The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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Cummings v. Premier Rehab Keller, PLLC

Docket: 19-10169

Opinion Date: January 24, 2020

Judge: Edith Brown Clement

Areas of Law: Civil Rights, Constitutional Law

Emotional distress damages are not available under the Rehabilitation Act (RA) and the Patient Protection and Affordable Care Act (ACA). In this case, plaintiff filed suit against Premier, a federal funding recipient, for disability discrimination. The Fifth Circuit affirmed the district court's grant of Premier's motion to dismiss, holding that because punitive damages are unavailable for a funding recipient's "breach" of its Spending Clause "contract," despite the existence of exceptions to the general prohibition against such damages, emotional distress damages are unavailable for a funding recipient's "breach" of the RA or the ACA, despite the existence of exceptions. The court did not believe that it was within its power to expand the Spending Clause contract-law analogy, which would expose federal funding recipients to greater liability. The court found that the Bell rule was not a vehicle for importing remedies that have already been rejected.