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Archive for the tag “restoration”

Movin’ on Up?

Sherman Alexander Hemsley, a native of Philadelphia, better known for his role as George Jefferson in “All in the Family” and “The Jeffersons”, and later as Deacon Ernest Frye on “Amen”, died in Texas on July 24, 2012, yet remained unburied in a freezer until November 21, 2012, due to a will contest in the El Paso, Texas probate court.  Although the court there recently upheld the will and authorized the executrix to make burial arrangements, the court’s order may be appealed, leaving Mr. Hemsley, while now interred and hopefully “moving on up”, potentially in limbo.  What law applies to burial in similar situations in Pennsylvania?

As a general rule, the Courts of the Commonwealth have long recognized that “the duty to determine when, where and in what manner the body shall be buried rests with the executor or administrator.”  Pettigrew v. Pettigrew, 207 Pa. 313 (1904).  But, this presumes that the Register accepted a will for probate, and that no one challenged the will, so that the Register granted letters testamentary to a personal representative of testator’s estate, which actually has instructions as to the disposition of testator’s remains.  Absent such clear instruction deciding on the disposition of testator’s remains generally does not fall to the personal representative of the estate.  See, Hodge v. Cameron, 132 Pa. Super 1 (1938).  A person cannot become the executor until the will is filed with the Register of Wills, it is accepted, and letters testamentary issue under seal of the Register confirming the appointment of the individual as executor of the estate.

Problematically, most Registers of Wills in Pennsylvania will not issue letters testamentary prior to disposition of the remains of the decedent and issuance of the death certificate.  Nothing in the Probate, Estate and Fiduciary Code (Title 20, “PEF”) specifically states that a death certificate must be produced to the Register in order for the Register to accept into probate testator’s will.  Among the prerequisites that the proponent of the will must produce to the Register is “a death certificate (or other appropriate proof of death)”.  Register of Wills of Philadelphia County Manual, Chapter 2 of Blue Book.  The Register may issue the letters testamentary on affidavit that someone died, provided that the death certificate is actually filed within a set period of time, subject to revocation of the letters testamentary if not timely filed.  The foregoing is uncommon and presumably the affidavit would require counsel executing the affidavit to state something regarding the disposition of decedent.  Consequently, the Courts of this Commonwealth have long recognized that under Pennsylvania’s probate system you cannot determine who is the executor or administrator and can act under the will until the party has duly qualified and has received his commission from the Register of Wills.   Potentially the executor could not qualify.  Hodge, supra.  11.

The Orphans’ Court Division has mandatory jurisdiction over the control of the decedent’s burial.  20 Pa. C.S. § 711(1).  However, the Courts have not relied on this section of the statute on its own.  See, In re Fontana, 72 Pa. D. & C.2d 287 (Allegheny County, Orphans’ Court Division, 1975) (holding that the Orphans’ Court Division lacks subject matter jurisdiction to consider a dispute between brothers regarding the use of crypts in a mausoleum).  Likewise, jurisdiction presumably includes disposition of the body via other means such as cremation, other than the granting of anatomical gifts of the body or parts of it which are governed by separate sections of the PEF.

The Courts have long held that a testator’s wishes regarding the disposal of his remains are entitled to respectful consideration, whether or not the decedent’s directions are followed.  Pettigrew v. Pettigrew, 207 Pa. 313 (1904).

A review of the case law does not indicate any Superior Court decisions addressing a situation where a decedent provided for disposition of his remains in his will, including which cemetery/plot to use and if cremation was selected or not, which someone challenged in court prior to internment.  The common law developed several factors in determining burial disputes, such as the desire of the testator in stipulating a specific burial location or method, requesting that his remains not be disturbed, requesting that no re-internment occur, requesting that burial occur in a specific religious method, etc…  See, Florence E. Novelli and Lloyd E. Carroll v. Pamela Kay Carroll and Whitemarsh Memorial Park, 278 Pa.Super. 141 (1980).  Indeed, in Novelli, the Court relied in part on Judge Cardozo (then sitting on the New York Court of Appeals) who established not a rule, but a process, to guide a court of equity to act in an equitable manner to protect someone’s grave while allowing for the possibility of the need of survivors to make decisions regarding the deceased.  Novelli at 151 citing Judge Cardozo in Yome v. Gorman, 242 N.Y. 395, 403-05, 152 N.E. 126, 129 (1926).

In 1998 the Legislature codified the law on this subject.  Thereafter, absent clear language in a will, or provision in a power of attorney granting an agent authority to make an anatomical gift of part or all of a body (20 Pa C.S. § 8611(a)), or waiver and agreement by those individuals entitled to make burial decisions, 20 Pa. C.S. § 305 governs who may direct the disposition of decedent’s remains.  If a person died intestate or without a valid will, or valid anatomical grant (see, 20 Pa.C.S. § 305(a)), the surviving spouse has priority in deciding the disposition of the remains of their spouse, absent an allegation of enduring estrangement, incompetence, contrary intent or waiver and agreement which is proven by clear and convincing evidence.   20 Pa.C.S. § 305(b).  If decedent did not leave a spouse, the next of kin shall have sole authority in all matters pertaining to the disposition of the remains of the decedent.  20 Pa. C.S. § 305(c).

The statute provides clear guidance on procedural aspects of obtaining a decision from the Orphans’ Court.  An interested party desiring to block the disposition of decedent’s remains must file with the Clerk of Orphans’ Court an emergency petition within 48 hours of the death or discovery of the body of the decedent, whichever is later.  Upon the filing of such a petition, the Orphans’ Court Division may order that no final disposition of the decedent’s remains take place until a final determination is made on the petition.   The Court then must hold a hearing to determine that “clear and convincing evidence establishes enduring estrangement, incompetence, contrary intent or waiver and agreement” and only then shall the court “enter an appropriate order regarding the final disposition which may include appointing an attorney in fact to arrange the final disposition, with reasonable costs chargeable to the estate”.   See, 20 Pa. C.S. § 305(d)(1).

However, in those instances when “two or more persons with equal standing as next of kin disagree on disposition of the decedent’s remains, the authority to dispose shall be determined by the court, with preference given to the person who had the closest relationship with the deceased.” See, 20 Pa. C.S. § 305(d)(2).

In order to minimize the filing of petitions without merit, the statute specifically authorizes the court to award attorney’s fees if the court makes a determination regarding when the petition is not supported by clear and convincing evidence, which if brought by an heir or beneficiary would be offset against their distribution from the estate.  See, 20 Pa. C.S. § 305(d)(3).

The statute specifically authorizes the that court may require the filing of a bond, but the amount is not set.  Whether the filing of the bond will be required concurrent to the filing of the petition, or perhaps only prior to the court issuing a decree enjoining the disposition of the remains of decedent is uncertain, and presumably each county can decide their own procedure in this regards.

While the codification would appear to simplify matters, case law on the subject continues to provide guidance in this matter.  Indeed, Judge Herron recently provided some guidance on this matter and noted that Section 305 should be construed in light of the prior relevant precedent.   See, Estate of Rose Weiss, Phila O.C. No.  1463 DE of 2009 (Judge Herron citing Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007).  Judge Herron examined the issue in depth and determined that courts should look to objective criteria, particularly when it is clear that each sibling loved and cared for their parent.  Among objective criteria utilized was who the decedent chose as their agent for making health care and personal decisions.  Judge Herron noted that “although the statutory language of Section 305 became effective in 1998, the recent appellate precedent of Kulp v. Kulp, 2007 Pa. Super. 70, 920 A.2d 867 (2007) emphasizes that the provisions of section 305 should be construed in light of the prior relevant precedent”.

In another court, the judge utilized the “closeness” test and received into evidence the emotional closeness of one interested party and the decedent, in terms of the number of telephone communications, among other factors.  See also Estate of N.P., 22 Fid. Rep. 2d 473 (Berks Cty. O.C. 2002).

So, in Pennsylvania, if a relative who is the next of kin learns that decedent died, they can block probate of the will, engage in a will contest and obtain an order delaying the burial of decedent, just like what occurred to Mr. Hemsley.  His unfortunate situation illustrates the importance of having detailed funeral, burial and related instructions in a will, power of attorney, trust and related documents, as well as the necessity of coordination between the agent under a power of attorney and proposed executor and other fiduciaries, the providers of medical services, and the funeral home.  Relatives concerned about the funeral and burial arrangements of their next of kin need to inquire into the matter, and may have to engage in costly litigation at a time when they will be emotionally disturbed by the death of a loved relative.

Judge Cardozo, more than 90 years after his opinion in  Yome, supra, remains correct in his statement that it ultimately rests with the court as a matter of equity to determine disputes about burial arrangements.

By Adam S. Bernick, Esquire, Law Office of Adam S. Bernick and of counsel to the Law Office of Faye Riva Cohen, P.C.

2nd Circuit Enjoins Pending Appeal Vermont’s Exclusion of Catholic High School Students From Dual Enrollment Program

This is from religionclause.blogspot.com which you can find here:

As previously reported, earlier this year a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.
ADF issued a press release  announcing the 2nd Circuit’s action.
You can learn more about this issue here.

Once Again, Progressive Anti-Christian Bigotry Carries a Steep Legal Cost

Last summer, in the days after the Supreme Court decided Masterpiece Cakeshop on the narrow grounds that Colorado had violated Jack Phillips’s religious-liberty rights by specifically disparaging his religious beliefs, a bit of a skirmish broke out among conservative lawyers. How important was the ruling? Did it have any lasting precedential effect?

For those who don’t recall, the Supreme Court ruled for Phillips in large part because a commissioner of the Colorado Civil Rights Commission called Phillips’s claim that he enjoyed a religious-freedom right not to be forced to design a custom cake for a gay wedding a “despicable piece of rhetoric.” The commissioner also denigrated religious-liberty arguments as being used to justify slavery and the Holocaust.

While all agreed that it would have been preferable had the court simply ruled that creative professionals could not be required to produce art that conflicted with their sincerely held beliefs, the question was whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry would resonate beyond the specific facts of the case. For example, what would happen if, in a different case, state officials called faithful Christians who seek to protect the religious freedom of Catholic adoption agencies “hate-mongers”?

In the United States District Court for the Western District of Michigan, it turns out that such rhetoric has cost the state a crucial court ruling, granted a Catholic adoption agency a vital victory, and demonstrated — once again — that anti-religious bigotry can (and should) carry substantial legal costs.

The case is called Buck v. Gordon. My friends at Becket represent St. Vincent Catholic Charities, a former foster child, and the adoptive parents of five special-needs kids. The facts are relatively complicated, but here’s the short version: St. Vincent upholds Catholic teaching by referring same-sex and unmarried families who seek foster and adoption recommendations and endorsements to agencies that have no objection to providing those services. There is no evidence that St. Vincent has prevented any legally qualified family from adopting or fostering a child. In fact, same-sex couples “certified through different agencies” have been able to adopt children in St. Vincent’s care.

In 2015 the state of Michigan passed a statute specifically designed to protect the religious liberty of private, religious adoption agencies. In 2018, however, Dana Nessel, a Democratic attorney general, took office. During her campaign, she declared that she would not defend the 2015 law in court, stating that its “only purpose” was “discriminatory animus.” She also described proponents of the law as “hate-mongers,” and the court noted that she believed proponents of the law “disliked gay people more than they cared about the constitution.”

Then, in 2019, the attorney general reached a legal settlement in pending litigation with the ACLU that essentially gutted the Michigan law, implementing a definitive requirement that religious agencies provide recommendations and endorsement to same-sex couples and banning referrals. The plaintiffs sued, seeking to enjoin the relevant terms of the settlement, and yesterday Judge Robert Jonker (a Bush appointee) granted their motion for a preliminary injunction.

His reasoning was simple. There was ample evidence from the record that the state of Michigan reversed its policy protecting religious freedom because it was motivated by hostility to the plaintiffs’ faith. Because Michigan’s targeted St. Vincent’s faith, its 2019 settlement agreement couldn’t be truly considered a “neutral” law of “general applicability” that would grant the state a high degree of deference in enforcement.

Instead, the state’s targeting led to strict scrutiny. Here’s Judge Jonker:

Defendant Nessel made St. Vincent’s belief and practice a campaign issue by calling it hate. She made the 2015 statute a campaign issue by contending that the only purpose of the statute is discriminatory animus. After Defendant Nessel took office, the State pivoted 180 degrees. . . . The State also threatened to terminate its contracts with St. Vincent. The Summary Statement’s conclusion – that if an agency accepts even one MDHHS child referral for case management or adoption services, the agency forfeits completely the right to refer new parental applicants to other agencies based on its sincerely held religious beliefs – is at odds with the language of the contracts, with the 2015 law, and with established State practice. Moreover, it actually undermines the State’s stated goals of preventing discriminatory conduct and maximizing available placements for children.

The last point is key. As stated above, there was no evidence that St. Vincent prevented any qualified couple from adopting. In fact, if the state forced St. Vincent’s to choose between upholding the teachings of its faith or maintaining its contractual relationship with the state, then it risked shrinking the available foster or adoption options in the state of Michigan. The state demonstrated that it was more interested in taking punitive action against people of faith than it was in maintaining broader access to foster and adoption services for its most vulnerable citizens.

The judge rightly called the state’s actions a “targeted attack on a sincerely held religious belief.” Once again, Masterpiece Cakeshop pays religious-liberty dividends. Once again, a court declares — in no uncertain terms — that in the conflict between private faith and public bigotry, religious liberty will prevail.

by David French in the National Review on 9/27/19 and can be found here.

No I.D.? No Problem – Judge Blocks Pennsylvania Voter I.D. Law

            With the presidential election just a few weeks away, the upheaval in Pennsylvania over what voters must take with them to the polls has sparked a series of battles which is likely to continue.  Temporarily however, it seems that opponents of the photo I.D. law have garnered much success.

The new law, codified at 25 P.S. §§ 2602, 2626, 3050 and otherwise known as Act 18, signed in March 2012 by Republican Governor Tom Corbett in order to set a “simple and clear standard to protect the integrity of our elections,” mandates that potential voters furnish a standard government issued identification card in order to be able to cast a vote, has been a continual subject of political controversy especially in the wake of the upcoming presidential election.

The proposed law requires that “[a]t every primary and election each elector who appears to vote and who desires to vote shall first present to an election officer proof of identification.  The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done.”  25 P.S. § 3050.  Citizens voting in-person on Election Day must present one of several specified forms of photo identification.  This proof of identification must include the name of the individual, a photograph of the individual, and an expiration date that has not passed.  25 P.S. § 2602.

Several individuals and organizations (“Petitioners”) sought to enjoin the Commonwealth of Pennsylvania, Governor Thomas W. Corbett, the Secretary of the Commonwealth Carol Aichele, and their agents, servants, and officers from enforcing or otherwise implementing Act 18 and filed a request for preliminary injunctive relief with the Commonwealth Court of Pennsylvania for that purpose.  In this case, initially docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 3332376 (Pa. Commw. Ct. 2012), Petitioners alleged that Act 18 and the photo identification requirement under the same violated the Pennsylvania Constitution on three (3) grounds:

  1. Act 18 unduly burdens the fundamental right to vote in violation of Article I, Section 5 of the Pennsylvania Constitution which states, in pertinent part, “Elections shall be free and equal…” PA. CONST. art. I, § 5.
  2. Act 18 imposes burdens on the right to vote that do not bear upon all voters equally under similar circumstances in violation of the equal protection guarantees of Article I, Section 1 and 26 of the Pennsylvania Constitution.
  3. Act 18 imposes an additional qualification on the right to vote in violation of Article VII, Section 1 of the Pennsylvania Constitution.

As the Petitioners did not possess a valid form of identification as required under Act 18, they argued that the new law would serve to cause them to be disenfranchised and/or severely burdened to comply with a new requirement.   The Commonwealth Court analyzed Act 18 under a standard that “weigh[ed] the asserted injury to the right to vote against the precise interests put forward by the State as justifications for the burden imposed by its rule.”  Crawford v. Marion County Election Board, 553 U.S. 181 (2008).  The burden “however slight … must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation.”  Crawford, 553 U.S. at 191.  Rather than apply a strict scrutiny standard in its analysis, the Commonwealth Court adopted the standard announced in Anderson v. Celebrezze, 103 S.Ct. 1564 (1983), and applied the “flexible standard” in their analysis.  Utilizing this standard, the Commonwealth Court found that the requirement of Act 18 is a “reasonable, nondiscriminatory, non-severe burden when viewed in the broader context of the widespread use of photo ID in daily life.  The Commonwealth’s asserted interest in protecting public confidence in elections is a relevant and legitimate state interest sufficiently weighty to justify the burden.”  Thus, the preliminary injunction was denied.  However, the Commonwealth Court noted that if strict scrutiny were to apply, they may have reached a different conclusion.

Upon appeal of the Commonwealth Court’s decision, the Supreme Court of Pennsylvania held that the Commonwealth Court erred by not conducting an assessment of availability of alternative photo identification cards prior to ruling on the preliminary injunction request seeking to delay the implementation of Act 18 stating that “the Commonwealth Court has made a predictive judgment that the Commonwealth’s efforts to educating the voting public, coupled with the remedial efforts being made to compensate for the constraints on the issuance of a PennDOT identification card, will ultimately be sufficient to forestall the possibility of disenfranchisement.  This judgment runs through the Commonwealth Court’s opinion, touching on all material elements of the legal analysis by which the court determined that Appellants are not entitled to the relief they seek.”  This case is docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4075899 (Pa. Sept. 18, 2012).  The Supreme Court’s ruling remanded the matter to Commonwealth Court to make a decision by October 2, 2012 and make a present assessment of the actual availability of the alternate identification cards, directing the Commonwealth Court to conduct a an analysis of whether the procedures used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards.  Applying this analysis, the Supreme Court stated that if the Commonwealth Court found that the law would not result in voter disenfranchisement, the court would be obliged to enter a preliminary injunction.

After hearing two (2) days of testimony, on October 2, 2012 Pennsylvania Commonwealth Court Judge Robert Simpson ruled that state officials can ask for photo I.D. at the polls but cannot restrain those who do not possess identification from voting as the underlying offending conduct is not the request to produce photo I.D. but rather one of voter disenfranchisement.

In his ruling, docketed under Applewhite, et. al. v. Commonwealth of Pennsylvania, 2012 WL 4497211 (Pa. Commw. Ct. October 2, 2012), Judge Simpson granted a preliminary injunction that temporarily halts enforcement of the law until after the November 6, 2012 presidential election citing the disqualification of eligible voters as the reason: “Consequently, I am not still convinced in my predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election.  Under these circumstances, I am obliged to enter a preliminary injunction.”  Despite a rise in the number of state issued photo identifications, the number was not significant enough to convince Judge Simpson that potential eligible voters would be prevented from voting if the new law were implemented.  Even with the streamlined procedures outlined by the new law to allow voters without I.D. cards to obtain them, Judge Simpson stated, “I expected more photo ID’s to have been issued by this time.  For this reason, I accept Petitioners’ argument that in the remaining five weeks before the general election, the gap between the photo IDs issued and the estimated need will not be closed.”

The result?  Judge Simpson’s ruling means that: (1) the same policy that was in effect during the state’s primary earlier this year will continue to be in effect for the upcoming presidential election.  Voters, regardless of compliance with the law, will be able to have their vote count in the 2012 presidential election; (2) those who cast provisional ballots will not be required to return to their county election board within six days of the election to show proof of identification in order to have their vote count.

Pennsylvania, which is a swing state, has twenty (20) electoral votes up for grabs with President Obama currently leading according statewide opinion polls.  Yet, the Commonwealth of Pennsylvania has acknowledged that it has never seen a case of in-person voter fraud.

Although the new law may not be in effect in Pennsylvania for the upcoming November 2012 presidential election, this does not mean to say that it will never be implemented in future elections.  Judge Simpson’s ruling did not strike down the entire law as being unconstitutional.  In fact, he rejected efforts from those challenging the law to prevent state officials from educating voters about the Voter I.D. requirement.  Challengers to the law have also conceded that the part of the law which requires proof of identification for absentee voting does not harm would-be voters and may be implemented.

For Republicans who had hoped of having this law implemented for the upcoming presidential election in order to narrow the margin in favor of GOP presidential candidate Mitt Romney, all hope is not lost.  Although people may not be required to have photo identification for the presidential election, they are made aware of the law and believe that they will need it.  On the other hand, Democrats feel that the injunction is only a temporary victory, rather than an absolute victory.

Although the voter I.D. requirement may not have an impact on the upcoming November 2012 presidential election, Judge Simpson’s ruling is surely to invoke an appeal.  It waits to be seen whether future elections will be affected, but for now, at least temporarily, eligible voters can rest assured that they will be able to vote without fear of being turned away at the polls.

By Theodore Y. Choi, Esquire and originally published in Upon Further Review on October 24, 2012.

Satanic Temple Has Promissory Estoppel Claim After Its Permit To Erect Memorial Was Voided

This is from religionclause.blogspot.com which you can find here:

In The Satanic Temple v. City of Belle Plaine, Minnesota(D MN, July 31, 2020), a Minnesota federal district court dismissed free exercise, free speech and equal protection claims by the Satanic Temple which objected to the city’s Resolution 17-090 which rescinded a prior resolution that created a limited public forum in Veterans Memorial Park. The earlier resolution allowed individuals and organizations to erect and maintain privately owned displays to honor local veterans and veterans’ organizations. The Satanic Temple had received a permit to erect a display, and spent substantial amounts for its design and construction, before the rescission. It argues that the rescission came about because of the controversial nature of its display.  The court said in part:

[A]lthough TST identifies the core tenants of its religion, TST fails to explain or allege facts that identify any central tenet of its religious beliefs that TST cannot exercise because of Resolution 17-090. Second, TST alleges no facts demonstrating that Resolution 17-090 prevents TST from expressing adherence to its faith. And third, TST fails to allege whether and how any activity that Resolution 17-090 prohibits is fundamental to TST’s religion.

The court however allowed Satanic Temple to move ahead with its promissory estoppel claim, saying in part:

TST sufficiently alleges that Belle Plaine should have reasonably expected that TST would expend time and resources to construct a display after receiving approval and that TST in fact expended such time and resources.

Finally, TST alleges sufficient facts that enforcement of Belle Plaine’s promise may be necessary to avoid injustice.

You can learn more about this issue here.

2nd Circuit: Free Speech and Free Exercise Claims of Christian Adoption Agency Can Move Forward

This is from religionclause.blogspot.com which you can find here:

In New Hope Family Services, Inc. v. Poole, (2d Cir., July 21, 2020), the U.S. 2nd Circuit Court of Appeals, in an 84-page opinion, reversed the dismissal of free exercise and free speech claims brought by a Christian adoption agency.  The court summarized the issues:

New Hope Family Services, Inc., is a voluntary, privately funded Christian ministry devoted to providing adoption services and authorized to do so in the State of New York for more than 50 years. New Hope professes that, consistent with its religious beliefs, it cannot recommend adoptions by unmarried or same-sex couples. It does not itself disapprove such couples; rather, it refers them to other adoption agencies. In 2018, the State’s Office of Children and Family Services (“OCFS”) informed New Hope that its policy respecting unmarried and same-sex couples violates the antidiscrimination mandate of N.Y. Comp. Codes R. & Regs. tit. 18, § 421.3(d). OCFS advised New Hope that it either had to change its policy or close its operation.

In reversing and remanding the case to the district court, the 2nd Circuit said in part as to plaintiff’s free exercise claim:

[W]e conclude that the pleadings give rise to a sufficient “suspicion” of religious animosity to warrant “pause” for discovery before dismissing New Hope’s claim as implausible.

In connection with plaintiff’s free speech claim, the court said:

New Hope asserts that, based on its religious beliefs about marriage and family, it does not believe and, therefore, cannot state, that adoption by unmarried or same-sex couples would ever be in the best interests of a child. It charges OCFS with requiring it to say just that—or to close down its voluntary, privately funded adoption ministry….

AP reports on the decision.

You can learn more about this issue here.

Supreme Court Spotlight: Obamacare – Victory or Defeat?

            In 2010 Congress enacted the Patient Protection and Affordable Care Act (hereinafter referred to as “Act”), which was championed by President Barack Obama and is commonly referred to as “Obamacare.”  The Act was created in an effort to increase the number of Americans covered by health insurance and decrease the costs associated with health care coverage.  On June 28, 2012, in an eagerly awaited decision, the U.S. Supreme Court (“Supreme Court”) ruled on the provisions contained in the Act.

The main and most controversial portions of the Act are the individual mandate provision and the Medicaid expansion provisions.

The individual mandate provision of the Act outlines that:

  • Americans, unless exempt, are required to maintain “minimum essential” health coverage. 26 U.S.C. §5000A.
  • For individuals who are not exempt, and do not receive health insurance through an employer or government program, insurance must be purchased from a private company.
  • Exempt individuals include those with very low incomes who are members of certain religious groups, or who face insurance premiums that would exceed 8% of family income even after including employer contributions and federal subsidies.

Beginning in 2014, all those who do not comply with this requirement will be required to make a “shared responsibility payment” to the Federal Government.  26 U.S.C. §5000A(b)(1).  This payment is classified by the Act as a “penalty” which must be paid to the Internal Revenue Service with an individual’s taxes and is assessed and collected in the same manner as tax penalties.  26 U.S.C. §§5000A(c), (g)(1).

The purpose of the Medicaid expansion provision of the Act is to enhance and expand the scope of the current Medicaid program and increase the number of individuals that States must cover.  As it stands currently, the Medicaid program provides federal funding to assist pregnant women, children, needy families, the blind, elderly and the disabled in obtaining the necessary medical care but does not provide any coverage for childless adults or even adults with children whose income does not fall significantly below the federal poverty level.  Under this provision:

  • States must provide Medicare coverage to adults with incomes up to 133% of the federal poverty level, whereas currently, many States only cover adults with children only if their income is considerably lower than the federal poverty level.
  • In order to effectuate the increase in Medicaid coverage, the Act would increase federal funding to cover the States’ costs. 26 U.S.C. §1396d(y)(1).
  • If a State fails to comply with the Act’s new coverage requirement, it would not only lose the federal funding for those requirements, but would also lose its Medicaid funding altogether. 26 U.S.C. §1396(c).

It is easy to discern why the mandates of the Act sparked a controversial debate which will continue well into the future.  In a narrow 5-4 decision, the Supreme Court upheld the individual mandate provision of the Act but struck down the Medicaid provision.  In general, the Democrats celebrated the idea of Americans being provided access to health insurance, but Republicans contend that the ruling is a dangerous expansion of government.

First and foremost, the Supreme Court ruled that the Anti-Injunction Act was not a bar to the lawsuit challenging the constitutionality of the Act.  The Anti-Injunction Act bars suits where the payment is classified as a “tax.”  The mere label of the payment in the Act as a “penalty” rather than a tax, was controlling in determining whether the Anti-Injunction Act was a bar to a lawsuit.  However, the Supreme Court warns that the label, although determinative of whether the Anti-Injunction Act is applicable, was not controlling in assessing whether the payment is a tax for purposes of the Constitution.

In its ruling, the Supreme Court found that the individual mandate provision, although impermissible under the Constitution’s Commerce Clause or the Necessary and Proper Clause, was valid as a tax.  In striking down the individual mandate provision under the Commerce Clause, the Supreme Court held:

  • The Constitution grants Congress the power to regulate Commerce – a power which presupposes the existence of commercial activity to be regulated;
  • The Act sets out to create commerce by compelling individuals to become active in the marketplace on the premise that the failure to do so affects interstate commerce and thus, the Act did not regulate existing commercial activity.
  • The Act would punish individuals for doing nothing and would open a vast domain of Congressional authority.

Similarly, under the Necessary and Proper Clause of the Constitution, the Supreme Court held:

  • The Necessary and Proper Clause of the Constitution provides authority to Congress to exercise authority derivative of, and in service to, a granted power.
  • The individual mandate clause of the Act gives Congress the ability to create the necessary prerequisites within its granted powers in order to draw those who would normally fall outside of its realm, within its regulatory powers.

Despite failing under the Commerce Clause and the Necessary and Proper Clause, the Supreme Court found that the individual mandate provision was proper under the Taxing Clause.  In following past precedent, the Court took a functional approach to determine whether the individual mandate provision of the Act was properly within Congress’ power to tax. Under such analysis, the Supreme Court determined that “[t]he payment is not so high that there is really no choice but to buy health insurance; the payment is not so limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation.”  The Supreme Court found that the individual mandate provision of the Act does not impose any legal consequences for failure to obtain health insurance other than requiring a payment to the IRS.  Furthermore, as a tax on insurance is unlike other direct taxes, it does not need to be apportioned to a State’s population to be in compliance with the Direct Tax Clause.

In upholding the individual mandate provision, Chief Justice John Roberts stated, “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.”  He also stated, “the federal government does not have the power to order people to buy health insurance … the federal government does have the power to impose a tax on those without health insurance.”

Contrastingly, the Supreme Court struck down the Medicaid provision of the Act finding:

  • The provision violated the Constitution by threatening the loss of a State’s existing Medicaid funding for failure or refusal to comply with the proposed expansion.
  • The Spending Clause of the Constitution presupposes a State’s voluntary and knowing acceptance of a program.
  • The Medicaid provision of the Act threatens to terminate other grants as a means of pressuring States to accept the Medicaid provision of the Act, which is not a power provided to Congress under the Constitution and runs afoul of our Nation’s system of federalism.

Nevertheless, the upholding of the individual mandate provision of the Act was the subject of much praise by Democrats.  Supporters of the national health care system stated that the law would reduce health care costs, expand coverage and protect consumers.  In place of creating a national health system, the law bans insurance companies from denying coverage to people with pre-existing medical conditions, bans insurers from setting a dollar limit on health coverage payouts and requires them to cover preventive care at no additional cost to consumers.

Following the decision, in a televised White House statement, President Barack Obama stated: “today’s decision was a victory for people all over this country whose lives are more secure because of this law.”  The underlying principle behind the Supreme Court’s decision was to ensure that no American should go bankrupt because of illness.

However, the new decision has been met with much criticism.  Critics of the new law claim that the new law gives the government too much power to make decisions over issues of what should be a personal decision.  Republican Rep. Michele Bachmann of Minnesota stated that the ruling “means now, for the first time in the history of the country, Congress can force Americans to purchase any product, any service.”

The Supreme Court’s ruling comes at a time very close to the 2012 Presidential election.  Presidential nominee Mitt Romney criticized the ruling as a bad law.  “What the court did not do in its last session, I will do on the first day if elected President of the United States, and that’s to repeal Obamacare.”  On the opposite end of the spectrum, President Obama stated, “I know the debate over this law has been divisive.  It should be pretty clear that I didn’t do this because it was good politics.  I did it because I believe it is good for the country.”  Now that the stage has been set, the extent of the beneficial or detrimental effects of the new law remains to be seen.

This is an article, by Theodore Y. Choi, Esquire who is a former associate at my firm.  This article was originally published in Upon Further Review on July 18, 2012.

5th Circuit Says Fired Employee’s Suit Does Not Necessarily Require Deciding Ecclesiastical Questions

This is from religionclause.blogspot.com which you can find here:

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (5th Cir., July 16, 2020), the U.S. 5th Circuit Court of Appeals reversed the dismissal of a suit by the former executive director of the General Mission Board of the Baptist Convention for Maryland/Delaware (“BCMD”).  He alleged that the North American Mission Board (“NAMB”) intentionally made false statements about him that led to his termination. He also claimed that NAMB posted his picture at their headquarters to tell people that he was not to be trusted.  The district court relied on the ecclesiastical abstention doctrine to dismiss the case.  The 5th Circuit, reversing, said in part:

In order to resolve McRaney’s claims, the court will need to determine (1) whether NAMB intentionally and maliciously damaged McRaney’s business relationships by falsely claiming that he refused to meet with Ezell,… (2) whether NAMB’s statements about McRaney were false, defamatory, and at least negligently made …; and (3) whether NAMB intentionally caused McRaney to suffer foreseeable and severe emotional distress by displaying his picture at its headquarters…. At this early stage of the litigation, it is not clear that any of these determinations will require the court to address purely ecclesiastical questions.

You can learn more about this issue here.

Marriage decline blamed on lack of ‘economically attractive’ men

But not “economically attractive” men.

The nation has seen a steady decline in marriages and a new study by Cornell University blames it on a shortage of economically attractive men for unmarried women to marry.

“Most American women hope to marry but current shortages of marriageable men – with a stable job and good income – make this increasingly difficult, especially in the current gig economy of unstable low-paying service jobs,” said lead author Daniel T. Lichter, PhD, of Cornell University.

The study focused on opposite-sex couples.

Researchers looked at the sociodemographic characteristics of unmarried women’s potential spouses who resemble the husbands of otherwise comparable married women.

They found different racial groups, especially black women, face serious shortages of potential marital partners, as do unmarried women with either low or high socioeconomic status.

According to the study, estimated potential “dream” husbands had an average income about 58% higher than the actual unmarried men currently available to unmarried women.

They are also 30% more likely to be employed and 19% more likely to have a college degree.

“Marriage is still based on love, but it also is fundamentally an economic transaction,” said Lichter. “Many young men today have little to bring to the marriage bargain, especially as young women’s education levels on average now exceed their male suitors.”

By Blanca Rios in the Journal of Marriage and Family. on September 4, 2019.

6th Circuit Reverses Dismissal of Rastafarian Inmate’s Diet and Fasting Claims

This is from religionclause.blogspot.com which you can find here:

In Koger v. Mohr, (6th Cir., July 7, 2020), the U.S. 6th Circuit Court of Appeals reversed an Ohio federal district court’s dismissal of two religious accommodation claims brought by a Rastafarian inmate. The court concluded that officials had not offered adequate justification for refusing to provide an Ital diet (organic food, vegetarian no soy).  The court also concluded that plaintiff had asserted a valid equal protection claim as to refusal to accommodate Rastafarian fasting days:

Koger stated that he “fasted during Ramadan in the past because it occasionally aligns with the fasting days observed by Rastafarianism” and because ODRC did not allow him “to fast as a Rastafarian . . . without being subject to discipline.”

The court affirmed the dismissal of plaintiff’s claims as to dreadlocks and inability to commune with other Rastafarians.

You can learn more about this issue here.

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