concluded, that
is equivalent to religion except for the belief in a god and, as such, CFI
is entitled to the protections of the First Amendment.281
1.
The Seventh Circuit’s Omission of Yoder
In concluding that CFI’s beliefs were equivalent to religion, the
Seventh Circuit relied on Seeger, Welsh and Torcaso, to the complete
exclusion of Yoder. At first sight, the Seventh Circuit’s omission of
any reference to Yoder and its readiness to proceed with its analysis
under Seeger and Welsh, while relying on Torcaso, hardly seems
neutral to the positions of the parties. Seeger’s and Welsh’s
interpretation of “religious belief and training” represents the Supreme
Court’s most expansive and liberal definition of religion.282 The
Court’s conception of religion in Torcaso, as already explained, is also
broad. Yoder, on the other hand, appears to be an effort by the
Supreme Court to return to a more traditional definition of religion.283
278
Id.
Id.
280
Id.
281
Id.
282
See Oldham, supra note 272, at 134; Donovan, supra note 159, at 52;
Stanley Ingber, Religion or Ideology: A Needed Clarification of the Religion
Clauses, 41 STAN. L. REV. 233, 267 (1989); Smith, supra note 159, at 95.
283
Ctr. for Inquiry, Inc., 758 F.3d at 873. It is not, of course, that the Seventh
Circuit regarded the prison context as immaterial, but for purposes of deciding what
constitutes a religion (and whether an accommodation complies with the neutrality
279
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Thus, those beliefs that may qualify as religious under Seeger and
Welsh may not necessarily also be religious under Yoder.
Notwithstanding Yoder, commentators284 and courts285 agree that
Welsh and Seeger are the measure of what constitutes a religion for
First Amendment purposes. Even after Yoder, the Supreme Court,
itself, continued to adhere to a view of religion that is congruent with
its broad definition of religion in Seeger and Welsh.286 The Seventh
Circuit had also previously explained that the Supreme Court
embraces a broad definition of religion. In Kaufman, for example, the
Seventh Circuit stated that its expansive definition of religion was
crafted to be consistent with the Supreme Court’s broad conception of
religion.287 Given that Seeger and Welsh are consistently regarded as
the measure of what qualifies as a religious belief under the First
Amendment, it is justifiable and unsurprising that the Seventh Circuit
principle), the walls of a prison do not change the analysis of whether a set of secular
beliefs occupies a place parallel to that of religion in the life of an individual.
284
See Donovan, supra note 159, at 52.
285
See, e.g., Kaufman v. McCaughtry, 419 F.3d 678, 681-82 (7th Cir. 2005);
Bronx Household of Faith v. Bd. of Educ. of City of N.Y., 492 F.3d 89, 126 (2d Cir.
2007); Wallace v. Jaffree, 472 U.S. 38, 52-3 (1985) (adhering to a broad definition
of religion and acknowledging that religion under the First Amendment includes
more than just traditional religious beliefs).
286
See Oldham, supra note 272, at 134; Clements, supra note 272, at 539
(“Although . . . [Yoder] seem[ed] to cast doubt on the viability of the Seeger
approach as a constitutional test for religion, it is unclear how much weight Yoder
carries in determining the scope of “religion.” Since the state did not dispute the
religious nature of the Amish practices, the definition of religion was not at issue,
and the . . . [Court’s statements on religion are] dicta. As a result, Yoder should not
necessarily be read as a rejection of the Seeger approach in constitutional cases.);
Ingber, supra note 134, at 263. (“[T]he Yoder opinion made no effort to define
religion.”); Smith, supra note 159, at 97 (stating that even when Yoder may have
suggested an attempt by the Supreme Court to “commence the task of formulating a
conservative content-based definition of it . . . Yoder has remained an island unto
itself”). See also Wallace, 472 U.S. at 52-3 (speaking of religion in broad terms,
acknowledging that religion encompasses more than just beliefs in relationship to a
god); Cutter v. Wilkinson, 544 U.S. 709, 725 n.13 (2005) (explaining in dicta that
Seeger is the governing framework to determine whether a particular belief is
religious under the First Amendment).
287
Kaufman, 419 F.3d at 682.
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did not even mention Yoder. Yoder would not have changed the result
the Seventh Circuit reached as CFI’s beliefs are not a mere way of
living or a simple philosophy and, the fact that CFI is an organized
group would have provided any evidence of religious affiliation that
Yoder may require. An application of Yoder, however, would have
resulted in confusion as to what the Seventh Circuit and the Supreme
Court regard as the appropriate test to determine what qualifies as a
religious belief. Specifically, an application of Yoder would have
mistakenly signaled a judicial attempt to return to a more traditional
definition of religion when, in fact, the Supreme Court’s and the
Seventh Circuit’s jurisprudence on religion have, for the most part,
moved towards a broad and liberal definition of religion. The Supreme
Court and the Seventh Circuit have interpreted religion broadly to
recognize the rich and diverse beliefs that citizens in this country
regard as their “religion.”288 An adoption of the narrower definition of
religion of Yoder could potentially leave many beliefs that are the
equivalent of religion unprotected under the Religious Clauses and, in
turn, hinder the continued existence of religious exercise without
government interference.
Nonetheless, a mention to Yoder for the discrete purpose of
refuting the district court’s suggestion that CFI’s only purpose in
asserting that its beliefs were equivalent to religion was to avoid the
inconveniences of marriage regulation would have been justified. In
Yoder, the Supreme Court warned that mere philosophies and “ways of
living” could not trigger the protection of the Religious Clauses and
thus, allow individuals to escape proper state regulation.289 Hence, the
Court explained that had the Amish expressed their objections to
compulsory education in terms of a subjective evaluation of the value
of such education or a belief that there were better or alternative ways
to live one’s life, the Amish would not have been entitled to a religious
exemption.290 Just as that was not the case of the Amish, it was also
288
See, e.g., U.S. v. Seeger, 380 U.S. 163, 174-85 (1965); Torcaso v. Watkins,
367 U.S. 488, 495 n.11 (1961).
289
Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972).
290
Id. at 216.
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not the case of CFI. First, CFI’s system of beliefs is not a philosophy
or way of living. CFI embraces a set of moral and ethical beliefs,
which in turn, direct and guide the lives of its members in the same
way religion governs the lives of adherents. Second, and most
importantly, CFI did not challenge the Solemnization Statute based on
a subjective evaluation of state regulation of marriage. Instead, CFI
challenged the Solemnization Statute on the grounds that the Statute
prevented CFI members from having a “ceremony solemnized by
someone who share[d] the[ ] [very] ethics and beliefs”291 that guide
their lives. That CFI does not have a doctrinal stance on marriage, as
some traditional religions do, does not mean that CFI members do not
regard “having a ceremony solemnized by someone who shares their
ethics and beliefs as extremely important and necessary . . . way of
expressing their values.”292 In fact, the very reason why the state of
Indiana had decided to accommodate traditional religions was to honor
the “preferences . . . [of members of those religions] not to become
legally . . . [married] until the moment when . . . [their marriage was]
also consecrated by a religious ceremony” that celebrated their
values.293
Related to this point, the Seventh Circuit regarded as meritless
Indiana’s assertion that members of CFI were not excluded from the
Solemnization Statute because they could “first get a license, then
have a . . . [CFI secular] celebrant perform a public ceremony
appropriate to their beliefs, and finally have a court clerk or similar
functionary solemnize the marriage.”294 That assertion, the Seventh
Circuit stated, only “restate[d] the discrimination” that the CFI was
suffering at the hands of the State of Indiana.295 CFI’s “ability to carry
out a sham ceremony, with the real business done in a back of office,”
the Seventh Circuit stated, does not address the fact that CFI is parallel
291
Reply Brief of Appellants, supra note 128, at *7.
Id.
293
Brief of Appellees, supra note 14, at *23-24.
294
Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 873 (7th Cir.
2014).
295
Id.
292
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to religion for purposes of the Solemnization Statute and that it thus
should be treated the same way as religion.296 By condemning
Indiana’s suggestion that CFI could simply resort to sham ceremonies,
the Seventh Circuit exalted the importance of respecting the diversity
of religious beliefs and the premise that the Establishment class
protects traditional religious beliefs as well as all other beliefs that
citizens may sincerely regard as the equivalent of religion in their
lives.
C.
Indiana’s Solemnization Statute Violates
the Neutrality Principle
Once the Seventh Circuit determined that CFI’s beliefs were the
equivalent of religion, it proceeded to an analysis of the Solemnization
Statute under the neutrality principle. The Seventh Circuit began by
stating that under Supreme Court and Seventh Circuit precedent
“neutrality is essential to the validity of an accommodation.”297 Thus,
when the state accommodates religion, it cannot choose favorites298—
that is, it cannot draw distinctions between religious denominations
and “religious and secular beliefs that hold the same place in
adherents’ lives.”299 Indiana’s Solemnization Statute, the court stated,
made those very distinctions by granting the authority to solemnize
marriages only to certain religious sects, while excluding certain other
denominations as well groups that hold beliefs equivalent to religion,
even though all of them celebrate marriage.300
296
Id.
Id.
298
Id.
299
Id. at 873.
300
Id. at 872-74.
297
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1.
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Neutrality towards Secular Beliefs that are the
Equivalent of Religion
The Seventh Circuit first noted that the Solemnization Statute
failed to comply with the neutrality principle because it “favored
religions over non-theistic groups that have moral stances that are
equivalent to theistic ones.”301 The court explained that the
Solemnization Statute favored religion over equivalent secular beliefs
by extending the authority to solemnize a civil marriage only to
religious groups. Those who embrace those equivalent belief systems,
the court explained, “want their own views to be expressed by
celebrants at marriages,” and “the state must treat them the same way
it treats religion.”302 Thus, given that the state of Indiana chose to
accommodate the marriage ceremonies of traditional religions, it was
required to also accommodate the marriage celebrations of CFI.303
Indiana’s argument, the court continued, that, under Marsh v.
Chambers, Indiana may permissibly accommodate religious groups
without extending the accommodation to parallel non-religious groups
was meritless.304 In Marsh, the Supreme Court upheld the
constitutionality of opening state legislative sessions with nonsectarian, Judeo-Christian prayer by a clergyman.305 In upholding the
prayer, the Supreme Court stated that, notwithstanding that the prayer
was based in the Judeo-Christian tradition and conducted by a
clergyman from only one denomination, the prayer was not an
establishment of religion.306 Instead, the Court explained, the prayer
was “simply a tolerable acknowledgement”307 of the long and widely
held practice in this country of opening legislative sessions with prayer
301
Id. at 873.
Id.
303
Id.
304
Id. at 874.
305
463 U.S. 783, 792-95 (1983).
306
Id.
307
Id. at 792.
302
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by a chaplain.308 Stretching the holding of Marsh from its unique
application to legislative prayer,309 Indiana had argued that Marsh
allows governments to permissibly—that is, consistent with the
neutrality principle—accommodate religion without having to extend
the accommodation to non-religious groups.310 More specifically,
Indiana argued, that “[j]ust as legislative bodies may invite clergy to
give a prayer without also inviting secular humanists to give nonreligious speeches, so may states . . . delegate to religious clergy . . .
the function of solemnizing marriages without also delegating that
function to other” non-religious groups.311
The Seventh Circuit properly found Marsh inapplicable.312 Marsh,
the Seventh Circuit explained, concerned the long-held practice of
opening legislative sessions with non-denominational prayer.313 Thus,
Marsh dealt with “the government’s own operations;” not with the
government’s regulation of private conduct.314 This was an important
distinction as an inherent characteristic of a religious accommodation
is that it lifts regulatory burdens the government has previously placed
on the exercise of religion of private individuals and entities. All
Marsh establishes, the Seventh Circuit continued, is “that a
government may, consistent with the First Amendment, open
legislative sessions with Christian prayers while not inviting leaders of
308
Id. at 792, 786.
See, e.g., Snyder v. Murray City Corp., 159 F.3d 1227, 1232 (10th Cir.
1998) (“[T]he evolution of the Establishment Clause jurisprudence indicates that the
constitutionality of legislative prayers is a sui generis legal question.”); Cammack v.
Waihee, 932 F. 2d 765, 772 (9th Cir. 1991) (refusing to apply Marsh outside of the
context of legislative prayer based on “reluctan[ce] to extend a ruling explicitly
based upon the ‘unique history’ surrounding legislative prayer” to different
contexts.); Weisman v. Lee, 728 F. Supp. 68, 74 (D.R.I.) aff'd, 908 F.2d 1090 (1st
Cir. 1990) aff'd, 505 U.S. 577, (1992) (“The Marsh holding was narrowly limited to
the unique situation of legislative prayer.”).
310
Brief of Appellees, supra note 14, at *22-25.
311
Id. at *22-23.
312
Ctr. for Inquiry, Inc. v. Marion Cir. Ct. Clerk, 758 F.3d 869, 874 (7th Cir.
2014).
313
Id.
314
Id.
309
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other religions.”315 Marsh, however, “do[es] not begin to suggest that a
state could limit the solemnization of weddings” to certain religious
groups.316
While the Seventh Circuit correctly explained that Marsh did not
establish that states may accommodate religious beliefs while
excluding parallel secular beliefs, the Seventh Circuit did not address
how Amos and Cutter do not support such a conclusion. Both, Amos
and Cutter addressed religious accommodations and stated that
“religious accommodations need not come packaged with benefits for
secular entities” to comply with the neutrality principle.317 At first
sight, Amos and Cutter may appear to support Indiana’s argument that
it needed not to accommodate the beliefs of CFI in the Solemnization
Statute to comply with the Establishment Clause. A closer look,
however, reveals that Amos and Cutter cannot be taken to hold that the
government may, consistent with the neutrality principle,
accommodate only individuals or organizations that embrace
traditional religious beliefs while denying the same accommodation to
groups that have a belief system that is comparable to religion.318 The
Seventh Circuit likely recognized this at the beginning of the opinion
by stating that while Amos and other Supreme Court cases explain that
“accommodations, by definition, treat the accommodated religion
differently from one or more secular groups,” that could not be “a
complete answer” to the fact that Indiana’s Solemnization Statute
distinguished between religion and comparable secular beliefs. 319
Indeed, Amos and Cutter could not be an answer to the
distinctions the Solemnization Statute made as those cases more likely
315
Id.
Id.
317
Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v.
Amos, 483 U.S. 327, 338 (1987); Cutter v. Wilkinson, 544 U.S. 709, 724 (2005).
318
See, e.g., Douglas Laycock, Regulatory Exemptions of Religious Behavior
and the Original Understanding of the Establishment Clause, 81 NOTRE DAME L.
REV. 1793, 1841 (2006) (discussing Amos and stating that under Amos “exemptions
are invalid if they . . . are confined to a single sect, or to a single religious practice in
a context where other religious practices are equally relevant to the exemption”).
319
Ctr. for Inquiry, Inc., 758 F.3d at 872.
316
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stand for the more general proposition that the government does not
violate the neutrality principle simply when, with the purpose of
accommodating religion, it lifts government-imposed regulations from
religious organizations, without also lifting the regulation from the rest
of society. Such a conclusion is warranted given that Amos and Cutter,
in contrast to Seeger and Welsh, did not address challenges to the
accommodations at issue by groups claiming that their religious or
comparable religious beliefs had been excluded from the
accommodations. Instead, Amos and Cutter addressed challenges to
the accommodations by groups who, far from claiming a religious
entitlement to the accommodations, simply argued that the exemptions
or “benefits” the accommodations conferred on religious groups had to
be extended to all groups in order for the accommodations to be
constitutional. For example, in Amos the Court only addressed the
validity of Section 702 of Title VII in general, concluding that it did
not violate the neutrality principle because it is simply sought to lift
regulatory burdens the state had placed on the exercise of religion of
religious entities. Given these distinctions, Amos and Cutter are better
read as simply “creat[ing] a zone of [constitutionally] permissible
accommodation of religion.”320 It does not follow, however, that
Amos’s and Cutter’s recognition that the government may
accommodate religion, that an accommodation may constitutionally be
limited to religious beliefs to the exclusion of equivalent beliefs.321 In
fact, the opposite is true. In Cutter, for instance, the Supreme Court
specifically explained that RLUIPA was facially constitutional because
320
See Shivakumar, supra note 33, at 543; Timothy J. Aspinwall, Religious
Exemptions to Childhood Immunization Statutes: Reaching for A More Optimal
Balance Between Religious Freedom and Public Health, 29 LOY. U. CHI. L.J. 109,
127 (1997) (“Though Amos is significant because it upholds an exemption permitted
exclusively for religion, it should not be read to indicate unrestrained Establishment
Clause permissiveness.”).
321
McConnell, supra note 41, at 706 (“Although . . . Amos . . .[does not]
allude[ ] to the issue, the logic of the Religion Clauses requires that accommodations
be extended to all comparable religious practices.”).
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it did not suffer from the fatal defect of discriminating among “bonafide faiths.”322
An argument that by “bona-fide faith” the Supreme Court was
referring only to sincerely held religious beliefs, but not sincerely held
equivalent beliefs, is possible, but highly questionable, as that would
have contradicted the Court’s long-standing jurisprudence on the
meaning of religion. Given the Supreme Court’s history of defining
religion broadly, it is unlikely that Amos and Cutter controverted the
Court’s holding in Seeger and Welsh that religious accommodations
must extend to secular systems of belief which are the equivalent of
religion. The Seventh Circuit’s discussion of Seeger, Welsh and
Torcasso in determining that CFI’s beliefs were equivalent to religion
stresses this point. Under those cases, the Seventh Circuit explained,
the state must treat secular systems that are equivalent to religion “the
same way it treats religion.”323 Thus, while Amos and Cutter allow the
government to accommodate religion, the authority to accommodate,
as the Seventh Circuit properly pointed out, “does not imply an ability
to favor religions over non-theistic groups that have moral stances that
are equivalent to theistic ones except for non-belief in God or
unwillingness to call themselves religions.”324
The fact that CFI refused to call itself a religion colored the entire
opinion of the Seventh Circuit. In analyzing the compliance of the
Solemnization Statute with the neutrality principle, the Seventh Circuit
could have simply referred to CFI as just another religious
denomination, instead of referring to it as the equivalent of religion (or
parallel to religion), and dispose of the issue that way. Such a course
of action would have made the analysis more straightforward as the
Establishment Clause does not tolerate distinctions between religions.
The court chose, however, not to carry the analysis in that manner
probably out of respect for CFI’s insistence that it refutes theism and
that it is far and foremost not a religious organization. Moreover, the
court probably decided not to label CFI as a religion in order to
322
Cutter v. Wilkinson, 544 U.S. 709, 723-24 (2005).
Ctr. for Inquiry, Inc., 758 F.3d at 873.
324
Id.
323
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promote the acceptance of the rich and diverse beliefs that Americans
now embrace as their “religion.” If the Supreme Court and the Seventh
Circuit have defined religion so broadly has been precisely to avoid
distinctions among beliefs and to afford citizens the free exercise of
their “religion” without sponsorship and without interference. In this
respect, the Seventh Circuit had strong words for the State of Indiana,
which had attempted to diminish CFI’s claims by stating that all CFI
needed to do to come within the purview of the Solemnization Statute
was to declare itself a religious organization and its leaders members
of the clergy.325 Indiana’s willingness, the court stated, “to recognize
marriages performed by hypocrites,” 326 only served to show that, in
fact, the Solemnization Statute preferred religion over nonreligious
parallel beliefs.327 The Solemnization Statute’s preference for religion
over comparable secular beliefs, the Seventh Circuit thus concluded,
violated the neutrality principle.328
2.
Neutrality between Religions
Moreover, the Seventh Circuit continued, Indiana’s Solemnization
Statute violated the neutrality principle because it also preferred
certain religions. As an initial matter, the Seventh Circuit stated that
the Solemnization Statute ran afoul of the neutrality principle because
it purported to prefer religions that have clergy as opposed to those
with a different organizational structure as well as religions that accord
“a sacred status to marriage” as opposed to those that see marriage as a
celebration of their values.329 Those distinctions, the Seventh Circuit
explained, are flatly prohibited by the Establishment Clause, which
“clearest command . . . is that one religious denomination cannot be
officially preferred over another.”330 Worse still, deeper analysis of the
325
Id. at 872
Id. at 874
327
Id. at 873-74.
328
Id.
329
Id.
330
Id. (citations omitted).
326
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Solemnization Statute, the court explained, showed that the
Solemnization Statute was more than an attempt to accommodate
religions having clergy and a commitment to marriage. The Statute
picked and chose favorites. Quakers, for example, could solemnize
civil marriages in their own marriage ceremonies by virtue of being
listed in subsection (6) of the Statute, even though they do not have
clergy and “do not treat marriage as a sacrament.”331 This kind of
favoritism, the court rightfully concluded, added to the problem that
that Solemnization Statute already violated the neutrality principle by
preferring religion over parallel secular beliefs.
The Seventh Circuit thus reversed the judgment of the district
court and “remanded with instructions to issue an injunction” allowing
CFI’s secular celebrants “to solemnize marriages in Indiana—to do
this with legal effect, and without risk of criminal penalties.”332
CONCLUSION
In holding that Indiana’s Solemnization Statute violated the
neutrality principle, the Seventh Circuit properly relied on its own as
well as Supreme Court precedent that supports a broad definition of
religion. Given the long standing jurisprudence of the Supreme Court
in defining religion broadly, the Seventh Circuit was correct in
omitting a discussion of precedent that arguably calls for a narrower
definition of religion as that would have threatened to cause confusion
as to the proper test for determining what qualifies as religion for
purposes of First Amendment analysis. In a society that is diversely
rich in religious beliefs, a narrower definition would have put in
jeopardy the religious exercise of many Americans, in turn,
threatening the requirement that the government remains neutral
towards religion. Although the Seventh Circuit also did not discuss a
line of Supreme Court cases that appeared to support the state of
Indiana’s argument that the authority to solemnize a marriage needed
not to be extended to secular entities to comply with the principle of
331
332
Id.
Id. at 875.
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neutrality, those cases did not require a different result. While the
Supreme Court has indeed stated that religious accommodations are
reserved for religious entities and practices, it does not follow that
once a secular set of beliefs qualifies as a religion under the First
Amendment, it can, nevertheless, be denied the accommodation a
government bestows upon traditional religious groups. CFI was thus
entitled to an accommodation under Indiana’s Marriage Solemnization
Statute.
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UNREASONABLE RELIGIOUS
ACCOMMODATION?: FIGHTING IRISH
CHALLENGE THE OPT-OUT FORM TO THE
AFFORDABLE CARE ACT’S “CONTRACEPTIVE
MANDATE”
EMILY A. HERBICK*
Cite as: Emily A. Herbick, Unreasonable Religious Accommodation?: Fighting Irish
Challenge the Opt-Out Form to the Affordable Care Act’s “Contraceptive
Mandate,” 10 SEVENTH CIRCUIT REV. 88 (2014), at http://www.kentlaw.iit.edu
/Documents/Academic Programs/7CR/10-1/herbick.pdf.
INTRODUCTION
Religious accommodation in the United States has a complex
history. Courts have long struggled to balance the twin concerns of
protecting religious freedom and maintaining the separation of church
and state. Since the enactment of the Patient Protection and Affordable
Care Act (ACA)1, on March 23, 2010, these religious concerns have
once again come to the forefront. Since its inception, the ACA has
spurred an onslaught of litigation, especially in regard to the
controversial “contraceptive mandate.” 2 The contraceptive mandate
* J.D. candidate, May 2015, Chicago-Kent College of Law, Illinois Institute of
Technology; B.S. in News-Editorial Journalism and Minor in Spanish, University of
Illinois at Urbana-Champaign, May 2010. I would like to thank Professor Hal Morris
and my family and friends for their continuous support. I would like to especially
thank my parents, John and Julie Herbick, and my brothers, Andrew and Mike
Herbick, for all of their love and support.
1
Pub. L. No. 111-148, 124 Stat. 119 (2010).
2
See Jonathan T. Tan, Nonprofit Organizations, For-Profit Corporations, and
the HHS Mandate: Why the Mandate Does Not Satisfy RFRA’s Requirements, 47 U.
88
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dictates that health insurers or employers who provide health
insurance plans for their employees must cover certain preventative
services for women, including contraceptives at no cost to the patient.3
Federal courts as well as the Supreme Court have grappled with the
many issues surrounding religious accommodation as it relates to the
contraceptive mandate with many courts reaching different
conclusions.4
The new wave of religious objections concerning the
contraceptive mandate involves an accommodation granted to
religious organizations such as religious hospitals, schools,
universities and charities, whereby the organizations will be exempt
from the contraceptive mandate provided they sign the required
“EBSA 700 Form,” 5 a self-certification form that alerts their health
insurers and/or third-party administrators for their health insurance
plans of their religious exemption, so that these entities will undertake
to provide the required contraceptives.6 Religious organizations
around the country have filed suit to oppose the self-certification form,
alleging that the form violates the First Amendment7 and the Religious
RICH. L. REV. 1301, 1321-24 (2013) (discussing legal challenges to the mandate by
religious organizations).
3
See 42 U.S.C.A. § 300gg-13 (West 2014); 45 C.F.R. § 147.130(a)(1)(iv); 76
Fed. Reg. 46621, 46623 (Aug. 3, 2011).
4
Compare Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (granting an
injunction pending appeal against enforcing the contraceptive mandate against a
religious non-profit college and holding that the college need not comply with the
self-certification requirement to opt out of the contraceptive mandate) with Priests
For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014)
(affirming the denial of a preliminary injunction seeking to enjoin enforcement of
the contraceptive mandate and finding that the self-certification requirement
allowing religious non-profits to opt-out of the contraceptive mandate was not a
substantial burden under RFRA).
5
EBSA Form 700 – Certification Form for Eligible Organizations, UNITED
STATES DEP’T OF LABOR, available at
http://www.dol.gov/ebsa/healthreform/regulations/coverageofpreventiveservices.htm
l (last visited December 7, 2014) (revised in August 2014).
6
See 45 C.F.R. § 147.131(b) (August 27, 2014).
7
The First Amendment provides in relevant part: “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S.
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Freedom Restoration Act of 1993 (RFRA)8 by imposing a substantial
burden on their exercise of religion.9
In University of Notre Dame v. Sebelius, Notre Dame, a
Catholic non-profit university, brought suit against the Secretary of
Health and Human Services (HHS) to enjoin enforcement of the
ACA’s contraceptive mandate requiring the university to provide
health insurance coverage for contraceptive services for its employees
and students.10 The university’s main argument is that the ACA’s
contraceptive mandate substantially burdens its free exercise rights
under the RFRA.11 The university specifically sought a preliminary
injunction exempting it from filling out the required self-certification
form permitting it to opt out of the contraceptive mandate.12 The selfcertification form is a two-page document that allows Notre Dame to
notify the health insurer for its students and the third-party
administrator of its health insurance for its employees of the
university’s exemption from the ACA’s contraceptive mandate.13 “No
certification, no exemption.”14 The health insurer and third-party
administrator would then have to foot the bill and provide
contraceptive coverage for Notre Dame’s female students and
employees respectively.15
The district court denied Notre Dame’s request for a
preliminary injunction, and the Seventh Circuit Court of Appeals
upheld the lower court’s decision.16 In Notre Dame, the Seventh
Circuit confronted an unprecedented request for preliminary injunction
CONST. amend. I. The first clause is known as the “Establishment Clause,” and the
second clause is known as the “Free Exercise Clause.”
8
See 42 U.S.C.A. §§ 2000bb et seq. (West 2014).
9
Tan, supra note 2.
10
743 F.3d 547, 551-54 (7th Cir. 2014).
11
Id. at 554.
12
Id. at 551, 562.
13
Id. at 550-51; EBSA Form 700 – Certification Form for Eligible
Organizations, supra note 5.
14
Id. at 552.
15
Id. at 550-51.
16
Id. at 551, 562.
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by a religious non-profit that was entitled to an exemption from the
ACA’s contraceptive mandate but claimed that the accommodation
itself was a violation of its religious rights under RFRA.17 The Seventh
Circuit held that: (1) the case was not rendered moot by the university
filling out the self-certification form;18 (2) Notre Dame failed to
establish the likelihood of success on the merits;19 and the (3)
exemption from the certification requirement for religious employers
did not violate the Establishment Clause.20
This Comment focuses on the Seventh Circuit’s reasoning
regarding the denial of the preliminary injunction and the likelihood of
success on the merits for the RFRA claims raised by Notre Dame. The
Seventh Circuit correctly found that requiring Notre Dame to fill out a
two-page self-certification form notifying the health insurer for its
students and the third-party administrator for its self-insured health
plan for its employees of its religious exemption to the contraceptive
mandate would not violate Notre Dame’s free exercise rights under the
RFRA, and therefore, the court affirmed the denial of Notre Dame’s
request for preliminary injunction.21
In July 2014, the Supreme Court addressed a similar request
for injunction in Wheaton College v. Burwell, where the Court granted
Wheaton College’s request for injunction pending appeal and found
that the Christian college did not have to fill out the self-certification
form notifying its health plan insurers or third-party health
administrators of its religious exemption under the ACA.22 Justice
Sotomayor penned a scathing dissent, joined by Justice Ginsburg and
Justice Kagan, quoting heavily from University of Notre Dame v.
Sebelius and adopting the Seventh Circuit’s reasoning.23 The Supreme
Court’s opinion in Wheaton is a marked departure from free exercise
17
Id. at 557.
Id. at 553.
19
See id. at 553-60.
20
Id. at 560.
21
Notre Dame, 743 F.3d at 559, 562.
22
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).
23
See id. at 2811-13.
18
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jurisprudence and religious accommodation. The Wheaton decision
threatens to swallow the rules for RFRA and for granting injunctions
by enlarging the religious exemption to the contraceptive mandate to
an absurd degree. Conversely, the Seventh Circuit correctly decided
Notre Dame, finding that requiring Notre Dame to fill out the selfcertification form and send it to its health insurer and third-party
administrator was not a substantial burden on its free exercise rights
under RFRA.24
Here, the issue is whether requiring Notre Dame and similar
religious non-profits to fill out the two-page self-certification form and
send it to its health insurers and/or third-party administrators in order
to opt-out of providing contraceptive services to its students and
employees required by the ACA, in and of itself, creates a substantial
burden on religious rights under RFRA. The answer is no. Requiring a
religious non-profit like Notre Dame to fill out a simple form and alert
its health insurer and third-party administrator so it may receive the
religious accommodation does not violate RFRA but rather strikes the
perfect balance between respecting the university’s religious rights and
respecting the rights of Notre Dame students and employees to receive
free contraceptives, for which they have a statutory right.
This Comment will discuss the following: (1) the history of the
RFRA and religious accommodation; (2) the ACA’s contraceptive
mandate and religious accommodation; (3) the merits of the Seventh
Circuit’s decision in Notre Dame; (4) applicable Supreme Court cases
decided after Notre Dame; and (5) why the Seventh Circuit correctly
decided Notre Dame. This Comment will argue that the Seventh
Circuit’s decision was correct because Notre Dame’s claim fails the
RFRA test and fails under the standard for granting preliminary
injunctions.
24
Notre Dame, 743 F.3d at 559.
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I. BACKGROUND
A. History of the RFRA and Religious Accommodation
Prior to the enactment of the RFRA in 1993, the First
Amendment provided the only avenue for aggrieved plaintiffs to
allege violations of their religious rights.25 The Free Exercise Clause
of the First Amendment, which applies to the States through the
Fourteenth Amendment, states that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise
thereof...”26 “At a minimum, the protections of the Free Exercise
Clause pertain if the law at issue discriminates against some or all
religious beliefs or regulates or prohibits conduct because it is
undertaken for religious reasons.”27
Pre-RFRA, under free exercise jurisprudence, courts used a
balancing test to determine whether a challenged government action
violated the First Amendment by taking into account whether the
challenged action imposed a substantial burden on the practice of
religion, and if it did, whether the action was needed to serve a
compelling government interest.28 Specifically, the Supreme Court’s
decisions in Sherbert v. Verner29 and Wisconsin v. Yoder30 set forth
this balancing test to determine whether a challenged government
action violated the Free Exercise Clause of the First Amendment. 31 In
Sherbert, the Court applied this balancing test to hold that an employer
could not deny unemployment benefits to a Seventh-day Adventist
25
See generally Mary L. Topliff, J.D., Validity, construction, and application
of Religious Freedom Restoration Act (42 U.S.C.A. §§ 2000bb et seq.), 135 A.L.R.
FED. 121, § 2[a] (originally published in 1996).
26
U.S. CONST. amend. I. (emphasis added); Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
27
Church of the Lukumi Babalu Aye, 508 U.S. at 532.
28
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014).
29
374 U.S. 398 (1963).
30
406 U.S. 205 (1972).
31
Hobby Lobby, 134 S. Ct. at 2760.
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who was fired for refusing to work on her Sabbath.32 In Yoder, the
Court applied this test to hold that Amish children, who graduated
eighth grade, did not have to comply with a state law demanding
compulsory school attendance until the age of 16, which their parents’
opposed based on their belief that secondary education conflicts with
the Amish’s deeply rooted religious beliefs and way of life.33
Three years prior to the enactment of RFRA, in Employment
Div., Dep’t of Human Res. of Ore. v. Smith,34 the Supreme Court had
all but eliminated the requirement that the government show a
compelling interest to justify substantial burdens on religious exercise
imposed by laws neutral toward religion.35 Smith rejected the
compelling interest test set forth in Sherbert.36 In Smith, two drug
counselors who were members of the Native American Church were
fired for ingesting peyote, a hallucinogenic drug, for sacramental
purposes and were denied unemployment benefits on the ground that
consuming peyote was a crime.37 The Oregon Supreme Court applied
the Sherbert test and held that this denial of unemployment benefits
violated the Free Exercise Clause.38 The Supreme Court vacated the
Oregon Supreme Court’s decision and remanded to determine whether
the sacramental use of peyote violated the state drug law.39 The
Oregon Supreme Court concluded that the sacramental use of peyote
did violate the state’s drug law but nevertheless found that the law
violated the Free Exercise Clause, and thus, the two drug counselors
could not be denied unemployment benefits based on ingesting peyote
for religious purposes.40 However, in a heavily criticized decision, the
Supreme Court reversed, finding that using the Sherbert test in the
32
374 U.S. at 406, 408-09.
406 U.S. at 210-11, 234-36.
34
494 U.S. 872 (1990).
35
42 U.S.C.A. § 2000bb(a)(4).
36
See 494 U.S. at 883-89.
37
Id. at 874-75.
38
Id. at 875.
39
Id. at 875-76.
40
Id. at 876.
33
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context of generally applicable laws “would open the prospect of
constitutionally required religious exemptions from civic obligations
of almost every conceivable kind.”41 Consequently, Smith largely
repudiated the compelling interest test in Sherbert.42 In City of Boerne
v. Flores, the Court noted that Smith held that “neutral, generally
applicable laws may be applied to religious practices even when not
supported by a compelling governmental interest.”43
In order to combat the problematic ruling of Smith, Congress
enacted the RFRA to provide very broad protection for religious
freedom.44 Congress enacted the RFRA in order to: (1) restore the
compelling interest test set forth in Sherbert and Yoder; (2) guarantee
the Act’s application in all cases where free exercise of religion is
substantially burdened; and (3) provide a claim or defense to
individuals whose religious exercise is substantially burdened by the
government.45 Significantly, Congress found that “laws ‘neutral’
toward religion may burden religious exercise as surely as laws
intended to interfere with religious exercise.”46
RFRA proscribes the federal government from substantially
burdening a person’s exercise of religion even if the burden results
from a rule of general applicability unless the government
demonstrates that the burden as it applies to the person is (1) in
furtherance of a compelling governmental interest and (2) the least
restrictive means of furthering that compelling governmental
interest.47 Although RFRA does not explicitly define personhood, the
Supreme Court has found that corporations, both non-profits and forprofits, are considered “people” for the purposes of RFRA.48
41
Id. at 882-83, 888.
See id. at 883-89.
43
521 U.S. 507, 514 (1997).
44
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760-61 (2014).
45
42 U.S.C.A. § 2000bb(b). See also Topliff, supra note 25.
46
42 U.S.C.A. § 2000bb(a)(2). See also id. § 2000bb(a)(4).
47
See id. § 2000bb-1(a)-(b). See also Hobby Lobby, 134 S. Ct. at 2761.
48
See Hobby Lobby, 134 S. Ct. at 2759, 2768-69.
42
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As enacted in 1993, RFRA applied to the federal government
as well as to the States.49 In attempting to enforce RFRA against the
States, Congress invoked its power under Section 5 of the Fourteenth
Amendment.50 However, in City of Boerne v. Flores, the Supreme
Court held that Congress had exceeded its power under Section 5 and
that RFRA did not apply to the States.51 Following the Court’s
decision in City of Boerne, Congress passed the Religious Land Use
and Institutionalized Persons Act of 2000 (RLUIPA),52 which
amended RFRA’s definition of “exercise of religion” and deleted any
reference to the First Amendment.53 § 2000bb-2(4) of RFRA explicitly
imported the definition of “exercise of religion” from § 2000cc5(7)(A) of RLUIPA, which includes “any exercise of religion, whether
or not compelled by, or central to, a system of religious belief.”54
RFRA was designed to provide more protection for religious liberty
than is constitutionally required by the First Amendment.55
At the beginning of any RFRA claim, the burden is on the
plaintiff to show that the challenged government action substantially
burdens the exercise of religion.56 The government substantially
burdens religion when it puts “substantial pressure on an adherent to
modify his behavior and to violate his beliefs.”57 Under RFRA, a court
may not determine the centrality of the religious practice to the
49
See 42 U.S.C.A. § 2000bb-2(1), § 2000bb-3(a); Hobby Lobby, 134 S. Ct. at
2761.
50
Hobby Lobby, 134 S. Ct. at 2761.
See City of Boerne v. Flores, 521 U.S. 507, 532-36 (1997).
52
42 U.S.C.A. § 2000cc et seq. (West 2014).
53
See Hobby Lobby, 134 S. Ct. at 2761-62.
54
See 42 U.S.C.A. § 2000bb-2(4) (RFRA); 42 U.S.C.A. § 2000cc-5(7)(A)
(RLUIPA). See also Hobby Lobby, 134 S. Ct. at 2761-62.
55
Hobby Lobby, 134 S. Ct. at 2767.
56
Korte v. Sebelius, 735 F.3d 654, 673 (7th Cir. 2013) (“Once a RFRA
claimant makes a prima facie case that the application of a law or regulation
substantially burdens his religious practice, the burden shifts to the government to
justify the burden under strict scrutiny.”).
57
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718
(1981).
51
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adherent’s faith and may not inquire into whether the adherent
correctly perceived his religious obligations.58 However, “[t]he
religious objection must be both sincere and religious in nature.”59
“Whether a law substantially burdens religious exercise under RFRA
is a question of law for courts to decide, not a question of fact.”60
After the plaintiff has shown that a government action imposes
a substantial burden upon his religious practice, the burden shifts to
the government to show that its action was the least restrictive means
of furthering a compelling government interest, 61 which is also known
as the strict scrutiny test.62 “Congress’s express decision to legislate
the compelling interest test indicates that RFRA challenges should be
adjudicated in the same manner as constitutionally mandated
applications of the test, including at the preliminary injunction
stage.”63
RFRA has rarely, if ever, been used to challenge a religious
accommodation process prior to the new wave of cases challenging the
ACA’s accommodation to the contraceptive mandate. However, the
closest analogy exists in United States v. Friday, where the Tenth
Circuit addressed whether the permitting process allowing Native
Americans to circumvent the ban against killing bald eagles for
religious purposes violated the RFRA.64 In Friday, a member of the
Northern Arapaho Tribe of Wyoming had been charged with killing a
bald eagle for use in a religious ceremony without a permit in violation
58
Id.
Korte, 735 F.3d at 683.
60
Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229, 247
(D.C. Cir. 2014).
61
Korte, 735 F.3d at 673 (citing Gonzales v. O Centro Espirita Beneficente
Uniao do Vegetal, 546 U.S. 418, 428 (2006)).
62
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546
(1993) (finding that to satisfy the strict scrutiny test for laws restricting religious
practice, the law must advance a compelling government interest and be narrowly
tailored to pursue that interest).
63
Gonzales, 546 U.S. at 430.
64
525 F.3d 938, 942 (10th Cir. 2008).
59
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of the Bald and Golden Eagle Protection Act.65 Congress and the Fish
and Wildlife Service (FWS) accommodate Native Americans through
a permitting process which allows them to take a live eagle for
religious purposes provided they are members of a federallyrecognized tribe and they write to the Migratory Bird Permit Office
describing how many eagles they wish to take and for what tribe and
ceremony they are needed.66 The FWS will grant an application for
such a permit only if it determines the taking is compatible with the
preservation of the eagle.67 Mr. Friday argued that the permitting
process was a substantial burden on his religious practice in violation
of RFRA.68 The court was skeptical that the bare requirement of
obtaining a permitting in order to be granted this accommodation can
constitute a substantial burden under RFRA.69 The court found that the
permitting process was valid under RFRA because it was the least
restrictive means of pursuing the compelling government interest in
preserving bald eagles.70 The Tenth Circuit aptly recognized that:
By enacting a law banning the taking of eagles and then
permitting religious exceptions, the government has
tried to accommodate Native American religions while
still achieving its compelling interests. That
accommodation may be more burdensome than the
Northern Arapaho would prefer, and may sometimes
subordinate their interests to other policies not of their
choosing. Law accommodates religion; it cannot
wholly exempt religion from the reach of the law.71
65
Id.
Id. at 944.
67
Id.
68
Id. at 946-47.
69
Id. at 947.
70
Id. at 942.
71
Id. at 960 (emphasis added).
66
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In a major Seventh Circuit RFRA case, Korte v. Sebelius,72
upon which Notre Dame heavily relies, the Seventh Circuit addressed
whether two for-profit corporations who provided health plans for
their employees could refuse to comply with the contraceptive
mandate based upon the Catholic beliefs of their owners. 73 The court
ordered the district court to enter a preliminary injunction enjoining
enforcement of the contraceptive mandate against the employers.74
Notre Dame’s reliance on Korte is misplaced because the Korte court
never addressed the issue of religious non-profits, who are already
provided an accommodation to the contraceptive mandate, but rather
the rights of for-profit religious objectors who were not provided an
accommodation to the contraceptive mandate.75 As the district court in
Notre Dame stated, this distinction is notable as Notre Dame is in a
completely different position than the plaintiffs in Korte.76 On appeal,
the Seventh Circuit noted that because Notre Dame is eligible for the
accommodation, Notre Dame will be in the same position that the
employers in Korte were pending resolution of their case – “fully
entitled to thumb its nose at the contraceptive regulation,” despite
Notre Dame being denied injunctive relief unlike the plaintiffs in
Korte.77
B. The ACA and the Contraceptive Mandate
The ACA was enacted under the Obama administration in an
effort to combat the social evil concerning the millions of Americans
who were uninsured or without adequate health insurance by making
healthcare more affordable and accessible to the American people.78
72
735 F.3d 654 (7th Cir. 2013).
See Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 558 (7th Cir. 2014).
74
Id.
75
Id.
76
Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912, 918 (N.D. Ind.
December 20, 2013) (citing Korte v. Sebelius, 735 F.3d 654, 662 (7th Cir. 2013).
77
Notre Dame, 743 F.3d at 558.
78
Whitney Morrissey, Obamacare’s Employer-Shared Responsibility
Provision: The Impact on Employers and Employees, 7 PHOENIX L. REV. 103, 10304 (2013).
73
99
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The ACA was a complete overhaul of the American healthcare
system.79 “Some key features of the ACA include the following:
consumer protections that eliminate lifetime dollar limits; coverage for
preventative services to avoid illnesses; coverage for individuals with
pre-existing conditions; coverage for children under their parent(s)
until age twenty-six; and other coverage options through the insurance
marketplace.”80
One of the most controversial and highly criticized provisions
of the ACA is the “contraceptive mandate,” which requires group
health plans to provide coverage for preventative care and screenings
for women, which includes “[a]ll Food and Drug Administration
approved contraceptive methods, sterilization procedures, and patient
education and counseling for all women with reproductive capacity”
without cost-sharing.81 Congress authorized the Health Resources and
Services Administration (HRSA), a component of HHS, to determine
what would be covered under the contraceptive mandate.82 The HRSA
consulted with the Institute of Medicine (IOM) to determine what
preventative services would be included under the contraceptive
mandate.83 The IOM recommended covering all FDA-approved
contraceptive services for women after finding that these preventative
services are necessary for the health and well being of women, and the
HRSA promulgated the Women’s Preventative Services Guidelines.84
79
Vinita Andrapalliyal, “Healthcare for All”? The Gap Between Rhetoric and
Reality in the Affordable Care Act, 61 UCLA L. REV. DISCOURSE 58, 70 (2013)
(“The ACA was an unprecedented overhaul of our nation’s healthcare system.”).
80
Morrissey, supra note 78, at 104.
81
42 U.S.C.A. § 300gg-13(a)(4) (West 2014); HEALTH RESOURCES AND
SERVICES ADMINISTRATION, Women’s Preventative Services Guidelines, available at
http://www.hrsa.gov/womensguidelines/ (last visited December 8, 2014). See also 26
C.F.R. § 54.9815-2713(a)(1)(iv) (August 1, 2013); 29 C.F.R. § 2590.7152713(a)(1)(iv) (August 1, 2013); 45 C.F.R. § 147.130(a)(1)(iv) (March 31, 2014); 77
Fed. Reg. 8725 (February 15, 2012).
82
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2762 (2014).
83
Id.
84
HEALTH RESOURCES AND SERVICES ADMINISTRATION, Women’s
Preventative Services Guidelines, supra note 81. See also 77 Fed. Reg. 8725-8726
(February 15, 2012).
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“FDA-approved contraceptive methods and sterilization procedures
include intrauterine devices (IUDs), the morning-after pill (Plan B),
and Ulipristal (Ella), all of which can induce an abortion.”85
Failure to comply with the ACA comes at a steep price. If an
employer fails to comply with the ACA’s group health plan
requirements, it will be forced to pay $100 per day for each affected
“individual.”86 Also, if the employer stops providing health insurance
entirely and at least one full-time employee enrolls in a health plan and
qualifies for a subsidy on one of the government-run ACA exchanges,
then the employer must pay $2,000 per year for each of its full-time
employees.87
1. Exemptions and Accommodations
In recognition of religious objections to the contraceptive
mandate, HRSA established an exemption to the contraceptive
mandate for religious employers.88 “[A] ‘religious employer’ is an
organization that is organized and operates as a nonprofit entity and is
referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue
Code of 1986, as amended.”89 Exempt religious employers include
“churches, their integrated auxiliaries, and conventions or associations
of churches” and “the exclusively religious activities of any religious
order.”90
At first, under the religious employer exemption, “the
definition of ‘religious employer’ was so circumscribed that it left out
religious colleges and universities; religious hospitals and clinics;
religious charities and social-service organizations; other faith-based
85
Petition for Writ of Certiorari, Univ. of Notre Dame v. Burwell, No. 14-392,
2014 WL 4978601, at *2 (Oct. 3, 2014).
86
26 U.S.C.A. §§ 4980D(a)-(b) (West 2014); Hobby Lobby, 134 S. Ct. at 2762.
87
26 U.S.C.A. §§ 4980H (a), (c)(1); Hobby Lobby, 134 S. Ct. at 2762.
88
See 45 C.F.R. § 147.131(a) (August 27, 2014); Hobby Lobby, 134 S. Ct. at
2763.
89
45 C.F.R. § 147.131(a).
90
26 U.S.C.A. § 6033(a)(3)(A)(i), (iii) (West 2014).
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nonprofits; and for-profit, closely held businesses managed in
accordance with a religious mission or creed.”91 In response to
backlash from religious non-profit organizations that did not fall
within the definition of a “religious employer” for purposes of the
exemption, HHS first offered a temporary “safe harbor” for certain
left-out religious non-profit organizations92 and then eventually
promulgated new regulations granting religious non-profit
organizations an accommodation from the contraceptive mandate.93
However, the regulations did not provide a complete exemption akin
to the exemption granted to “religious employers,” but rather granted
religious organizations an accommodation allowing them to opt out of
the contraceptive mandate provided that:
(1) The organization opposes providing coverage for
some or all of any contraceptive services required to be
covered under § 147.130(a)(1)(iv) on account of
religious objections.
(2) The organization is organized and operates as a
nonprofit entity.
(3) The organization holds itself out as a religious
organization.
(4) The organization self-certifies, in a form and
manner specified by the Secretary, that it satisfies the
criteria in paragraphs (b)(1) through (3) of this section,
and makes such self-certification available for
examination upon request by the first day of the first
plan year to which the accommodation in paragraph (c)
of this section applies. The self-certification must be
91
Korte v. Sebelius, 735 F.3d 654, 661 (7th Cir. 2013).
Id. at 661-62 (citing 77 Fed. Reg. 8728 (February 15, 2012)).
93
See 26 C.F.R. 54.9815-2713A(a); 29 C.F.R. 2590.715-2713A(a); 45 C.F.R.
§ 147.131(b).
92
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executed by a person authorized to make the
certification on behalf of the organization, and must be
maintained in a manner consistent with the record
retention requirements under section 107 of the
Employee Retirement Income Security Act of 1974.94
In order to receive the accommodation, religious organizations
that meet the requirements of 45 C.F.R. § 147.131(b)(1)-(3) must
comply with the self-certification requirement.95 The EBSA Form 700
is a two-page self-certification form that allows “eligible
organizations,” i.e. religious non-profit organizations, to opt out of the
contraceptive mandate pursuant to 45 C.F.R. § 147.131(b).96 “No
certification, no exemption.”97 The accommodation provides that
when the religious organization notifies the group health insurance
issuer and/or third-party administrator (for self-insured plans) of its
exemption, the issuer or third-party administrator must then exclude
contraceptive coverage from the employer’s health plan and provide
separate payments for the required contraceptive services for plan
participants without imposing any cost-sharing upon the religious
organization, its health insurance plan or its employee beneficiaries.98
In August 2014, following the Supreme Court’s decision in
Wheaton College v. Burwell, the accommodation was revised to
provide additional notice options for religious organizations.99 Now,
94
45 C.F.R. § 147.131(b).
See id. § 147.131(b)(4).
96
EBSA Form 700 – Certification Form for Eligible Organizations, supra note
95
5.
97
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 552 (7th Cir. 2014).
Id. § 147.131(c); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751,
2763 (2014). See also EBSA Form 700 – Certification Form for Eligible
Organizations, supra note 5.
99
See 45 C.F.R. § 147.131(c); 79 Fed. Reg. 51092 (August 27, 2014);
CENTERS FOR MEDICARE & MEDICAID SERVICES, Women’s Preventative Services
Coverage and Non-Profit Religious Organizations, available at
http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/womens-preven02012013.html (last visited December 9, 2014).
98
103
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an eligible religious organization can either notify its group health plan
issuer and/or third-party administrator for self-insured plans using the
self-certification form or it can notify HHS in writing of its religious
objections to the contraceptive mandate.100 The effect of this change is
that if HHS is notified instead of the group health plan issuer and/or
third-party administrator, HHS will then have to (1) inform the group
health plan issuer and/or third-party administrator that it received
notice of the eligible religious organization’s objections to the
contraceptive mandate and (2) describe to the issuer and/or third-party
administrator its duties under 45 C.F.R. § 147.131(c).101 In the
alternative form of notice, HHS acts as a middle man between the
religious organization and its group health plan issuer and/or thirdparty administrator, but the duties of the issuer or third-party
administrator to provide the contraceptive coverage at no cost to the
employees and beneficiaries covered under the employer’s group
health plan remain the same under either form of notification. Either
form of notification relieves Notre Dame of the duty to pay for and
provide contraceptive services that it finds morally objectionable.
The self-certification form was revised in August 2014 to
reflect the new notification requirements. 102 The revised form differs
from the form that Notre Dame and the many religious organizations
who filed suit prior to issuance of the new form were required to fill
out because the new form allows religious organizations to provide
notice of religious objections to the contraceptive mandate either to
their group health insurance issuers or third-party administrators via
the self-certification form or alternatively provide notice to the
Secretary of Health and Human Services.103
Also, in August 2014, following the Supreme Court’s decision
in Burwell v. Hobby Lobby Stores, Inc., HHS issued proposed rules
soliciting comments on expanding the accommodation to include
100
See 45 C.F.R. § 147.131(c).
Id.
102
EBSA Form 700 – Certification Form for Eligible Organizations, supra
note 5.
103
Id.
101
104
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certain closely held for-profit corporations who have religious
objections to the contraceptive mandate.104
The contraceptive mandate accommodation provided to
religious organizations did not sit well with most religious
organizations who felt that being required to “self-certify” and notify a
health insurer or third-party administrator of their religious exemption
so that these entities could provide the mandated contraceptives, which
they found morally objectionable, to their employees and/or students
was not an accommodation at all but rather a substantial burden on
their free exercise rights under RFRA and the First Amendment.105
Religious organizations believe that the government should provide
them with a complete exemption like religious employers, who are not
required to self-certify or provide, directly or indirectly through a
third-party, contraceptive coverage for their employees and/or
students.106 Religious non-profits flooded the courts with lawsuits,
seeking to enjoin enforcement of the contraceptive mandate and
requesting preliminary injunctions against the self-certification
requirement on First Amendment and RFRA grounds.107
Aside from the ACA exemptions and accommodations
provided to religious employers and organizations, the ACA exempts
many other employers from most of the ACA’s provisions.108 For
example, “grandfathered health plans,” i.e. plans existing prior to
March 23, 2010, that have not made specified changes after that date,
do not have to comply with many of the ACA requirements including
104
See CENTERS FOR MEDICARE & MEDICAID SERVICES, Women’s
Preventative Services Coverage and Non-Profit Religious Organizations, supra note
99 (discussing the proposed approaches for defining a closely held for-profit
organization who has a religious objection to the contraceptive mandate).
105
See, e.g., Zubik v. Sebelius, 983 F. Supp. 2d 576, 603-06 (W.D. Pa. 2013).
106
See id. at 606-08.
107
See Petition for Writ of Certiorari, supra note 85, at *11, * n.1. See also
THE BECKET FUND, HHS Mandate Information Central, available at
http://www.becketfund.org/hhsinformationcentral/ (last visited December 9, 2014)
and cases cited therein.
108
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2763-64 (2014).
105
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the contraceptive mandate.109 Additionally, employers with less than
50 employees are not required to provide health insurance at all.110 As
the Supreme Court has noted, the contraceptive mandate currently
does not apply to tens of millions of people.111
2. Religious Objections to the Contraceptive Mandate and
the Self-Certification Form
Many religious employers and organizations across the country
object to the contraceptive mandate on the ground that it violates the
tenets of their faith.112 While there are many religious objections to the
mandate espoused by various religious groups, the Catholic Church’s
condemnation of the mandate is pertinent to the Notre Dame decision
as the university adheres to Catholic doctrine. Catholic doctrine holds
that human life is sacred and forbids the use of contraceptives, finding
that they are unlawful methods of birth control that artificially
interfere with procreation.113 Catholic teaching prohibits “any action
which either before, at the moment of, or after sexual intercourse, is
specifically intended to prevent procreation—whether as an end or as a
means.”114 The Catholic Church believes in “the sanctity of human life
from conception to natural death and the moral wrongfulness of
abortion, sterilization, and the use of abortifacient drugs and artificial
means of contraception.”115
Before the rules requiring coverage of all FDA-approved
contraceptive methods without cost sharing were even issued, the
United States Conference of Catholic Bishops opposed the proposal,
109
42 U.S.C.A. § 18011(a), (e) (West 2014); Hobby Lobby, 134 S. Ct. at 2764.
26 U.S.C.A. § 4980H(c)(2) (West 2014); Hobby Lobby, 134 S. Ct. at 2764.
111
Hobby Lobby, 134 S. Ct. at 2764.
112
See Tan, supra note 2.
113
Pope Paul VI, Humanae Vitae, ¶¶ 13-14, available at
http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_pvi_enc_2507
1968_humanae-vitae_en.html.
114
Id.
115
See Korte v. Sebelius, 735 F.3d 654, 662-63 (7th Cir. 2013).
110
106
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stating that the contraceptive mandate is a violation of the First
Amendment and RFRA.116 The Bishops continued to oppose the
contraceptive mandate after the rules were finalized, arguing that the
mandate severely burdens the conscience of religious objectors and
that rescission of the mandate is the only complete solution but that in
the alternative, the government should expand the religious employer
exemption to bring more religious objectors within the exemption’s
purview.117 Cardinal Timothy M. Dolan, head of the United States
Conference of Catholic Bishops, also condemned the government’s
proffered “accommodation,” which allows religious non-profit
organizations to opt out of the contraceptive mandate by alerting its
group health plan issuers and/or third party administrators of their
religious exemption so that these entities can provide the required
contraceptive coverage, which they find morally objectionable, for the
religious non-profits’ employees and/or students, stating that:
It appears to offer second-class status to our first-class
institutions in Catholic health care, Catholic education
and Catholic charities. HHS offers what it calls an
‘accommodation’ rather than accepting the fact that
these ministries are integral to our church and worthy
of the same exemption as our Catholic churches.118
116
Lisa C. Ikemoto, Abortion, Contraception and the ACA: The Realignment
of Women’s Health, 55 HOW. L.J. 731, 764-66, 766 n.248 (2012) (citing News
Release, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, Bishops’ Pro-Life
Chair Strongly Opposes Recommended Mandate for Birth Control, Sterilization in
Private
Health
Plans
(July
19,
2011),
available
at
http://www.usccb.org/news/2011/11-143.cfm).
117
See News Release, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
Bishops Renew Call to Legislative Action on Religious Liberty (February 10, 2012),
available at http://www.usccb.org/news/2012/12-026.cfm.
118
See News Release, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS,
HHS Proposal Falls Short in Meeting Church Concerns; Bishops Look Forward to
Addressing Issues with Administration (February 7, 2013), available at
http://www.usccb.org/news/2013/13-037.cfm (internal quotation marks omitted).
107
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Religious non-profits, like Notre Dame, do not want to take
part either directly or indirectly in the provision of these contraceptive
services and believe that being required to fill out the self-certification
form and alert their group health plan issuers or third partyadministrators of their religious exemption to the contraceptive
mandate authorizes these entities to provide the contraceptive services,
thereby making them complicit in providing contraceptives which they
find morally objectionable.119 Many religious non-profits have filed
suit complaining that the contraceptive mandate violates their free
exercise rights under the First Amendment and RFRA and have
requested a preliminary injunction against the self-certification
requirement pending resolution of their cases, with the majority of the
district courts granting these requests.120 However, the Sixth, Seventh
and D.C. Circuits have sustained the accommodation and denied such
injunctive relief finding that the respective plaintiffs did not meet their
burden to show the likelihood of success on the merits on their RFRA
and First Amendment claims.121 According to the Becket Fund, there
are currently 54 non-profit lawsuits pending in the courts regarding the
contraceptive mandate in which 32 injunctions were granted and five
were denied.122 Of the five cases where the court denied an injunction,
one was the instant case from the Seventh Circuit, two were cases
from the D.C. Circuit (on consolidated appeal), and two were cases
from the Sixth Circuit (on consolidated appeal).123
119
See, e.g., Zubik v. Sebelius, 983 F. Supp. 2d 576, 604-06 (W.D. Pa. 2013).
See Petition for Writ of Certiorari, supra note 85, at *11, * n.1. See also
THE BECKET FUND, HHS Mandate Information Central, available at
http://www.becketfund.org/hhsinformationcentral/ (last visited December 9, 2014).
121
See Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229
(D.C. Cir. 2014); Michigan Catholic Conf. & Catholic Family Servs. v. Burwell, 755
F.3d 372 (6th Cir. 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir.
2014).
122
THE BECKET FUND, HHS Mandate Information Central, available at
http://www.becketfund.org/hhsinformationcentral/ (last visited December 9, 2014)
(citing Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C.
Cir. 2014); Michigan Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d
372 (6th Cir. 2014); Univ. of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014)).
123
Id.
120
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C. Standard for Preliminary Injunctions
A preliminary injunction is “an injunction that is issued to
protect [a] plaintiff from irreparable injury and to preserve the court’s
power to render a meaningful decision after a trial on the merits.”124
Preliminary injunctions do not involve a final determination on the
merits because the purpose of a preliminary injunction is not to
determine controverted rights but rather to “prevent a threatened
wrong or any further perpetration of injury, or the doing of any act
pending the final determination of the action whereby rights may be
threatened or endangered, and to maintain things in the condition in
which they are in at the time … until the issues can be determined
after a full hearing.”125
Federal Rule of Civil Procedure 65 provides courts with the
power to issue preliminary injunctions.126 Although Rule 65 discusses
“collateral requirements of notice, duration, form, and security,” it
“leaves the threshold questions of whether and when a preliminary
injunction should issue to the discretion of the courts in accordance
with traditional principles of equity.”127 As the Seventh Circuit has
stated, “[a] district court has broad discretion to issue or deny a
preliminary injunction.”128
Furthermore, “[a] preliminary injunction is an extraordinary
remedy never awarded as of right.”129 As the Supreme Court has
124
11A A. WRIGHT, A. MILLER, M. KANE, R. MARCUS, AND A. STEINMAN,
FED. PRAC. & PROC. CIV. § 2947 (3d ed. 2014).
125
Id. (quoting Benson Hotel Corp. v. Woods, 168 F.2d 694, 696 (8th Cir.
1948)).
126
FED. R. CIV. P. 65.
127
Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 WASH. &
LEE L. REV. 109, 110 (2001).
128
Advent Electronics, Inc. v. Buckman, 112 F.3d 267, 274 (7th Cir. 1997)
(citing Hoosier Penn Oil Co. v. Ashland Oil Co., 934 F.2d 882, 884-85 (7th Cir.
1991)).
129
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citing
Munaf v. Geren, 553 U.S. 674, 689-690 (2008)).
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noted, “[i]t frequently is observed that a preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted
unless the movant, by a clear showing, carries the burden of
persuasion.”130 Thus, this type of injunctive relief should be rare.
In Winter v. Natural Res. Def. Council, Inc., the Supreme
Court established that: “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an injunction is in
the public interest.”131 Following Winter, a circuit split developed
concerning whether sliding-scale preliminary injunction tests survived
the Court’s decision in Winter.132 However, the Seventh Circuit’s
sliding-scale analysis, which will be explained below, applies to the
Notre Dame case and will serve as the basis for the argument that
Notre Dame’s claim fails under the standard for preliminary
injunctions.
Under the Seventh Circuit’s analysis, in order to win a
preliminary injunction, the moving party must show that it has “no
adequate remedy at law and will suffer irreparable harm if a
preliminary injunction is denied” and that there is “some likelihood of
success on the merits.”133 “If the moving party meets this threshold
burden, the court weighs the competing harms to the parties if an
injunction is granted or denied and also considers the public
interest.”134 This equitable balancing occurs on a sliding-scale – “the
greater the likelihood of success on the merits, the less heavily the
130
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting
11A A. WRIGHT, A. MILLER, M. KANE, R. MARCUS, AND A. STEINMAN, FED. PRAC.
& PROC. CIV. § 2948 (3d ed. 2014) (internal quotation marks omitted).
131
Winter, 555 U.S. 7, 20 (2008).
132
Rachel A. Weisshaar, Hazy Shades of Winter: Resolving the Circuit Split
over Preliminary Injunctions, 65 VAND. L. REV. 1011, 1032-1048 (2012) (discussing
the circuit split regarding sliding-scale preliminary injunction tests after Winter).
133
Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011).
134
Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013) (citing Planned
Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962,
972 (7th Cir. 2012) and Ezell, 651 F.3d at 694).
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balance of harms must tip in the moving party’s favor.”135 The goal of
this balancing is to minimize the costs of a wrong decision.136
A district court’s grant or denial of a preliminary injunction is
an appealable interlocutory order.137 The standard of review for an
appeal from an order granting or denying a preliminary injunction is
abuse of discretion.138 It is important to note that given the
interlocutory nature of such an appeal, a court of appeals’ review of a
grant or denial of a preliminary injunction is limited to determining
whether there was an abuse of discretion, and the court’s opinions
regarding the likelihood of success on the merits should not to be
construed as a prediction of the final resolution of the case.139
II. UNIVERSITY OF NOTRE DAME V. SEBELIUS
A. Factual Background
The University of Notre Dame is a Catholic non-profit
university with approximately 11,000 students and 5,200
employees.140 Notre Dame provides health benefits to both its students
and employees.141 The university self-insures its employees’ medical
135
Korte, 735 F.3d at 665 (citing Planned Parenthood, 699 F.3d at 972).
Korte, 735 F.3d at 665 (citing Stuller, Inc. v. Steak N Shake Enters., Inc.,
695 F.3d 676, 678 (7th Cir. 2012).
137
See 28 U.S.C.A. § 1292(a)(1) (West 2014) (granting the courts of appeals
jurisdiction to review appeals from “interlocutory orders of the district courts . . .
granting, continuing, modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions”).
138
See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546
U.S. 418, 428 (2006) (“We review the District Court’s legal rulings de novo and its
ultimate decision to issue the preliminary injunction for abuse of discretion.”);
Goodman v. Illinois Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432, 437 (7th Cir.
2005) (“A district court’s denial of a preliminary injunction is reviewed for abuse of
discretion.”).
139
See Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 551-52 (7th Cir. 2014).
140
Id. at 549.
141
Id.
136
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expenses but a third-party administrator, Meritain Health, Inc.,
administers the employee health plan without providing any insurance
coverage.142 Notre Dame also has a contract with Aetna (Meritain’s
parent company) that gives its students the option of obtaining health
insurance from Aetna.143 Meritain administers coverage for
approximately 4,600 Notre Dame employees, while Aetna insures
about 2,600 students and 100 dependents.144 Notre Dame adheres to
Catholic doctrine, which prohibits the use of contraceptives.145 As
such, Notre Dame has never paid for contraceptives for its employees
or allowed Aetna to insure Notre Dame students for the expense of
contraceptives under the university’s health plan.146
Shortly after the enactment of the ACA, the government
created an administrative regulation that provided an accommodation
to the contraceptive mandate for religious organizations that objected
based on their religious beliefs.147 At the time, the regulation did not
exempt Catholic institutions, like Notre Dame, that incorporated as
non-profits rather than religious institutions.148 Thus, before the
accommodation was created for religious employers, Notre Dame was
required to provide contraceptives to its students and employees under
the regulations despite its religious objections.
B. Procedural History
In 2012, Notre Dame filed an initial lawsuit claiming that the
ACA’s contraceptive mandate infringed its free exercise rights under
142
Id.
Id.
144
Id.
145
Id.
146
Id.
147
Id. at 549-550.
148
Id. at 550.
143
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the First Amendment and RFRA. 149 However, the suit was dismissed
for standing and ripeness, as the government promised that Notre
Dame would not have to comply with the regulations for one year
because new regulations would be issued during this time period,
which would expand the exemption to the contraceptive mandate.150
As promised, new regulations were added to provide an exemption
from the contraceptive mandate to include Catholic non-profit
organizations such as Notre Dame.151 In order for Notre Dame to optout of the contraceptive mandate, it need only fill out the EBSA Form
700 self-certification, stating its religious exemption, and send copies
to Meritain and Aetna.152 Under the ACA, both Aetna, as a health
insurance provider, and Meritain, as a third-party administrator of
Notre Dame’s self-insured plan, are required to pay for contraceptives
for women with no cost sharing.153 The self-certification form alerts
Aetna and Meritain that Notre Dame will not pay for contraceptive
services and that therefore they must pay.154 Under the regulations,
Aetna and Meritain are required to inform Notre Dame’s female
employees and students that they will be covering their contraceptive
costs.155 Also, under the regulations, the government will reimburse
Meritain at least 110% of its costs and Aetna can recoup costs from
savings on pregnancy medical care.156 If Notre Dame failed to comply
with these regulations, it would be subject to hefty fines, which the
Seventh Circuit estimated would be approximately $685,000 per day,
assuming half of the 13,700 covered employees, students and
dependents are women, which would total $250 million per year; if
149
See Univ. of Notre Dame v. Sebelius, No. 3:12CV253RLM, 2012 WL
6756332, at *3-4 (N.D. Ind. Dec. 31, 2012), appeal dismissed (July 26, 2013)
(dismissing Notre Dame’s case for ripeness and standing).
150
Notre Dame, 743 F.3d at 550.
151
Id.
152
Id. (citing 45 C.F.R. § 147.131(b)(4)).
153
Id. at 550 (citing 45 C.F.R. § 147.131(c)(2)(i)(B), (ii); 29 C.F.R. §
2590.715-2713A(b)(3)).
154
Id. at 550.
155
Id. at 551.
156
Id. at 550-51.
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Notre Dame dropped its employee health plan, the penalty would be
$2,000 per full-time employee per year or roughly $10 million per
year. 157
Although the new regulations were promulgated in July 2013,
Notre Dame did not file its second lawsuit until December 3, 2013,
even though the deadline for these regulations went into effect January
1, 2014; however, the student health plan under Aetna had until
August 2014 to comply.158 Less than a week after filing its second
lawsuit, Notre Dame moved for entry of a preliminary injunction
seeking to enjoin enforcement of the contraceptive mandate and
challenging the self-certification form allowing it to opt-out of
providing contraceptive coverage on First Amendment and RFRA
grounds, which the district court denied on December 20.159 In
denying Notre Dame’s request for preliminary injunction, the district
court aptly noted that:
Notre Dame wants to eat its cake, and have it still, at
the expense of Congress, administrative agencies, and
the employees who will be affected. Notre Dame is free
to opt out of providing the coverage itself, but it can’t
stop anyone else from providing it. But that is
essentially what Notre Dame is requesting. Notre Dame
is not being asked to do or say anything it doesn’t
already do, and wouldn’t do regardless of the outcome
of this case; the only thing that changes under the
healthcare law is the actions of third parties. Notre
Dame can’t claim to be “pressured” to do something it
has done, will do, and would do regardless of the
contraception requirement. If Notre Dame opts out of
providing contraceptive coverage, as it always has and
likely would going forward, it is the government who
157
Id. at 552.
Id. at 551.
159
Id.; See Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912 (N.D. Ind.
December 20, 2013).
158
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will authorize the third party to pay for contraception.
The government isn’t violating Notre Dame’s right to
free exercise of religion by letting it opt out, or by
arranging for third party contraception coverage.160
Notre Dame appealed the denial of its preliminary injunction
the same day.161 With the January 1 deadline looming, on December
31, the last day before Notre Dame would be penalized for violating
the HHS regulations, Notre Dame signed the self-certification form
and thereby opted out of paying for contraceptive coverage for its
employees.162 Therefore, Notre Dame had complied with the ACA
albeit under duress.163
The district court stayed all proceedings pending the Seventh
Circuit’s review of the appeal from the denial of Notre Dame’s request
for preliminary injunction.164 On February 21, 2014, the Seventh
Circuit affirmed the district court’s denial of the preliminary
injunction,165 and denied a rehearing en banc on May 7, 2014. On
October 3, 2014, Notre Dame filed its petition for writ of certiorari to
the Supreme Court, asking the Court to reverse and remand the
Seventh Circuit’s decision in light of the Court’s decisions in Burwell
v. Hobby Lobby Stores, Inc. and Wheaton College v. Burwell, which
the Court handed down several months after the Notre Dame
decision.166
160
Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912, 914-15 (N.D. Ind.
December 20, 2013).
161
Notre Dame, 743 F.3d at 551.
162
Id.
163
Id. at 552.
164
Id. at 551.
165
Id. at 562.
166
Petition for Writ of Certiorari, supra note 85, at *1.
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C. Majority Opinion
At the outset, Judge Posner, writing for the 2-1 majority, which
Judge Hamilton joined, was “puzzled” by Notre Dame’s request for
injunctive relief.167 The court pondered: “what does Notre Dame want
us to do?”168 Notre Dame had already complied with the ACA and
sent copies of its self-certification form to both Aetna and Meritain.169
The Seventh Circuit imagined that Notre Dame would want the court
to order Aetna and Meritain to stop providing contraceptive coverage
to Notre Dame students and employees pending resolution of this case
in the district court.170 However, the court stated that it could not issue
such an order as Aetna and Meritain were not joined as defendants and
noted that “while a religious institution has a broad immunity from
being required to engage in acts that violate the tenets of its faith, it
has no right to prevent other institutions, whether the government or a
health insurance company, from engaging in acts that merely offend
the institution.”171 The court also noted that because the nature of this
appeal was interlocutory, the issue before the court was only whether
the district court abused its discretion when it denied Notre Dame’s
request for preliminary injunction.172
First, since the Seventh Circuit could not figure out what kind
of preliminary relief Notre Dame wanted, the court could not make a
determination that Notre Dame will suffer irreparable harm if the court
affirms the denial of its preliminary injunction, as required under the
preliminary injunction standard.173 Second, under the preliminary
167
Notre Dame, 743 F.3d at 552 (questioning what exactly Notre Dame wants
enjoined at this stage of the litigation as it had already filled out the self-certification
form and sent it to Aetna and Meritain, thus complying with the ACA albeit under
duress).
168
Id.
169
Id.
170
Id.
171
Id. (citing Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S.
439, 450-51 (1988); Bowen v. Roy, 476 U.S. 693, 699-700 (1986)).
172
Id. at 551-52.
173
Id. at 554.
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injunction test’s second prong, the court found that Notre Dame failed
to establish the likelihood of success on the merits of its RFRA
claims.174
This Comment only discusses the likelihood of success on
Notre Dame’s RFRA claims, which comprise its main arguments, and
therefore does not discuss the Seventh Circuit’s holding regarding
Notre Dame’s First Amendment arguments. Notre Dame’s main claim
is that requiring the university to fill out the self-certification form and
send copies to Aetna and Meritain in order to opt out of the
contraceptive mandate imposes a substantial burden upon its religious
exercise under RFRA and that no compelling government interest
justifies this burden.175 Notre Dame’s main RFRA arguments are as
follows: (1) the self-certification form “triggers” Meritain’s and
Aetna’s coverage of contraceptives to its employees and students
thereby making Notre Dame an accomplice in the provision of
contraceptive coverage in violation of Catholic doctrine;176 (2)
alternatively, if the form is not a “trigger,” then Notre Dame’s health
plans are the “conduit” through which its employees and students
receive contraceptive coverage, which makes Notre Dame complicit in
sin;177 and (3) the contraceptive regulation forces Notre Dame to
identify and contract with a third party willing to provide the
contraceptive coverage it finds morally objectionable.178
The Seventh Circuit sharply rejected Notre Dame’s argument
that requiring it to fill out the self-certification form and send copies to
Aetna and Meritain in order to opt out of the contraceptive mandate
was a “substantial burden” under RFRA and premised its holding on
Notre Dame’s failure to show a substantial burden under RFRA
without delving into the strict scrutiny test.179 The Seventh Circuit
emphasized the novelty of Notre Dame’s claim, which essentially
174
See id. at 554-559.
Id.
176
Id. at 554.
177
Id. at 557.
178
Id.
179
See id. at 554-59.
175
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argues that Notre Dame has a right to the exemption from the ACA’s
contraceptive mandate without having to ask for it.180 The court stated
that this case and cases like it are paradoxical and virtually
unprecedented because “the beneficiaries of the religious exemption
are claiming that the exemption process itself imposes a substantial
burden on their religious faiths.”181 The court also noted that the
regulations at issue seek an accommodation between the secular
interests motivating the contraceptive mandate to provide these
services to women free of charge and the interests of religious
institutions that provide health services.182
Turning to the merits of Notre Dame’s RFRA claim, the
Seventh Circuit first addressed and rejected Notre Dame’s “trigger”
theory, which states that the self-certification form “triggers”
Meritain’s and Aetna’s coverage of contraceptives to its employees
and students thereby making Notre Dame an accomplice in the
provision of contraceptive coverage in violation of Catholic
doctrine.183 The court rejected the idea that the self-certification form
“enables” the provision of contraceptive coverage, stating that
“[f]ederal law, not the religious organization’s signing and mailing the
form, requires health-care insurers, along with third-party
administrators of self-insured health plans, to cover contraceptive
services,” and “[b]y refusing to fill out the form Notre Dame would
subject itself to penalties, but Aetna and Meritain would still be
required by federal law to provide the services to the university’s
students and employees unless and until their contractual relation with
Notre Dame terminated.”184 The court noted that signing the form and
sending it to Meritain reminds Meritain of its obligation under the law
to pick up the tab if Notre Dame invokes its right to opt out of the
180
Id. at 557.
Id.
182
Id. at 551.
183
See id. at 554-57.
184
Id. at 554.
181
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contraceptive mandate and merely shifts the financial burden from
Notre Dame to the government.185
The court then provided examples to expose the fallacy of
Notre Dame’s “trigger” theory.186 First, the court hypothesized that if
the U.S. had a single-payer healthcare system (a system where the
government paid the costs of covered medical care) and the
government fully covered the costs of contraceptives, then Notre
Dame would not object on religious grounds because the government
would be directly providing the contraceptives.187 The main difference
between the single-payer system and the system under the ACA is that
under the ACA, the government does not directly provide the
contraceptive coverage but rather uses private health insurers and
health plan administrators as its agents to provide the services,
subsidized by the government.188 The court surmised that if the
government is entitled to require female contraceptives to be provided
free of cost, then it struggles to see how Notre Dame’s signature on the
self-certification form, declaring its exemption from providing
contraceptive coverage, and its mailing of this form to Aetna and
Meritain, who are required under federal law to provide such
coverage, in any way triggers the provision of contraceptives. 189 The
court then provided another example to discredit the trigger theory:
Consider this further example illustrative of our doubts.
Suppose it is wartime, there is a draft, and a Quaker is
called up. Many Quakers are pacifists, and their
pacifism is a tenet of their religion. Suppose the Quaker
who's been called up tells the selective service system
that he’s a conscientious objector. The selective service
officer to whom he makes this pitch accepts the
sincerity of his refusal to bear arms and excuses him.
185
Id. at 555.
See id. at 555-57.
187
Id. at 555-56.
188
Id. at 556.
189
Id.
186
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But as the Quaker leaves the selective service office,
he's told: “you know this means we'll have to draft
someone in place of you”—and the Quaker replies
indignantly that if the government does that, it will be
violating his religious beliefs. Because his religion
teaches that no one should bear arms, drafting another
person in his place would make him responsible for the
military activities of his replacement, and by doing so
would substantially burden his own sincere religious
beliefs. Would this mean that by exempting him the
government had forced him to “trigger” the drafting of
a replacement who was not a conscientious objector,
and that the Religious Freedom Restoration Act would
require a draft exemption for both the Quaker and his
non-Quaker replacement? That seems a fantastic
suggestion. Yet confronted with this hypothetical at the
oral argument, Notre Dame’s counsel acknowledged its
applicability and said that drafting a replacement
indeed would substantially burden the Quaker’s
religion.190
The Seventh Circuit stated that if Notre Dame refused to sign
the form while still adhering to its long-standing policy of not paying
for contraceptives, its female employees and students would still have
a federal right to free contraceptive services from Meritain and Aetna
unless Norte Dame dropped its student health plan entirely.191 Finally,
the court found that the trigger theory is flawed because the form
provides an accommodation for Notre Dame that allows the university
to wash its hands of any involvement in the provision of contraceptive
services by requiring Aetna and Meritain, under compulsion of federal
law, to provide the services.192 Notre Dame tells Aetna and Meritain
that it has an exemption from the contraceptive mandate, and in turn,
190
Id.
Id.
192
Id. at 557.
191
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the government tells Aetna and Meritain that they are not exempt from
the contraceptive coverage.193 The Seventh Circuit equated the selfcertification form to a warning rather than a trigger, noting that “[t]he
sole enabler is the federal statute that Notre Dame has been allowed to
opt out of.”194
Second, the Seventh Circuit rejected Notre Dame’s “conduit”
theory, which states that the contraceptive mandate accommodation
makes Notre Dame complicit in facilitating contraceptive coverage to
its students and employees, which violates its religious beliefs.195 The
court quickly dismissed this argument by citing Notre Dame’s
counsel’s admission at oral arguments that Notre Dame would have no
problem if each of its female employees signed and mailed a form to
Meritain and each of its female students signed and mailed a form to
Aetna, stating that they have insurance through Notre Dame, who will
not cover contraceptives, and thus these entities must cover them.196
The court did not see how this type of “opt-in” form would make
Notre Dame’s health plan any less of a “conduit.”197
Third, the Seventh Circuit rejected Notre Dame’s argument
that the self-certification requirement forces Notre Dame to identify
and contract with a third party willing to provide the contraceptive
coverage it finds morally objectionable.198 The court conceded that
while Meritain could exit its contract with Notre Dame without
liability if Meritain did not want to provide the contraceptives to Notre
Dame’s employees, this “burden” is completely speculative under the
facts of this case because Meritain does not object to providing
contraceptive coverage and already does provide such services;
therefore, the court found that this is not ground for equitable relief.199
193
Id.
Id. (internal quotation marks omitted).
195
Id.
196
Id.
197
Id.
198
See id. at 557-58.
199
Id. at 557 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 104-05
(1983)).
194
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The court further noted that the process of claiming the exemption
from the contraceptive mandate is the opposite of cumbersome, noting
that all it requires Notre Dame to do is sign the form and mail copies
of the signed form to Aetna and Meritain.200 While Notre Dame might
find that this process is a substantial burden, the Seventh Circuit noted
that substantiality is for the court to decide.201
The Seventh Circuit ultimately found that Notre Dame failed to
establish that the self-certification requirement imposes a substantial
burden under RFRA and found support for its conclusion in Judge
David Tatel’s dissent from the grant of an injunction pending appeal in
Priests for Life v. U.S. Dep’t of Health & Human Services and Roman
Catholic Archbishop of Washington v. Sebelius.202 The court quoted a
large passage from Judge Tatel’s dissent, which can be summarized
into two main principles: (1) Congress authorized insurers to provide
contraceptive coverage, which are services that employees will receive
regardless of whether their objecting religious organization selfcertifies; and (2) religious organizations’ objections are to the
independent actions the government has taken in mandating
contraceptive coverage, not to any action the government requires
them to take, and the organizations have no right to require the
government to conduct its affairs in ways that comport with the
religious beliefs of particular citizens.203 Two cases, Bowen v. Roy204
and Kaemmerling v. Lapin,205 were quoted in Judge Tatel’s dissent and
will be discussed in the Argument section of this Comment to support
the Seventh Circuit’s decision in Notre Dame.206
200
Id. at 558.
Id.
202
Id. at 559 (quoting dissent from order entered in Priests for Life, No. 135368 and Roman Catholic Archbishop of Wash., No. 13-5371 (D.C. Cir. Dec. 31,
2013) (per curiam)).
203
Id.
204
See 476 U.S. 693 (1986).
205
553 F.3d 669 (D.C. Cir. 2008).
206
Notre Dame, 743 F.3d at 559.
201
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After finding that Notre Dame failed to show the likelihood of
success on the merits of its RFRA claim, the Seventh Circuit affirmed
the district court’s denial of Notre Dame’s request for preliminary
injunction.207
D. Judge Flaum’s Dissent
Judge Flaum disagreed with the majority and wrote a dissent,
finding that Notre Dame did make a cognizable claim under RFRA.208
Judge Flaum believed that Notre Dame had established the likelihood
of success on the merits and would have granted its request for a
preliminary injunction.209 Judge Flaum found that the contraceptive
mandate and opt-out regulations imposed a substantial burden upon
Notre Dame’s religious exercise because of the “ruinous fines” that
Notre Dame would be forced to pay if it refused to self-certify and
provide the contraceptive coverage which it finds morally
objectionable.210 Although Judge Flaum noted that the accommodation
to the contraceptive mandate was a good-faith attempt to meet
religious objectors halfway, he still felt that the government
nevertheless was putting substantial pressure on Notre Dame to act in
ways that it believes involve the university in a system that provides
contraceptive services to its employees and students, which is a
substantial burden on Notre Dame’s religious exercise thereby running
afoul of RFRA.211 Judge Flaum took issue with the district court’s
reasoning that the self-certification process is not a substantial burden
because it does not require Notre Dame to modify its behavior and that
the university need only step aside from contraceptive coverage as it
always has done and will surely always do.212 Judge Flaum stated that
207
Id. at 559, 562.
See id. at 562-69 (Flaum, J., dissenting).
209
Id. at 562 (Flaum, J., dissenting).
210
Id. at 564-65 (Flaum, J., dissenting) (quoting Korte v. Sebelius, 735 F.3d
654, 684 (7th Cir. 2013).
211
Id. at 565 (Flaum, J., dissenting).
212
Id. (Flaum, J., dissenting).
208
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viewing the required act this way was too mechanistic because Notre
Dame was required to perform a new act that it never had to before,
filling out the self-certification form and sending it to Aetna and
Meritain, which in Notre Dame’s eyes has the purpose and effect,
evident from the face of the regulations, of accomplishing what the
university finds religiously forbidden and protests – the provision of
contraceptive services.213 Judge Flaum accepted Notre Dame’s theory
that having to submit the form makes it complicit in sin, stating that
judges are not theologians and thus should defer to Notre Dame’s
understanding that Catholic doctrine forbids such action, so long as the
belief is sincerely held.214 Judge Flaum also attempted,
unconvincingly, to refute the majority’s statement that federal law
triggers the contraceptive coverage regardless of whether Notre Dame
signs the self-certification form by citing to Roman Catholic
Archbishop of Wash. v. Sebelius, which distinguished group health
plan issuers, which have an independent duty to provide contraceptive
coverage under the ACA, and third-party administrators, which do
not.215
Next, Judge Flaum attacked the district court’s reliance on
Bowen v. Roy,216 and derivatively Kaemmerling v. Lapin,217 which the
district court believed foreclosed Notre Dame’s objection to a mere
administrative tool used to relieve the university of liability for not
providing contraceptive payments.218 Judge Flaum believed that Roy
213
Id. at 565-66 (Flaum, J., dissenting) (quoting E. Tex. Baptist Univ. v.
Sebelius, 988 F. Supp. 2d 743, 767 (S.D. Tex. Dec. 27, 2013)).
214
Id. at 566 (Flaum, J., dissenting).
215
Id. at 566 (Flaum, J., dissenting) (citing Roman Catholic Archbishop of
Wash. v. Sebelius, 19 F. Supp. 3d 48 (D.D.C. Dec. 20, 2013), affirmed in part and
vacated in part by Priests For Life v. U.S. Dep’t of Health & Human Servs., 772
F.3d 229 (D.C. Cir. 2014)).
216
See 476 U.S. 693, 697-702 (1986) (holding that the statutory requirement
that a state agency use Social Security numbers in administering benefits does not
violate the Free Exercise Clause despite the plaintiffs’ religious belief that the use of
their child’s number would rob her spirit).
217
553 F.3d 669 (D.C. Cir. 2008).
218
Notre Dame, 743 F.3d at 566 (Flaum, J., dissenting).
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did not cut so broadly and cited to the fact that “[f]ive justices either
concluded or strongly suggested that the government could not require
an applicant to provide the number on a benefits application if the
applicant had a sincere religious objection to doing so.”219 Although
Judge Flaum agreed that under Roy, RFRA does not permit a religious
organization to dictate the independent actions of third parties even if
the organization sincerely disagrees, he nevertheless found that the
self-certification requirement was different, stating that it is one thing
for the government to take independent action and quite another for
the government to force Notre Dame to actively cooperate with the
government by having the university provide the self-certification
form, which Notre Dame believes endorses the provision of
contraceptives to its employees and students in violation of its
religious beliefs.220 Judge Flaum wrote that this type of compulsion
takes the Notre Dame case out of the realm of independent action and
“into the sort of direct, primary, and fundamental pressure that renders
religious exercise ... effectively impracticable.”221
Judge Flaum stated that the Supreme Court’s grant of a
temporary injunction in Little Sisters of the Poor v. Sebelius,222
supports this view of free exercise rights and strengthens the case for
issuing a preliminary injunction to Notre Dame.223 Judge Flaum
explained that the form that the Little Sisters refuse to sign is
unconnected to the provision of contraceptive services unlike the form
that Notre Dame objects to, which will allow third parties to provide
contraceptive services to its employees and students.224
219
Id. at 566-67 (Flaum, J., dissenting).
Id. at 567-68 (Flaum, J., dissenting) (citing Roy, 476 U.S. at 700).
221
Id. at 568 (Flaum, J., dissenting) (quoting Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (internal quotation
marks omitted).
222
134 S. Ct. 1022 (2014).
223
Notre Dame, 743 F.3d at 568 (Flaum, J., dissenting) (explaining that the
Little Sisters’ third-party administrator is a “church plan,” which is itself exempt
from the contraceptive mandate under a provision of ERISA).
224
Id. at 568 (Flaum, J., dissenting) (finding the burden on Notre Dame to be
more concrete than the burden on the Little Sisters).
220
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Finally, Judge Flaum concluded that while the court cannot
enjoin Notre Dame’s insurers from providing contraceptive coverage
or require the government to forbid the insurers from doing so, as a
form of meaningful relief, Judge Flaum would “enjoin the government
from enforcing the penalty against Notre Dame for not providing
contraceptive coverage—even if Notre Dame revokes or fails to
maintain its EBSA Form 700, refuses to make the form available for
examination upon request, or takes any action otherwise inconsistent
with 26 C.F.R. § 54.9815–2713A.”225
III. APPLICABLE SUPREME COURT CASES DECIDED AFTER NOTRE DAME
A. Burwell v. Hobby Lobby Stores, Inc.
On June 30, 2014, in Hobby Lobby, the Supreme Court held for
the first time that: (1) closely held for-profit corporations can bring
claims under RFRA226 and (2) the contraceptive mandate violated
RFRA as applied to closely held for-profit corporations.227 After
deciding that RFRA applies to for-profit corporations, the Court found
that the challenged regulations of the contraceptive mandate impose a
substantial burden upon the free exercise of religion as applied to
closely-held for-profit corporations whose owners object to
contraceptive coverage on religious grounds.228 The Court found that
the contraceptive mandate covers abortifacient drugs, which the
plaintiffs object to on religious grounds, and imposes steep fines for
noncompliance, which the Court found to constitute a substantial
burden.229 The Court found that this substantial burden on the free
exercise of religion was not justified because it failed the strict
scrutiny test, as it was not the least restrictive means of furthering a
225
226
Id. at 568 (Flaum, J., dissenting).
See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2767-2775
(2014).
227
Id. at 2785.
Id. at 2759.
229
Id.
228
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compelling government interest.230 The Court found that the
availability of the HHS accommodation for religious non-profits is
less restrictive than requiring the for-profit plaintiffs to provide the
contraceptive coverage in violation of their religious beliefs and would
also serve HHS’s interests.231 The Court further found that this
accommodation is “a system that seeks to respect the religious liberty
of religious nonprofit corporations while ensuring that the employees
of these entities have precisely the same access to all FDA-approved
contraceptives as employees of companies whose owners have no
religious objections to providing such coverage.”232 Although the
accommodation did not extend to religious for-profit objectors, the
Court noted that HHS had not provided a reason why it could not be
applied to for-profits.233 The Court concluded that “this system
constitutes an alternative that achieves all of the Government’s aims
while providing greater respect for religious liberty,” and thus the
enforcement of the contraceptive mandate against the objecting forprofit plaintiffs is unlawful under RFRA.234
Following the Hobby Lobby decision, HHS issued proposed
rules soliciting comments on expanding the religious non-profit
accommodation to include certain closely held for-profit corporations
who have religious objections to the contraceptive mandate.235
230
Id.
Id. at 2759, 2782.
232
Id. at 2759.
233
Id.
234
Id. at 2759-60.
235
See CENTERS FOR MEDICARE & MEDICAID SERVICES, Women’s
Preventative Services Coverage and Non-Profit Religious Organizations, supra note
99 (discussing the proposed approaches for defining a closely held for-profit
organization who has a religious objection to the contraceptive mandate).
231
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B. Wheaton College v. Burwell
Three days after the Court decided Hobby Lobby, on July 3,
2014, the Supreme Court decided Wheaton, where the Court granted
Wheaton College, a Christian non-profit organization in Illinois, an
injunction pending appeal, finding that Wheaton College was not
required to comply with the self-certification requirement in order to
receive the accommodation from the contraceptive mandate, which the
college opposed on religious grounds.236 In a four-paragraph order,
the Court held that if Wheaton College informs the Secretary of HHS
in writing that it is a non-profit organization holding itself out as
religious and that it has religious objections to providing contraceptive
coverage, then the government is enjoined from enforcing the
challenged provisions of the ACA against the college.237 Importantly,
the Court held that in order to meet the condition for injunction
pending appeal, Wheaton College did not have to fill out EBSA 700
Form, the self-certification form, or send it to its health insurance
issuer or third-party administrator.238 The Court noted that nothing in
its order precludes the government from relying on Wheaton’s notice
to the government to facilitate the provision of contraceptive coverage
under the ACA.239 Finally, the Court noted that the order should not be
construed as an expression of the Court’s views on the merits.240
Justice Sotomayor penned a scathing dissent, joined by Justices
Ginsburg and Kagan, which heavily relied on the Seventh Circuit’s
reasoning in Notre Dame.241 The dissent rejected Wheaton’s argument
that filing the self-certification form impermissibly burdens its free
exercise of religion under RFRA by making it complicit in the
provision of contraceptives by triggering the obligation for a third
236
Wheaton College v. Burwell, 134 S. Ct. 2806, 2807 (2014).
Id.
238
Id.
239
Id.
240
Id.
241
See id. at 2807-2815 (Sotomayor, J., dissenting).
237
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party to provide the services that it objects to. 242 The dissent stated:
“Wheaton has not stated a viable claim under RFRA. Its claim ignores
that the provision of contraceptive coverage is triggered not by its
completion of the self-certification form, but by federal law.”243 The
dissent found that even assuming that the accommodation imposed a
burden on Wheaton’s religious exercise, it still survives RFRA
because it is the least restrictive means of furthering the compelling
government interest in public health and women’s well-being.244
The dissent strongly disagreed with the Court’s actions and
found that the order in Wheaton was inconsistent with the Court’s
Hobby Lobby decision issued a few days prior.245 The dissent quoted
the Court in Hobby Lobby, which found that the ACA’s
accommodation was a system that sought to respect the religious
liberty of religious non-profits while still ensuring that their employees
had the same access to all FDA-approved contraceptives as employees
of companies whose owners have no religious objection to such
coverage.246 The dissent took issue with the majority’s opinion in
Wheaton, finding that the Court retreated from its position in Hobby
Lobby, which expressly relied on the availability of the
accommodation for religious non-profits as the impetus for its holding
that contraceptive mandate violates RFRA as applied to closely-held
for-profit corporations.247
Concluding that Wheaton’s RFRA claim failed, the dissent
argued that the Court granted extraordinary injunctive relief when it
granted Wheaton College’s injunction pending review in the district
court because Wheaton’s entitlement to relief is not indisputably
242
Id. at 2808 (Sotomayor, J., dissenting).
Id. (Sotomayor, J., dissenting).
244
Id. (Sotomayor, J., dissenting).
245
Id. at 2808, 2810 (Sotomayor, J., dissenting).
246
Id. at 2808 (Sotomayor, J., dissenting) (quoting Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751, 2759 (2014)).
247
Id. at 2808 (Sotomayor, J., dissenting).
243
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clear.248 The dissent concluded that the Court’s grant of injunctive
relief regarding the religious non-profit accommodation allowed
“Wheaton’s beliefs about the effects of its actions to trump the
democratic interest in allowing the Government to enforce the law.”249
Finally, the dissent also attacked the majority’s attempt to
rewrite the notice requirements under the HHS regulations for the
accommodation, distinguishing this case from Little Sisters of the Poor
v. Sebelius,250 where the Court had previously granted a similar
injunction to a religious organization.251 The dissent argued that the
two cases are critically different because the order in Little Sisters of
the Poor was based on all of the circumstances of the case, particularly
the fact that the third-party administrator was a “church plan” with no
legal obligation or intention to provide contraceptive coverage, which
is unlike Wheaton’s third-party administrator.252
Following the Wheaton decision, the accommodation was
revised to provide additional notice options for religious
organizations.253 After Wheaton, an eligible religious organization can
either notify its group health plan issuer and/or third-party
administrator using the self-certification form or it can alternatively
notify HHS in writing of its religious objections to the contraceptive
mandate.254
248
Id. at 2808-09, 2811-14 (Sotomayor, J., dissenting) (discussing the rare and
extraordinary nature of an interlocutory injunction and the high bar necessary to
warrant such relief and that Wheaton’s claim fails to meet this demanding standard).
249
Id. at 2815 (Sotomayor, J., dissenting).
250
134 S. Ct. 1022 (2014).
251
Wheaton, 134 S. Ct. at 2813, 2814 n.6 (Sotomayor, J., dissenting).
252
Id. at 2814 n.6 (Sotomayor, J., dissenting).
253
See 45 C.F.R. § 147.131(c); 79 Fed. Reg. 51092 (August 27, 2014);
CENTERS FOR MEDICARE & MEDICAID SERVICES, Women’s Preventative Services
Coverage and Non-Profit Religious Organizations, supra note 99.
254
See 45 C.F.R. § 147.131(c).
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IV. ARGUMENT
In Notre Dame, the Seventh Circuit confronted the issue of
whether the self-certification form required by the ACA in order to
opt-out of providing contraceptive coverage was a substantial burden
on Notre Dame’s religious rights under RFRA.255 The court found that
the self-certification requirement did not impose a substantial burden
and thus affirmed the denial of Notre Dame’s request for preliminary
injunction, finding that Notre Dame failed to show the likelihood of
success on the merits on its RFRA claim.256 The Seventh Circuit
correctly decided Notre Dame because Notre Dame’s claim fails the
RFRA test and fails under the standard for granting preliminary
injunctions.
A. Notre Dame’s Claim Fails the RFRA Test
1. The ACA’s Accommodation Does Not Constitute a
Substantial Burden
To succeed on a RFRA claim, Notre Dame must first establish
that a government action imposed a substantial burden upon its
religious exercise.257 A substantial burden exists if the government
puts “substantial pressure on an adherent to modify his behavior and to
violate his beliefs.”258 “An inconsequential or de minimis burden on
religious practice does not rise to this level, nor does a burden on
activity unimportant to the adherent’s religious scheme.”259
255
See Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554-59, 562 (7th Cir.
2014).
256
Id.
See Korte v. Sebelius, 735 F.3d 654, 682 (7th Cir. 2013).
258
Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718
(1981).
259
Kaemmerling v. Lappin, 553 F.3d 669, 678-79 (D.C. Cir. 2008) (finding
that the government’s extraction, analysis and storage of Kaemmerling’s DNA did
not constitute a substantial burden under RFRA because Kaemmerling played no
role in these FBI activities, which occurred after Kaemmerling provided the DNA
257
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The ACA’s accommodation process is not a substantial burden
under RFRA. Under this scheme, Notre Dame need only fill out the
two-page self-certification form and send it to Aetna and Meritain to
be relieved of its duties under the contraceptive mandate.260 Under the
accommodation, Notre Dame is allowed to continue to not pay for and
provide contraceptive services to its employees and students as it has
always done.261 The ACA does not require Notre Dame to modify its
behavior or beliefs in the slightest. Notre Dame’s argument that the
form authorizes Aetna and Meritain to provide the contraceptive
coverage is inapposite because it is federal law that requires these
entities to provide the coverage, not Notre Dame, and the law allows
Notre Dame to take no part in the provision of these services.262
Congress authorized the health insurers and third-party administrators
to provide contraceptive coverage regardless of whether exempt
religious organizations self-certify.263
Although Notre Dame’s sincere religious beliefs deserve the
utmost respect as religious liberty is among the most sacred rights
Americans have, the ACA’s accommodation process, which allows
Notre Dame to opt out of the challenged contraceptive mandate, does
not substantially burden its religious rights just because Notre Dame
believes it does.264 Notre Dame cannot argue that the accommodation,
which requires third parties to provide the contraceptive coverage after
Notre Dame notifies them of its exemption, is a substantial burden on
its religion just because it believes that the provision of contraceptives
sample, which he did not object to, and thus the government did not hamper his
religious exercise).
260
See Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 549-50 (7th Cir. 2014).
261
Id.
262
Id. at 557.
263
See id. at 559.
264
See Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (accepting
as true the factual allegations that the plaintiff’s religious beliefs are sincere but
finding that the court need not accept the legal conclusion that the plaintiff’s
religious exercise is substantially burdened).
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is morally wrong.265 “Burdens that are only slight, negligible, or de
minimis are not substantial. And burdens that fall only on third parties
not before the court do not substantially burden plaintiffs.”266 Thus,
the self-certification requirement does not impose a substantial burden
on Notre Dame’s religious practice because it merely requires sending
the signed form to Aetna and Meritain so that Notre Dame can opt out
of providing contraceptive coverage and so that these entities will pick
up the slack under compulsion of federal law.267 Under the ACA, the
government places the burden on Aetna and Meritain, not on Notre
Dame.
Furthermore, “[t]he self-certification form is just such an
administrative tool, used to relieve Notre Dame of liability for not
providing contraceptive payments.”268 As the district court judge in
Notre Dame aptly noted, “[b]oiled to its essence, what Notre Dame
essentially claims is that the government’s action after Notre Dame
opts out, in requiring the TPA [(third-party administrator)] to cover
contraception, offends Notre Dame’s religious sensibilities. And while
I accept that the government’s and TPA’s actions do offend Notre
Dame’s religious views, it’s not Notre Dame’s prerogative to dictate
what healthcare services third parties may provide.”269
In the First Amendment context, the Supreme Court has held
that the Free Exercise Clause does not “require the Government to
conduct its own internal affairs in ways that comport with the religious
beliefs of particular citizens,” or “afford an individual a right to dictate
the conduct of the Government’s internal procedures.”270 In Bowen v.
265
See Roman Catholic Archdiocese of New York v. Sebelius, 987 F. Supp. 2d
232, 249 (E.D.N.Y. Dec. 16, 2013) (finding that it is “unlikely that placing new legal
obligations on the third-parties with whom plaintiffs contract could be a substantial
burden on plaintiffs’ religion”).
266
Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229,
248 (D.C. Cir. 2014).
267
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557 (7th Cir. 2014).
268
Univ. of Notre Dame v. Sebelius, 988 F. Supp. 2d 912, 921 (N.D. Ind. Dec.
20, 2013) aff’d, 743 F.3d 547 (7th Cir. 2014).
269
Id. at 923.
270
Bowen v. Roy, 476 U.S. 693, 699-700 (1986).
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Roy, the Court held that the statutory requirement that a state agency
use a Social Security number to administer benefits programs did not
violate RFRA despite the plaintiff’s religious belief that providing his
daughter’s number would harm her spirit.271 The Court held that “Roy
may no more prevail on his religious objection to the Government’s
use of a Social Security number for his daughter than he could on a
sincere religious objection to the size or color of the Government’s
filing cabinets.”272 Roy forecloses Notre Dame’s argument because the
university cannot demand that the government be enjoined from
requiring Aetna and Meritain to provide the federally-mandated
contraceptive coverage, which the university itself does not have to
provide, simply because Notre Dame objects to contraceptive
coverage on religious grounds.
As the Seventh Circuit correctly noted, “while a religious
institution has a broad immunity from being required to engage in acts
that violate the tenets of its faith, it has no right to prevent other
institutions, whether the government or a health insurance company,
from engaging in acts that merely offend the institution.”273 Similarly,
the D.C. Circuit has held that “[a] religious adherent’s distaste for
what the law requires of a third party is not, in itself, a substantial
burden; that is true even if the third party’s conduct towards others
offends the religious adherent’s sincere religious sensibilities.”274 In
the same vein, the Sixth Circuit has also found that:
[A] government action does not constitute a substantial
burden on the exercise of religion even if the
challenged Government action would interfere
significantly with private persons’ ability to pursue
spiritual fulfillment according to their own religious
271
Id.
Id. at 700.
273
Id. at 552 (citing Lyng v. Northwest Indian Cemetery Protective Ass’n, 485
U.S. 439, 450-51 (1988); Bowen v. Roy, 476 U.S. 693, 699-700 (1986)).
274
Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229,
256 (D.C. Cir. 2014).
272
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beliefs’ if the governmental action does not coerce the
individuals to violate their religious beliefs or deny
them the rights, benefits, and privileges enjoyed by
other citizens.275
Thus, Notre Dame’s moral distaste for third parties providing
the federally mandated contraceptive coverage does not rise to the
level of a substantial burden on its religious rights. Notre Dame has
“no RFRA right to be free from the unease, or even anguish, of
knowing that third parties are legally privileged or obligated to act in
ways their religion abhors.”276 Moreover, the accommodation process,
in itself, did not coerce Notre Dame to engage in conduct that violates
its beliefs but rather respected those beliefs in offering it a meaningful
exemption from providing contraceptive coverage.
United States v. Friday is the most analogous RFRA case to
Notre Dame because in both cases, the respective plaintiff challenged
the religious accommodation that the government granted.277 In
Friday, the government provided Native Americans with a religious
accommodation allowing for the taking of bald eagles for religious
purposes despite a law banning such takings.278 The court was
skeptical that the bare requirement of obtaining a permitting in order
to be granted this accommodation can constitute a substantial burden
under RFRA, noting that “[m]any religious activities, from building a
church to homeschooling a child to obtaining peyote for a Native
American Church ceremonial, require some form of advance
authorization from the state.”279 Similarly, here, the accommodation
allows Notre Dame to completely be uninvolved in the payment and
provision of contraceptive services, which it objects to on religious
275
Michigan Catholic Conference & Catholic Family Servs. v. Burwell, 755
F.3d 372, 384 (6th Cir. 2014) (quoting Lyng, 485 U.S. at 449) (internal quotation
marks omitted).
276
Priests For Life, 772 F.3d at 246.
277
See Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 557-58 (7th Cir. 2014);
United States v. Friday, 525 F.3d 938, 946-47 (10th Cir. 2008).
278
Friday, 525 F.3d at 942-44.
279
Id. at 947.
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grounds, and the bare requirement that Notre Dame “self-certify” does
not impose a substantial burden under RFRA.280
Therefore, requiring Notre Dame to fill out the selfcertification form in order to opt out of providing, paying for and
otherwise facilitating contraceptive coverage required by the ACA is
not a substantial burden on its free exercise rights. The
accommodation does not alter Notre Dame’s actions or violate its
beliefs but rather strikes the perfect balance between respecting Notre
Dame’s religious liberty and respecting its female employees’ and
students’ federal right to free contraceptives.
2. The ACA’s Accommodation Survives Strict Scrutiny
Because the Seventh Circuit in Notre Dame concluded that the
ACA’s accommodation to the contraceptive mandate and related
regulations did not constitute a substantial burden on Notre Dame’s
religious beliefs, the court did not address whether the accommodation
would survive strict scrutiny.281 Alternatively, even if the
accommodation imposed a substantial burden upon Notre Dame’s
religious beliefs, the accommodation would still survive RFRA
because it passes the strict scrutiny test.
After a court determines that a substantial burden exists under
RFRA, it must inquire whether the strict scrutiny test is satisfied.282
Here, the government must show that the self-certification requirement
is the least restrictive means of furthering a compelling government
interest.283
In the context of the contraceptive mandate, in Burwell v.
Hobby Lobby Stores, Inc., the Supreme Court assumed that the
government’s interest in guaranteeing cost-free access to contraceptive
methods for all women was compelling within the meaning of
280
See Notre Dame, 743 F.3d at 557-58.
Petition for Writ of Certiorari, supra note 85, at *13.
282
See Michigan Catholic Conf. & Catholic Family Servs. v. Burwell, 755
F.3d 372, 383-84 (6th Cir. 2014)
283
Id.
281
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RFRA.284 The Court then moved on to the least-restrictive means test
and found that the ACA’s accommodation is “a system that seeks to
respect the religious liberty of religious nonprofit corporations while
ensuring that the employees of these entities have precisely the same
access to all FDA-approved contraceptives as employees of companies
whose owners have no religious objections to providing such
coverage” and concluded that “this system constitutes an alternative
that achieves all of the Government’s aims while providing greater
respect for religious liberty.”285 Given that this is the Court’s most
recent proclamation regarding the contraceptive mandate
accommodation, it is unlikely that the Court will backtrack and find
that this established accommodation system violates RFRA because
the availability of this accommodation for religious non-profits was
the impetus of the Court’s holding that the contraceptive mandate
violated RFRA as applied to closely-held for-profit corporations who
objected on religious grounds but were not exempt under the ACA.286
In the analogous RFRA case, United States v. Friday, where
the plaintiff challenged a religious accommodation, the Tenth Circuit
found that the permitting process allowing Native Americans to kill
bald eagles for religious purposes despite a ban on such takings was
valid under RFRA because it was the least restrictive means of
pursuing the compelling government interest in preserving bald
eagles.287 The Tenth Circuit aptly recognized that:
By enacting a law banning the taking of eagles and then
permitting religious exceptions, the government has
tried to accommodate Native American religions while
still achieving its compelling interests. That
accommodation may be more burdensome than the
284
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779-2780 (2014).
Id. at 2759.
286
See id. at 2782 (finding that the accommodation for religious non-profits,
“[a]t a minimum . . . it does not impinge on the plaintiffs’ religious belief that
providing insurance coverage for the contraceptives at issue here violates their
religion, and it serves HHS’s stated interests equally well”).
287
525 F.3d 938, 942 (10th Cir. 2008).
285
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Northern Arapaho would prefer, and may sometimes
subordinate their interests to other policies not of their
choosing. Law accommodates religion; it cannot
wholly exempt religion from the reach of the law.288
In the context of the ACA accommodation, in Priests for Life
v. U.S. Department of Health & Human Services, the D.C. Circuit held
that the accommodation only imposes a de minimis burden on the
religious non-profit plaintiffs that is justified by the government’s
compelling interest “to provide cost-free contraceptive coverage and to
remove administrative and logistical obstacles to accessing
contraceptive care.” 289 The D.C. Circuit conducted a detailed analysis
of other asserted government interests, such as improving public
health through contraceptive coverage and assuring women the equal
benefit of preventative care by requiring coverage of their distinctive
health needs, and held that “[t]hose compelling governmental interests
suffice to support requiring eligible organizations to ask for an
accommodation if they want to take advantage of one, so that the
government can protect its interests by ensuring that the resulting
coverage gaps are filled.”290 The court concluded that the
contraceptive mandate regulations are the least restrictive means to
ensure contraceptive coverage while still accommodating religion:
The accommodation is the least restrictive method of
ensuring that women continue to receive contraceptive
coverage in a seamless manner while simultaneously
relieving the eligible organizations of any obligation to
provide such coverage. Because the government has
used the least restrictive means possible to further its
compelling interest, RFRA does not excuse Plaintiffs
from their duty under the ACA either to provide the
288
Id. at 960 (emphasis added).
Priests For Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229,
249, 259 (D.C. Cir. 2014).
290
Id. at 259-264.
289
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required contraceptive coverage or avail themselves of
the offered accommodation to opt out of that
requirement. The accommodation meets the twin aims
of respecting religious freedom and ensuring that
women continue to receive contraceptive coverage
without administrative, financial, or logistical burdens.
The regulations thus respond appropriately to RFRA’s
explicit demand for “sensible balances between
religious liberty and competing prior governmental
interests.” 42 U.S.C. § 2000bb(a)(5).291
Under Hobby Lobby and Priests for Life, it is clear that the
contraceptive mandate serves compelling interests and that the
accommodation is the least restrictive means of furthering these
compelling government interests while still respecting Notre Dame’s
religious liberty. Under Friday, it is evident that Notre Dame’s
challenge to the ACA accommodation also falls flat under RFRA’s
strict scrutiny test for the same reasons articulated above in Hobby
Lobby and Priests for Life. Therefore, even if the accommodation
process imposes a burden upon Notre Dame’s free exercise, it is the
least restrictive means of furthering compelling government interests
and therefore survives RFRA.
B. Notre Dame’s Claim Fails Under the Standard for Preliminary
Injunctions
Despite the majority of lower courts granting a preliminary
injunction in the contraceptive mandate challenges to the selfcertification requirement, three circuits, the Sixth, Seventh and D.C.
Circuits, have denied injunctive relief, finding that the religious
organizations did not show a likelihood of success on the merits of
their RFRA claims against the contraceptive mandate
291
Id. at 264-67.
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accommodation.292 Thus, these circuits have correctly found that these
RFRA claims challenging the contraceptive mandate accommodation
fail to meet the standard for granting preliminary injunctions because
the self-certification form is not a substantial burden under RFRA.293
Under the high standard for preliminary injunctions, Notre Dame has
failed to meet its burden to show that its RFRA claim is likely to
succeed on the merits. Thus, the Seventh Circuit correctly affirmed the
denial of such relief.294
Injunctive relief should be rare because relief of this kind is
“extraordinary” and should only be granted upon a clear showing that
the plaintiff is entitled to such relief.295 The Supreme Court has stated
that “[a] plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance
of equities tips in his favor, and that an injunction is in the public
interest.”296 The Seventh Circuit’s test for determining whether to
grant a preliminary injunction first asks whether the moving party has
shown that it has “no adequate remedy at law and will suffer
irreparable harm if a preliminary injunction is denied” and that there is
“some likelihood of success on the merits.”297 If the moving party
meets this initial burden, then the court “weighs the competing harms
to the parties if an injunction is granted or denied and also considers
the public interest.”298 This equitable balancing occurs on a sliding292
See Priests for Life, 772 F.3d at 229; Michigan Catholic Conf. & Catholic
Family Servs. v. Burwell, 755 F.3d 372 (6th Cir. 2014); Univ. of Notre Dame v.
Sebelius, 743 F.3d 547 (7th Cir. 2014).
293
See Priests for Life, 772 F.3d at 244-256; Michigan Catholic Conf., 755
F.3d at 382-90; Notre Dame, 743 F.3d at 553-59.
294
Notre Dame, 743 F.3d at 562.
295
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (citing
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).
296
Id. at 20.
297
Ezell v. City of Chicago, 651 F.3d 684, 694 (7th Cir. 2011).
298
Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013) (citing Planned
Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d 962,
972 (7th Cir. 2012), and Ezell, 651 F.3d at 694).
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scale – “the greater the likelihood of success on the merits, the less
heavily the balance of harms must tip in the moving party’s favor.”299
The goal of this balancing is to minimize the costs of a wrong
decision.300
Since Notre Dame has failed to make a cognizable RFRA
claim, for the reasons cited above, it fails to meet its burden under the
preliminary injunction test. Under the first threshold question, Notre
Dame has failed to show that it will suffer irreparable harm if its
request for preliminary injunction is denied. The Seventh Circuit
correctly found that there would be no irreparable harm to Notre Dame
if the court affirmed the denial of injunctive relief, as the court could
not even figure out what Notre Dame wanted in the way of
preliminary relief.301 Notre Dame had already complied with the ACA
by fulfilling the self-certification requirement and thus effectively
opted out of the contraceptive mandate.302
Under the second prong of the preliminary injunction test,
Notre Dame must show a likelihood of success on the merits of its
RFRA claims, which it has failed to do, as described in detail above.303
As the Sixth Circuit noted, “[w]hen a moving party seeks a
preliminary injunction on the basis of a potential constitutional
violation, the likelihood of success on the merits often will be the
determinative factor.”304 Notre Dame’s overwhelming failure to show
a likelihood of success on the merits is controlling here. Notre Dame
failed to show a substantial burden under RFRA and in addition, the
accommodation passes strict scrutiny. This demonstrates that the
Seventh Circuit correctly denied injunctive relief.305
299
Korte, 735 F.3d at 665 (citing Planned Parenthood, 699 F.3d at 972).
Id. at 665 (citing Stuller, Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676,
678 (7th Cir. 2012)).
301
Univ. of Notre Dame v. Sebelius, 743 F.3d 547, 554 (7th Cir. 2014).
302
Id. at 552.
303
See id. at 554-59.
304
Michigan Catholic Conf. & Catholic Family Servs. v. Burwell, 755 F.3d
372, 382 (6th Cir. 2014) (quoting City of Pontiac Retired Employees Ass’n v.
Schimmel, 751 F.3d 427, 430 (6th Cir. 2014)).
305
See Notre Dame, 743 F.3d at 562.
300
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On balance, there is no harm to Notre Dame in denying its
request for injunctive relief because the university complied with the
self-certification requirement and thus effectively opted out of
providing contraceptives to its employees and students.306 However,
there is harm to the government as well as the public if Notre Dame
was granted the preliminary injunction. For example, enjoining
enforcement of the contraceptive mandate and its accommodation
regulations against Notre Dame would deprive thousands of its female
students and employees of their federal statutory right to contraceptive
services.307 Moreover, if the court had granted Notre Dame’s
preliminary injunction, this would impermissibly lower the standard
for preliminary injunctions because Notre Dame has failed to make out
a cognizable RFRA claim. It would also lower the standard for finding
a “substantial burden” under RFRA by permitting plaintiffs to show de
minimis, attenuated burdens. This would allow religious organizations
that are morally opposed to any number of federal laws and
regulations to challenge religious accommodations and succeed under
RFRA. This would completely suffocate laws and thwart the
government’s attempts to enforce such laws.
Thus, Notre Dame’s claim fails the standard for preliminary
injunctions, and the Seventh Circuit correctly affirmed the district
court’s denial of Notre Dame’s request for preliminary injunction.308
V. CONCLUSION
The new frontier of RFRA claims regarding the controversial
contraceptive mandate has emerged in the context of challenges to the
required self-certification form allowing religious non-profits to opt
out of providing contraceptive services under the ACA. These claims
present a unique challenge to the accommodation provided under the
306
Id. at 552.
See Wheaton College v. Burwell, 134 S. Ct. 2806, 2815 n.6 (2014)
(Sotomayor, J., dissenting) (finding that the Court’s grant of an injunction pending
appeal risks depriving hundreds of Wheaton College’s employees and students of
their legal entitlement to contraceptive coverage).
308
See Notre Dame, 743 F.3d at 562.
307
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ACA as they assert that the accommodation process itself imposes a
substantial burden on free exercise rights under RFRA. In University
of Notre Dame v. Sebelius, the Seventh Circuit correctly held that
Notre Dame failed to establish that the ACA’s accommodation process
is a substantial burden under RFRA and therefore affirmed the denial
of Notre Dame’s request for preliminary injunction.309
Notre Dame filed a writ of certiorari to the Supreme Court on
October 3, 2014. As of the publication of this article, it is yet to be
seen if the Supreme Court will grant certiorari and reverse the decision
of the Seventh Circuit in Notre Dame in light of Wheaton and Hobby
Lobby; however, it is unlikely. As the Court noted in Hobby Lobby,
the accommodation is “a system that seeks to respect the religious
liberty of religious nonprofit corporations while ensuring that the
employees of these entities have precisely the same access to all FDAapproved contraceptives as employees of companies whose owners
have no religious objections to providing such coverage.”310 The Court
concluded, “this system constitutes an alternative that achieves all of
the Government’s aims while providing greater respect for religious
liberty.”311 It is therefore unlikely that the Court will find the ACA
accommodation unlawful under RFRA.
Notre Dame cannot have its cake and eat it too. The
government reasonably accommodated Notre Dame by offering the
university the option to opt out of the contraceptive mandate by
merely filling out a two-page self-certification form and mailing it to
Meritain and Aetna so that they would pick up the tab for
contraceptive services for Notre Dame’s students and employees due
to the university’s religious exemption. Requiring Notre Dame to fill
out this form and mail it to Meritain and Aetna is not a substantial
burden on its free exercise rights under RFRA. This was the least
restrictive means of serving a compelling government interest. Thus,
the Seventh Circuit correctly decided the Notre Dame case because
309
Id. at 554-59, 562.
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014).
311
Id. at 2759-60.
310
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Notre Dame’s claim fails the RFRA test and fails under the standard
for granting preliminary injunctions.
Furthermore, if Notre Dame and other like religious nonprofits were granted a preliminary injunction every time they objected
to an accommodation granted to it by the government, this would lead
to a slippery slope where religious accommodations would suffocate
laws. It would threaten to swallow the rule for RFRA and the high
standard that the courts have set for granting injunctive relief. As the
Tenth Circuit aptly noted: “Law accommodates religion; it cannot
wholly exempt religion from the reach of the law.”312
312
United States v. Friday, 525 F.3d 938, 960 (10th Cir. 2008).
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PLEAD GUILTY, YOU COULD FACE
DEPORTATION: SEVENTH CIRCUIT RULES
MISADVICE AND NONADVICE TO NON-CITIZENS
HAS SAME EFFECT UNDER THE SIXTH
AMENDMENT
DANA CRONKITE*
Cite as: Dana Cronkite, Plead Guilty, You Could Face Deportation: Seventh Circuit
Rules Misadvice and Nonadvice to Non-Citizens Has Same Effect Under the Sixth
Amendment, 10 SEVENTH CIRCUIT REV. 145 (2014), at http://www.kentlaw.iit.edu
/Documents/Academic Programs/7CR/v10-1/cronkite.pdf.
INTRODUCTION
The Sixth Amendment of the United States Constitution provides,
among other things that, “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the assistance of counsel for his
defense.”1 The “assistance of counsel” clause originally meant that
defendants in federal criminal cases had the right to be assisted by
* J.D. candidate, May 2015, Chicago-Kent College of Law, Illinois Institute of
Technology; member of the CHICAGO-KENT LAW REVIEW; University of Nevada,
Las Vegas, B.A., Political Science, 2011.
1
U.S. CONST. amend. VI (emphasis added) (“In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the assistance
of counsel for his defense”).
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their own counsel.2 It initially only applied to federal cases because the
Bill of Rights did not apply to the states until the early 1920s when the
Supreme Court started to incorporate those rights using the Due
Process Clause of the Fourteenth Amendment.3 Consequently, there
were no Sixth Amendment claims regarding the sufficiency of counsel
in federal cases for over a century after the Sixth Amendment was
ratified.4 Many states, however, had assistance-of-counsel statutes in
place guaranteeing counsel in certain circumstances, usually for
capital cases or indigent defendants.5 Although there were several
successful ineffective assistance of counsel claims brought in state
courts,6 those claims generally failed.7 However, the state cases that
were successful led to widespread acceptance that the right to counsel
clause of the Sixth Amendment meant effective assistance of counsel.8
In 1932, the Supreme Court applied the right to counsel to a state
court conviction.9 In Powell v. Alabama, nine African American men
were accused of raping two white women.10 At that time, rape was a
capital offense,11 but the defendants were completely cut off from their
families and were never formally appointed counsel.12 The trial court
judge “appointed all the members of the bar for the purpose of
arraigning the defendants” and assumed that someone would step in to
defend the men.13 Eventually two lawyers did volunteer to represent
2
Sanjay K. Chhablani, Disentangling the Right to Effective Assistance of
Counsel, 60 SYRACUSE L. REV. 1, 5 (2009) (citing Bute v. Illinois, 333 U.S. 640, 661
n.17 (1948)).
3
Id. at 6.
4
Id. at 5.
5
Id. at 6.
6
Id. at 6-7; see, e.g., Roper v. Territory, 33 P. 1014, 1016 (N.M. 1893); People
v. Nitti, 143 N.E. 448, 453 (Ill. 1924).
7
Chhablani, supra note 2, at 6-7.
8
Id. at 10.
9
Powell v. Alabama, 287 U.S. 45 (1932).
10
Id. at 49.
11
Id. at 50.
12
Id. at 49, 52-53.
13
Id. at 49.
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the accused men, but were not given time to investigate or prepare a
defense.14 Additionally, the accused were not able to meet with the
lawyers before the trials started.15 The trials lasted only one day each,
and all of the men were convicted.16 All but one of the accused was
sentenced to death.17 The Supreme Court held that the men were “not
accorded the right to counsel in any substantial sense”18 because the
lower court’s vague appointment precluded any effective assistance to
the defendants.19
Finally, in 1942 the Supreme Court found that the Sixth
Amendment encompassed the right to effective assistance of counsel in
federal criminal cases in Glasser v. United States.20 Following Powell
and Glasser, the Supreme Court decided several cases concerning
effective assistance of counsel, but did not establish a standard for
lower courts to determine what was considered “effective.”21 The lack
of a standard prompted the lower courts to establish the “farce and
mockery” standard to determine ineffective assistance of counsel
claims.22 The “farce and mockery” standard was developed by the
Court of Appeals for the District of Columbia, and provided that, to
state a claim of ineffective assistance of counsel, the case must shock
the conscience “with exceptional circumstances showing the
proceedings were a farce and a mockery of justice.”23 This standard
posed a significant hurdle for defendants, and reflected courts’
presumptions that attorneys were providing satisfactory aid to
14
Id. at 53.
Id.
16
Id. at 50.
17
Id. at 50.
18
Id. at 58.
19
Chhablani, supra note 2, at 11.
20
Glasser v. United States, 315 U.S. 60, 68 (1942).
21
Chhablani, supra note 2, at 13. See, e.g., Hawk v. Olson, 326 U.S. 271
(1945); White v. Ragen, 324 U.S. 760 (1945).
22
Chhablani, supra note 2, at 13-14.
23
Patrick S. Metze, Speaking Truth to Power: the Obligation of the Courts to
Enforce the Right to Counsel at Trial, 45 TEX. TECH L. REV. 163, 187 (2012).
15
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clients.24 Eventually, when analyzing the right to counsel under the
Due Process Clause, several states imposed the requirement that
prejudice is required to state a claim for ineffective assistance of
counsel under the “face and mockery” test.25 This requirement is
significant because “irrespective of how poor counsel's conduct may
have been, if the defendant was not harmed, there was no
constitutional violation and therefore nothing to guide future
conduct.”26 The lower courts moved from the “farce and mockery” test
under the Due Process Clause to the reasonable competence test under
the Sixth Amendment in the 1970s.27 The reasonable competence test
provides that “trial counsel fails to render effective assistance when he
does not exercise the customary skills and diligence that a reasonably
competent attorney would perform under similar circumstances.”28
The “farce and mockery” test was increasingly found to be too high a
burden for defendants making out ineffective assistance of counsel
claims.29 The reasonable competence test was supposed to be more
lenient than the previous test; however, many circuit courts concluded
the two standards were basically the same.30
The right to effective assistance of counsel is imperative in
protecting the fundamental right to a fair trial.31 An attorney’s
expertise is necessary to provide defendants with an opportunity to
defend their case.32 This is why the Supreme Court interpreted the
Sixth Amendment to mean that criminal defendants have the right to
be appointed counsel if they cannot retain their own.33 However, an
24
Chhablani, supra note 2, at 15.
See, e.g., United States v. Lovasco, 431 U.S. 783, 790 (1977).
26
Chhablani, supra note 2, at 17.
27
Id. at 20-21.
28
Trapnell v. United States, 725 F.2d 149, 155 (2d Cir. 1983) (quoting United
States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976)).
29
Chhablani, supra note 2, at 23-24.
30
Id. at 22, 24.
31
Strickland v. Washington, 466 U.S. 668, 685 (1984).
32
Id.
33
Id. See also Argersinger v. Hamlin, 407 U.S. 25 (1972).
25
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attorney’s presence is not all that is required by the Constitution.34 An
attorney’s presence and assistance is necessary to ensure that the
defendant receives a fair trial.35 The Gideon v. Wainwright decision
suggests that “counsel must provide clients with advice about
substantive legal issues and the intricacies of criminal procedure and
must serve as advocates, guiding clients in the strategic and tactical
decision making involved in trials.”36 By rendering ineffective
assistance of counsel, an attorney deprives a defendant of his or her
Sixth Amendment Constitutional right.37 Finally, in 1984, the Supreme
Court decided Strickland v. Washington.38 Strickland laid out a
framework now used for determining what constitutes ineffective
assistance of counsel.39
Until 2010, Sixth Amendment ineffective assistance of counsel
claims were analyzed under the two-prong test laid out in Strickland.40
Under Strickland, a defendant must show: (1) ineffective counsel
whose conduct fell below an objective standard of reasonableness, and
(2) that counsel’s deficient performance resulted in prejudice to the
defense.41 In other words, to state a claim under Strickland, a lawyer’s
mistakes must be so serious that the defendant is deprived of a fair
trial.42
The first prong of Strickland is analyzed using a reasonableness
standard.43 Courts look at “prevailing professional norms”44 to
34
Id.
Id.
36
Chhablani, supra note 2, at 17 (discussing the Supreme Court’s holding in
Gideon v. Wainwright, 372, U.S. 335 (1963), that not providing counsel deprives
defendants’ access to counsel’s expertise, and thus the shot at a fair trial).
37
Strickland, 466 U.S. at 686.
38
Id.
39
Id. at 674.
40
Id. at 687-88.
41
Id. at 687.
42
Id.
43
Padilla v. Kentucky, 559 U.S. 356, 366 (2010).
44
Id.
35
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determine whether an attorney’s actions are reasonable. There is a
strong presumption in favor of attorneys’ reasonableness.45 To satisfy
the second prong of Strickland, a defendant must demonstrate that
“there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”46
Although criminal defendants are guaranteed the effective
assistance of counsel,47 courts have limited that right through use of
the collateral consequences doctrine.48 The collateral consequences
doctrine is used to determine the circumstances in which a criminal
defendant may challenge his counsel’s effectiveness under the Sixth
Amendment.49 However, the Supreme Court has never used the
doctrine in its analysis of Sixth Amendment claims.50 Most federal and
state courts have determined that the Sixth Amendment right to
effective assistance of counsel applies only to direct, not collateral,
consequences of a criminal conviction.51 The difference between direct
and collateral consequences is often hard to discern.52 Generally, direct
consequences are defined as “definite, immediate and largely
automatic effect[s] on the range of a defendant’s punishment.”53
Examples of direct consequences include criminal punishments such
as jail time, probation, imprisonments, and fines.54 On the other hand,
collateral consequences are civil sanctions, as opposed to penal
45
Chhablani, supra note 2, at 35.
Id. (quoting Strickland, 466 U.S. at 694).
47
See Hill v. Lockhart, 474 U.S. 52, 56-58 (1985) (The Supreme Court held
that criminal defendants are guaranteed the right to effective assistance of counsel
when pleading guilty under the Sixth Amendment).
48
Allison C. Callaghan, Padilla v. Kentucky: A Case for Retroactivity, 46 U.C.
DAVIS L. REV. 701, 708 (2012).
49
Id.
50
Padilla, 559 U.S. at 365 (“We, however, have never applied a distinction
between direct and collateral consequences to define the scope of
constitutionally ‘reasonable professional assistance’ required under Strickland.”).
51
Callaghan, supra note 48 at 708.
52
Id. (internal quotation marks omitted).
53
Callaghan, supra note 48, at 708.
54
Id. at 708-709.
46
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sanctions.55 Collateral consequences commonly “[stem] from the fact
of conviction, rather than the explicit punishment issued by the
court.”56 In other words, they are “indirect consequences” of criminal
convictions.57 These consequences affect the convicted individual’s
civil, political, social, and economical rights.58 Thus, deportation is
considered a collateral consequence, as it is borne out of a criminal
conviction.59 Consequently, up until 2010, Sixth Amendment
ineffective assistance of counsel relief was not available to noncitizen
criminal defendants on the basis of non-advice or misadvice
concerning deportation.60
In 2010, the Supreme Court decided Padilla v. Kentucky. In
Padilla, the Court determined that deportation has a distinct nature,
which warrants special consideration under the first prong of the
Strickland test.61 Under Padilla, an attorney must advise a noncitizen
client of the risk of deportation when they are considering taking a
plea deal.62 This is partially due to the fact that “deportation is a
55
Id. at 709.
Id. See also Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance
of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 699700 (2002) (comparing the effects of direct consequences to those of collateral
consequences).
57
Michael Pinard, An Integrated Perspective on the Collateral Consequences
of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated
Individuals, 86 B.U.L. REV. 623, 634 (2006) (citing Michael Pinard, Broadening the
Holistic Mindset: Incorporating Collateral Consequences and Reentry into Criminal
Defense Lawyering, 31 FORDHAM URB. L.J. 1067, 1073 (2004)).
58
Callaghan, supra note 48 at 709 (citing Margaret E. Finzen, Systems of
Oppression: The Collateral Consequences of Incarceration and Their Effects on
Black Communities, 12 GEO. J. ON POVERTY L. & POL’Y 299, 307-08 (2005)).
59
Id.
60
Chin & Holmes, supra note 56 at 706-708 (2002) (listing jurisdictions that
have held defense counsel only need to explain direct consequences of a conviction
to satisfy the Sixth Amendment)).
61
Padilla v. Kentucky, 559 U.S. 356, 365 (2010).
62
Id.
56
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particularly severe penalty.”63 It is also due to the “intimate connection
between criminal convictions and the resulting, nearly mechanical,
civil penalty of deportation.”64
The extreme importance of the Padilla rule is highlighted by the
changes in the United States’ immigration law.65 Traditionally, there
were few types of offenses that resulted in deportation.66 However, as
immigration reform has become more prevalent, more types of
offenses have become deportable, making it necessary to allow
noncitizen’s potential relief under the Sixth Amendment.67 Now,
noncitizens face an increased likelihood of being deported after a
criminal conviction because of the evolution of immigration law and
the virtually nonexistent discretionary relief that once existed in our
laws.68
At the outset of the United States, immigration was widespread
and unhampered.69 Even early attempts to regulate deportation of
potentially dangerous immigrants were met with disapproval.70 As
time progressed, Congress began to enact statutes regulating
immigration, such as prohibiting people convicted of felonies from
entering the United States.71
Immigration law changed entirely when Congress passed the
Immigration Act of 1917.72 Before 1917, immigration law dealt with
63
Id. (quoting Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893)
(internal quotation marks omitted)).
64
Callaghan, supra note 48, at 711.
65
Padilla, 559 U.S. at 364.
66
Id. at 360.
67
Id.
68
See id. at 363.
69
Id. at 360 (citing C. Gordon & H. Rosenfield, Immigration Law and
Procedure § 1.(2)(a), pg. 5 (1959)).
70
See, e.g., id. (discussing the unpopularity of the Act of June 25, 1978, ch. 58,
1 Stat. 571, which allowed the President the power to deport immigrants “he
judge[d] dangerous to the peace and safety of the United States.”).
71
Id. (discussing early immigration laws passed by Congress).
72
Id. at 361 (citing S. Rep. No. 151, 81st Cong., 2d Sess., 54-55 (1950)).
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preventing certain people from immigrating to the United States,73 as
opposed to removing existing immigrants from the United States. The
Immigration Act of 1917 made convictions for crimes involving moral
turpitude deportable offenses for the first time.74
While the Act did allow for deportations, it also had procedural
safeguards for immigrants.75 Judges were able to make
recommendations either at sentencing or within 30 days that certain
noncitizens be exempt from deportation.76 This safeguard was meant
to prevent unjust deportations.77 Although they were termed “judicial
recommendations against deportation,”78 these recommendations in
practice were binding and the Act was “consistently . . . interpreted as
giving the sentencing judge conclusive authority to decide whether a
particular conviction should be disregarded as a basis for
deportation.”79 Judicial discretion, combined with Congress’s failure
to define “moral turpitude,” meant that there was no automatic
deportation for any offense.80
Starting in 1952 with the 1952 Immigration and Nationality Act,
Congress began to eliminate the discretionary power of judges to
recommend that certain “aliens” not be deported.81 By 1990, Congress
had completely eliminated the judicial discretionary power.82
Continuing this pattern, Congress next disposed of a similar
73
Id. at 360-61 (noting statutes passed prior to 1917 banned convicts,
prostitutes, and those who committed crimes involving moral turpitude from
entering the country).
74
Id. at 361 (“Section 19 of the 1917 Act authorized the deportation of ‘any
alien who is hereafter sentenced to imprisonment for a term of one year or more
because of conviction in this country of a crime involving moral turpitude,
committed within five years after the entry of the alien to the United States . . . .’”).
75
Id.
76
Id.
77
Id.
78
Id. at 361-62 (emphasis added).
79
Id. at 362 (quoting Janvier v. United States, 793 F.2d 449, 452 (CA2 1986)).
80
Id.
81
Id. at 363.
82
Id. (citing 104 Stat. 5050).
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discretionary power held by the Attorney General in 1996.83 The
Attorney General had used that power to help over 10,000 noncitizens
avoid deportation between 1991 and 1995.84 Since the 1996 law,
deportation is virtually certain for noncitizens that commit deportable
offenses.85 Because of this virtual certainty, and the “drastic measure”
of deportation86, it is imperative that attorneys inform their noncitizen
clients of the risks of pleading guilty to criminal offenses.
First, this Comment will discuss the history of Sixth Amendment
ineffective assistance of counsel claims, specifically with regard to
deportation. Next it will discuss the Seventh Circuit’s decision,
Chavarria v. United States, which addresses misadvice and non-advice
to noncitizens about deportation risks associated with plea bargains.
Finally, this Comment will argue that the Seventh Circuit correctly
decided Chavarria in light of the Supreme Court’s decisions in Padilla
v. Kentcuky and Chaidez v. United States, though the outcome is
contrary to the intent of Padilla.
BACKGROUND
This background section provides an overview of the cases
leading up to the Seventh Circuit’s decision in Chavarria v. United
States. It begins with the Supreme Court case Padilla v. Kentucky,
which established a distinct rule for Sixth Amendment right to
effective assistance of counsel in criminal cases involving noncitizens.
It then discusses the effect of Padilla and the resulting circuit split.87
Finally, this section will discuss the Seventh Circuit’s decision in
83
Id. (citing 110 Stat. 3009-596).
Id. (citing INS v. St. Cyr, 533 U.S. 289, 296, 121 S. Ct. 2271, 150 L. Ed. 2d
347 (2001)).
85
Id. at 363-364.
86
Id. at 360.
87
Callaghan, supra note 48 at 716 (noting “more than twenty-eight federal
courts and sixteen state courts have reached opposing conclusions regarding whether
Padilla is retroactively applicable”); see also id. at note 89 (listing district and state
court cases which reached opposing results regarding Padilla’s retroactivity).
84
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Chaidez v. United States and the Supreme Court’s subsequent
affirmation.
A. Padilla v. Kentucky established that attorneys must inform their
noncitizen clients about the risks of deportation associated with pleabargaining.
In 2010, the Supreme Court greatly impacted immigration law
with its decision in Padilla v. Kentucky. The Petitioner, Jose Padilla,
was born in Honduras, but had been living in the United States for
over 40 years at the time of his arrest and even served as a soldier in
the Vietnam War.88 He was arrested when he was found to be
transporting marijuana in his tractor-trailer in Kentucky.89 Padilla pled
guilty to the drug charges on his attorney’s advice.90 The charge he
faced unambiguously provided,
Any alien who at any time after admission has been convicted
of a violation of (or a conspiracy to or attempt to violate) any
law or regulation of a State, the United States, or a foreign
country relating to a controlled substance . . . , other than a
single offense involving possession for one’s own use of 30
grams or less of marijuana, is deportable.91
His guilty plea to the drug charges meant that he would almost
certainly face deportation, despite his attorney informing him that he
“did not have to worry about immigration status since he had been in
the country so long.”92 Padilla alleged he would have proceeded to
trial had he been advised of the consequences of his plea bargain.93
Indeed, the Court noted that “[p]reserving the client’s right to remain
88
Padilla, 559 U.S. at 359.
Id.
90
Id.
91
Id. at 368 (quoting 8 U.S.C. § 1227 (a)(2)(B)(i)).
92
Id. at 359 (internal quotation marks omitted).
93
Id.
89
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in the United States may be more important to the client than any
potential jail sentence.”94 The petitioner in Padilla claimed ineffective
assistance of counsel in violation of his Sixth Amendment rights
because his attorney told him that pleading guilty to drug distribution
charges would not affect his immigration status.95 The Supreme Court
of Kentucky determined that Padilla was not entitled to postconviction relief because the Sixth Amendment does not protect
criminal defendants from collateral consequences of convictions.96
Since the Supreme Court of Kentucky deemed deportation a collateral
consequence rather than a direct one, it found that the Sixth
Amendment did not apply to Padilla’s claim.97
The Supreme Court faced the issue of whether Jose Padilla’s
attorney had the duty to inform him that guilty plea he was accepting
for the drug charges would lead to his deportation. Unlike the Supreme
Court of Kentucky, the Supreme Court found that deportation
possesses a unique nature, which makes it incompatible with the
collateral consequence doctrine.98 The Court therefore concluded that
advice concerned with deportation falls under the Sixth Amendment’s
guarantee of effective assistance of counsel under Strickland.99
Therefore, the Court held that counsel must inform a client about the
risk of deportation when advising on matters concerning criminal
convictions.100
The Supreme Court began by analyzing Padilla’s claim using the
Strickland two-part test. It found that “[t]he weight of prevailing
professional norms supports the view that counsel must advise her
94
Id. at 368 (quoting St. Cyr, 533 U.S. 289, 322 (2001) (internal quotation
marks omitted)).
95
Chaidez v. United States (“Chaidez I”), 655 F.3d 684, 687 (7th Cir. 2011),
aff’d, 133 S. Ct. 1103 (2013).
96
Id. at 359.
97
Id. at 365.
98
Id. at 366.
99
Callaghan, supra note 48 at 711 (citing Padilla, 559 U.S. at 367).
100
Id.
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client regarding the risk of deportation.”101 Additionally, given the
clarity of the statute that Padilla was charged under, it would have
been simple for his attorney to conclude that pleading guilty would
result in deportation.102 Padilla demonstrated that his attorney’s
conduct fell below an objectively reasonable standard103 and,
therefore, satisfied the first prong of Strickland.104 The Court did not,
however, determine if Padilla was entitled to relief under the new rule
because they did not reach the second prong of Strickland.105
The Supreme Court held that lawyers for noncitizens must inform
their clients whether accepting a plea bargain risks deportation.106
Ultimately, the Court declared that the noncitizen claiming ineffective
assistance of counsel under this new rule must show prejudice,107 such
as a showing that he or she would not have pled guilty knowing the
risks involved, for example.108
101
Padilla, 559 U.S. at 367 (citing NATIONAL LEGAL AID AND DEFENDER
ASSN., PERFORMANCE GUIDELINES FOR CRIMINAL DEFENSE REPRESENTATION § 6.2
(1995); G. HERMAN, PLEA BARGAINING § 3.03, pp. 20-21 (1997); Chin & Holmes,
supra, note 56, at 713-718; A CAMPBELL, LAW OF SENTENCING § 13:23 pp. 555, 560
(3d ed. 2004); DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, 2 COMPENDIUM OF
STANDARDS FOR INDIGENT DEFENSE SYSTEMS, STANDARDS FOR ATTORNEY
PERFORMANCE, pp. D10, H8-H9, J8 (2000) (providing survey of guidelines across
multiple jurisdictions); ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION
FUNCTION AND DEFENSE FUNCTION 4-5.1(a), p. 197 (3d ed. 1993); ABA STANDARDS
FOR CRIMINAL JUSTICE, PLEAS OF GUILTY 14-3.2(f), p. 116 (3d ed. 1999)).
102
Id. at 368-69.
103
Id. at 367 (“The weight of prevailing professional norms supports the view
that counsel must advise her client regarding the risk of deportation.”).
104
Id. at 369.
105
Id. at 360.
106
Id. at 374.
107
Id. at 360.
108
24-611 Moore’s Federal Practice – Criminal Procedure § 611.06, pg. 11.
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B. Chaidez I: The Seventh Circuit determined that the Padilla rule did
not apply retroactively.
After Padilla, the lower courts were split on whether Padilla’s
rule would apply retroactively.109 In Chaidez v. United States, the
petitioner moved to the United States from Mexico and became a
lawful permanent resident in 1977.110 In 2003, Petitioner-Chaidez was
indicted on three counts of mail fraud and pled guilty on the advice of
counsel.111 Chaidez was sentenced to four years of probation in 2004,
which she did not appeal.112 In 2009, the government began removal
proceedings against Chaidez113 based on a federal law that allows for
deportation of aliens convicted of aggravated felonies after entering
the United States.114
After deportation proceedings were initiated against her, Chaidez
tried to overturn her conviction.115 In 2010, she filed a writ of coram
nobis,116 in which she alleged ineffective assistance of counsel because
109
See e.g., Chaidez v. United States (“Chaidez I”), 655 F.3d 684, 687 (7th
Cir. 2011); see also United States v. Orocio, 645 F.3d 630, 2011 WL 2557232, at *7
(3d Cir. June 29, 2011) (“holding that [Padilla] simply applied the old [Strickland]
rule, such that it is retroactively applicable on collateral review”); United States v.
Diaz-Palmerin, 2011 U.S. Dist. LEXIS 37151 (N.D. Ill. April 5, 2011) (stating that
Padilla did not apply a new rule); Martin v. United States, 2010 U.S. Dist. LEXIS
87706 (C.D. Ill. Aug. 25, 2010) (stating that Padilla did not apply a new rule);
United States v. Chavarria, 2011 U.S. Dist. LEXIS 38203, 2011 WL 1336565 (N.D.
Ind. April 7, 2011) (stating that Padilla did not apply a new rule). But see United
States v. Laguna, 2011 U.S. Dist. LEXIS 38856, 2011 WL 1357538 (N.D. Ill. April
11, 2011) (Padilla announced a new rule).
110
Chaidez I, 655 F.3d at 686.
111
Id.
112
Id.
113
Id. (Chaidez’s mail fraud constituted an aggravated felony because it
involved loss in excess of $10,000).
114
8 U.S.C. § 1227(a)(2)(A)(iii).
115
Chaidez I, 655 F.3d at 686.
116
Id. at 686-87 (“The writ of coram bonis, available under the All Writs Act,
28 U.S.C. § 1651(a), provides a method for collaterally attacking a criminal
158
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her attorney did not warn her that she could be deported as a result of
her guilty plea.117 The Supreme Court decided Padilla while Chaidez’s
motion was pending. The district court determined that Padilla was
not a new rule so it applied Padilla to Chaidez’s motion and vacated
her conviction.118 The government appealed that decision and claimed
that Padilla did announce a new rule and is therefore not
retroactive.119
The Seventh Circuit analyzed Chaidez I under Teague v. Lane,
which determined whether constitutional rules of criminal procedure
are retroactive.120 Under the Teague analysis, “a constitutional rule of
criminal procedure applies to all cases on direct and collateral review
if it is not a new rule, but rather an old rule applied to new facts,”
whereas a new rule generally only applies to cases on direct review. 121
A rule is new when it lacks precedential support at the time the
defendant’s conviction is final.122 In sum, the Teague analysis looks
(1) to when the defendant’s conviction became final; (2) to whether
there was agreement among courts before the new rule was
announced; and (3) if the rule is determined to be new, whether one of
two exceptions to non-retroactivity apply.123 The first exception allows
a new rule retroactive effect if “it addresses a substantive categorical
guarantee accorded by the Constitution.”124 The second exception
applies if “fundamental fairness and accuracy of the criminal
proceeding” is involved.125
conviction when a defendant is not in custody, and thus cannot proceed under 28
U.S.C. § 2255.”).
117
Id. at 686.
118
Id.
119
Id.
120
Id. at 688 (citing Whorton v. Bockting, 549 U.S. 406, 416 (2007)).
121
Id.
122
Id. (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)).
123
Callaghan, supra note 48, at 713.
124
Id. at 714-715.
125
Id. at 715.
159
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To determine retroactivity, the court inquired if Padilla was
subject to “debate among reasonable minds.”126 Reasonable debate
may be indicated by lower courts being split on the issue or lack of
unanimity on the Supreme Court in deciding the case.127 Based on this,
the Seventh Circuit determined that the Padilla rule was a new rule.128
It discussed the fact that the Padilla opinion had both a concurrence
and dissent, in addition to the majority suggesting that the rule was not
“dictated by precedent.”129 The court also noted that the definition of
an old rule is defined narrowly, only including “those holdings so
compelled by precedent that any contrary conclusion must be deemed
unreasonable.”130 Further, it cites the handling of pre-Padilla Sixth
Amendment cases, which only required attorneys to provide advice on
direct consequences of guilty pleas.131 Since it determined Padilla did
not announce a new rule under the Teague analysis, the Seventh
Circuit reversed the lower court’s decision to vacate Chaidez’s
conviction.
C. Chaidez II: The Supreme Court affirms the Seventh Circuit holding
that Padilla is not retroactive.
The Supreme Court granted certiorari in the Seventh Circuit’s
case, Chaidez I to resolve the circuit split regarding Padilla’s
retroactivity. Many believed that the Supreme Court would find the
Padilla rule to be retroactive, based on the language used in the
Padilla decision.132 The Court acknowledged the government’s
concern with keeping convictions from plea-bargaining final, but
126
Chaidez I, 655 F.3d at 688.
Id. at 689.
128
Id.
129
Id.
130
Id. at 694.
131
Id. at 690.
132
See, e.g., Callaghan, supra note 48; N.Y. Times, Subject to Deportation,
N.Y. TIMES OPINION PAGES, Nov. 1, 2012, available at
http://www.nytimes.com/2012/11/02/opinion/the-supreme-court-on-deportationlaw.html?_r=0.
127
160
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rejected this concern.133 It stated that the rule would not “open the
floodgates to challenges obtained through plea bargains.”134
Contrary to that belief, the Supreme Court found that Padilla is a
new rule, and thus not retroactive.135 The Court reasoned that while
usually applications of Strickland to new facts did not create new
rules, Padilla did something more than simply apply the Strickland
test.136 Padilla first determined if Strickland even applied to
deportation.137 Padilla rejected what lower courts seemed to agree on:
that deportation is a collateral consequence and is thus out of reach of
the Sixth Amendment.138 Given the decisions of the lower courts, and
Padilla’s rejection of those decisions, the Supreme Court determined,
using Teague, that the Padilla rule was indeed new as it was “not
apparent to all reasonable jurists prior to our decision.”139 The Seventh
Circuit’s Chaidez I decision was affirmed.140
CHAVARRIA V. UNITED STATES
This section will discuss the Seventh Circuit’s decision in
Chavarria v. United States when it determined whether there was a
distinction between misadvice and nonadvice for purposes of the rule
set forth in Padilla v. Kentucky.
133
Padilla v. Kentucky, 559 U.S. 356, 358 (2010).
Id. at 371.
135
Chaidez v. United States (“Chaidez II”), 133 S. Ct. 1103, 1108 (2013).
136
Id.
137
Id.
138
Id. at 1111.
139
Id. (quoting Lambrix v. Singletary, 520 U.S. 518 , 527-528 (1997) (internal
quotation marks omitted)).
140
Id.
134
161
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A.
Fall 2014
Factual History
Julio Cesar Chavarria was born in Mexico, but became a resident
of the United States in 1982.141 Chavarria was charged with four
counts of distributing cocaine in 2009.142 He pled guilty to the
charges.143 After Chavarria’s plea, the Supreme Court decided Padilla
v. Kentucky.144 After Padilla was announced, Chavarria filed a pro se
motion based on 28 U.S.C. § 2255.145
Chavarria purported that when he inquired about deportation, his
attorney responded that he did not need to worry about removal as the
Bureau of Immigration and Customs Enforcement “said they were not
interested in deporting him.”146 Chavarria also filed a Petition to Stay
Deportation Proceedings, but was deported before he could be
appointed an attorney.147
B.
Procedural History
The United States attempted to dismiss Chavarria’s § 2255
motion, arguing that the Supreme Court’s Padilla decision created a
new, proactive rule.148 The district court denied the United States’
motion to dismiss, holding that the Padilla rule could be applied
retroactively.149
141
Chavarria v. United States, 739 F.3d 360, 361 (7th Cir. 2014).
Id.
143
Id.
144
Id.
145
Id. A motion filed under 28 U.S.C. § 2255 is a motion to vacate, set aside or
correct a sentence. It is only available to those serving a federal sentence. See the
federal form Motion to Vacate, Set Aside, or Correct a Sentence By a Person in
Federal Custody, available at
http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO243.pdf).
146
Chavarria, 739 F.3d at 361 (internal quotation marks omitted).
147
Id.
148
Id.361-62.
149
Id. at 362.
142
162
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Following the district court’s decision, the Seventh Circuit
decided Chaidez I in 2011, holding that Padilla was a new rule and
thus, not to be applied retroactively.150 Based on the Chaidez I ruling,
the district court vacated its previous ruling and dismissed Chavarria’s
§ 2255 motion.151 Chavarria then appealed the district court’s ruling,
as well as the Seventh Circuit’s Chaidez decision.152 Unfortunately for
Chavarria, in the meantime, the Supreme Court granted certiorari in
Chaidez I and affirmed the Seventh Circuit’s holding that the Padilla
case issued a new rule, thereby barring retroactivity.153
Since the Supreme Court’s affirmation of Chaidez I eliminated his
retroactivity argument, Chavarria next argued that there is a distinction
between non-advice and misadvice.154 Chavarria claimed that if an
attorney does not provide any advice regarding deportation
consequences, the new, proactive Padilla rule applies.155 However, if
the attorney provides misadvice, or bad advice, “pre-Padilla law”
applies.156 Essentially, Chavarria was claiming that Padilla does not
apply to his case, therefore making it irrelevant that Padilla was found
not to apply retroactively.157 Rather, he claimed his case, like all other
affirmative misrepresentation claims, should have ben analyzed under
Strickland.158 Chavarria based this argument on several other circuit
court decisions, which held that “pre-Padilla, misstatements about
deportation could support an ineffective assistance claim.”159 The
court rejected this because those cases merely found that a lawyer
150
Id. (See Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), aff’d, 133
S. Ct. 1103 (2013)).
151
Id.
152
Id.
153
Id.
154
Id.
155
Id.
156
Id.
157
Id.
158
Id.
159
Id. (stating “[t]rue enough, three federal circuits . . . held before Padilla that
misstatements about deportation could support an ineffective assistance claim.”)
(citing Chaidez v. United States (“Chaidez II”), 133 S. Ct. 1103, 1112 (2013).
163
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could not mislead his client on anything significant relating to a
criminal prosecution.160
C.
Seventh Circuit’s Conclusion
The Seventh Circuit was not persuaded by Chavarria’s distinction
between misadvice and non-advice.161 First, it cites to Padilla, noting
that the Supreme Court made no distinction between the two terms.162
Since the Court did not distinguish misadvice from non-advice, that
indicated to the Seventh Circuit that the rule applied to all forms of
advice concerning deportation matters.163
Next, it concluded that under Teague v. Lane, the precedent before
Padilla “supporting the application of Strickland in this context” was
insufficient.164 Under Teague v. Lane, for a rule to be applied
retroactively, it must “be supported by ample existing precedent.”165
As it mentioned in Chaidez I, lower courts consistently found
deportation to be a collateral consequence in pre-Padilla days,
therefore indicating lack of precedent.166
Finally, the Seventh Circuit noted that the facts of Padilla v.
Kentucky relating to the lawyer’s advice were essentially the same as
the facts that Chavarria alleges.167 In other words, in both cases, the
attorneys allegedly provided their immigrant clients with faulty advice
concerning their removal risks. In Padilla, the attorney advised his
noncitizen client that he would not be deported because he had been in
the country for over 40 years.168 The Seventh Circuit stated, “. . .
160
Id. (quoting Chaidez II, 133 S. Ct. at 1112).
Id.
162
Id.
163
Id. at 362-63.
164
Id. at 362 (citing Teague v. Lane, 489 U.S. 288, 301 (1989)).
165
Id. (citing Teague v. Lane, 489 U.S. at 301).
166
Chaidez v. United States (“Chaidez I”), 655 F.3d 684, 691-692 (7th Cir.
2011).
167
Chavarria, 739 F.3d at 363.
168
Padilla v. Kentucky, 559 U.S. 356, 359 (2010).
161
164
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Chavarria is essentially asking us to hold that Chaidez held that the
Padilla rule is not retroactive except on Padilla’s own facts (which
involved misadvice).”169 Consequently, it would not make sense to
hold that the new rule created in Padilla does not apply to the facts of
Chavarria.170
ANALYSIS
The Seventh Circuit correctly decided Chavarria v. United States
because (1) the Supreme Court never made a distinction between
misadvice and nonadvice; and (2) Chavarria’s argument fails on
Padilla’s facts. However, although Chavarria was decided in
accordance with precedent, the outcome of Chaidez has led to results
that are contrary to Padilla’s true purpose.
A. The Seventh Circuit correctly decided Chavarria v. United States
based on the Chaidez v. United States precedent and the facts of
Padilla.
1. The Supreme Court never made a distinction between misadvice
and non-advice.
In Padilla, the Supreme Court never drew a line between
misadvice and non-advice.171 The Seventh Circuit attributes this to the
fact that prior to Padilla, non-citizens could not bring any Sixth
Amendment claims with regard to deportation matters;172 that type of
claim would fail Strickland’s first prong. Therefore, there was no need
to distinguish between midadvice and non-advice because either way,
there was no claim recognized under the Sixth Amendment analysis.173
169
Chavarria, 739 F.3d at 363.
Id. at 363.
171
See Padilla, 559 U.S. at 356.
172
Chavarria, 739 F.3d at 363.
173
Id.
170
165
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Not only that, but the Supreme Court affirmatively declined to limit
their holding in Padilla to misadvice because of the absurdities that
would result.174
Further, as the Seventh Circuit pointed out, the Court in Chaidez
II referred to both affirmative misadvice and non-advice in its
opinion.175 In Chaidez II, the Court, when discussing the distinction
between collateral and direct consequences states, “it should not
exempt from Sixth Amendment scrutiny a lawyer's advice (or nonadvice) about a plea's deportation risk.”176 Thus, the Supreme Court
has twice failed to recognize the difference between misadvice and
non-advice in regards to cases concerning deportation. This showed
“the Padilla majority had no intent to exclude either affirmative
misadvice or non-advice from the new rule it announced.”177
Given that the defendant in Padilla was given incorrect advice
regarding his removal by his attorney, the Seventh Circuit’s holding in
Chavarria is correct. If the court decided the other way, lower courts
would be forced to make an attenuated distinction between misadvice
and nonadvice, which would be a very fine line in some
circumstances. For example, if an attorney merely mentioned to his
client that he or she would not be deported, that could arguably be
construed as misadvice, or non-advice, if the client had no knowledge
of the risk of deportation. If there was a distinction between the two,
under Chavarria’s argument, a court would have to decide what type of
advice the attorney gave which would then determine if that client
could bring a Sixth Amendment claim. Courts should not be forced to
make this distinction, and furthermore, Padilla does not require it.
Even in cases like Chavarria where there is a clear-cut answer and the
attorney’s advice falls squarely into either misadvice or non-advice,
some noncitizens would be barred from bringing a Sixth Amendment
174
175
Id. (citing Padilla, 559 U.S. at 370-71).
Id. (citing Chaidez v. United States (“Chaidez II”), 133 S. Ct. 1103, 1110
(2013)).
176
177
Chaidez II, 133 S. Ct. at 1110.
Chavarria, 739 F.3d at 363.
166
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claim at all given that Strickland has never been applied to deportation
matters.
Additionally, if the Seventh Circuit had held the other way and
determined that there is a distinction between misadvice and nonadvice for purposes of the Padilla rule, it would either give the rule a
retroactive effect or impermissibly extend Strickland to deportation
matters. This is because people who had been deported prior to 2010
would be able to bring Padilla claims based on their lawyer’s
misadvice. This would obviously contradict the explicit holding in the
Chaidez decision, and could potentially result in the flood of litigation
the government was concerned with in Padilla.178
2. Chavarria’s argument that Padilla does not apply to his case fails on
the facts of Padilla.
The Seventh Circuit’s second reason for rejecting Chavarria’s
claim was based on the facts of both Chavarria and Padilla. Chavarria
argued that the Padilla rule did not apply to his case because he
received affirmative misadvice whereas the Padilla rule applies only
to non-advice.179 Recall that in both Padilla and Chavarria, the
petitioners were both informed by their respective attorneys that the
government was not interested in deporting them.180 Later, after
pleading guilty, both defendants in each case were deported.181
Therefore, the Padilla decision was based on Padilla’s attorney’s
misadvice.182 It would be absurd for the Seventh Circuit to find that
the Padilla rule does not apply to Padilla’s facts.
178
But see Padilla, 559 U.S. at 371 (stating that Padilla will not have a
significant effect on plea-bargains that have already been obtained).
179
Chavarria 739 F.3d at 362.
180
See Padilla, 559 U.S. at 359; Chavarria, 739 F.3d at 361.
181
Padilla, 559 U.S. at 359; Chavarria, 739 F.3d at 361.
182
Chavarria, 739 F.3d at 363.
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3. The precedent set by Chaidez v. United States has led to unfair
results that are contrary to the intent of Padilla.
Although the Seventh Circuit basically had to decide Chavarria in
the way that it did, the outcome still led to an absurd result. First,
Chavarria’s result is odd when compared to Padilla itself. The
Seventh Circuit noted the similarities in the facts between Chavarria
and Padilla, which would lead one to assume that the cases would
require the same result. However, Julio Cesar Chavarria was denied a
claim under the Sixth Amendment, despite allowing Jose Padilla a
claim (assuming he passed the second prong of Strickland). Although
the Supreme Court did determine the Padilla rule to be a new rule and
therefore not retroactive,183 it seems odd that it would intend for the
opposite result in such a strikingly similar case. The outcome of
Chavarria is directly contrary to that of Padilla. This discrepancy is
especially strange in light of the purpose of the Padilla rule, which is
to give non-citizens the constitutional protections of the Sixth
Amendment because of the “harsh” nature of deportation.184 This
interferes with the intent of Padilla. Given the extensive immigration
background the Court gave, along with the recitation of immigration
law norms, there can be no doubt the Court intended to give Sixth
Amendment constitutional rights to immigrants.
Further, the language of Padilla reads as if the Court intended for
it to be retroactive.185 This is likely at least part of the cause of the
circuit split regarding its retroactivity.186 One author even argues that
the discussion concerning “floodgates” in Padilla would be irrelevant
if the decision was meant to be prospective because it would not need
183
See Chaidez v. United States (“Chaidez II”), 133 S. Ct. 1103 (2013).
Padilla, 559 U.S. at 360.
185
See infra, BACKGROUND, section C. See also N.Y. Times, Subject to
Deportation, N.Y. TIMES OPINION PAGES, Nov. 1, 2012, available at
http://www.nytimes.com/2012/11/02/opinion/the-supreme-court-on-deportationlaw.html?_r=0.
186
See also Callaghan, supra note 48, at 703 (noting that of sixty-one courts,
both state and federal level, to rule on the issue, thirty-eight determined that the
Padilla rule was retroactive).
184
168
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to address claims that would not exist under that interpretation.187
While Padilla’s language may not mean much now because of the
subsequent Chaidez decision, it does tend to show that the Court may
have intended the rule to apply to a more people. At the very least, the
Padilla decision shows that the Court intended the rule to help out
non-citizens and immigrants who faced a particularly harsh penalty for
what could be a relatively minor crime.188
Additionally, in the Padilla case, there were concerns from the
government that the ruling would result in a flood of litigation from
previously deported non-citizens.189 This fear turned out to be
unfounded, as there were relatively few cases brought in the interim
between the Padilla and Chaidez decisions.190 Therefore, while the
same fear of increased litigation is present in Chavarria, it would also
likely be unfounded if the Seventh Circuit had ruled the opposite way.
This does not mean that the Seventh Circuit ruled incorrectly, just that
there likely would not be a flood of litigation from immigrants trying
to return to the country based on that decision.
CONCLUSION
Because the facts of Padilla were analogous to the facts of
Chavarria’s case, the Seventh Circuit had no choice but to rule the way
it did. Holding that affirmative misadvice is analyzed strictly under
Strictland, and not Padilla, would have been directly at odds with the
Supreme Court’s decision in Padilla v. Kentucky. However, the
purpose of Padilla is frustrated by the subsequent case, Chaidez II.
Similarly, Chavarria, while in accordance with precedent, impedes
Padilla’s objective – giving noncitizens the constitutional protection of
the Sixth Amendment when they are unaware and uninformed of the
risks of pleading guilty to a wide range of criminal charges.
187
Callaghan, supra note 48, at 730-31.
Padilla, 559 U.S. at 360.
189
Padilla, 559 U.S. at 369.
190
Callaghan, supra note 48 at 729-730.
188
169
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Fall 2014
KATZ AND DOGS: THE BEST PATH FORWARD IN
APPLYING UNITED STATES V. DAVIS’ GOOD FAITH
EXCEPTION TO THE EXCLUSIONARY RULE AND
HOW THE SEVENTH CIRCUIT HAS GONE ASTRAY
ARLO WALSMAN
Cite as: Arlo Walsman, Katz and Dogs: The Best Path Forward in Applying United
States v. Davis’ Good Faith Exception to the Exclusionary Rule and How the
Seventh Circuit Has Gone Astray, 10 SEVENTH CIRCUIT REV. 170 (2014), at
http://www.kentlaw.iit.edu/Documents/Academic Programs/7CR/v10-1/walsman.pdf.
INTRODUCTION
Sometimes, law enforcement officers violate the Fourth
Amendment1 and in the process find and seize evidence they wish to
use in a subsequent criminal prosecution. In these circumstances, a
question that has long troubled courts, and a question that is becoming
more and more difficult to answer, is whether such evidence should be
admissible at trial.
 Juris Doctor, May 2015, Chicago-Kent College of Law, Illinois Institute of
Technology; Member, Moot Court Honors Society, 2013–15; B.A., Political
Science, Eastern Michigan University, 2012. I would like to thank Professor Hal
Morris and McKenna Prohov for their guidance and editing. I would also like to
thank my family for their never-ending support.
1
The Fourth Amendment provides that:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.
U.S. CONST. amend. IV.
170
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In Weeks v. United States,2 the Supreme Court established that
evidence seized in violation of the Fourth Amendment was not
admissible in federal prosecutions,3 and in Mapp v. Ohio,4 the Court
extended the rule to state prosecutions.5 This rule has become known
as the exclusionary rule.6 However, in a line of cases beginning with
United States v. Leon,7 the Court has held, in a variety of different
circumstances, that evidence should not be excluded if officers are
acting in “good faith”8 or “objectively reasonably,”9 even when those
officers’ actions violate the Fourth Amendment.
For example, the Court has declined to suppress evidence, even
though the law enforcement officers’ conduct was unconstitutional,
when those officers: executed facially valid10 and invalid11 search
warrants with a good faith (but incorrect) belief that the warrants were
valid; conducted a warrantless search of a business in objectively
reasonable reliance on a state statute authorizing the search, even
when the statute was subsequently declared unconstitutional;12
arrested a suspect based on an objectively reasonable belief that a
computer record, which indicated that an outstanding warrant existed
for a suspect’s arrest, was accurate, even when that record was
inaccurate;13 and arrested a suspect based on a good faith belief that an
2
232 U.S. 383, 398 (1914).
Id. at 388–89.
4
367 U.S. 643 (1961).
5
Id. at 645–646.
6
United States v. Leon, 468 U.S. 897, 900 (1984).
7
Id. at 925.
8
See Herring v. United States, 555 U.S. 135, 147–48 (2009); Massachusetts v.
Sheppard, 468 U.S. 981, 991 (1984); Leon, 468 U.S. at 918–26.
9
See Arizona v. Evans, 514 U.S. 1, 15–16 (1995); Illinois v. Krull, 480 U.S.
340, 360–61 (1987).
10
Leon, 468 U.S. at 926.
11
Sheppard, 468 U.S. at 991.
12
Krull, 480 U.S. at 360–61 (1987).
13
Evans, 514 U.S. at15–16 (1995).
3
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arrest warrant existed in a neighboring county for the suspect, even
when the record was inaccurate and the warrant had been rescinded.14
The Court’s justification for this good faith exception to the
exclusionary rule has been twofold. First, the Court has recognized
that the exclusionary rule is not a personal constitutional right, but
instead a judicially created remedy designed to deter law enforcement
officers from committing future Fourth Amendment violations.15
Second, because of the rule’s purpose as a deterrent, the Court has
held that it should only be applied when the benefits of applying it
(deterring police misconduct) outweigh its costs (the suppression of
reliable evidence of guilt, which often results in the guilty going free
or getting reduced sentences through plea-bargaining).16 Put
differently, the Court has created the good faith exception because it
has held that punishing law enforcement by excluding evidence would
not yield any appreciable deterrent effect when officers act in good
faith, and because it has considered the suppression of evidence a
“bitter pill” for society to swallow.17
The most recent case in this line of good faith exception cases
is Davis v. United States, where the Court held that “[e]vidence
obtained during a search conducted in reasonable reliance on binding
precedent is not subject to the exclusionary rule.”18 This good faith
exception holds true even if the binding precedent the officers rely on
is subsequently overruled. For example, in Davis, the Court held that
evidence found during a search of Davis’ car incident to his arrest was
properly admitted at his trial, because at the time the search occurred
(April 2007) the police were relying on the Court’s holding in New
York v. Belton19 (decided in 1981) that such searches were
authorized.20 And, Davis held that the exclusionary rule should not
14
Herring v. United States, 555 U.S. 135, 147–48 (2009).
Leon, 468 U.S. at 906.
16
Id. at 907.
17
Davis v. United States, 131 S. Ct. 2419, 2427 (2011).
18
Id. at 2429.
19
453 U.S. 454, 460 (1981).
20
Davis, 131 S. Ct. at 2423.
15
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apply even though Belton’s holding had been subsequently limited by
Arizona v. Gant21 (decided in 2009), and that under Gant the police’s
conduct would have been unlawful.22
Because of the potential breadth of its holding, Davis is an
incredibly important case in Fourth Amendment jurisprudence, and it
has already led to a great variety of interpretations in lower courts.23
To illustrate this point, it is useful to briefly examine two key
questions posed by Davis.
The first question is, what exactly constitutes binding
precedent? If one jurisdiction lacks precedent authorizing a specific
police practice, can another jurisdiction’s precedent authorizing that
practice be considered “binding” under Davis?24 Second, if there is
binding precedent available, what are the limits of officers’ good faith
reliance on that precedent? If the Supreme Court has said that officers
may install a beeper in a package with the consent of the package’s
owner in order to monitor it for a few days without committing a
Fourth Amendment search,25 can officers rely in good faith on this
case when they install a GPS monitoring device on a suspect’s car
without his consent and use it to monitor his movements for 347
days?26
Because these questions have been answered in very different
ways, courts’ interpretations of Davis have led to very different
results.27 This Comment focuses on the Seventh Circuit’s
21
556 U.S. 332 (2009).
Davis, 131 S. Ct. at 2426.
23
Compare United States v. Martin, 712 F.3d 1080, 1082 (7th Cir. 2013)
(refusing to consider out of jurisdiction precedent as binding), with Taylor v. State,
410 S.W.3d 520, 526 (Tex. App. 2013) (accepting “federal precedent in the majority
of the federal circuit courts” as binding precedent).
24
See, e.g., United States v. Stephens, 764 F.3d 327, 338–89 (4th Cir. 2014);
Martin, 712 F.3d at 1082.
25
United States v. Knotts, 460 U.S. 276, 285 (1983).
26
See United States v. Baez, 744 F.3d 30, 36 (1st Cir. 2014) (holding that
officers could have such good faith reliance).
27
See, e.g., United States v. Aguiar, 737 F.3d 251 (2d Cir. 2013) (holding that
officers could rely in good faith on Knotts, 460 U.S. 276, and United States v. Karo,
22
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interpretation of Davis in a 2014 case, United States v. Gutierrez,
where the court held that drugs found in Gutierrez’s home were
properly admitted into evidence at his criminal trial because the
officers were relying in good faith on binding precedent.28 Consistent
with Davis, the court in Gutierrez reached this holding even though it
recognized that under a Supreme Court case29 decided after the
officers found the drugs, the officers’ conduct was unconstitutional.
This Comment suggests that Seventh Circuit read Davis too
broadly in Gutierrez, and in doing so failed to adopt the best possible
interpretation of Davis. Part A of this Comment discusses Gutierrez in
detail. Part B contains a brief history of the exclusionary rule. Part C
discusses the history of the good faith exception to the exclusionary
rule, including a detailed discussion of Davis. Part D discusses lower
courts’ applications of Davis and some of the most common questions
courts have faced when determining whether law enforcement officers
were relying in good faith on binding precedent. Part E discusses the
best path forward for courts when interpreting and applying Davis.
Finally, Part F discusses how the Seventh Circuit failed to follow this
best path when deciding Gutierrez, and how the court erred in its
analysis.
BACKGROUND
A. United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014)
In November 2012, law enforcement officers in Indiana
received a confidential tip that a man named Oscar Gutierrez was
involved in drug trafficking and resided at an address in
468 U.S. 705 (1984) when installing a GPS device onto a suspect’s car and using the
device to monitor the car’s movements); State v. Adams, 763 S.E.2d 341, 347 (S.C.
2014) (holding that officers could not rely in good faith on Knotts and Karo when
installing a GPS device onto a suspect’s car and using the device to monitor the car’s
movements).
28
760 F.3d 750, 759 (7th Cir. 2014).
29
Florida v. Jardines, 133 S. Ct. 1409 (2013).
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Indianapolis.30 Based on that tip, numerous law enforcement officers
went to Gutierrez’s home, bringing with them a certified drug
detection dog named Fletch.31 At the home, the officers knocked on
the front door and saw movement inside, but no one answered.32 A
detective named Cline then had Fletch examine Gutierrez’s front door
for the scent of drugs, and the dog gave a positive alert.33
The officers continued to knock, but after about fifteen minutes
of receiving no answer, they were instructed by the county prosecutor
to enter and secure the home.34 So, the officers forcibly entered,
conducted a sweep for occupants, found Gutierrez and a man named
Cota, and then handcuffed them and brought them to the kitchen of the
home.35 Sometime after the entry, Cline left and obtained a search
warrant in which he identified the informant’s tip, the knock-and-talk
attempt, and Fletch’s positive indication at the front door as bases for
probable cause.36 When Cline returned, the officers began their search
of Gutierrez’s home and found 11.3 pounds of methamphetamine.37
In December 2012, Gutierrez was charged with a single count
of possession with intent to distribute over fifty grams of
methamphetamine.38 In March 2013, the Supreme Court decided
Florida v. Jardines,39 in which the Court held that a dog-sniff of the
curtilage of a home is a Fourth Amendment search for which a warrant
is ordinarily required.40 So, two months after Jardines was decided,
Gutierrez filed a motion to suppress arguing that the officers were
30
Gutierrez, 760 F.3d at 752.
Id.
32
Id.
33
Id.
34
Id.
35
Id.
36
Id. at 752.
37
Id.
38
Id. at 753.
39
133 S. Ct. 1409.
40
Gutierrez, 760 F.3d at 753 (citing Jardines, 133 S. Ct. at 1414).
31
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required to get a warrant before having Fletch sniff his home, and that
any evidence recovered inside his home should be suppressed.41
The district court denied his motion, holding that because at
the time of the dog-sniff the officers were relying in good faith on
binding judicial precedent, the exclusionary rule did not apply.42
Gutierrez then entered into a conditional guilty plea, allowing him to
appeal the district court’s denial of his motion.43
On appeal, the Seventh Circuit affirmed the decision of the
district court.44 First, the court discussed the history of the
exclusionary rule, and the Court’s recent decision in Davis.45 In Davis,
which is discussed in more detail in Part C-2, the Court held that if law
enforcement officers “conduct a search in objectively reasonable
reliance on binding judicial precedent,” the exclusionary rule does not
bar the admission of evidence found during that search, even if the
judicial precedent is later held invalid.46 Given this rule, the Gutierrez
court held that “the evidence in Gutierrez’s case should not be
suppressed if binding appellate precedent authorized the officers’
conduct.”47
So, the court next had to review the Circuit’s relevant
precedent, United States v. Brock,48 to determine whether the case was
binding in November 2012 when Fletch sniffed Gutierrez’s front door,
and whether or not the officers could rely in good faith on Brock to
authorize their conduct.49
In Brock, law enforcement officers went to David Brock’s
residence at 3375 Payton Avenue in Indianapolis and executed a
41
Id. at 753.
Id.
43
Id.
44
Id. at 759.
45
Id. at 753–54
46
131 S. Ct. at 2428.
47
Gutierrez, 760 F.3d at 754.
48
417 F.3d 692 (7th Cir. 2005).
49
Gutierrez, 760 F.3d at 754–57.
42
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search warrant.50 To execute the warrant, the officers conducted a full
search of the home during which they recovered drugs and other
contraband.51 Brock was not present during the search, but three
individuals named Godsey, Knock, and Hayden were.52 After an
officer put all three in handcuffs, read them their Miranda rights, and
questioned them, Godsey told the police he lived next door at 3381
Payton Avenue and that he watched over both houses.53 Godsey then
gave the police a key to 3381, and consented to a search of the
common areas of that residence.54 He also informed the police that
Brock rented a room at 3381, and used it as a stash house to store
drugs.55
After hearing this information, an officer (Miller) returned to
his office to prepare an affidavit to obtain a search warrant for the
entire 3381 residence.56 Other officers entered 3381 with Godsey’s
key.57 Inside, one bedroom was locked and had a sign on the door
reading “Stay Out. David.”58 After the police saw the door, a canine
officer and his dog were called to 3381 to corroborate the presence of
narcotics in the bedroom.59 Inside the home, the dog gave a positive
alert for the presence of drugs while sniffing just outside Brock’s
locked bedroom.60
Officer Miller then prepared an affidavit in which he detailed
the evidence collected from 3375, as well as the dog’s alert in front of
Brock’s door at 3381 as bases for probable cause.61 Based on these
50
417 F.3d at 693.
Id.
52
Id.
53
Id.
54
Id.
55
Id.
56
Brock, 417 F.3d at 693.
57
Id.
58
Id.
59
Id.
60
Id. at 693–94.
61
Id. at 694.
51
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facts, a judge issued a search warrant authorizing a search of 3381.62
When Miller returned with the warrant, the police entered Brock’s
bedroom and discovered more drugs and other contraband.63 Brock
was later charged with drug and firearm offenses.64
Prior to his trial, Brock moved to suppress the evidence found
in 3381, but the trial court denied his motion.65 On appeal, Brock
argued that the dog sniff outside his locked bedroom door was an
illegal warrantless search, and that the warrant to search 3381 issued in
reliance on that sniff violated the constitution.66 The government
argued that the dog sniff was not a search, because the police were
lawfully inside Brock’s home due to Godsey’s consent, and that Brock
had no reasonable expectation that of privacy in his drugs going
undetected.67
Ultimately, the court affirmed the trial court’s denial of
Brock’s motion.68 This was because the dog sniff at Brock’s door
could only reveal the presence or absence of narcotics, and because
Brock’s expectation that his possession of narcotics would remain
private was not objectively reasonable.69 In reaching this holding, the
court relied on three Supreme Court decisions,70 and several decisions
of federal appellate courts,71 almost all of which held that dog sniffs
used only to detect the presence or absence of contraband are not
62
Id.
Id.
64
Id.
65
Id.
66
Id.
67
Id. at 695.
68
Id. at 700.
69
Id. at 696.
70
See Illinois v. Caballes, 543 U.S. 405 (2005); City of Indianapolis v.
Edmond, 531 U.S. 32 (2000); United States v. Place, 462 U.S. 696 (1983).
71
See United States. v. Reed, 141 F.3d 644, 650 (6th Cir.1998); United States
v. Roby, 122 F.3d 1120, 1125 (8th Cir. 1997); United States v. Lingenfelter, 997
F.2d 632, 638 (9th Cir. 1993); United States v. Vasquez, 909 F.2d 235, 238 (7th Cir.
1990); United States v. Colyer, 878 F.2d 469, 477 (D.C. Cir. 1989).
63
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searches because individuals do not have a reasonable expectation of
privacy in concealing contraband.72
Also, the court noted that a “critical” aspect of its holding was
the fact that the police were “lawfully present inside the common areas
of the residence with the consent of Brock’s roommate.”73
In Gutierrez, Gutierrez argued that United States v. Jones,74
which was decided before the police used their dog to sniff his front
door, had overruled Brock.75 This was because Jones held that the
government could commit a search by trespassing into a
constitutionally protected area like the home or a person’s effects.76
So, Gutierrez argued that the dog sniff in his case was a search
because the police physically intruded into the curtilage of his home to
conduct the sniff.77 And, because the dog-sniff was a search, the fact
that the police lacked a warrant to conduct the sniff rendered it
unlawful.
However, the court in Gutierrez held that Jones did not
overrule Brock, despite Jones’ clear holding that the “common-law
trespassory test”78 could be used to determine whether a search
occurred.79 First, the court noted that the Court had previously ruled
that dog sniffs are “sui generis,” (of their own kind) which suggested
that doctrinal changes to Fourth Amendment principles might not
apply to dog sniffs due to their unique nature.80 Second, the court
noted that in Kentucky v. King,81 decided less than a year before Jones,
the Court had held that police may, without a warrant, knock on a door
72
Brock, 417 F.3d at 696–97 (citations omitted).
Id. at 697.
74
132 S. Ct. 945 (2012).
75
United States v. Gutierrez, 760 F.3d 750, 756 (7th Cir. 2014).
76
Id. (citing United States v. Jones, 132 S. Ct. 945, 949–51 (2012)).
77
Brief and Required Short Appendix for Defendant-Appellant at 10, United
States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014) (No. 14-1159).
78
Jones, 132 S. Ct. at 952.
79
Gutierrez, 760 F.3d at 756.
80
Id. (citing United States v. Place, 462 U.S. 696, 707 (1983)).
81
131 S. Ct. 1849 (2011).
73
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of a home, including for investigatory purposes, because in doing so
the officers do no more than any private citizen.82
So, the court reasoned that before Jardines was decided, the
Court had allowed police officers to use dog sniffs and to enter the
curtilage of a home to seek information without trespassing, and that
these two holdings were “sufficient to determine that Brock was still
good law at the time of the search of Gutierrez’s home . . . .”83
Gutierrez also argued that the police officers did not act in
good faith on any precedent, because the officers “acted in obvious
disregard of established trespass principles.”84 However, the court
rejected this argument because it found that the case was “exactly like
Brock in all-important respects.”85 According to the court, in both
Brock and the present case, the law enforcement officers were lawfully
present in the areas they where in when using their dogs to sniff for
drugs.86 So, the court held that “because binding appellate precedent
permitted law enforcement’s conduct at the time it took place,” the
case fell within Davis’ exception to the exclusionary rule.87
B. The Exclusionary Rule
In Weeks v. United States, Weeks was convicted of using the
mails for the purposes of transporting tickets or shares in a lottery.88
However, before Weeks was ever arrested, police officers entered his
home without a warrant and searched it, finding and seizing various
papers that were turned over to a U.S. Marshall.89 Later in the same
82
Gutierrez, 760 F.3d at 756 (citing King, 131 S. Ct. at 1862, and WAYNE
LAFAVE, SEARCH AND SIEZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.3(e),
at 592–93 (4th Ed. 2004)).
83
Gutierrez, 760 F.3d at 756.
84
Id. at 758.
85
Id.
86
Id.
87
Id.
88
232 U.S. 383, 386 (1914).
89
Id.
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day, the Marshall returned to Weeks’ home and again entered without
a warrant, searched the home, and found and took more papers.90
Before his trial started, Weeks filed a petition for the return of
his papers, on the grounds that the government had entered his home
unlawfully.91 In ruling on the petition, the trial court did order the
return of papers that did not relate to Weeks’ charges, but declined to
order the return of the papers that were pertinent his charges that
would be used in evidence at his trial.92
So, on appeal, the question before the Court was, what must
trial courts do when faced with motions to exclude evidence seized in
violation of the Fourth Amendment?93 Ultimately, the Court
unanimously held that the purpose of the Fourth Amendment was to
limit the power and authority of federal courts and officials, and to
“forever secure the people, their persons, houses, papers and effects
against all unreasonable searches and seizures under the guise of
law.”94 Further, the Court held that the duty of giving the Fourth
Amendment its true force and effect was “obligatory” upon all those
entrusted in the federal system with enforcing the law.95 So, the Court
held that the unlawfully seized evidence should have been excluded
from use at Weeks’ trial.96
In Mapp v. Ohio, Mapp was convicted of possessing lewd
books and pictures, but her conviction was based primarily evidence
(the lewd books and pictures) that the police seized during an unlawful
search of her home.97 Ohio argued that, even if the search was
unlawful, the evidence could be admitted because the Court had
previously ruled that Fourteenth Amendment did not forbid the
90
Id.
Id. at 387–88.
92
Id. at 388.
93
Id. at 389.
94
Id. at 391–92.
95
Id. at 392.
96
Id. at 388–89.
97
367 U.S. 643 (1961).
91
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admission of unlawfully seized evidence in state prosecutions.98
However, the Court rejected this argument and held that Fourth
Amendment’s exclusionary rule was applicable to the states through
the Fourteenth Amendment.99 In the Court’s view, the right to have
unlawfully obtained evidence excluded in a criminal trial was a
“constitutional privilege,” and that individuals should not be restrained
from enforcing this privilege in state courts.100
C. The Good Faith Exception to the Exclusionary Rule
1. Pre-Davis Case Law
In United States v. Leon, the Court for the first time carved out
an exception to the exclusionary rule.101 The case arose after a
confidential informant of “unproven reliability” told a police officer in
Burbank, California that two persons were selling drugs from their
residence at 620 Price Drive in Burbank.102 Based on this information,
the police began investigating the residence, and eventually applied for
and obtained a facially valid warrant to search it as was well as two
other residences and various suspects’ cars.103
However, in response to a motion to dismiss brought by Leon
and others, the trial court held that the officer’s affidavit in support of
the warrant application was insufficient to establish probable cause
and therefore suppressed the evidence.104 The trial court did rule that
the officers had acted in good faith, but it rejected the government’s
position that the exclusionary rule should not apply when evidence is
seized in reasonable, good faith reliance on a search warrant.105 But,
98
Id. at 645–646 (citing Wolf v. Colorado, 338 U.S. 25 (1949)).
Mapp, 367 U.S. at 655.
100
Id.
101
468 U.S. 897 (1984).
102
Id. at 901.
103
Id. at 901–02.
104
Id. at 903.
105
Id. at 903–04.
99
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the Court reversed, holding that the exclusionary rule should be
modified so as not to require the suppression of evidence when
officers act in “good-faith reliance on a search warrant that is
subsequently held to be defective.”106 According to the Court, this
modification was appropriate for three basic reasons.
First, the Court held that because the Fourth Amendment
contains no provision expressly precluding the use of evidence
obtained in violation of its commands, the use of unlawfully seized
evidence at trial does not constitute a new Fourth Amendment
violation.107 So, because of this, the exclusionary rule only operated as
a “judicially created remedy” designed to protect Fourth Amendment
rights through its deterrent effect and was not a “personal
constitutional right.”108 This holding notably moved away from the
Court’s previous position in Mapp that the ability to have
unconstitutionally seized evidence excluded at trial was a
“constitutional privilege.”109
Second, because the exclusionary rule was not a personal
constitutional right, the Court held that the question of whether to
apply it must be a separate inquiry from whether the Fourth
Amendment rights of the person seeking to invoke the rule were
violated by the government.110 Stated differently, the fact that there
should be two independent inquiries meant that a Fourth Amendment
violation did not automatically trigger application of the exclusionary
and the suppression of evidence found during the violation.
Third, the Court held that deciding when to apply the
exclusionary rule must be resolved by “weighing the costs and
benefits” of preventing the use in the prosecution’s case in chief of
“inherently trustworthy tangible evidence . . . .”111 On the cost side of
this equation, the Court recognized that exclusion was “substantial,”
106
Id. at 905.
Id. at 906.
108
Id.
109
367 U.S. at 655.
110
Leon, 468 U.S. at 906.
111
Id. at 906–07.
107
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because it would unacceptably impede the truth-finding functions of
the judge and jury.112 And, as a collateral consequence of this
interference, some guilty defendants may go free or receive reduced
sentences after plea-bargaining.113 So, on the benefit side of the
equation, the Court held that the rule should be restricted to situations
in which its remedial deterrent objectives were “most efficaciously
served.”114 Therefore, because the officers believed in good faith that
their warrant was valid, the Court held that suppressing the evidence
found in reliance on the warrant would not serve any deterrent purpose
and the exclusionary rule should not apply.115
After Leon, the Court decided a string of cases extending this
good faith exception in a number of different circumstances. In
Massachusetts v. Sheppard, the Court extended Leon to hold that, even
though a search warrant was facially invalid, items found during
execution of the warrant should not be suppressed because the officers
acted in good faith on the warrant.116
In Illinois v. Krull, an Illinois statute, in order to regulate the
sale of cars, authorized state officials to inspect the premises of
business that sold cars or car parts.117 Pursuant to the statute, a
detective of the Chicago police department went to an auto-wrecking
yard to investigate the yard’s license and any potential stolen
vehicles.118 During his investigation, the detective discovered that
three of the cars at the lot were stolen.119
In the trial court, the respondents moved to suppress the
evidence seized from the yard, because a federal court had held (one
day after the detectives’ search) that the statute was unconstitutional
112
Id.
Id.
114
Id. at 907.
115
Id. at 918–926.
116
468 U.S. 981, 991 (1984).
117
480 U.S. 340, 342–43 (1987).
118
Id. at 343.
119
Id.
113
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due to the fact it authorized warrantless searches.120 However, the
Supreme Court reversed the trial court, holding that because the
detective was acting in “objectively reasonable reliance” on the statute
that authorized the search, the evidence should not be suppressed.121
In Arizona v. Evans, a police officer saw Evans driving the
wrong way on a one-way street in front of a police station.122 After
stopping Evans and entering Evans’ name into a computer in the
officer’s patrol car, the computer indicated that there was an
outstanding misdemeanor warrant for his arrest.123 During Evans’
subsequent arrest, he dropped a marijuana cigarette that led to the
police searching his car and finding a bag of marijuana.124
In his subsequent criminal proceeding for possession of
marijuana, Evans argued that the drugs should be suppressed because
his arrest warrant had been quashed seventeen days before his arrest,
making the arrest unlawful.125 The trial court agreed and granted
Evans’ motion because it concluded that, “the State had been at fault
for failing to quash the warrant.”126 But, the Supreme Court reversed,
and held that because the officer was acting “objectively reasonably”
on the computer record, it did not matter that the record was inaccurate
and the exclusionary rule did not apply.127
The Court’s most recent good faith case, prior to Davis, was
Herring v. United States.128 In Herring, a police officer learned that
Herring had driven to a county sheriff’s department to pick something
120
Id. at 344 (citing Bionic Auto Parts & Sales, Inc. v. Fahner, 518 F. Supp.
582 (N.D. Ill. 1981)).
121
Krull, 480 U.S. at 360–61.
122
514 U.S. 1, 4 (1995).
123
Id.
124
Id.
125
Id.
126
Id. at 5.
127
Id. at 15–16.
128
555 U.S. 135 (2009).
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up from his impounded truck.129 In response to this, the officer asked
the county’s warrant clerk (Pope) to check to see if Herring had any
outstanding warrants for his arrest.130 When Pope found no warrants,
the officer asked her to check with the clerk of a neighboring county
(Morgan), and Morgan reported that there was an active arrest
warrant.131 So, the officer and a deputy followed Herring as he left the
impound, pulled him over, and arrested him.132 During a search
incident to the arrest, the police found drugs on Herring’s person and a
pistol in his car.133
However, there had been a mistake about the existence of the
warrant.134 Morgan’s computer records indicated that there was an
arrest warrant, but when she went to retrieve the physical copy in
order to fax it to the officer, she could not find it.135 Morgan then
called a court clerk and “learned that the warrant had been recalled
five months earlier.”136 Morgan called Pope to alert her of the mistake,
and Pope then called the officer, but by this time Herring had already
been arrested.137
After Herring was indicted, he moved to suppress the evidence
based on the unlawful warrantless arrest.138 However, the trial court
denied the motion because the officers had “acted in a good-faith
belief that the warrant was still outstanding.”139 The Court affirmed,
holding that because at the very worst the officer’s actions were
negligent, the exclusionary rule should not apply.140 The Court held
129
Id. at 137.
Id.
131
Id.
132
Id.
133
Id.
134
Herring, 555 U.S. at 137.
135
Id. at 137–38.
136
Id. at 138.
137
Id.
138
Id.
139
Id.
140
Id. at 147–48.
130
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that applying the rule would only yield “marginal deterrence,” and that
this marginal deterrence did not outweigh the cost of letting Herring
go free.141
2. Davis v. United States, 131 S. Ct. 2419 (2011)
Davis is the latest case in the Supreme Court’s good faith
jurisprudence. Although the concepts the Court used to reach its
holding are familiar, the case has the potential to dramatically change
the way the exclusionary rule is applied, and it has already changed
the way some courts approach individuals’ motions to suppress
evidence brought on Fourth Amendment grounds.142
In Davis, police officers in Greeneville, Alabama conducted a
routine stop of a car in which Davis was a passenger in April 2007.143
The stop ultimately led to Davis’ arrest, and he was placed in the back
of a patrol car.144 The police then searched the car and found a
revolver in Davis’ jacket, and Davis was subsequently indicted for
being a felon in possession of a firearm.145 To better understand the
procedural posture of the case, and to better understand the Court’s
overall holding, it is useful (as Justice Alito did in the majority
opinion) to briefly describe the history of the Court’s search incident
to arrest cases.
In Chimel v. California, the Court held that a police officer that
makes a lawful arrest may conduct a warrantless search of the
arrestee’s person and the area within his immediate control.146 In the
years directly after Chimel, its rule became difficult to apply,
141
Id.
See, e.g., United States v. Sparks, 711 F.3d 58, 62 (2013) (declining to
address whether or not the government’s conduct violated the Fourth Amendment
and instead focusing only on whether the officers were acting in good faith and
whether the exclusionary rule should apply).
143
131 S. Ct. at 2425.
144
Id.
145
Id. at 2425–26.
146
395 U.S. 752, 763 (1969).
142
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“particularly in cases that involved searches inside of automobiles
after the arrestees were no longer in them.”147
Some courts “upheld the constitutionality of vehicle searches
that were substantially contemporaneous with occupants’ arrests,”148
while others “disapproved of automobile searches incident to arrests,
at least absent some continuing threat that the arrestee might gain
access to the vehicle and destroy evidence or grab a weapon.”149 In
1981, the Court granted certiorari in New York v. Belton150 to address
this conflict.151
In Belton, a police officer pulled over a car in which Belton
and three other men were traveling.152 After suspecting the passengers
of possessing marijuana, he ordered all of them out of the car and
arrested them.153 The officer then split them up into four different
areas of a “[t]hruway,” and subsequently searched the passenger
compartment of the car.154 Inside, he found a jacket belonging to
Belton that contained cocaine.155 Ultimately, the Court ruled that the
search was lawful, and held that “when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile.”156
Many courts understood Belton to have announced a bright line
rule that authorized searches of cars incident to arrests of occupants
regardless of whether the arrestee was within reaching distance of the
147
Davis v United States, 131 S. Ct. 2419, 2424 (2011) (citing New York v.
Belton, 453 U.S. 454, 458–59 (1981)) (alteration in original) (internal quotation
marks omitted).
148
Id. at 2424 n.1 (citations omitted) (internal quotation marks omitted).
149
Id. at 2424 n.2 (citations omitted) (internal quotation marks omitted).
150
453 U.S. 454.
151
Davis, 131 S. Ct. at 2424 (citing Belton, 453 U.S. at 459–60).
152
453 U.S. at 455.
153
Id. at 456.
154
Id.
155
Id.
156
Id. at 460.
188
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car during the search.157 This was true even when the arrestee had
exited the vehicle and been taken into custody by the police.158
However, as Davis recognized, not every Court agreed with
this interpretation of Belton.159 For example, in State v. Gant, the
Arizona Supreme Court held that where no exigency existed
endangering the safety of the arresting officer or officers, Belton did
not apply and a search of the passenger compartment of a vehicle
would be unlawful.160 On appeal, the Court in Arizona v. Gant
(decided in 2009) affirmed and held that the Belton rule only applied
where “the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search.”161 The end result of
Gant is that an automobile search incident to an occupant’s arrest is
now constitutional only if the arrestee is within reaching distance of
the car during the search, or if the police have reason to believe that
there is “evidence relevant to the crime of arrest” in the vehicle.162
Davis was indicted in the Middle District of Alabama and later
convicted.163 While his appeal was pending, the Court decided
Gant.164 The Eleventh Circuit then applied Gant’s new rule to Davis’
case, and held that the search of the vehicle he was in was unlawful.
But, the Eleventh Circuit nevertheless declined to suppress the
evidence,165 because the court concluded that penalizing the arresting
officer for following what at the time was binding precedent (Belton)
would not deter future Fourth Amendment violations.166
157
Davis v. United States, 131 S. Ct. 2419, 2424 (2011) (citing Thornton v.
United States, 541 U.S. 615, 628 (2004)).
158
Davis, 131 S. Ct. at 2424 n.3.
159
Id. at 2425.
160
Id. (citing State v. Gant, 162 P.3d 640, 643 (Ariz. 2007)).
161
Davis, 131 S. Ct. at 2425 (quoting Arizona v. Gant, 556 U.S. 332, 343
(2009)).
162
Davis, 131 S. Ct. at 2425 (quoting Gant, 556 U.S. at 343).
163
Davis, 131 S. Ct. at 2426.
164
Id.
165
Id.
166
Id. (citing United States v. Davis, 598 F.3d 1259, 1263, 1265–66 (11th Cir.
2010)).
189
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So, on appeal in the Supreme Court, the question was “whether
to apply the exclusionary rule when the police conduct a search in
objectively reasonable reliance on binding judicial precedent.”167 In
the end, the Court held that the exclusionary rule should not apply for
three reasons.
First, the Court noted that Davis had conceded that at the time
of the search, the officers were strictly complying with binding
Eleventh Circuit precedent that authorized the search.168 So, from the
very start, the Court held that this concession doomed Davis’
argument. This was because, second, the Court recognized that in
twenty-seven years of jurisprudence since the good-faith exception
was first created in Leon, the Court had “never applied” the
exclusionary rule to “suppress evidence obtained as a result of
nonculpable, innocent police conduct.”169 Finally, because the police
officers were in no way culpable of any wrongdoing, the Court held
that the only thing excluding the evidence would deter would be
“conscientious police work.”170 As the Court noted, “when binding
appellate precedent specifically authorizes a particular police practice,
well-trained officers will and should use that tool to fulfill their crimedetection and public-safety responsibilities.”171 So, consistent with the
its long standing cost-benefit analysis, the Court declined to exclude
the evidence and held that “when the police conduct a search in
objectively reasonable reliance on binding appellate precedent, the
exclusionary rule does not apply.”172
Justice Sotomayor wrote a very important concurring opinion.
In the opinion, she agreed with the majority that because the primary
purpose of the exclusionary rule was to deter police misconduct, the
rule should not apply when binding precedent specifically authorizes a
particular police practice, and that the authorization was “in accord
167
Davis, 131 S. Ct. at 2428.
Id.
169
Id. at 2429.
170
Id.
171
Id.
172
Id. at 2434.
168
190
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with the holdings of nearly every other court in the country.”173
However, she suggested that if the underlying law regarding the
constitutionality of a law enforcement practice was “unsettled,” a
different result may be warranted and the exclusionary rule may
apply.174 This was because, in these circumstances, exclusion might
“appreciably deter Fourth Amendment violations . . . .”175
ANALYSIS
D. Lower Courts’ Applications of Davis
Courts applying Davis’ good faith exception to the
exclusionary rule have faced two interpretive challenges. The first has
been to determine what constitutes binding precedent. The second has
been determining the limits of officers’ reliance on that precedent if
any of relevance can be found. As one court has phrased the issue:
“[t]he scope of [the] reasonable-reliance-on-precedent test turns on
two subsidiary questions: what universe of cases can the police rely
on? And how clearly must those cases govern the current case for that
reliance to be objectively reasonable?”176
Due to the complexity of these challenges, lower courts have
applied Davis in a variety of different ways, leading to very different
and inconsistent results.
1. What Constitutes Binding Precedent?
One of the key questions that have divided courts when
interpreting Davis has been whether decisions from other jurisdictions
qualify as binding precedent. For example, some courts have held that
only decisions from that court or the United States Supreme Court
173
Id. at 2434–45.
Id.
175
Id. at 2436.
176
United States v. Sparks, 711 F.3d 58, 63 (1st Cir. 2013).
174
191
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constitute binding precedent,177 while other courts have held that
officers may rely on precedent from outside the reviewing court’s
jurisdiction.178 More commonly, courts have suggested, without
explicitly holding, that binding precedent may come from other
jurisdictions.179
177
See, e.g., United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (“In the
context of statutory interpretation, ‘binding precedent’ refers to the precedent of this
Circuit and the Supreme Court.”); United States v. Martin, 712 F.3d 1080, 1082 (7th
Cir. 2013) (rejecting the government’s argument that the police should be able to
rely in good faith on “the weight of authority around the country”); State v. Mitchell,
323 P.3d 69, 77 (Ariz. Ct. App. 2014) (rejecting the government’s argument that
officers could rely on the decisions of federal circuit courts); Parker v.
Commonwealth, 440 S.W.3d 381, 387 (Ky. 2014) (defining binding precedent as
“clearly established precedent from this Court or the United States Supreme Court”);
Kelly v. State, 82 A.3d 205, 215 (Md. 2013) (“[O]peration of the exclusionary rule is
suspended only when the evidence seized was the result of a search that, when
conducted, was a ‘police practice’ specifically authorized by the jurisdiction’s
precedent in which the officer operates.”); State v. Allen, 997 N.E.2d 621, 626–27
(Ohio Ct. App. 2013) (focusing solely on “binding appellate precedent in Ohio”).
178
United States v. Stephens, 764 F.3d 327, 338 (4th Cir. 2014) (holding that
officers could rely on the “general legal landscape” and a decision of the Court of
Special Appeals of Maryland to authorize their conduct); Taylor v. State, 410
S.W.3d 520, 526 (Tex. App. 2013) (holding that the good faith exception should
apply because the officers “acted in reasonable reliance on federal precedent in the
majority of the federal circuit courts of appeal”).
179
United States v. Sparks, 711 F.3d 58, 63–64 (1st Cir. 2013) (holding that
Davis’ emphasis on the absence of police culpability could be read to imply that
officers could rely in good-faith on out of circuit precedent, but declining to
expressly decide the issue); United States v. Fisher, 745 F.3d 200, 203 (6th Cir.
2014) (holding that officers were acting in good faith because at the time of their
conduct, the Sixth Circuit and three other circuits had held that similar conduct was
permissible); United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014) (strongly
suggesting that officers may rely on decisions from other federal circuits because not
allowing police to do so would not yield much deterrence); People v. LeFlore, 996
N.E.2d 678, 692 (Ill. Ct. App. 2013) (examining whether any decisions of the
Seventh Circuit authorized the police’s conduct); State v. Adams, 763 S.E.2d 341,
346–47 (S.C. 2014) (looking for federal decisions that the officers could have relied
upon, but finding none). See also United States v. Katzin, 769 F.3d 163, 177–82 (3d
Cir. 2014) (en banc) (holding that, even if Davis’ binding precedent exception did
not apply, the officers were still acting in good faith because their conduct
192
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Another question has been, when an investigation takes place
in several different states or jurisdictions, must officers comply with
each jurisdiction’s precedents in order to be acting in good faith?180
For example, in United States v. Barraza-Maldanado, DEA agents
attached a GPS monitoring device onto a car in Phoenix.181 Four
weeks later, Barraza-Maldonado borrowed the car from its registered
owner, and agents monitored the car as he drove it from Phoenix to
Minneapolis.182 When the car entered Minnesota, the agents told state
law enforcement officers that the car was suspected of transporting
drugs, and advised officers of the car’s location.183 After a state
trooper conducted a traffic stop and found drugs inside the vehicle,
Barraza-Maldandao was subsequently tried in federal court in
Minnesota, which is under the Eighth Circuit’s jurisdiction.184
One day after Barraza-Maldonado’s arrest, the Supreme Court
decided United States v. Jones, and held that the use of a GPS device
to monitor a car’s movements was a search for which a warrant would
ordinarily be required.185 So, on appeal, the question before the Eighth
Circuit was whether the agents acted in good faith on any binding
precedent when they installed the device.186
The court began its analysis by holding that “[f]or the good
faith exception to apply, officers performing a particular investigatory
action—such as GPS tracking—must strictly comply with binding
appellate precedent governing the jurisdiction in which they are
acting.”187 So, because the DEA agents had installed the device in
comported with the “general legal landscape” around the country, including out of
circuit decisions).
180
See, e.g., United States v. Andres, 703 F.3d 828 (5th Cir. 2013); United
States v. Barraza-Maldonado, 732 F.3d 865 (8th Cir. 2013); Martin, 712 F.3d at
1082.
181
Barraza-Maldonando, 732 F.3d at 866.
182
Id. at 866.
183
Id.
184
Id. at 866–67.
185
United States v. Jones, 132 S. Ct. 935, 954 (2012).
186
Barraza-Maldonando, 732 F.3d at 867.
187
Id.
193
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Phoenix, which was under the Ninth Circuit’s jurisdiction, and
because Ninth Circuit precedent at the time of the installation
authorized the agents’ conduct,188 the court held that the good faith
exception did apply and the drugs were admissible.189
Barraza-Maldonado argued that the agents could not have
acted in good faith, because Minnesota state law required “court
approval before law enforcement officers may use a mobile tracking
device.”190 However, the court rejected this argument, and instead
focused only of the law of the jurisdiction where the agents had
installed the device.191
A related case is United States v. Andres.192 In Andres, DEA
agents in Laredo, Texas installed a GPS monitoring device on a truck
belonging to suspected drug traffickers without a warrant.193 After
learning that the car would be traveling to Chicago, the agents
continued to monitor it with the GPS device as it left Texas.194 Once it
became clear through the agents’ monitoring that the car was in fact
heading to Chicago, the agents contacted the Illinois State Police, and
a state trooper then conducted a traffic stop of the truck in Illinois and
found drugs.195 On appeal, the court held that agents did rely in good
faith on binding Fifth Circuit precedent196 when installing the device,
but the court never analyzed whether the agents’ installation of the
device and monitoring of the car must have also comported with the
precedent of Illinois, the Seventh Circuit, or any other jurisdictions the
car traveled through on its way from Texas to Illinois.197
188
See United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010).
Barraza-Maldonando, 732 F.3d at 869.
190
Id. at 868.
191
Id. at 868-69.
192
703 F.3d 828 (5th Cir. 2013).
193
Id. at 830.
194
Id.
195
Id. at 830–31.
196
See United States v. Michael, 645 F.2d 252 (5th Cir. 1981).
197
See Andres, 703 F.3d at 834–35.
189
194
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Similarly, in United States v. Martin, Iowa police officers
attached a GPS device to Martin’s Car in Iowa, and then tracked
Martin as he drove the car to Illinois.198 Once in Illinois, a local sheriff
stopped him and found a gun under the car’s hood.199 In Martin’s
subsequent prosecution in the Seventh Circuit, the court only looked to
see whether there was any precedent authorizing the officers’ use of
the GPS device in the Eighth Circuit (which has jurisdiction over
Iowa) and not the Seventh Circuit.200
Finally, another question faced by courts when deciding what
constitutes binding precedent has arisen from the fact that often,
federal and state law enforcement officers work together to investigate
crime. For example, in Gutierrez, both DEA agents and Indianapolis
police detectives went to Gutierrez’s house to investigate drug
trafficking.201 So, in these circumstances, it is unclear whether
different rules apply to each set of officers.202
May federal officers rely on both federal and state decisions to
authorize their conduct, or must they only rely on federal decisions?203
Conversely, if federal officers may look to state law, can that state law
limit the bounds of the officers’ good-faith reliance on federal law?
Here, decisions like Barraza-Maldonado and others suggest the
answer is no.204 May state officers rely on both federal and state
198
712 F.3d 1080, 1081 (7th Cir. 2013).
Id.
200
Id. at 1081–82.
201
760 F.3d 750, 752 (7th Cir. 2014).
202
Oral Argument, United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014)
(Case No. 14-1159), http://media.ca7.uscourts.gov/sound/2014/ab.14-1159.141159_06_02_2014.mp3 (last visited Jan. 15th, 2015).
203
United States v. Sparks, 711 F.3d 58, 63–64 (1st Cir. 2013) (holding that
Davis’ emphasis on the absence of police culpability could be read to imply that
officers could rely in good-faith on out of circuit precedent, but declining to
expressly decide the issue); United States v. Stephens, 764 F.3d 327, 338 (4th Cir.
2014) (holding that officers could rely on the “general legal landscape” and a
decision of the Court of Special Appeals of Maryland to authorize their conduct).
204
732 F.3d 865 (8th Cir. 2013); United States v. Andres, 703 F.3d 828 (5th
Cir. 2013).
199
195
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decisions to authorize their conduct,205 or must they only rely on state
decisions?206 Conversely, can federal law limit the bounds of state
officers’ reliance on state law?207 These questions have all been
difficult, and led to different answers by courts.
2. What are the Limits of Officers’ Good Faith Reliance on Binding
Precedent?
In Davis, the Court summarized the law that has developed
since Leon regarding when a law enforcement officer’s conduct will
be sufficiently culpable to warrant application of the exclusionary rule:
The basic insight of the Leon line of cases is that the
deterrence benefits of exclusion vary with the
culpability of the law enforcement conduct at issue.
When the police exhibit deliberate, reckless, or grossly
negligent disregard for Fourth Amendment rights, the
deterrent value of exclusion is strong and tends to
outweigh the resulting costs. But when the police act
with an objectively reasonable good-faith belief that
their conduct is lawful, or when their conduct involves
only simple, isolated negligence, the deterrence
rationale loses much of its force, and exclusion cannot
pay its way.208
In terms of applying this standard in the realm of Davis’ binding
precedent exception, courts have faced a complicated task. Essentially,
courts have had to compare an old case (or cases) with the present one
under review in order to evaluate whether the officers’ reliance on the
205
See State v. Mitchell, 323 P.3d 69, 77–78 (Ariz. Ct. App. 2014).
Taylor v. State, 410 S.W.3d 520 (Tex. App. 2013); People v. LeFlore, 996
N.E.2d 678, 693 (Ill. Ct. App. 2013).
207
See generally Smallwood v. State, 113 So.3d 724, 739 (Fla. 2013)
(suggesting the answer is yes).
208
131 S. Ct. 2419, 2427–28 (2011) (alterations in original) (citations omitted)
(internal quotation marks omitted).
206
196
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old case was in good faith, or whether the officers’ actions were
culpable enough to warrant application of the exclusionary rule.
This task is has been a significant undertaking, and several
difficult questions have arisen. The first is, how similar must the
binding precedent be to the present case under review? Or, as Davis
suggested the inquiry should be, whether or not the precedent
“specifically authorizes” the officers’ current conduct?209 More
importantly, if the precedent that officers rely on does not actually
authorize their conduct when it is performed, and the officers
mistakenly rely on that precedent, can they still be held to be acting in
good faith?210 Second, even if one piece of precedent does specifically
authorize the officers’ conduct, do other cases reaching different
results suggest that the constitutionality of the practice is an unsettled
question thus prohibiting officers from relying on the precedent?211
Third, what is the relevance of officers seeking advice on the law from
prosecutors or other government attorneys? If an officer receives
advice from a prosecutor that his conduct will be lawful if performed,
is this a factor to be used in considering whether the officer acted in
good faith on binding precedent?212 Fourth, what significance should
be given to the fact that, at the time the officers carry out their
conduct, a challenge to the constitutionality of similar conduct is
currently pending in a court of review? Is this a proper factor for
courts to consider in their analyses, and will this fact bar officers from
relying in good faith on the old case authorizing a police practice?213
209
Id. at 2429.
See United States v. Davis (“Davis DNA”), 690 F.3d 226 (4th Cir. 2012).
211
Davis, 131 S. Ct. 2419 at 2435 (Sotomayor, J., concurring).
212
See United States v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014).
213
See United States v. Barraza-Maldonado, 732 F.3d 865, 869 (8th Cir.
2013).
210
197
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i. How Similar Must the Binding Precedent be to the Present Case
Under Review?
Two police practices have been responsible for many decisions
in which courts have applied Davis’ good faith exception. The first has
been when law enforcement officers use GPS devices to track
suspects’ cars, and the second has been when officers search suspects’
cars incident to an arrest. Because each situation has arisen so often
after Davis, the relevant background precedent is discussed below
before analyzing the cases that have applied Davis’ holding in each
context.
a. The GPS Cases
The Supreme Court made no ruling on whether the
government’s placement of a GPS device on a car to monitor a
suspect’s movements was Fourth Amendment search until it decided
United States v. Jones in 2012.214 However, before discussing Jones, it
is useful to discuss two other relevant cases that preceded that
decision: United States v. Knotts215 and United States v. Karo.216
In Knotts, law enforcement officers placed a beeper in a fivegallon drum of chloroform with the consent of the drum’s owner (the
Hawkins Chemical Company).217 When Hawkins then sold the drum
to a man named Armstrong, officers used the beeper to track the
movements of a car (in which the drum had been placed) as the car
traveled along public streets.218 Eventually, officers used the device to
track the drum to an area outside a cabin belonging to Knotts, where
the officers later found drugs.219 The Court ultimately held that this
monitoring was not a Fourth Amendment search because the
214
132. S. Ct. 945 (2012).
460 U.S. 276 (1983).
216
468 U.S. 705 (1984).
217
460 U.S. at 278.
218
Id.
219
Id.
215
198
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government’s monitoring of the beeper signals did not invade any
legitimate expectation of privacy that Knotts held.220 According to the
Court, Knotts would have no expectation of privacy in his movements
from one place to another while traveling in a car on public roads.221
In Karo, the DEA learned that Karo and two others were
planning on buying fifty gallons of ether from a government
informant.222 According to the informant, the ether was going to be
used to extract cocaine from clothing that had been shipped into the
United States.223 So, the government obtained a court order
authorizing them to install and monitor a beeper in a can of ether that
was to be sold the group.224 After installing a beeper into a can of ether
that the DEA owned, the DEA then gave the can to the informant, and
agents then subsequently saw Karo receive the can from the
informant.225 Over the next several months, the government followed
the can as it was moved from one place to another, eventually being
placed inside a home in Tao, New Mexico.226 The agents had used the
beeper to determine that the can was inside the house.227 After
suspecting that the ether was being used in the home, the agents
obtained a warrant to search the Taos residence, based in part on the
information they learned from using the beeper.228 When the warrant
was executed, cocaine was found.229
After Knotts challenged the use of the beeper in his criminal
case, the question before the Court on appeal was, “whether a warrant
220
Id. at 285.
Id. at 281.
222
468 U.S. at 708.
223
Id.
224
Id.
225
Id.
226
Id. at 708–10.
227
Id. at 710.
228
Id. at 710.
229
Id.
221
199
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was required to authorize either the installation of the beeper or its
subsequent monitoring.”230
In terms of the installation, the Court held that no Fourth
Amendment search or seizure occurred.231 No search occurred because
the can into which the beeper was placed belonged (at the time) to the
DEA, and no seizure occurred because the placement of the beeper
into the can did not interfere with anyone’s possessory interest in the
can in a meaningful way.232 However, in terms of the monitoring, the
Court held that a search had occurred.233 This was because the agents
had used the beeper to monitor the can while it was inside a private
residence, and this violated a justifiable expectation of privacy in that
residence.234
In Jones, law enforcement officers began investigating Jones
after suspecting him of drug trafficking.235 Based on their initial
investigation, the government applied for a warrant authorizing the use
of a GPS tracking device on a Jeep registered to Jones’ wife.236 A
warrant was issued requiring the device to be installed within ten days
in the District of Columbia, but the officers did not install the device
until the 11th day, and they installed it in Maryland.237 The agents then
used the device to monitor the Jeep’s movements for twenty-eight
days.238 Ultimately, the Court held that the government’s installation
of the GPS device on a Jones’ vehicle, and its use of that device to
monitor the vehicle’s movements, did constitute a Fourth Amendment
search because the government “physically occupied private property
for the purpose of obtaining information.”239
230
Id. at 711.
Id.
232
Id. at 711–13.
233
Id. at 714.
234
Id. at 714–15.
235
132 S. Ct. 945, 948 (2012).
236
Id.
237
Id.
238
Id.
239
Id. at 949.
231
200
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The government argued that, based on the Court’s landmark
decision in Katz v. United States,240 no search had occurred.241 In Katz,
the Court held that a Fourth Amendment search occurs when the
government violates an expectation of privacy that society is prepared
to consider reasonable.242 So, the government argued there was no
search because, given Knotts, and Karo, Jones had no expectation of
privacy in the underbody of jeep that the agents accessed in placing
the device, or in the locations of the Jeep as it traveled on public
roads.243
But, the Court disagreed, and held that Jones’ Fourth
Amendment rights did not “rise or fall” based on the test articulated in
Katz.244 In other words, the Court held that “the Katz reasonableexpectation-of-privacy test has been added to, not substituted for, the
common-law trespassory test.”245 So, because the government had
committed a trespass by attaching the device onto the undercarriage of
Jones’s wife’s jeep, the Court held that a search had occurred within
the meaning of the Fourth Amendment.246 It is also important to note
that before Jones, lower courts were split on whether the government’s
installation of a GPS device and its use to monitor a suspect’s car
constituted a search.247
240
389 U.S. 347 (1967).
Jones, 132 S. Ct. at 950.
242
389 U.S. at 353 (Harlan, J., concurring). Justice Harlan’s concurrence
became the test adopted by the Court in many future cases. See, e.g., Bond v. United
States, 529 U.S. 334, 338 (2000); California v. Ciraolo, 476 U.S. 207, 211 (1986);
United States v. Jacobsen, 466 U.S. 109, 113 (1984); Smith v. Maryland, 442 U.S.
735, 739 (1979). But see Kyllo v. United States, 533 U.S. 27, 34 (2001) (criticizing
the test).
243
Jones, 132 S. Ct. at 951–52.
244
Id. at 950.
245
Id. at 952.
246
Id. at 949.
247
See, e.g., United States v. Garcia, 474 F.3d 994, 996–98 (7th Cir. 2007)
(holding that the government’s GPS monitoring of a vehicle’s public movements
was not a Fourth Amendment search); United States v. Pineda-Moreno, 591 F.3d
1212, 1216–17 (9th Cir. 2010); United States v. Maynard, 615 F.3d 544, 555–56
241
201
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Given this background, virtually all of the cases discussed
below follow a similar fact pattern: law enforcement officers place a
GPS device on a suspect’s car without a warrant before the Court’s
decision in Jones (January 2012), and then courts of review are asked
to determine after Jones was decided whether the officers could rely in
good faith on any binding precedent that using the GPS devices did
not constitute a Fourth Amendment search for which a warrant would
be required.248
One common question in these cases has been whether law
enforcement officers could rely in good faith on Knotts and Karo
when both installing GPS devices on suspects’ cars, and using the
devices to monitor those cars’ movements.249 Among these decisions,
courts are split, with some courts answering that the officers could rely
in good faith on Knotts and Karo to authorize both GPS installation
and monitoring,250 and other courts answering that officers could not
(D.C. Cir. 2010) (holding that government’s GPS monitoring of a vehicle’s
movements was a Fourth Amendment search).
248
See United States v. Baez, 744 F.3d 30 (1st Cir. 2014); United States v.
Sparks, 711 F.3d 58 (1st Cir. 2013); United States v. Aguiar, 737 F.3d 251 (2d Cir.
2013); United States v. Katzin, 769 F.3d 163 (3d Cir. 2014); United States v.
Stephens, 764 F.3d 327 (4th Cir. 2014); United States v. Andres, 703 F.3d 828 (5th
Cir. 2013); United States v. Fisher, 745 F.3d 200 (6th Cir. 2014); United States v.
Brown, 744 F.3d 474 (7th Cir. 2014); United States v. Barraza-Maldonado, 732 F.3d
865 (8th Cir. 2013); United States v. Ransfer, 749 F.3d 914 (11th Cir. 2014); State v.
Mitchell, 323 P.3d 69 (Ariz. Ct. App. 2014); People v. LeFlore, 996 N.E.2d 678 (Ill.
App. Ct. 2013); Kelly v. State, 82 A.3d 205 (Md. 2013); State v. Adams, 763 S.E.2d
341 (S.C. 2014); Taylor v. State, 410 S.W.3d 520 (Tex. App. 2013); State v. Oberst,
847 N.W.2d 892 (Wis. Ct. App. 2014).
249
Aguiar, 737 F.3d at 256–57; United States v. Katzin, 732 F.3d 187, 206–07
(3d Cir. 2013) (rev’d en banc, 769 F.3d 163); Katzin, 769 F.3d 163; Stephens, 764
F.3d at 332–34; Mitchell, 323 P.3d at 76–78; LeFlore, 996 N.E.2d at 692; Adams,
763 S.E.2d at 347.
250
Aguiar, 737 F.3d at 261–62; Katzin, 769 F.3d at 173–74; Stephens, 764
F.3d at 337–38. These cases’ holdings are interesting, given the fact that the Court
itself in Jones held that Knotts and Karo did not authorize the law enforcement
officers’ conduct. See 132 S. Ct. at 951–52.
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have such good faith reliance.251 Another court has held that officers
could rely on Knotts and Karo when using a GPS device to monitor a
suspect’s car, but did not have to reach the question of installation of
the device because it had been done without a trespass.252 Other courts
have held that officers could rely in good faith on Knotts or Karo
when using GPS devices to monitor suspects’ cars, but have relied on
other authority as providing the source of officers’ good faith reliance
when installing the devices.253 Some courts, despite the obvious fact
that Knotts and Karo will always qualify as binding precedent because
they are Supreme Court cases, have failed to discuss their significance
entirely, although this is likely because there were other binding
decisions that were more on point.254 However, in one case, a court did
discuss the relevance of Knotts (without discussing Karo), when other
more on point Circuit precedent authorized the officers’ conduct.255
Finally, one court has expressly declined to decide the issue of
whether the officers could have relied in good faith on Knotts and
Karo, because it held that the officers could rely in good faith on other
precedent.256
So, on the question of whether officers could rely in good faith
on Knotts and Karo when installing GPS devices and using the devices
to monitor suspects’ cars, courts are very split.
251
Mitchell, 323 P.3d at 78; LeFlore, 996 N.E.2d at 692; Adams, 763 S.E.2d at
347; Katzin, 732 F.3d at 206.
252
Brown, 744 F.3d at 478.
253
Baez, 744 F.3d at 35; Sparks, 711 F.3d at 65.
254
Andres, 703 F.3d at 834–35; United States v. Barraza-Maldonado, 732 F.3d
865, 867–68 (8th Cir. 2013).
255
United States v. Ransfer, 749 F.3d 914, 922–23 (11th Cir. 2014).
256
United States v. Fisher, 745 F.3d 200, 204 (6th Cir. 2014) (“Some appellate
courts have [held] that Knotts and Karo actually authorized the warrantless use of
GPS devices and therefore are themselves a basis for asserting the good-faith
exception . . . . We need not go that far here because at the time of the search the
Sixth Circuit had already approved the police conduct.”).
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b. Cases Involving Searches of Cars Incident to Arrest
In terms of searches of cars incident to arrest, the Court in New
York v. Belton held that “when a policeman has made a lawful
custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger
compartment of that automobile.”257 Many courts understood Belton to
have announced a bright line rule authorizing searches of cars incident
to arrests of recent occupants regardless of whether the arrestee was
within reaching distance of the car during the search.258 This was true
even when the arrestee had exited the vehicle and been taken into
custody by the police.259 However, in Arizona v. Gant (decided in
April 2009), the Court changed course and held that the Belton rule
only applied where “the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search.”260
The end result of Gant is that a search of a car incident to an
occupant’s arrest is now constitutional only if the arrestee is within
reaching distance of the car during the search, or if the police have
reason to believe that there is “evidence relevant to the crime of arrest”
in the vehicle.261
Again, like the GPS cases, all cases interpreting Davis in this
context follow a similar fact pattern: law enforcement officers conduct
a search of a car incident to an arrest in violation of Gant’s holding but
before Gant was decided, and then courts of review have had to
determine after Gant whether the officers could have relied in good
faith on any binding precedent (usually Belton or lower decisions
applying Belton) that their conduct was permissible under the Fourth
257
453 U.S. 454, 459–60 (1981).
Davis v. United States, 131 S. Ct. 2419, 2424 (citing Thornton v. United
States, 541 U.S. 615, 628 (2004)).
259
Id. at 2424 n.3.
260
556 U.S. 332, 343 (2009).
261
Id. at 332–33.
258
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Amendment.262 However, unlike the GPS cases, the courts in this
context have uniformly held that the officers were acting in good faith,
due to the fact that Belton, or lower courts’ applications have Belton,
established a bright-line rule that such searches were constitutionally
permissible.263
So, in terms of how similar precedent must be to the case at
hand for officers to rely on the precedent in good faith, the search
incident to arrest cases have been more uniformly decided than the
GPS cases, because of the presence of the bright-line rule that existed
before Gant. However, there was no such bright line rule concerning
officers’ installation and use of GPS monitoring devices. So, in the
GPS cases, this absence of any underlying bright line rule has led to
far more varied results.
In the cases applying Davis’ discussed above, the common
question has been whether the binding precedent law enforcement
relied on actually authorized the police’s conduct when it was being
performed.264 This focus is in line with the Davis opinion, where the
Court held that “when binding appellate precedent specifically
authorizes a particular police practice, well-trained officers will and
should use that tool to fulfill their crime-detection and public-safety
responsibilities.”265
However, some courts have turned away from Davis’
suggestion that binding precedent must actually authorize law
enforcement’s conduct for officers to be able to reasonably rely on that
262
United States v. Baker, 719 F.3d 313 (4th Cir. 2013); United States v.
Madden, 682 F.3d 920 (10th Cir. 2012); United States v. Soza, 643 F.3d 1289 (10th
Cir. 2011); Parker v. Commonwealth, 440 S.W.3d 381, 385 (Ky. 2014); Briscoe v.
State, 30 A.3d 870, 873 (Md. 2011); People v. Mungo, 813 N.W.2d 796, 797 (Mich.
Ct. App. 2012); State v. Johnson, 354 S.W.3d 627, 630 (Mo. 2011); Narciso v. State,
723 S.E.2d 369, 372 (S.C. 2012).
263
Baker, 719 F.3d at 320; Madden, 682 F.3d at 927; Soza, 643 F.3d at 1291;
Parker, 440 S.W.3d at 385; Briscoe, 30 A.3d at 873; Mungo, 813 N.W.2d at 797;
Johnson, 354 S.W.3d at 630; Narciso, 723 S.E.2d at 372. See also People v. Hopper,
284 P.3d 87, 90 (Colo. App. 2011) (Hopper conceded that the search of his car was
proper under then binding precedent).
264
See, e.g., United States v. Baez, 744 F.3d 30, 33 (1st Cir. 2014).
265
131 S. Ct. at 2429.
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precedent.266 In Katzin, the court construed the “specifically
authorizes” language in Davis (for the sake of argument only) to mean
that, “the relied-upon case must affirmatively authorize the precise
conduct at issue in the case under consideration.”267 But, the court
went on to hold:
While reliance is likely reasonable when the precise
conduct under consideration has been affirmatively
authorized by binding appellate precedent, it may be no
less reasonable when the conduct under consideration
clearly falls well within rationale espoused in binding
appellate precedent, which authorizes nearly identical
conduct.268
In other words, Katzin held that, even where precedent does not
actually authorize the police’s conduct, and only authorizes conduct
that is similar to that authorized in a past case, officers may still
reasonably rely on that precedent.269
Another court has gone ever further, and held that even if
officers are mistaken about the law and the precedent they rely on does
not authorize their conduct, Davis’ good faith exception can still
apply.270
In United States v. Davis (“Davis DNA”), law enforcement
extracted DNA from clothing that had been seized from Davis after he
went to a hospital with a gunshot wound and claimed to be a victim of
a robbery.271 Under the court’s binding precedent,272 if Davis had been
a victim he would have had an expectation of privacy in his DNA, thus
266
United States v. Katzin, 769 F.3d 163 (3d Cir. 2014); United States v. Davis
(“Davis DNA”), 690 F.3d 226 (4th Cir. 2012).
267
769 F.3d at 176.
268
Id.
269
Id.
270
Davis DNA, 690 F.3d at 230.
271
Id. at 230–31.
272
Jones v. Murray, 962 F.2d 302 (4th Cir. 1992).
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making the police’s later extraction of his DNA from his clothing
unlawful.273 But, if Davis had been a suspect, he would not have had
such a privacy interest, making the extraction lawful.274 Despite this
precedent, the court held that even if the officers knew that Davis was
a victim, the extraction of the DNA based on a misreading of the
relevant precedent would be permissible and in good faith under
Davis, making the exclusionary rule inapplicable.275
The court reached this holding even though it candidly and
repeatedly recognized that the law surrounding individuals’ privacy in
their DNA was unsettled.276 So, Davis DNA represents at least one
court that has held that, even if binding precedent does not actually
authorize a police practice at the time it is carried out, but officers
mistakenly think that it does, Davis’ good faith exception may still
apply.
Justice Breyer’s foresaw this exact issue in his dissent in
Davis, and warned of the dangers of such holdings:
[A]n officer who conducts a search that he believes
complies with the Constitution but which, it ultimately
turns out, falls just outside the Fourth Amendment’s
bounds is no more culpable than an officer who follows
erroneous “binding precedent.” Nor is an officer more
culpable where circuit precedent is simply suggestive
rather than “binding,” where it only describes how to
treat roughly analogous instances, or where it just does
not exist. Thus, if the Court means what it now says, if
it would place determinative weight upon the
culpability of an individual officer’s conduct, and if it
would apply the exclusionary rule only where a Fourth
Amendment violation was “deliberate, reckless, or
273
Davis DNA, 690 F.3d at 244.
Id.
275
Id. at 254.
276
Id. at 240, 246.
274
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grossly negligent,” then the “good faith” exception will
swallow the exclusionary rule.277
Given the remarkable breadth of some courts’ applications of Davis’
new rule, and the lack of any concrete limiting principle for declining
to apply Davis’ good faith exception, Justice Breyer’s prediction that
the exclusionary rule will be swallowed may very likely come true if
courts do not begin interpreting the rule more narrowly.
ii. Is the Law Authorizing the Police’s Conduct Settled?
Some defendants have argued that the police should not be able
to act in good faith reliance on binding precedent if that precedent is
currently being challenged in a court of review.278 In BarrazaMaldonado, Barraza-Maldonado argued that the DEA could not have
acted in good faith reliance on any precedent279 when they installed a
GPS monitoring device onto his car, because at the time of the
installation (December 21st, 2011)280 the constitutionality of this
practice was being challenged and was pending in the Supreme
Court.281 However, the court rejected this argument, and held that the
fact that the officers may have known the legality of their conduct may
soon become unlawful was irrelevant.282
A similar argument was also rejected in United States v. Davis
(“Davis Dog”).283 In that case, on December 12th, 2012, the police
used a drug-sniffing dog to sniff the front door of Davis’ apartment
277
Davis v United States, 131 S. Ct. 2419, 2439 (2011) (Breyer, J., dissenting).
United States v. Davis (“Davis Dog”), 760 F.3d 901, 905 (8th Cir. 2014);
United States v. Barraza-Maldonado, 732 F.3d 865, 869 (8th Cir. 2013).
279
See United States v. Pinedo-Moreno, 591 F.3d 1212 (9th Cir. 2010).
280
Brief and Addendum of the Appellant at 3, United States v. BarrazaMaldonado, 732 F.3d 865 (8th Cir. 2013) (No. 12-3903).
281
Barraza-Maldonado, 732 F.3d at 869. The Supreme Court heard oral
arguments in United States v. Jones on November 11th, 2011, roughly five weeks
before the agents attached the device to Barraza-Maldonado’s car.
282
Id. at 869.
283
760 F.3d 901 (8th Cir. 2014).
278
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without a warrant.284 Davis argued that one reason the officers could
not have been acting in good faith on any precedent when using the
dog was because, as in Barraza-Maldonado, the legality of such a
practice was currently pending in the Supreme Court.285 However,
again the court held that this fact was irrelevant.286
A related question has been the relevance of the timing of an
officer’s actions after a decision has been announced holding a
specific practice unconstitutional. For example, in State v. Fierro, the
Supreme Court of South Dakota held that an officer could not rely on
precedent to authorize his conduct when that precedent had been
overruled by the State Supreme Court four months earlier.287
However, if negligent police mistakes are permissible under Davis, a
situation could arise in which reliance on precedent that had been
overruled could be determined to be in good faith. Would an officer be
more than negligent if the precedent he was relying on had been
overruled just a few hours prior to his actions? One day? Two days?
One week? It is hard to define the precise moment in time when the
officer’s conduct would turn from simple negligence to culpable
negligence or recklessness that a court may aim to deter.
3. Other Issues In Applying Davis
i. The Actor Problem
Generally, the Supreme Court has held that the exclusionary
rule is only designed to deter police officers, and that the rule cannot
be used to deter other actors who may be involved in the police’s
284
Id. at 902.
Id. at 905. The Supreme Court heard oral arguments in Florida v. Jardines
on October 31st, 2012, roughly six weeks before the agents used the dog to sniff
Davis’ door.
286
760 F.3d at 905. See also State v. Edwards, 853 N.W.2d 246, 254 (S.D.
2014) (holding that an officer was acting in good faith on binding precedent even
though the legality of the practice he engaged in was pending before the Supreme
Court in Missouri v. McNeely, 133 S. Ct. 1552 (2013)).
287
853 N.W.2d 235, 245 (S.D. 2014).
285
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constitutional violations. For example, in Leon, the Court held that
“the exclusionary rule is designed to deter police misconduct rather
than to punish the errors of judges and magistrates [who issue
warrants].”288 In Krull, the Court held that “legislators, like judicial
officers, are not the focus of the rule,” and that the exclusionary rule
should not be used to deter legislators unless they “ignore or subvert
the Fourth Amendment,” because legislators are not adjuncts of law
enforcement.289 In Evans, the Court noted that, “the exclusionary rule
was historically designed as a means of deterring police misconduct,
not mistakes by court employees.”290 Further, the Court held that rule
should not be used to try to deter court employees because, at least in
the case at bar, there was no evidence that such employees were
“inclined to ignore or subvert the Fourth Amendment . . . .”291 Finally,
in Davis, the Court also held that the exclusionary rule should not be
used to try to deter appellate judges from writing unconstitutional
opinions.292
What the Court has not had occasion to rule on is whether the
exclusionary rule can be invoked to deter prosecutors or other
government lawyers who advise the police on the constitutionality of
their conduct. However, the Court’s holding in Krull does suggest that
the exclusionary rule could be used to deter prosecutors, because they
are clearly adjuncts of law enforcement. After Davis was decided, this
issue has arisen in a few federal appellate court decisions.
In Katzin, the court held that one of the reasons the officers had
“an objectively reasonable good faith belief that their conduct was
lawful,” was because before the officers installed a GPS device on the
car in question they consulted with an Assistant United States
Attorney (AUSA) about their proposed conduct.293 So, because the
288
United States v. Leon, 468 U.S. 897, 916 (1984).
Illinois v. Krull, 480 U.S. 340, 350–51 (1987).
290
Arizona v. Evans, 514 U.S. 1, 14 (1995).
291
Id. at 14–15.
292
Davis v. United States, 131 S. Ct. 2419, 2429 (2011).
293
United States v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014).
289
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AUSA approved the agents’ conduct294, this fact aided the court in
holding the officers were acting in good faith.295 Katzin argued that
application of the exclusionary rule would deter prosecutors from
“engaging in overly aggressive readings of non-binding authority,”
however the court never really addressed the significance of deterring
prosecutors, suggesting that it found such deterrence irrelevant.296
However, the principal dissent sharply criticized the majority’s
position. First, the dissent noted that the consultation with the AUSA
was not a “panacea” for the constitutional issues raised, because the
AUSA was not a neutral party (unlike a magistrate).297 Further, the
dissent argued that the good faith exception should be limited to cases
involving “nondeterrable” mistakes, or to cases where officers rely on
a neutral third party.298 So, the dissent strongly suggested that the
exclusionary rule could be used to deter officers from relying
exclusively on advice from AUSAs, and that the exclusionary rule
could even be used to deter the AUSAs themselves.299
In Brown, the Seventh Circuit took a similar position to the
principal dissent in Katzin, and did suggest that the exclusionary could
be used to deter lawyers advising federal or state law enforcement
officers.300 However, this suggestion was a very minor part of the
court’s overall opinion.
So, Katzin has suggested that the exclusionary rule should not
be used to try to deter prosecutors from aggressive readings of
authority, and that the fact that police rely on a prosecutor’s advice can
be a factor suggesting the officer was acting in good faith. However,
Brown has suggested the opposite.
294
See id. at 168. It was the Department of Justice’s policy that warrants were
not required to install GPS devices on cars parked in public streets and survey the car
on public roads.
295
Id. at 181.
296
See id. at 185–87.
297
Id. at 187.
298
Id. at 189–90.
299
Id. at 191.
300
United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014).
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ii. Courts Have Assumed Fourth Amendment Issues Without Deciding
Them
A very large number of courts have declined to actually discuss
or reach a holding about whether a Fourth Amendment violation
occurred, and instead have assumed without deciding that there was a
Fourth Amendment violation (or accepted the government’s
concession that violation occurred) in order to reach a good faith
analysis.301 This is important because, when courts do this, they fail to
set meaningful precedent about what is and what is not constitutional.
iii. Courts are Interpreting Davis Very Broadly
Overall courts are interpreting Davis’ rule incredibly broadly,
and not giving much consideration to Justice Sotomayor’s concurrence
that the law must be settled in order for the police to reasonably rely
on it.302 For example, although Davis’ exception has been raised in a
variety of different circumstances, and some cases are easier to decide
that others, only one federal court of appeal303 and six state courts of
review304 to consider Davis’ good faith exception have held that
officers were not in fact acting in good faith on binding precedent.
301
United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013); Katzin, 769 F.3d at
170; United States v. Stephens, 764 F.3d 327, 334 (4th Cir. 2014); United States v.
Davis, 690 F.3d 226, 233 (4th Cir. 2012); United States v. Andres, 703 F.3d 828,
834 (5th Cir. 2013); Brown, 744 F.3d at 476; United States v. Davis (“Davis Dog”),
760 F.3d 901, 903 (8th Cir. 2014); United States v. Thomas, 726 F.3d 1086, 1093
(9th Cir. 2013); United States v. Pineda-Moreno, 688 F.3d 1087, 1090 (9th Cir.
2012); Kelly v. State, 82 A.3d 205, 214 (Md. 2013).
302
See, e.g., United States v. Davis (“Davis DNA”), 690 F.3d 226, 240, 246
(4th Cir. 2012).
303
See United States v. Martin, 712 F.3d 1080 (7th Cir. 2013).
304
State v. Mitchell, 323 P.3d 69 (Ariz. Ct. App. 2014); Smallwood v. State,
113 So.3d 724 (Fl. 2013); People v. LeFlore, 996 N.E.2d 678, 691 (Ill. Ct. App.
2013); State v. Thomas, 334 P.3d 941, 945 (Okla. Ct. App. 2014); State v. Adams,
763 S.E.2d 341 (S.C. 2014); State v. Fierro, 853 N.W.2d 235, 244 (S.D. 2014).
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Conversely, seventeen federal courts of appeal305 and thirteen state
courts of review306 have held that officers were acting in good faith on
binding precedent.
E. The Best Path Forward in Applying Davis
The exclusionary rule began as a device to give effect to the
Fourth Amendment, and make citizens more secure in their persons,
houses, papers, and effects.307 By limiting the government’s incentive
to violate individuals’ Fourth Amendment rights, and by significantly
weakening its ability to convict individuals of crimes subsequent to
such violations, the exclusionary has served as an incredibly important
limit on government power.
The best path forward in applying Davis’ binding precedent
exception is consistent with the exclusionary rule’s origins and
purpose, and colored by a deep respect for the rule’s survival as a limit
on the government’s power to search and seize in the future. The best
path forward thus limits officers’ ability to rely on precedent, and also
limits result-oriented courts from interpreting Davis however they
305
United States v. Baez, 744 F.3d 30 (1st Cir. 2014); Sparks, 711 F.3d 58;
United States v. Aguilar, 737 F.3d 251 (2d Cir. 2013); Katzin, 769 F.3d 163;
Stephens, 764 F.3d 327; United States v. Baker, 719 F.3d 313 (4th Cir. 2013); Davis,
690 F.3d 226; Andres, 703 F.3d 828; United States v. Fisher, 745 F.3d 200 (6th Cir.
2014); Brown, 744 F.3d 474; Davis, 760 F.3d 901; United States v. BarrazaMaldonado, 732 F.3d 865 (8th Cir. 2013); Thomas, 726 F.3d 1086; Pinedo-Moreno,
688 F.3d 1087; United States v. Madden, 682 F.3d 920 (10th Cir. 2012); United
States v. Soza, 643 F.3d 1289 (10th Cir. 2011); United States v. Ransfer, 749 F.3d
914 (11th Cir. 2014).
306
People v. Hopper, 284 P.3d 87 (Colo. Ct. App. 2011); Henderson v. State,
953 N.E.2d 639 (Ind. Ct. App. 2011); State v. Carlton, 304 P.3d 323 (Kan. 2013);
Parker v. Commonwealth, 440 S.W.3d 381 (Ky. 2014); Briscoe v. State, 30 A.3d
870 (Md. 2011); Kelly v. State, 82 A.3d 205 (Md. 2013); People v. Mungo, 813
N.W.2d 796 (Mich. Ct. App. 2012); State v. Johnson, 354 S.W.3d 627 (Mo. 2011);
State v. Hoffman, No. 2013–0688, 2014 WL 5648448 (Ohio 2014); State v. Brown,
736 S.E.2d 263 (S.C. 2012); State v. Edwards, 853 N.W.2d 246 (S.D. 2014); Taylor
v. State, 410 S.W.3d 520 (Tex. App. 2013); State v. Oberst, 847 N.W.2d 892 (Wis.
Ct. App. 2014).
307
Weeks v. United States, 232 U.S. 383, 391–92 (1914).
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wish, to reach whatever result they wish. The following hypothetical
will be used throughout the discussion of the best path in order to
illustrate its merits.
Over the last century, a common situation in which the Court
has constantly been confronted with Fourth Amendment problems is
when the police develop new technology to investigate crime.308 So, as
a useful hypothetical, suppose that law enforcement agencies around
the country develop, and begin to use, a new sophisticated device that
allows them to remotely scan individuals, and indicate whether the
individual has used illegal drugs within the last thirty days (much like
a drug test). Now suppose the police use their new device, without a
warrant, to scan Randy, a young man walking down the street in a bad
neighborhood. The scan is done without Randy’s knowledge, and the
device informs the police that Randy has recently ingested cocaine,
probably within the last seventy-two hours. So, the police conduct a
Terry stop, things go downhill for Randy, and the police find drugs
and a knife on his person after a lawful Terry pat-down.309
In his subsequent criminal trial, Randy argues that the police’s
act of using the device constituted a Fourth Amendment search, and he
asks the trial court to suppress the evidence because the search was
unreasonable and the fruit of the officers’ initial unlawful use of the
device. However, the government argues that the use of the device was
not a search, that even if there was a search it was reasonable, and that
no matter how the first two issues are resolved the evidence should not
be suppressed because, pursuant to Davis, the police were acting in
good faith on binding precedent when using the device. The trial court
could determine that the police’s use of the device was not a search,
but for our purposes the court does not do so and proceeds to consider
the government’s good faith argument under Davis.310
308
See, e.g., United States v. Jones, 132 S. Ct. 945 (2012); Kyllo v. United
States, 533 U.S. 27 (2001); United States v. Karo, 468 U.S. 705 (1984); United
States v. Knotts, 460 U.S. 276 (1983); Olmstead v. United States, 277 U.S. 438
(1928).
309
See Terry v. Ohio, 392 U.S. 1 (1968).
310
The court could also choose not to address the merits of whether a Fourth
Amendment violation occurred, and only conduct a good faith analysis, as some
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1. How Binding Precedent Should Be Defined
The question of what exactly should constitute precedent is a
tricky one. For example, the court in Randy’s case, regardless of what
universe of cases it decides is binding and what those cases hold, can
use Davis’ holding to do whatever it wishes. If the court desires to
reach a certain result, instead of trying to objectively apply the law,
whatever result the court desires can be readily reached through
various interpretive techniques. All lawyers know that precedent can
be shaved down to a fine point, or flattened into a bludgeon, as long as
the craftsman is skilled. For this portion of the discussion, it also does
not matter whether Randy is tried in federal or state court.
If the court wants to admit the evidence and hold that the
officers were acting in good faith, it could find some precedent from
its own jurisdiction or from the United States Supreme Court, and hold
that the precedent authorized the police to use their device. For
example, the court could use Kyllo, and hold that because the device
was available to the public for general use, the police acted in good
faith belief they were not conducting a Fourth Amendment search.311
If no reasonable argument could be made that the device was
available for public use (meaning the court would lose legitimacy if it
held to the contrary), or if the court did not want to use Kyllo for
whatever reason, it could instead look at the general legal landscape
around the country, as some courts have done.312 After this review, the
court would find some cases holding that individuals do not have a
reasonable expectation of privacy in concealing contraband, and thus a
police practice that only reveals the presence or absence of contraband
is not a search.313 Of course, given Jones, the court would also have to
hold that the government had not physically trespassed into Randy’s
body, but this would be a reasonable argument to make.
courts have done. See United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013);.
Katzin, 769 F.3d at170; United States v. Stephens, 764 F.3d 327, 334 (4th Cir.
2014).
311
533 U.S. 27, 34 (2001).
312
See Katzin, 769 F.3d at 177–82; Stephens, 764 F.3d at 338.
313
Illinois v. Caballes, 543 U.S. 405, 408–09 (2005).
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Simply put, if the court wanted to admit the evidence, it could
either: (1) choose a case from its own jurisdiction and hold that it
authorized the police to use the device, or (2) if no such useful case
were available, expand the universe of binding cases until it found a
case sufficiently similar to Randy’s that authorized the officers’
conduct. There is no doubt one will almost always exist somewhere,
so long as courts are willing to look hard.
If the court wants to exclude the evidence, it could also easily
do so, and again it is totally irrelevant what cases actually exist
throughout the country. For example, the court could hold that the
officers should have known the device was not widely available for
public use under Kyllo, and thus that using the device would be a
search. And again, if this is an unsavory statement to make and one the
court wants to avoid, the court could (again quite reasonably) hold that
the officers should have known that the device was much like a
government trespass into Randy’s body, and thus would be a search.
Even if there was binding precedent within the court’s jurisdiction that
appeared to directly authorize the police’s use of the device, the court
could look to the legal landscape around the country, but this time
look for cases that would indicate the use of such devices was
unsettled. For example, even if no case in the country had addressed
the use of the remote drug-testing device, the court could find a case
holding that a suspicionless drug test of an individual constituted a
search absent some special need.314 Then, the court stress the
importance of Justice Sotomayor’s concurrence, and hold that because
the legality of the device was not clearly settled, the police could not
have acted in good faith.315
Now, change the facts of the hypothetical slightly, and imagine
the law enforcement officers using the device are agents with the
DEA. Now, the agents are in East St. Louis in Illinois, very close to
314
See, e.g., Chandler v. Miller, 520 U.S. 305, 308 (1997).
Another way to think about this kind of hypothetical is to consider, if the
case of Kyllo arose “for the first time today rather than in 2001,” whether the
evidence unconstitutionally seized would be admissible under Davis. JOSHUA
DRESSLER & GEORGE C. THOMAS, III, CRIMINAL PROCEDURE INVESTIGATING CRIME
527 (West, 5th ed. 2013).
315
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the border between Illinois and Missouri. Randy the unfortunate is still
in his bad neighborhood, but now he is in St. Louis, Missouri. What
precedents may the agents now rely on? The Seventh Circuit’s? The
Eighth Circuit’s? Illinois state law? Missouri state law?
The answer again is largely irrelevant, because if a court wants
to admit the evidence, the only thing that will stand in its way is if all
the jurisdictions have cases directly on point clearly prohibiting the
use of the device. As long as one jurisdiction allows it, a court could
hold that that jurisdiction alone enabled the agents to act in good faith.
One out of four might be a hard sell, but the court’s holding could be
bolstered by concluding that the jurisdiction’s precedent that
authorized the conduct was the only jurisdiction that mattered.316
For example, the court that the agents’ conduct suggests that
the government intended to prosecute Randy in the jurisdiction that
allowed the use of the device, and it should not matter if plans changed
after the contraband was found. Or, to getter better odds (one out of
two), the court could hold that all that mattered was where Randy was
(Missouri or the Eighth Circuit), or all that mattered was where the
agents were (Illinois or the Seventh Circuit).
And again, if the court wished to keep the evidence out, it
could go through similar interpretive hurdles, holding that the choice
precedent provided an unsettled landscape rather than judicial
authorization. The only thing standing in its way would be if all four
jurisdictions had cases on point clearly authorizing the practice.
“Binding precedent” is a nebulous concept. In this nebula, law
enforcement officers and courts alike are free to maneuver without
limitation and pursue any subjective goal they wish, without much
regard to how the Fourth Amendment protects all people. Given this
reality, binding precedent should be defined narrowly, in order to
accomplish two important goals: (1) providing clarity, and (2)
providing limitations.
Therefore, “binding precedent” should be defined for both state
and federal law enforcement officers as the decisions of the state and
316
See, e.g., United States v. Barraza-Maldonado, 732 F.3d 865 (8th Cir.
2013).
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federal circuit in which they are acting, and the decisions of the United
States Supreme Court. When federal and state law conflicts, this
should be a factor suggesting the officers could not have relied in good
faith on either jurisdictions’ precedent (due to its unsettled nature).
This rule should also hold true if federal officers’ conduct
extends over many jurisdictions. In these situations, precedential
universe expands, but the limiting principle remains with equal if not
greater force, because any conflicts that arise are still a factor
suggesting the officers could not have relied in good faith on any
jurisdictions’ precedent, again due to its unsettled nature. In these
circumstances, agents must strictly comply with all jurisdictions’
precedents in which they may act, and if they fail to do this courts
should lean towards holding the officers did not act in good faith. This
would go along way to solve the multi-jurisdictional issues discussed
above.
Good officers should be trained on what the law allows,317 but
this will be incredibly hard if “binding precedent” is not defined
clearly and narrowly. Officers should not be tasked with knowing how
the Fourth Amendment is being interpreted in fifty different states and
twelve different federal circuits. Further, limiting the definition of
binding precedent will prevent overly aggressive police officers from
unnecessarily risking violations of people’s Fourth Amendment rights.
If officers feel that courts will support their actions by looking around
the entire country for precedent to authorize their conduct after the
fact, such risks may be taken more frequently without the officers
seeking a warrant from an independent judicial officer.
Courts of review should also be interested in limiting
themselves, and lower courts over which they sit. Limiting what
constitutes precedent as described above will restrict (although not
stop entirely) lower courts using whatever interpretive tools they wish
to reach any result they wish. This limitation would also provide more
clear guidance for judges trying to objectively apply the law without
regard for what result is reached. And, by doing so, such a rule would
317
See United States v. Leon, 468 U.S. 897, 919 (1984) (holding that
officers should have a reasonable knowledge of what the law prohibits).
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provide more consistent results, as opposed to the incredibly varied
results that courts have thus far reached.
2. Defining the Limits of Officers’ Good Faith Reliance on Binding
Precedent
This question is complicated, because it is hard to precisely
apply Davis’ culpability rubric when dealing with officers’ reliance on
precedent. For example, under the Court’s current regime, an officer
will not be culpable if he acts with isolated or simple negligent
reliance on precedent.318 But, the officer will be culpable if his
reliance on precedent was grossly negligent or reckless.319 The line
between these two standards of culpability is obviously a very hard to
draw.
Because of this difficulty, and because of the variety of
different contexts in which past precedent can guide officers’ present
conduct, no fixed line can ever be drawn. Instead a variety of different
tests for each conceptual problem raised needs to be considered.
i. Binding Precedent Must Be Very Similar to the Present Case Under
Review
The best approach to use when determining how similar
precedent must be to a present case under review is to hold that,
consistent with Davis, the precedent must “specifically authorize” the
officers’ conduct in order for officers to be able to rely in good faith
on that precedent.
To determine whether precedent specifically authorizes the
officers’ current conduct, courts should examine two factors: (1)
whether the facts of the old case are similar to the present case, and (2)
whether the underlying rationales used to decide the old case could
have led the officers to think their present conduct was constitutional.
For example, Davis held that Belton “specifically authorized” the
318
319
Davis v. United States, 131 S. Ct. 2419, 2427–28 (2011).
Id.
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police’s search of Davis’ car, because the conduct at issue in both
cases was incredibly similar (searches of cars incident to the arrest of a
recent occupant). And, Belton’s underlying rationale, that police
officers could always conduct such searches regardless of whether the
arrestee was in reaching distance of the vehicle due of the need for
officer safety and clear guidelines in that specific context also applied
with full force to the search of Davis’ car.
However, if this two-part test does not indicate that the old
precedent specifically authorized the officers’ current conduct, this
should constitute a per se bar to a finding of good faith, and the
inquiry can end. This will stop courts from completely eroding the
exclusionary rule over time. If officers can be held to be acting in good
faith even when the past precedent does not specifically authorize their
conduct, no limiting principle to application of Davis’ holding will
exist and the exclusionary rule will disappear.320
Applying this test to our hypothetical with Randy above would
almost certainly lead to the conclusion that the officers were not in fact
acting in good faith on any precedent when using their device. First,
unlike in Davis where the officers could have relied on Belton to
specifically authorize their conduct, in our hypothetical no such
precedent would lead the officers to believe that their conduct was not
a search (unless other binding precedent had already resolved that
nearly identical conduct was not a search). So, the good faith inquiry
could end there.
However, if a court holds that precedent does specifically
authorize the police’s conduct, such a court should proceed to the next
step in the analysis, which is determining whether or not the
constitutionality of the practice is settled.
ii. The Law Authorizing the Police’s Conduct Must be Settled
As Justice Sotomayor noted in her concurrence in Davis, courts
should consider whether the law authorizing a practice is settled,
because a situation where the law is unsettled is a very different
320
See Davis, 131 S. Ct. at 2439 (Breyer, J., dissenting).
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situation than one where the law is clearly settled, as was the case in
Davis.321 The difference is of course that when the law is unsettled,
officers should be much less certain that their conduct is authorized,
and courts in these circumstances should not find that the officers
acted in good faith.
To determine whether the law is settled, courts should only
look at binding precedent (defined above as the law of the relevant
federal circuit and state). This is because it would be unfair to ask
officers to only look to binding precedent for guidance regarding the
constitutionality of their actions, but allow courts to look outside this
sphere to determine whether the law was settled.
Although determining when the law is “settled” may be
difficult in some circumstances, courts should consider this factor with
an eye towards always holding that the underlying law is unsettled
absent a high degree of clarity. For example, if a state Supreme Court
was reviewing the constitutionality of a practice about which lower
courts had disagreed, this should strongly suggest that the law was
unsettled, regardless of the weight of authority on each side of the
split.
Also, the fact that a particular practice is being challenged in a
court of review is important in determining whether the law is settled.
For this inquiry, the court hearing the challenge to a police practice
will be relevant. For example, an appellate court’s decision may only
call into question the constitutionality of a police practice, while a
Supreme Court (either state or federal) has a greater ability and
likelihood to definitively settle the constitutionality of a practice.
Further, the fact that a court where a defendant has an appeal of right
has taken the case would have less significance than the fact that a
court which only grants such defendants permissive appeals has taken
the case. This is because, when a court which grants permissive
appeals such as a state Supreme Court or the United States Supreme
Court takes a case, the courts are making a deliberate decision to
consider the constitutionality of a particular practice. Such a decision
321
Id. at 2434–35 (Sotomayor, J. concurring).
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should put officers on notice that their conduct may be
unconstitutional.
Although some courts have held that the fact that a practice is
being challenged does not matter,322 the Court in Leon held that
officers should be tasked with having a reasonable understanding of
what the law is. Knowing what the law is involves knowing when a
practice is authorized and the law authorizing it is settled, and when
the law concerning the practice is unsettled and under review. The fact
that a practice is being challenged is certainly not dispositive in the
good faith analysis, but it should be a factor courts consider.
3. Resolving Other Issues Raised By Davis
i. The Actor Problem
The exclusionary rule should be used to deter prosecutors,
especially when the government seeks to justify the officers’ good
faith on the fact that the officers consulted with a prosecutor. Because
prosecutors are “adjuncts to the law enforcement team,”323 courts
applying Davis should use the exclusionary rule to deter prosecutors
from over-aggressive advising of officers. However, courts should not
hold prosecutors to a higher burden of knowing the law in these
circumstances, and be quicker to find bad faith, because such a rule
would act as a disincentive for police officers from seeking advice on
the law from government lawyers.
ii. Courts should not Assume Fourth Amendment Issues Without
Deciding Them
One final issue is that courts should not avoid deciding the
merits of a case simply because the court has determined that the
322
See United States v. Davis, 760 F.3d 901, 905 (8th Cir. 2014); United States
v. Barraza-Maldanado, 732 F.3d 865, 869 (8th Cir. 2013).
323
Illinois v. Krull, 480 U.S. 340, 350–51 (1987).
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officers were acting in good faith.324 Instead of leaping to a good faith
analysis, courts must first analyze whether the underlying conduct is
reasonable under the Fourth Amendment. Doing this will set new
precedent about the boundaries of the Fourth Amendment, and provide
guidance to law enforcement in the future.
If all courts from 2015 onwards begin refusing to decide the
merits of cases, and instead simply decide whether officers were
acting in good faith on previous precedent, our common law system
would largely end in the Fourth Amendment context. When law
enforcement develops new technology in the future, courts would
forever be deprived of the ability to make reasoned holdings based on
what the Fourth Amendment requires, because as time moves on less
and less precedent will be available to them. Instead, courts will have
to decide, based on cases resolving the constitutionality of conduct
decided before 2015, whether or not the officers were acting in good
faith that their conduct was reasonable, not whether in fact the conduct
was reasonable. There may seem to be little distinction between these
choices now, but in one hundred years the problem will be more
severe.
To avoid this problem, courts must make holdings regarding
the constitutionality of officers’ conduct before deciding if the officers
were acting in good faith on binding precedent.
E. How the Seventh Circuit Went Astray In Gutierrez
In Gutierrez, the Seventh Circuit erred in both the analytical
tools it chose use in applying Davis, and the results it reached in using
the tools it choose.
324
See United States v. Sparks, 711 F.3d 58, 62 (1st Cir. 2013); United States
v. Katzin, 769 F.3d 163, 170 (3d Cir. 2014); United States v. Stephens, 764 F.3d
327, 334 (4th Cir. 2014).
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1. The Court Failed to Adopt the Best Interpretation of Binding
Precedent
Before Gutierrez was decided, a split existed within the
Seventh Circuit as to what constituted binding precedent under Davis.
In Martin, the court rejected the government’s argument that the
police should be able to rely in good faith on “the weight of authority
around the country,”325 while in Brown the court strongly suggested
that officers may rely on decisions from other federal circuits because
not allowing police to do so would not yield much deterrence.326
Gutierrez failed to resolve this split, and the court also failed to
adopt the best interpretation possible of what constitutes binding
precedent. Although the court held that officers could have relied on
one of the Seventh Circuit’s previous cases, United States v. Brock,327
the court failed to address an important case decided by Indiana Court
of Appeals, Hoop v. State.328 And, Hoop had been addressed at length
by the district court,329 and in the parties’ briefs to the Seventh
Circuit.330 So, the court should have taken the opportunity, given the
existence of Hoop, to weigh in on the split in the Seventh Circuit over
what constitutes binding precedent. Given the best definition discussed
above, the court should have evaluated Hoop in conjunction with
Brock as binding precedent.
The court probably choose not to address Hoop because doing
so would have raised two difficult questions: (1) whether federal
officers can rely on state cases to authorize their conduct, and (2)
whether those state cases may also limit the bounds of federal officers’
325
United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014).
United States v. Martin, 712 F.3d 1080, 1082 (7th Cir. 2013).
327
417 F.3d 692 (7th Cir. 2005).
328
Hoop v. State, 909 N.E.2d 463 (Ind. Ct. App. 2009).
329
United States v. Cota, 2013 WL 4510163 at *4 (N.D. Ind. 2013).
330
Brief and Required Short Appendix for Defendant-Appellant at 10, United
States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014) (No. 14-1159); Brief of the
Plaintiff-Appellee, United States of America at 18–19, Gutierrez, 760 F.3d (No. 141159); Reply Brief of Defendant Appellant at 1–2, Gutierrez, 760 F.3d (No. 141159).
326
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good faith that their conduct was lawful. Although questions along
these lines arose at oral argument,331 the court did not give any answer
in its opinion. So overall, the court’s analysis of what constitutes
binding precedent was very unsatisfactory.
2. Good Faith Issues
Gutierrez’s treatment of the good faith inquiry was also
unsatisfactory. First, the court failed to enunciate a clear standard
regarding how similar binding precedent must be to the present case
under review in order for officers to be able to rely in good faith on
that precedent. Second, the court failed to address the question of
whether the precedent the officers relied on was settled, which is
important because the legality of the officers’ conduct in Gutierrez
was very unsettled. Third, the court failed to address the significance
of the officers’ reliance on the advice they received from a State
prosecutor.
In terms of whether previous precedent specifically authorized
the officers’ conduct, the court failed to enunciate a clear standard by
which to evaluate cases. The court, on two occasions, cited Davis’
holding that the evidence should not be suppressed if precedent
specifically authorized the officers’ conduct.332 However, on each
occasion, the court then almost immediately afterward held that the
evidence should not be suppressed if precedent authorized the officers’
conduct.333 So, it appears the court did not follow Davis’ suggestion
that precedential authorization of police conduct must be specific, but
the court did not explicitly state why it choose authorization instead of
specific authorization, or whether it was choosing to use this slightly
different language deliberately.
331
Oral Argument, Gutierrez, 760 F.3d (Case No. 14-1159), available at
http://media.ca7.uscourts.gov/sound/2014/ab.14-1159.14-1159_06_02_2014.mp3
(last visited Jan. 15th, 2015).
332
Gutierrez, 760 F.3d at 750, 752, 754.
333
Id.
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Further, the court erred in holding that past precedent was in
fact similar enough to the case at bar to authorize the officers’
conduct. As an initial matter the court should have considered Hoop as
part of the binding precedent universe. Hoop provides that under the
Indiana State constitution, law enforcement officers must have
reasonable suspicion before conducting a dog-sniff of a private
residence.334 And, Hoop expressly declined to state whether an
anonymous tip, like the officers had in Gutierrez, would be enough to
supply this reasonable suspicion.335 So, under Hoop, the officers’
conduct was not clearly authorized.
However, even if Hoop is put aside and only Brock is
considered, the court still erred in holding that the officers could have
relied in good faith on Brock at the time they used Fletch to examine
Gutierrez’s front door. Essentially, Brock held that law enforcement
officers do not commit a Fourth Amendment search, and thus do not
need a warrant, to use a drug-sniffing dog to smell a home so long as
the officers are lawfully present where the sniff is conducted. So, the
key question for the court in Gutierrez was whether the police were
lawfully present at Gutierrez’s front door when they used Fletch.
Gutierrez correctly argued that, under Jones, the lawfulness of
the officers’ presence at his front door was unclear. Jones held that in
addition to Katz’s privacy test, the common law trespass test should be
used to determine when a Fourth Amendment search occurs.336 So, if
the officers committed a trespass in searching for evidence at
Gutierrez’s front door, Jones held that such a trespass is relevant for
Fourth Amendment purposes and would thus ordinarily render
officers’ conduct unconstitutional under the Fourth Amendment if
such a trespass were done without a warrant.
The court in Gutierrez held that there was no trespass, because
under the Court’s decision in Kentucky v. King,337 the police are
allowed to approach a homeowner’s front door and knock on it
334
Hoop v. State, 909 N.E.2d 463, 470 (Ind. Ct. App. 2009).
Id.
336
Gutierrez, 760 F.3d at 756.
337
131 S. Ct. 1849 (2011).
335
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because in doing so, the police do no more than the ordinary citizen.338
However, the officers in Gutierrez did more than an ordinary citizen
would do because they approached the home with a drug-sniffing dog.
And, this is exactly why the Court in Florida v. Jardines held that
such conduct is a search; officers who approach a home with a drugsniffing dog exceed their implied license to enter a person’s
property.339 The court in Gutierrez recognized that the officers may
not have been lawfully present if they “lingered” at Gutierrez’s front
door before using the dog (because such conduct also exceeds
individuals’ implied license to approach a home and knock on the
door),340 but the court failed to explain why the officers’ approach of
the home with Fletch would not also exceed their implied license,
rendering their presence in front of Gutierrez’s door unlawful and their
subsequent actions unauthorized under Brock.
So, at the time of the officers’ conduct in Gutierrez, Brock’s
validity had been significantly called into question by Jones, and
Brock could not have provided sufficient authorization for the officers’
conduct because the question of whether the officers were lawfully
present in front of Gutierrez’s front door was incredibly unclear.
The court also improperly characterized this portion of its
analysis as whether or not Jones had “overruled” Brock, and whether
Brock was still good law.341 But, this was an incorrect approach. The
more accurate question pursuant to Davis is, given binding precedent,
could the officers have relied on good faith that Brock authorized their
conduct. Given Jones and King, it was incredibly unclear whether
Brock still provided such authorization, regardless of whether or not
Brock had been formally overruled in its entirety.
The court also failed to discuss the importance of Justice
Sotomayor’s concurrence in Davis, and hold that the law regarding the
constitutionality of a police practice must be settled in order for
officers to rely in good faith that their conduct is authorized. This is
338
Gutierrez, 760 F.3d at 756.
133 S. Ct. 1409, 1416 (2013).
340
Gutierrez, 760 F.3d at 758.
341
Id. at 756.
339
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important because again, Jones and King seriously called into question
the validity of using drug dogs to sniff individuals’ houses. Related to
this, the court also failed to discuss the relevance of the fact that the
law enforcement’s practice of using a drug-sniffing dog to smell the
outside of a person’s home was being challenged in the Supreme
Court when the officers used Fletch to examine Gutierrez’s door.342 As
discussed above, this consideration is important, because it suggests
that the conduct being reviewed may not in fact be constitutional.
The court also failed to discuss the relevance of the officers’
consultation with a State prosecutor regarding the legality of their
conduct. Although the prosecutor’s advice came after the police had
used Fletch, it did come before the police entered the home and
discovered evidence. So, the court should have held that the
exclusionary rule should have been used to deter future prosecutors
from giving erroneous advice. The prosecutor should have been aware
that under Hoop, the officers needed reasonable suspicion to use the
dog sniff, and that the law was unclear whether the officers’
anonymous tip would have been sufficient to provide such reasonable
suspicion.
CONCLUSION
The exclusionary rule was created to be a very important and
integral part of the Fourth Amendment’s limit on the government’s
power. Courts need to interpret Davis’ rule narrowly in order to limit
government’s power and enable citizens to be secure in their persons,
houses, papers, and effects. So far, courts around the country,
including the Seventh Circuit, have been failing to properly interpret
Davis, and the result if continued may be the total erosion of the
exclusionary rule.
342
See Florida v. Jardines, 133 S. Ct. 1409. The case was argued October 31st,
2012, only a few weeks before the officers used Fletch.
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KA BOW! SEVENTH CIRCUIT KNOCKS DOWN
TRADEMARK CLAIM
SARAH B. VIRANI
Cite as: Sarah B. Virani, KA BOW! Seventh Circuit Knocks Down Trademark Claim,
10 SEVENTH CIRCUIT REV. 229 (2014), at http://www.kentlaw.iit.edu/Documents
/Academic Programs/7CR/v10-1/virani.pdf.
INTRODUCTION
A business’s trademark protects its intellectual property, forms
its foundation, and allows it to garner goodwill in its products or
services; protecting its property rights in its trademark, therefore, is
integral to the success of a business. The First Amendment freedom of
speech is also integral to the lifestyle of American individuals and
businesses alike. To what extent can an individual or business exercise
its First Amendment freedom of expression without infringing upon
the trademark of another?
The Seventh Circuit addressed this question in a case where
fiction and reality collide. In Fortres Grand Corporation v. Warner
Bros. Entertainment, the owner of computer software that removes
private data from public computers filed suit against Warner Bros. for
unauthorized use of its trademark, “Clean Slate,” in the film The Dark
Knight Rises and websites advertising the film. In the film, “the clean
slate” describes a hacking program that enables Catwoman to rid
databases of all evidence of her criminal past. Plaintiff alleged unfair
competition under Indiana law and trademark infringement and unfair
 J.D. candidate, May 2016, Chicago-Kent College of Law, Illinois Institute of
Technology; B.S., University of Illinois at Urbana-Champaign. Thank you, all the
wonderful Viranis in my life, for your endless love and support.
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competition under the Lanham Act, claiming that consumers were
incorrectly led to believe that Fortres Grand’s software was related to
the fictional program from the film.
This note discusses the following matters: (1) the Lanham Act
and its standard for a finding of trademark infringement; (2) the
doctrine of “reverse confusion”; (3) the Seventh Circuit’s analysis of
the reverse confusion doctrine in its 2014 ruling in the Fortres Grand
case; (4) the extent of the First Amendment’s protection of creative
expression when it implicates the trademark of another; and (5) the
effect of the Seventh Circuit’s ruling on future trademark lawsuits
based on reverse confusion.
BACKGROUND
A. The Lanham Act
The Lanham Act, 15 U.S.C.A. §§ 1051 et seq, (the “Act”)
codifies federal trademark law, providing for trademark registration
and regulating the use of trademarks in commercial activity. Section
45 of the Act defines a trademark as “any word, name, symbol, or
device, or any combination thereof adopted and used by a
manufacturer or merchant to identify and distinguish his goods,
including a unique product, from those manufactured or sold by
others.” 1 Further, a trademark must be used in commerce. 2 Because
the Act provides such a broad definition, trademarks “can consist of
almost any conceivable subject matter, from a word, symbol, picture,
design, numeral, escutcheon, monogram, abbreviation, acronym,
slogan, personal name, phrase, newspaper or magazine column title,
title of a book series, [or] fragrance,” 3 among other representations.
1
15 U.S.C. § 1127 (2006).
Id.
3
ANNE GILSON LALONDE & JEROME GILSON, 1-1 GILSON ON TRADEMARKS §
1.02 (2014). See also Qualitex v. Jacobson Prods. Co., 514 U.S. 159 (1995) (holding
that color in itself may be registered as a trademark under the Lanham Act).
2
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A trademark serves “to point distinctively, either by its own
meaning or by association, to the origin or ownership of the wares to
which it is applied.” 4 Trademark law is based on the notion that
consumers are entitled to identify the source of a product. 5 The Act
provides “national protection of trademarks,” which the United States
Supreme Court has noted “is desirable . . . because trademarks foster
competition and the maintenance of quality by securing to the
producer the benefits of good reputation." 6 Trademarks not only
identify the source of goods, but also represent and generate goodwill
for the producer. 7 The consistent production of high quality products
that can easily be identified as originating from a particular producer
creates a good reputation and goodwill for that producer that foster
brand loyalty and generate sales.
B. The Lanham Act Standard of Likelihood of Causing
Confusion
Section 32 of the Act provides civil liability for “any person
who shall . . . use in commerce any reproduction, counterfeit, copy, or
colorable imitation of a registered mark in connection with the sale,
offering for sale, distribution, or advertising of any goods or services
or in connection with which such use is likely to cause confusion, or to
cause mistake, or to deceive.” 8 In § 43, the Act further provides civil
liability for “any person who . . . uses in commerce any word, term,
name, symbol, or device, or any combination thereof, or any false
designation of origin, false or misleading description of fact, or false
4
Estate of P. D. Beckwith, Inc. v. Commissioner of Patents, 252 U.S. 538, 543
(1920).
5
See generally Tanqueray Gordon & Co. v. Gordon, 10 F. Supp. 852 (D.N.J.
1935).
6
Park 'N Fly, Inc. v. Dollar Park and Fly, Inc. 469 U.S. 189, 198 (1985); see
also San Francisco Arts & Ath. v. United States Olympic Comm., 483 U.S. 522, 531
(1987).
7
Robert G. Bone, Enforcement Costs and Trademark Puzzles, 90 VA. L. REV.
2099, 2120 (2004).
8
15 U.S.C. § 1114 (1)(a) (2005).
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or misleading representation of fact, which is likely to cause
confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person, or as to
the origin, sponsorship, or approval of his or her goods, services, or
commercial activities by another person.” 9 These provisions of the
Act serve a dual purpose: (1) to prevent the use of identical marks
causing confusion to consumers about the actual source of goods and
services; and (2) to protect the goodwill that companies have acquired
in their trademarks.10
Preventing confusion as to the source of a good is intimately
connected to protecting the goodwill of the trademark owner. The
company owning the registered trademark is the senior user of that
mark, while the company using an identical, unregistered mark is the
junior user. If two competing goods use confusingly similar marks,
consumers may misidentify the source of the goods; if consumers
confuse the product of junior user Company A as produced by senior
user Company B, Company B then loses control over consumer
perception of its reputation. 11 Company A has infringed upon the
trademark of Company B if its use of the similar mark is likely to
mislead consumers. 12
Because actual confusion often cannot be proven, the essential
test for trademark infringement is proof of the likelihood of confusion
as to the source of the product at issue.13 This central question is based
on whether consumers “are likely to believe that defendants’ products
or services come from the same source as plaintiffs’ protected
products or services.” 14 Courts make this determination on a case-by-
9
15 U.S.C § 1125(a)(1)(A) (2012).
Deborah F. Buckman, Annotation, Reverse Confusion Doctrine Under
Lanham Trademark Act, 187 A.L.R. FED. 271, § 2[a] (2003).
11
GILSON, supra note 3, § 1.03.
12
Id. at § 5.01.
13
Buckman, supra note 10, § 2[a].
14
ANNE GILSON LALONDE & JEROME GILSON, 5-5 GILSON ON TRADEMARKS §
5.01 (2014).
10
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case basis, using various factors in evaluating the likelihood of
confusion. 15
A likelihood of confusion may result from either forward
confusion or reverse confusion.16 Forward confusion, the more
traditional type, “occurs when a junior user of a mark uses it to sell
goods or services based on the misperception that they originate with
the mark’s senior user.” 17 Conversely, reverse confusion is
characterized by a junior user’s saturation of the market with a
trademark that is identical or similar to the senior user’s trademark. 18
Generally, with respect to reverse confusion, the junior user is larger
and more powerful than the senior user, 19 and “the junior user uses its
size and market penetration to overwhelm the senior, but smaller,
user.” 20 The senior user’s products are mistaken as originating from
the junior user. 21 Consequently, this confusion harms the senior user
by reducing the value of the trademark 22 as well as “its product
identity, corporate identity, control over its goodwill and reputation,
and ability to move into new markets.” 23 The doctrine of reverse
confusion “protects the senior user’s control of its mark and the
goodwill created by the mark from a junior user’s employment of the
mark, and protects the public from believing that the senior user’s
product” originates from the junior user. 24
15
Id.
Buckman, supra note 10, § 2[a].
17
Id.
18
Id. § 2[a].
19
Id.
20
Custom Vehicles, Inc. v. Forest River, Inc., 476 F.3d 481, 484 (7th Cir.
2007).
21
Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 696, 701 (7th
Cir. 2014).
22
Id.
23
Buckman, supra note 10, § 2[a].
24
Custom Vehicles, 476 F.3d at 484.
16
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C. Reverse Confusion Doctrine
While the Seventh Circuit eventually recognized reverse
confusion in the 1992 case of Sands, Taylor & Wood Co. v. Quaker
Oats Co.25, it had previously declined to acknowledge the doctrine in
Westward Coach Mfg. Co. v. Ford Motor Co. 26 Westward, the small
senior user, registered and used the mark “Mustang” with the
representation of a running horse to market its campers and trailers,
which the large junior user Ford subsequently used to market its new
sports car. 27 Finding “no rational basis for support” of Westward’s
claim of reverse confusion,28 the Seventh Circuit analyzed the
infringement claim under the traditional likelihood of confusion
theory. The court held that because Westward’s sales were small and
the scope of its business narrow, its trademark was weak and did not
extend from campers to automobiles and its claim was not
actionable.29 If unaltered in subsequent cases, this decision “would
allow powerful junior users to undermine the trademark protection
accorded smaller businesses through sheer economic strength.”30 Not
only would such a rule disserve smaller businesses with senior rights
to a mark, but also the very consumers that trademark law seeks to
protect.
Federal courts first recognized the doctrine of reverse
confusion in the 1977 case Big O Tire Dealers, Inc. v. Goodyear Tire
25
978 F.2d 947 (7th Cir.1992) (holding for the first time that the trademark
holder could receive damages for reverse confusion, finding that the Lanham Act’s
objectives of protecting an owner’s interest in its trademark and preventing
consumer confusion are as important in a case of reverse confusion as in traditional
trademark infringement).
26
388 F.2d 627 (7th Cir. 1968).
27
Id. at 630.
28
Id. at 634.
29
Id. at 635.
30
Brent Folsom, Reverse Confusion: Fundamentals and Limits, 12
J.CONTEMP. LEGAL ISSUES 258, 259 (2001).
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and Rubber Co. 31 In that case, junior user Goodyear saturated the
market with smaller senior user Big O’s trademark “Bigfoot” to
advertise its tires despite knowledge of the senior user’s ownership of
the mark.32 The Tenth Circuit held that under state law, Big O had an
actionable trademark infringement claim based on reverse confusion,33
reasoning that “[s]uch a rule would further Colorado’s policy of
protecting trade names and preventing public confusion.”34 Also
significant in Big O’s argument was the testimony of more than a
dozen witnesses who were actually confused about the source of Big
O’s tires after watching a Goodyear commercial.35 The Tenth Circuit’s
decision marked the first instance in which federal courts explicitly
upheld an infringement case based on reverse confusion.
D. Seventh Circuit’s Recognition of Reverse Confusion
The Seventh Circuit first recognized reverse confusion in Sands,
Taylor & Wood Co. v. The Quaker Oats Co., in which the small soft
drink company and owner of the registered trademark “Thirst-Aid”
sued the larger junior user, Quaker, for using its mark in an advertising
slogan stating “Gatorade is Thirst Aid.”36 For the first time, the
Seventh Circuit held that the trademark holder could receive damages
for reverse confusion, finding that the Lanham Act’s objectives of
protecting an owner’s interest in its trademark and preventing
consumer confusion are as important in a case of reverse confusion as
in traditional trademark infringement.37
31
408 F. Supp. 1219 (D. Colo. 1976), aff’d, 561 F.2d 1365 (10th Cir. 1977).
Id.
33
Id.
34
Id.
35
Id.
36
Sands, Taylor & Wood Co. v. The Quaker Oats Co., 978 F.2d 947, 949 (7th
Cir. 1992).
37
Id. at 958.
32
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While many courts have since recognized trademark
infringement based on reverse confusion, there remains little case law
on the matter of a fictional good infringing upon the trademark of an
actual product. 38 Some courts have held that Lanham Act analysis in
reverse confusion cases should be modified “to reflect differences
regarding the strength of a mark in which user’s mark should be
analyzed.” 39 Courts have also held that Lanham Act analysis should
be modified “to reflect differences regarding the defendant’s intent
and bad faith.” 40
The Seventh Circuit has decided various reverse confusion
cases, including its 2014 decision in Fortres Grand Corp. v. Warner
Bros. Entm’t Inc. In the Fortres Grand case, the Seventh Circuit
employed a seven-factor test in which it considered: (1) the degree of
similarity between the marks in appearance and suggestion; (2) the
similarity of the products for which the name is used; (3) the area and
manner of concurrent use; (4) the degree of care likely to be exercised
by consumers; (5) the strength of the complainant’s mark; (6) actual
confusion; and (7) an intent on the part of the alleged infringer to palm
off his products as those of another.41
THE SEVENTH CIRCUIT CASE:
GOTHAM’S NEWEST VILLIAN, THE INFRINGER
Fortres Grand Corp. v. Warner Bros. Entm’t Inc.
Fortres Grand holds a federally registered trademark for its
security software program, “Clean Slate,” which is “used to protect
public access computers by securing the computer drive back to its
38
6 J. THOMAS MCCARTHY,TRADEMARKS AND UNFAIR COMPETITION § 31:149
(4th ed. 2014).
39
Buckman, supra note 10, § 3[a].
40
Id.
41
Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 696, 702 (7th
Cir. 2014).
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original configuration upon reboot.” 42. The security software is used
to keep private data off of public computers. 43 As a security software,
“its single most important characteristic is trustworthiness,” which had
been established by Fortres Grand. 44 Fortres Grand obtained a federal
trademark registration for “Clean Slate” in 2001 for a “computer
software program used to protect public access computers by scouring
the computer drive back to its original configuration upon reboot.” 45
In 2012, Warner Bros. released the final installment of its
Batman films, The Dark Knight Rises.46 In the film, the character
Catwoman agrees to work with a “shadowy organization” in exchange
for a software program developed by “Rykin Data Corporation” called
“the clean slate,” which would allow Catwoman to remove her
criminal history from all databases, thus wiping “her slate clean.” 47
Upon completion of her work with the organization, Catwoman learns
from the organization that she was betrayed and “the clean slate” does
not exist. 48 The film later reveals that Batman’s alter ego, Bruce
Wayne, had secretly obtained “the clean slate” software, which he
offers to Catwoman in exchange for her help in saving Gotham City. 49
The film’s conclusion suggests that Catwoman successfully used the
software to wipe her slate clean of her criminal past, as she is living a
normal life with Bruce Wayne. 50 Not only was the fictional “clean
slate” software depicted in the film, but it was also used in
promotional websites featuring the fictional Rykin Data Corporation to
market the film. 51 While the websites did not feature “the clean slate”
42
Id. at 699 (internal quotation marks omitted).
Id.
44
Id.
45
Fortres Grand Corp. v. Warner Bros. Entm’t Inc.,947 F. Supp. 922, 924
(N.D. Ind.2013) (internal quotation marks omitted).
46
Fortres, 763 F.3d at 699.
47
Id.
48
Id.
49
Id.
50
Id.
51
Id. at 700.
43
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for purchase or download, the website did contain a description of the
software and an image of a fictional patent. 52
Fortres Grand experienced a decline in Clean Slate software
sales following the film’s release, and attributes this decline to
“potential customers mistakenly believing that its Clean Slate software
is illicit or phony on account of Warner Bros.’ use of the name ‘the
clean slate’” to describe a fictional software in the film. 53 Fortres
Grand filed a three-count suit against Warner Bros.’ alleging (1)
trademark infringement in violation of Lanham Act §§ 32, 43; 54 (2)
unfair competition under the Lanham Act; and (3) unfair competition
under Indiana trademark law. 55
B. Procedural History
Warner Bros. moved the district court to dismiss Fortres
Grand’s claims, challenging the sufficiency of complaint to state a
claim for trademark infringement 56 pursuant to Rule 12(b)(6). 57 The
District Court for the Northern District of Indiana, South Bend
Division, concluded that Fortres Grand had not sufficiently alleged
trademark infringement because its claim lacked a plausible theory of
consumer confusion. 58 The district court further held that Warner
Bros.’ use of the phrase “the clean slate” was protected by the free
speech guarantee of the First Amendment. 59
Chief Judge Simon of the district court noted that there is little
case law on whether a fictional company or product can infringe on a
52
Id.
Id.
54
15 U.S.C. §§ 1114, 1125 (2012).
55
Fortres, 763 F.3d at 700.
56
Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 947 F. Supp. 2d 922, 92526 (N.D. Ind. 2013).
57
F.R.C.P. 12(b)(6).
58
Fortres, 947 F. Supp. 2d at 927.
59
Id.
53
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trademark. 60 The court compared Fortres Grand’s Clean Slate
software and the Warner Bros.’ fictional “clean slate” software. 61
Over Fortres Grand’s objections, the court also considered the contents
of the fictional websites created to promote the film that mentioned the
fictional “clean slate” software and its fictional creator, Rykin Data
Corporation. 62 Although Fortres Grand argued that the contents of the
websites should be disregarded because they were only referenced in
the Complaint and not attached to it, the district court considered this
matter. The Seventh Circuit has held that it has “taken a broader view
of documents that may be considered on a motion to dismiss, nothing
that a court may consider, in addition to allegations set forth in the
Complaint itself, documents that are central to the complaint and are
referred to in it.” 63 (internal quotation marks omitted).
The district court evaluated Fortres Grand’s claims of
trademark infringement and state and federal unfair competition using
the same trademark infringement analysis because all three claims are
based upon the same law and facts. 64 The court noted that likelihood
of confusion is central to a trademark infringement action, and “only a
confusion about origin supports a trademark claim, and ‘origin’ for
this purpose means the ‘producer of the tangible product sold in the
marketplace.’” 65 (internal quotation marks omitted). The district court
further noted that trademark infringement does not protect against
confusion of origin generally, but rather only mistaken purchasing
decisions. 66 The court quickly ruled out the theory of forward
confusion; because senior user Fortres Grand is not as prominent as
junior user Warner Bros., Warner Bros. could not have attempted to
60
Id. at 924 (citing MCCARTHY, supra note 38,§ 31:149).
Id.
62
Id. at 925.
63
Id. (citing Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013)).
64
Id. at 926.
65
Id. (quoting Eastland Music Group, LLC v. Lionsgate Entm’t, Inc., 707 F.3d
869, 872 (7th Cir. 2013)); See Dastar Corp. v. Twentieth Century Fox Film Corp.,
539 U.S. 23, 31 (2003).
66
Id. at 927; see also Rearden LLC v. Rearden Commerce, Inc., 683 F.3d
1190, 1214 (9th Cir. 2012).
61
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“capitalize on” Fortres Grand’s “good will and reputation by
suggesting that [its] product comes from the same source as does”
Fortres Grand’s “Clean Slate” software. 67
The district court then evaluated a theory of trademark
infringement by reverse confusion, in which the “large senior user
saturates the market with a trademark similar or identical to that of a
smaller, senior user, ”leading consumers to believe the two products
share the same origin 68 (internal quotes omitted). The court, in
evaluating the similarity of the two products, found a major flaw in
Fortres Grand’s argument that it has been “damaged by the reverse
confusion resulting from Warner Bros.’ saturation of the market with
its big-budget film and its promotional websites” 69 (internal quotes
omitted). The district court noted that because “the clean slate”
software from the film is a fictional software, the court must compare
the parties’ ultimate products,70 which in this instance are Fortres
Grand’s “Clean Slate” software to Warner Bros.’ film. 71
A theory of reverse confusion, the court noted, would certainly
have succeeded had Warner Bros. saturated the market with a
campaign for an actual software called the “Clean Slate.” 72 However,
in the present matter, the court compared Fortres Grand’s software to
Warner Bros.’ film and held that Fortres Grand failed to plausibly
allege: (1) consumer were deceived into believing the fictional
software from the film originates from or is connected to Fortres
Grand; or (2) consumers were deceived into believing that the film
originates from or is connected to Fortres Grand. 73 Holding that no
reasonable consumer would plausibly believe either of the
aforementioned notions, the court concluded that Fortres Grand failed
67
Fortres, 947 F. Supp. 2d at 926-27.
Id. at 927.
69
Id. at 928.
70
See Ocean Bio-Chem, Inc. v. Turner Network Television, Inc., 741 F. Supp.
1546 (S.D.Fla.1990); Davis v. Walt Disney Co., 430 F.3d 901(8th Cir. 2005).
71
Fortres, 947 F. Supp. 2d at 928.
72
Id. at 929.
73
Id. at 930.
68
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to state a claim for trademark infringement under both the traditional
“forward confusion” theory and the “reverse confusion” theory. 74 In
dictum, the court postulated that even if Fortres Grand had alleged a
plausible claim for likelihood of confusion, Warner Bros.’ use of
“clean slate” is protected by the First Amendment. 75
C. Reasoning
The Seventh Circuit reasoned that “all three of Fortress
Grand’s claims depended on plausibly alleging that Warner Bros.’ use
of the words ‘clean slate’ is ‘likely to cause confusion’”76 under the
Lanham Act 77. The court stated that only confusion about “origin,
sponsorship, or approval of . . . goods supports a trademark claim”78
(internal quotes omitted). To survive a motion to dismiss for failure to
state a claim for infringement based on reverse confusion, Fortres
Grand must have alleged that “Warner Bros.’ use of the words ‘clean
slate’ in its movie to describe an elusive hacking program that can
eliminate information from any and every database on earth has
caused a likelihood that consumers will be confused into thinking that
Fortres Grand’s Clean Slate software ‘emanates from, is connected to,
or is sponsored by [Warner Bros.]’” 79
The Seventh Circuit employed a seven-factor test in evaluating
the plausibility of Fortres Grand’s allegation of confusion. 80 The court
considered: (1) the degree of similarity between the marks in
appearance and suggestion; (2) the similarity of the products for which
the name is used; (3) the area and manner of concurrent use; (4) the
74
Id.
Id. at 931.
76
Fortres Grand Corp. v. Warner Bros. Entm’t Inc., 763 F.3d 696, 700 (7th
Cir. 2014).
77
15 U.S.C. § 1114(1)(a) (2005).
78
Fortres, 763 F.3d at 701.
79
Id. (quoting Custom Vehicles, Inc. v. Forest River, Inc., 476 F.3d 481, 484
(7th Cir. 2007)).
80
See generally Fortres, 763 F.3d 696 (7th Cir. 2014).
75
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degree of care likely to be exercised by consumers; (5) the strength of
the complainant’s mark; (6) actual confusion; and (7) an intent on the
part of the alleged infringer to palm off his products as those of
another. 81
Fortres Grand argued that in finding that Fortres Grand failed
to state a claim, the lower court improperly relied heavily on the
“similarity of he products” factor when it concluded that Fortres
Grand’s software and the Warner Bros.’ movie were not sufficiently
similar as to plausibly cause confusion. Fortres Grand argued that
instead of comparing its software to the movie, the court should have
compared its software to the fictional software in the movie. 82 The
issue, therefore, was whether the products are sufficiently similar as to
cause consumers to attribute them to a single source.
In its decision, the Seventh Circuit relied on cases of forward
confusion that “have considered the likelihood of confusion between
the senior user’s product and the junior user’s creative work – not any
fictional product therein.” 83 In both Davis v. Walt Disney and Ocean
Bio-Chem, Inc. v. Turner Network Television, those respective courts
compared the senior user’s product to the movie, not the fictional
product in the movie. 84 The Seventh Circuit held that this approach
aligns with the Supreme Court’s emphasis on “the tangible product
sold in the marketplace.”85
Applying the product similarity rule to reverse confusion, the
Seventh Circuit concluded that the proper tangible products to be
compared, the software and the film, were “quite dissimilar.” 86 The
81
McGraw-Edison Co. v. Walt Disney Prods., 787 F.2d 1163, 1167-68 (7th
Cir. 1986) (quoting Helene Curtis Indus., Inc. v. Church & Dwight Co., Inc., 560
F.2d 1325, 1330 (7th Cir. 1977)).
82
See generally Fortres, 763 F.3d 696 (7th Cir. 2014)..
83
Id.
84
Id.; see also Davis v. Walt Disney Co., 430 F.3d 901, 904 (8th Cir. 2005);
Ocean Bio-Chem, Inc. v. Turner Network Television, Inc., 741 F. Supp. 1546, 1557
(S.D. FL 1990).
85
Fortres, 763 F.3d at 701 (quoting Dastar Corp. v. Twentieth Century Fox
Film Corp., 539 U.S. 23, 31 (2003) (internal quotation marks omitted).
86
Id. at 704.
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court further noted, “Fortres Grand has alleged no facts that would
make it plausible that a super-hero movie and desktop management
software are ‘goods related in the minds of consumers in the sense that
a single producer is likely to put out both goods.’” 87 The similarity of
the marks, the strongest factor in support of Fortres Grand’s argument,
is not enough considering the weakness of the other factors.88 The
court noted, “[t]rademark law protects the source-denoting function of
words used in conjunction with goods and services in the marketplace,
not the words themselves.”89 The Seventh Circuit affirmed the district
court’s verdict in favor of Warner Bros., properly concluding that
Fortres Grand did not plausibly allege trademark infringement based
on reverse confusion.90 The Seventh Circuit did not, however, address
the matter of First Amendment protections as related to trademarks
because the insufficiency of the claim had already been determined.
ANALYSIS
A. Trademarks and First Amendment
The First Amendment of the Constitution provides in relevant
part that “Congress shall make no law [. . .] abridging the freedom of
speech, or of the press.” 91 Because the Seventh Circuit found that
Fortres Grand’s Complaint did not sufficiently state a claim for reverse
confusion, the court did not address the matter of First Amendment
protections. 92 The lower court, however, held that Warner Bros.’ use
of the term “clean slate” was also protected by the First Amendment.93
87
Id.
Id. at 705
89
Id.
90
Id.
91
U.S. CONST. amend. I.
92
Fortres,763 F.3d at 698.
93
Fortres Grand Corporation v. Warner Bros. Entm’t, 947 F.Supp.2d 922, 931
(N.D. Ind. 2013).
88
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In its holding, the lower court relied on the Second Circuit’s
balancing test for application of the Lanham Act, as established in
Rogers v. Grimaldi.94 The plaintiff in Rogers alleged that the
defendant’s film violated the Lanham Act’s rights of publicity and
privacy by creating the false impression that Ginger Rogers was
associated with the film “Ginger and Fred”.95 In Rogers, the Second
Circuit held that the Lanham Act must be narrowly construed, as
application of the Lanham Act to the titles of artistic works may
infringe First Amendment rights. 96 The Second Circuit reasoned that
that the Lanham Act applied “to artistic works only where the public
interest in avoiding consumer confusion outweighs the public interest
in free expression.” 97 Because the film’s title had an ironic meaning
and did not directly state that it depicted Ginger Rogers, the interest in
free speech outweighed the potential misconception “that Rogers had
some involvement with the film.” 98 Applying the Second Circuit’s
test, the lower court in Fortres Grand reasoned that “the Lanham Act is
inapplicable to ‘artistic works’ as long as the defendant's use of the
mark is (1) ‘artistically relevant’ to the work and (2) not ‘explicitly
misleading’ as to the source or content of the work.99 Finding that the
Warner Bros.’ film constituted an artistic work, the lower court
correctly reasoned that Warner Bros. satisfied both prongs of the
Rogers test and was thus protected by the First Amendment. 100
While the Second Circuit discussed only the title of an artistic
work, the Ninth, Sixth, and Eleventh Circuits have all expanded the
94
875 F.2d 994 (2d Cir.1989); see also Facenda v. NFL Films, Inc., 542 F.3d
1007, 1016 (3d Cir. 2008).
95
Grimaldi,, 875 F.2d at 997.
96
Id. at 998.
97
Id.
98
Id. at 1001.
99
Fortres Grand Corporation v. Warner Bros. Entm’t Inc., 947 F. Supp. 2d
922, 931 (quoting Rogers v. Grimaldi, 875 F.2d at 997).
100
Id. at 932; see also Facenda v. NFL Films, Inc., 542 F.3d 1007, 1016 (3d
Cir. 2008).
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Rogers test to apply to artistic works generally. 101 Applying the
Rogers test, the Second Circuit concluded that Warner Bros. use of the
term “clean slate” was artistically relevant and did not explicitly
mislead consumers as to the source of the work, satisfying both prongs
of the Rogers test. 102
The statutory canon of constitutional avoidance mandates that
courts construe statutes to avoid serious constitutional problems unless
such a construction is contrary to congressional intent. 103 Where
exactly, then, does the boundary between First Amendment rights and
trademark rights lie?
The Supreme Court first discussed the application of First
Amendment rights to commercial speech in Valentine v. Chrestenson,
in which the Court held that “the Constitution imposes no restraint on
government as respects purely commercial advertising.” 104 More than
30 years later in Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, Inc., the Court first held that the First Amendment
protects commercial speech. 105
Commercial speech is usually defined as “speech that does no
more than propose a commercial transaction.” 106 The sale of an
artistic work for profit does not make it per se commercial. 107
“Trademark rights promote the aims of the First Amendment by
enabling producers of the spoken and written word to differentiate
101
Fortres, 947 F. Supp. 2d at 931; see E.S.S. Entm't 2000, Inc. v. Rock Star
Videos, Inc., 547 F.3d 1095, 1099 (9th Cir. 2008); Univ. of Alabama Bd. of Trustees
v. New Life Art, Inc., 683 F.3d 1266, 1278 (11th Cir. 2012); ETW Corp. v. Jireh
Pub., Inc., 332 F.3d 915, 928 n.11 (6th Cir.2003); Cliffs Notes, Inc. v. Bantam
Doubleday Dell Publ'g Group, 886 F.2d 490, 495 (2d Cir.1989).
102
Fortres, 947 F.Supp.2d at 932.
103
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Trades
Council, 485 U.S. 568 (1988).
104
Lisa P. Ramsey, Increasing First Amendment Scrutiny of Trademark Law,
61 SMU L. REV. 381, 390 (2008).
105
Id.
106
Id. (internal quotation marks omitted).
107
Id. at 398.
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Fall 2014
themselves.” 108 Although there is no conflict between free speech
principles and trademark law, 109 commercial speech enjoys less First
Amendment protection than non-commercial speech. 110 The Supreme
Court held in Joseph Burstyn, Inc. v. Wilson “that expression by means
of motion pictures is included within the free speech and free press
guaranty” even though film-making “is a large-scale business
conducted for private profit.” 111 The Court “implicitly characterized
motion pictures as noncommercial speech when it held this expression
is protected by the First Amendment.” 112 Therefore, “use of another’s
mark within the context of artistic of literary expression should
generally be classified as noncommercial speech that is fully protected
by the First Amendment.” 113 If the use of a trademark is misleading, it
is excluded from First Amendment protections. 114 As in the Fortres
Grand case, when an artistic expression is deemed noncommercial, it
receives the full protection of the First Amendment. The courts must
protect the fundamental right of free expression, especially when that
expression is noncommercial and thus does not conflict with the
commercial objectives that trademark law seeks to protect.
B. Impact on Future Reverse Confusion Cases
The Seventh Circuit has decided only a handful of cases in
which plaintiffs’ claims were based on a theory of reverse confusion,
holding in most that there was no likelihood of confusion as to violate
the Lanham Act. Although there are few cases discussing whether a
fictional good may plausibly infringe upon the trademark of an actual
product, it is likely that such cases will be heard by courts more
108
MCCARTHY, supra note 38, § 31:139.
Id.
110
Ramsey, supra note 104, at 396.
111
Id.
112
Id.
113
Id.
114
Id. at 412.
109
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Fall 2014
extensively as the worlds of actual goods, entertainment, and social
media intermingle.
While businesses hold an important interest in protecting their
trademarks and the goodwill that may accompany it, the First
Amendment guarantee of freedom of expression remains a central
tenet of American culture for both individuals and businesses. The
District Court of Northern Indiana properly decided in the Fortres
Grand case that even if Warner Bros.’ use of the term “clean slate” in
The Dark Knight Rises resulted in a likelihood of confusion among
consumers as to the source of either parties’ products, Warner Bros. is
protected by the First Amendment. When it comes to artistic
expression, artists, like filmmakers, should be able to express an idea
without fear of infringing upon the trademark of another. In the United
Stated, there are two million registered trademarks and countless
unregistered trademarks. It would be unduly burdensome for a
filmmaker, for instance, to research every term or phrase it uses to
ensure it has not violated the trademark of another. This burden is fair
when a business is creating a product for use in commerce, because
the research is limited, but excessively onerous for a filmmaker or
other artist creating a more extensive work.
Although the First Amendment protects artistic works from
trademark infringement lawsuits, businesses must still protect their
trademarks, along with their goodwill and reputation among
consumers, with claims based on the Lanham Act. The reverse
confusion doctrine is very much applicable when two goods or
services in commerce using identical marks create a likelihood of
confusion. The Seventh Circuit’s decision in the Fortres Grand
provides an additional decision in the area of potential trademark
infringement in entertainment, upholding and applying the doctrine of
reverse confusion that has established its rank as a plausible theory for
trademark infringement.
247