WASHINGTON — It has been a banner term at the U.S. Supreme Court for Mark Rienzi, the Catholic University of America law professor and First Amendment litigator who helped secure key victories this summer in two closely watched cases.
Rienzi represented Hobby Lobby in its successful legal challenge to the Health and Human Services contraceptive mandate and also served as legal counsel for Eleanor McCullen, the pro-life sidewalk counselor who won her 14-year legal battle against Massachusetts’ “buffer zone” law.
Further, since December 2013, Rienzi has secured temporary injunctions from the high court for the Little Sisters of the Poor and for Wheaton College — two religious employers that hope to win an exemption from the HHS mandate.
As senior counsel for the Becket Fund for Religious Liberty, a public interest group that represents many HHS plaintiffs, his legal strategy has helped Eternal Word Television Network (EWTN) obtain emergency relief until its appeal is resolved. The Register is a service of EWTN.
Remarkably, Rienzi has scored major legal victories at the high court while also filling his day job as a popular law professor at The Catholic University of America, where he teaches constitutional law, religious liberty, torts, and evidence.
“His litigation on HHS mandate cases, and on McCullen v. Coakley, has been accomplished in his spare time,” CUA president John Garvey told the Register, noting Rienzi had twice been voted teacher of the year by law students.
On the CUA website, Rienzi succinctly summarizes the guiding principles that drive his legal work and his efforts to form a new generation of lawyers.
“The law is a tool for structuring society. It is a tool for protecting the weak, the oppressed and the voiceless. It is a tool for protecting freedom,” he states.
“CUA Law students learn how to use that tool, and are inspired to use it for good when they graduate."
Meanwhile, clients such as Eleanor McCullen say they were quickly reassured by Rienzi’s competence and integrity.
McCullen recalled the lawyer’s strong performance during the Jan. 15 oral arguments in McCullen v. Coakley.
“Oral arguments can seem intimidating — the justices can cut you off in mid-sentence,” McCullen told the Register.
“I worried he might lose his train of thought, but he didn’t. He answered their questions and then went back to what he was talking about.”
She was thrilled with his closing remarks: “He saved his last punch for the end — he had good strategy. For a young guy he handled himself well. I was proud to have him representing me.”
On June 26, the justices ruled unanimously that Massachusetts’s 35-foot “buffer zone” that separates pro-life counselors from the entrance to abortion facilities violated First Amendment free-speech rights.
“The buffer zones burden substantially more speech than necessary to achieve the commonwealth’s asserted interests,” stated Chief Justice John Roberts, writing for the majority and handing Rienzi the first of two legal victories at the close of the court’s Spring 2014 term.
Rienzi began his legal education at Harvard Law School, where he was an editor of the Harvard Law Review. He then clerked on the D.C. Circuit, and also served as counsel in the Supreme Court and appellate practice group of a top Washington law firm before he accepted his appointment at CUA.
Yet, despite his strong credentials and string of victories, Rienzi’s clients say he tends to wear his success lightly.
“He has frequently asked the sisters to pray for a good outcome in a case, and we reassure him that we and the residents are praying for him,” Little Sister of the Poor Loraine Maguire, the provincial for the Baltimore province of the religious order, told the Register.
“When he won the Hobby Lobby case, I emailed him and congratulated him. He emailed back and said, ‘We won because you were praying for us.’
“I responded, ‘Well, Mark, I think you deserve some credit,’” said Sister Loraine.
The Hobby Lobby ruling was a major blow to the Obama Administration, which argued in numerous cases brought by for-profit employers that religious freedom protections did not apply to businesses, and that the goal of increasing access to contraception took precedence over free exercise claims.
In a 5-4 decision, the high court said that religious freedom protections applied to closely held family businesses. Writing for the majority, Justice Samuel Alito, Jr. stated, “HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.”
Asked to comment on the significance of the Hobby Lobby decision, Rienzi told the Register, “We are at a point where the court, pretty consistently, has said that First Amendment protections for religious liberty and free speech really do matter.
“The court won’t let the government steamroll religious objections unless the government shows it really needs to do it.”
On Dec. 31, 2013, Justice Sonia Sotomayor provided the Little Sisters with a temporary injunction, and the order’s fight against the mandate became a public relations problem for the administration, which had presented the HHS lawsuits as a “war on women” during the 2012 presidential election year.
Restraining Government Power
During his interview with the Register, Rienzi said that it was nothing new for federal and state governments to challenge free exercise rights.
“It has been widely recognized that one tendency of government is to push the boundaries and exert its power,” he said.
“Very often, the consequence of that is felt in the area of liberty. It is very important to stand up and assert the right that government cannot do this without a particular compelling interest.”
In the wake of the Hobby Lobby ruling, some of the administration’s allies have repeated the White House’s claims that important public health goals — like vaccinations for common childhood diseases — could, in the future, also be denied to employees because of the religious objections of their employers.
Rienzi dismisses what some First Amendment advocates call “the parade of horribles” used to stir fears that free exercise claims pose a threat to the common good, and he noted that religious freedom claims are not absolute and in rare cases must be opposed.
“If we are going to live in a country with diverse religious backgrounds and sexual orientation, most of the time the government should say, ‘live and let live.’ It ought to be the rare case where the government can steam roll someone and say he cannot act on his beliefs,” he insisted.
Defending Everybody’s Religious Liberty
Indeed, though Rienzi is a Catholic, his defense of free exercise rights is not limited to cases filed by Catholic or Christian plaintiffs. At present, he is representing Gregory Holt, a Muslim serving a life-time sentence in an Arkansas prison, who is asserting the right to grow a short beard, though the action would be in violation of the prison rules governing facial hair.
In March, the Supreme Court agreed to hear the case, which has drawn little public attention — and Rienzi said he hopes it will stay that way. But he cites the case to underscore his firm belief, shared by the Becket Fund, that “it is important to protect religious liberty for everybody.”
Thus, Rienzi had no qualms about serving as legal counsel for the Little Sisters and for the Muslim inmate, and Sister Loraine said that she has been educated and inspired by his consistent support for religious plaintiffs.
The Little Sisters have not yet won their appeal, however, and it is entirely possible that Rienzi could return to the high court in 2015, when the justices are expected to consider one or more legal challenges to the HHS mandate brought by nonprofit employers.
‘Courageous, Determined and Optimistic’
Indeed, during an era witnessing a surge in free exercise litigation, Rienzi’s distinctive gifts could make him a familiar presence at the high court.
William Mumma, the president of the Becket Fund, suggested that Rienzi’s “personality would be recognizable to any American raised with stories of the fearless attorney defending the weak against the powerful. He is courageous, determined and most of all — optimistic.”
“His persistence in the McCullen case — carried at considerable personal expense for many years — is representative of this spirit,” said Mumma.
“Of course, what makes this classic story so interesting is the shift in characters. The victims are religious believers, the oppressors are the government. Times change and power shifts, but heroes are still required.”
Joan Frawley Desmond is the Register’s senior editor.