Friday, July 2, 2021
The Supreme Court ruled yesterday that California's requirement that tax-exempt organizations operating in the state disclose the names and addresses of their major donors violated the First Amendment.
The ruling strikes California's requirement from the books. It puts similar reporting and disclosure requirements on the chopping block, and it could even lay the groundwork for striking campaign finance disclosure requirements.
The case, Americans for Prosperity Foundation v. Bonta, involved California's requirement that tax-exempt organizations in the state provide to the state attorney general their IRS Form 990, along with Schedule B, which includes the names and addresses of major donors. The state says that it needs the information in order to police misconduct by charities.
Organizations sued, arguing that the requirement violated their First Amendment rights. A sharply divided Court--6-3, along conventional ideological lines--agreed.
The six-justice majority ruled that California's requirement did not sufficiently serve its interest in policing misconduct:
There is a dramatic mismatch, however, between the interest that the Attorney General seeks to promote and the disclosure regime that he has implemented in service of that end. . . .
Given the amount and sensitivity of this information harvested by the State, one would expect Schedule B collection to form an integral part of California's fraud detection efforts. It does not. To the contrary, the record amply supports the District Court's finding that there was not "a single, concrete instance in which pre-investigation collection of a Schedule B did anything to advance the Attorney General's investigative, regulatory or enforcement efforts."
The Court ruled the requirement overbroad and facially unconstitutional, which means that it is unconstitutional not just in this case, but in every conceivable application.
The six-justice majority split on the level of scrutiny to apply to such requirements. Chief Justice Roberts, joined by Justices Kavanaugh and Barrett, argued that "exacting scrutiny" is the right standard for all disclosure requirements, with no least-restrictive-means requirement. Justice Thomas argued that the more stringent strict scrutiny applied. (Justice Thomas also argued that the Court shouldn't rule the requirement facially unconstitutional, just unconstitutional in this case.) Justice Alito, joined by Justice Gorsuch, wrote that he was "not prepared at this time to hold that a single standard applies to all disclosure requirements."
Still, all six agreed that the requirement failed either level of scrutiny in this case, and five (minus Justice Thomas) agreed that it was therefore facially unconstitutional.
Justice Sotomayor wrote the dissent, joined by Justices Breyer and Kagan. Justice Sotomayor argued that the Court wrongly heightened the standard for disclosure requirements, failed to demand that the plaintiffs show a real harm or actual burden, and wrongly held the requirement facially invalid.
In so holding, the Court discards its decades-long requirement that, to establish a cognizable burden on their associational rights, plaintiffs must plead and prove that disclosure will likely expose them to objective harms, such as threats, harassment, or reprisals. It also departs from the traditional, nuanced approach to First Amendment challenges, whereby the degree of means-end tailoring required is commensurate to the actual burdens on associational rights. Finally, it recklessly holds a state regulation facially invalid despite petitioners' failure to show that a substantial proportion of those affected would prefer anonymity, much less that they are objectively burdened by the loss of it.
She noted that "[t]oday's analysis marks reporting and disclosure requirements with a bull's-eye."
Thursday, June 17, 2021
Court Says Philly's Anti-Discrimination Contract Provision Violates Free Exercise, but Keeps Smith on Books
The Supreme Court ruled today that the city of Philadelphia violated Catholic Social Service's free exercise rights when it terminated CSS's foster-care contract pursuant to a clause that prohibits discrimination against same-sex adopting couples, but also allows exceptions at the "sole discretion" of the Commissioner.
At the same time, the Court declined to reconsider Employment Div., Dep't of Human Resources of Oregon v. Smith, which holds that religiously neutral and generally applicable laws that have an incidental burden on religion must only satisfy rational basis review.
As a result, the ruling is a short-term victory for CSS (which the city will likely quickly undo--see below). But it puts off the Big Issue--whether Smith is still valid law--for another day. (This issue will certainly come back to the Court, and the Court will almost certainly change the rational-basis test in Smith, raising the standard of review and thus making it easier for religious groups or individuals to challenge neutral, generally applicable laws. It's just a matter of when.)
The case, Fulton v. City of Philadelphia, arose when the city informed CSS that the city could no longer contract with CSS for foster-care services so long as CSS refused to certify same-sex couples as foster-care parents. (Instead, CSS said it would refer such a certification to another social-services agency.) The city claimed that CSS's refusal to certify same-sex couples violated a non-discrimination provision in its contract with the city and the city's Fair Practices Ordinance. CSS sued, arguing that the City violated its free exercise rights, and urging the Court to overturn Smith.
The Supreme Court agreed. Chief Justice Roberts wrote the opinion, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett. The Court held that the anti-discrimination contract provision was not generally applicable, because it allows the Commissioner to grant an exception in the Commissioner's sole discretion. Moreover, the Court held a second contractual provision, which categorically barred discrimination (with no exceptions), had to be read in harmony with the exception in the first provision--in other words, that the exception still applied. Finally, the Court held that the city's Fair Practices Ordinance didn't apply, because foster care isn't a "public accommodation" under the Ordinance.
Because no generally applicable law applied, the Court said that Smith was the wrong test. Instead, the Court applied strict scrutiny (under Church of Lukumi Bablu Aye, Inc. v. Hialeah). The Court held that the city lacked a sufficiently compelling interest to exclude CSS, and ruled that the city's action violated the Free Exercise Clause.
The ruling is narrow--it hangs on the exception in the non-discrimination clause in the city's contract with CSS. As a result, the city can easily dodge a free exercise problem by simply omitting the exception from the clause in its contract with CSS. (The city says it never used the exception, anyway.)
Moreover, the ruling doesn't do anything to Smith or the rational-basis test for religiously neutral, generally applicable laws that incidentally burden religion. This question will surely come back to the Court, though (maybe even in a next round in this very case, if the city omits the exception from its contract and holds CSS in violation). And when it does, the Court will almost certainly change the test, making it easier for religious groups or individuals to challenge neutral, generally applicable laws as violating free exercise.
Justice Barrett concurred, joined by Justice Kavanaugh and (in part) Justice Breyer. She noted that the Court would need to work through a number of questions before it overruled Smith, and that the best approach might not be to categorically apply strict scrutiny to these kinds of claims.
Justice Alito wrote a sharp and lengthy concurrence, joined by Justices Thomas and Gorsuch. He argued that the Court should overrule Smith and replace it with the test that preceded Smith (in Sherbert) and that Congress later adopted in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act: "A law that imposes a substantial burden on religious exercise can be sustained only if it is narrowly tailored to serve a compelling government interest."
Justice Gorsuch wrote his own concurrence, joined by Justices Thomas and Alito. He argued that the Court likely got it wrong on the applicability of the Fair Practices Ordinance--that in fact, the Ordinance "is both generally applicable and applicable to CSS"--and on the separate contract provision that categorically prohibited discrimination. Justice Gorsuch argued that the Court's attempts to maneuver around Smith thus failed, that the Court should've addressed Smith, and that it should've overturned it.
Thursday, June 3, 2021
Check out David Cole, Jameel Jaffer, and Ted Olson's piece in the NYT on transparency at the Foreign Intelligence Surveillance Court. The FISC "authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public."
The three and others teamed up on a cert. petition, asking SCOTUS to rule on whether the First Amendment provides a qualified right of public access to the FISC's significant opinions. (The FISC and the Foreign Intelligence Surveillance Court of Review both ruled that they lacked jurisdiction to hear the question.) The Court hasn't yet decided whether to take up the case. Here's the docket, with amicus briefs supporting the cert. petition.
Monday, April 26, 2021
The Eleventh Circuit ruled last week that a witness to a highway accident didn't have a clearly established right to photograph police activity on the median. The court granted an officer qualified immunity against the witness's First Amendment claim and dismissed the case.
The case, Crocker v. Beatty, arose when James Crocker stopped to take pictures of an accident on the median of I-95 in Florida. Martin County Deputy Sheriff Steven Beatty confiscated Crocker's phone and placed him in a patrol vehicle. Crocker sued, alleging a violation of his First Amendment right to free speech, among other things.
The Eleventh Circuit ruled that Beatty enjoyed qualified immunity, because Crocker had no clearly established right to photograph police activity on a highway median. The court said that circuit precedent, Smith v. City of Cumming, established only that "[t]he First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest." The court said that this was too vague a statement to create a clearly established right to photograph police "on the median of a major highway at the rapidly evolving scene of a fatal crash," in "the chaos of a fatal car crash," by "a citizen who (as we will explain shortly) might well have been photographing the incident from an unlawful vantage point" (although Beatty specifically told Crocker that he wasn't violating the law).
Judge Martin dissented, arguing that Smith clearly established the right.
Wednesday, April 21, 2021
The First Circuit ruled last week that a Massachusetts police department did not violate an officer's free-speech rights by taking disciplinary action against the officer after the officer first reported another officer's misconduct, and later made threats and false claims to his superior and an independent investigator. The court ruled that the department would've taken the same disciplinary action regardless of the officer's protected speech.
The case, Gutwill v. City of Framingham, started when officer Matthew Gutwill filed a complaint against another officer that the other officer gave false testimony at a suppression hearing. The department concluded that Gutwill had "good cause" to make the complaint, but that the allegations were unsubstantiated.
The department later rotated Gutwill out of his DEA taskforce position and made other changes that affected his overtime and privileges. Gutwill complained about those changes to senior officers, including a call to the department chief, where Gutwill made threatening comments, told the chief that federal agents had recorded the deputy chief on a wiretap as part of a drug investigation, and told the chief that he (Gutwill) had reported his concerns to the FBI.
The chief reported the call, and the department appointed an independent investigator. The investigator initially concluded that Gutwill had not been truthful in denying his threats to the chief. The department placed Gutwill on administrative leave pending the completion of the investigation. The investigator later concluded that Gutwill lied to her (the investigator), too, about his (Gutwill's) statements about the deputy chief. In response, the department suspended Gutwill for five days without pay for dishonesty and conduct unbecoming an officer. An independent hearing officer concluded that Gutwill violated department regulations on honesty and conduct.
Gutwill sued. The district court ruled against him, and the First Circuit affirmed. The court held that the department demonstrated that it would've taken the same disciplinary actions whether or not Gutwill engaged in protected speech. The court said that the chief had good cause to report the call with Gutwill, and that the hearing officer's conclusion that Gutwill violated department rules was "an adequate, non-retaliatory basis for Gutwill's discipline." It also noted that the investigator's conclusion that Gutwill was dishonest with her provided yet another independent reason for Gutwill's discipline.
Monday, April 12, 2021
The Seventh Circuit ruled on Friday that a state governor can limit media access to press conferences, so long as the limits are reasonable and viewpoint neutral. The ruling rebuffs the plaintiffs' challenges and allows the governor to continue to limited access to press conferences based on viewpoint neutral criteria.
The case, MacIver Institute for Public Policy v. Evers, arose when Wisconsin Governor Tony Evers prevented two reporters from the MacIver Institute from attending his limited-access press conferences. Evers restricted access based on a set of criteria that included things like the length of time that a media outlet has published news, whether a media outlet is a periodical or has an established television or radio presence, whether the reporters are paid or full-time correspondents, and whether the reporters and media outlet are "bona fide" and "of repute in their profession," among other similar criteria. The Institute sued, arguing that free speech and free press guaranteed a right to equal access for all media.
The court rejected the Institute's challenge. It ruled that the governor's limited-access press conferences were "nonpublic" forums, and that the governor permissibly limited access based on criteria that had nothing to do with a media outlet's viewpoint. Moreover, the court noted that the Institute provided no evidence that Evers applied the viewpoint neutral criteria in a viewpoint-based way. The court noted that under the governor's viewpoint-neutral criteria, the governor allowed access to a variety of media across the range of political ideologies, and that the governor similarly disallowed access to a variety of media across the range of political ideologies.
The Supreme Court on Friday granted a motion to enjoin California's at-home COVID restrictions pending appeal at the Ninth Circuit. (The Ninth Circuit previously denied the same motion.) The ruling means that California cannot apply its restriction on at-home religious gatherings to three households to the plaintiffs, at least for now (though likely forever).
The Court compared the state's treatment of private, at-home religious gatherings (restricted to three households) with its treatment of "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants" (allowing more than three households at a time). The Court said that the different treatment meant that the state had to justify its at-home restrictions under strict scrutiny as to these plaintiffs--and that it couldn't.
Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Justice Kagan wrote that the Court looked to the wrong comparators:
California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons--and thus unlike at-home secular gatherings, the obvious comparator here.
She also argued that the state had good reason to treat at-home gatherings differently than gatherings in stores and salons: the district court found, and the Ninth Circuit acknowledged, that "those activities do pose lesser risks . . . ."
Chief Justice Roberts would've denied the motion, although he did not join Justice Kagan's dissent.
Friday, December 18, 2020
The Supreme Court yesterday rejected a religious private school's challenge to Kentucky's school-closing order, at least for now, given that the order is set to expire shortly. But the move allows the religious school to renew its challenge should the order come back into effect in January.
The action differs from another Court action earlier this week, remanding a case that challenges Colorado's capacity restrictions as applied to religious services. In the Colorado case, the Court's action, taken together with its earlier ruling in a New York case, will probably end the state's restrictions--even though the state had already revoked its restriction (in light of the New York case). In other words, the Court seemed to stretch to effectively strike Colorado's restrictions. In the Kentucky case, in contrast, the Court declined to intervene because the restriction is set to expire soon. In other words, the Court stayed its hand, even though the restriction was in place at the time of the ruling, because it would soon expire.
The case tests Kentucky's school-closing order--an order that applies to all schools (secular and religious) in the state. A religious school challenged the order, arguing that it violated the Free Exercise Clause, because a companion order permitted other in-person activities (restaurants, bars, gyms, movie theaters, indoor weddings, bowling alleys, and gaming halls) to remain open. (This, even though the order treated all schools alike.) A district court issued a preliminary injunction against the school closing order, but the Sixth Circuit stayed the injunction pending appeal (so that the order remained valid as the religious school appealed). The Supreme Court denied the religious school's petition to vacate the stay, largely or entirely because it's set to expire soon.
The Court said "[u]nder all circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year."
Justices Alito and Gorsuch wrote separate dissents, but joined each other's. Justice Alito argued that the Court should've granted relief, because "timing is in no way the applicants' fault." Justice Gorsuch wrote that the Sixth Circuit failed to consider the school-closing order alongside the business-closing order--and therefore failed to compare the closed religious school to open businesses---in evaluating whether the two orders together discriminated against religion. He also argued that the Sixth Circuit failed to consider a "hybrid" claim, that the school-closing order also violated the fundamental right of parents "to direct the education of their children."
Tuesday, December 15, 2020
The Supreme Court effectively struck Colorado's previous Covid-19 capacity restriction as applied to a rural Colorado church and its pastor. The Court vacated a lower court's ruling that upheld the restriction and remanded the case with instructions to reconsider it in light of the Court's ruling last month in Roman Catholic Diocese of Brooklyn v. Cuomo.
The ruling means that the lower court will almost certainly strike Colorado's previous restriction as applied to the church. But because the case tests the previous restriction, it'll have no immediate effect on the plaintiffs or the state.
Today's ruling in High Plains Harvest Church v. Polis comes less than a month after the Court struck New York's Covid-19 capacity restrictions as to the plaintiffs in Roman Catholic Diocese. Today's ruling contains no analysis; it simply vacates the lower court ruling and remands the case in light of that earlier ruling.
High Plains tests Colorado's restriction "dial," which previously treated houses of worship more favorably than comparable "indoor events" and "restaurants," but less favorable than certain "critical" businesses. But after the Court ruled in Roman Catholic Diocese--and specifically in order to comply with that ruling--the state changed its dial and removed specific numeric capacity limitations on churches.
Justice Kagan wrote a dissent, joined by Justices Breyer and Sotomayor. She argued that the Court needn't consider the case, because it's moot.
The state in Catholic Diocese also removed its restriction before that case came to the Court. The difference in High Plains is that Colorado removed its restrictions specifically in response to the Court's ruling in Catholic Diocese. In other words, Colorado is far less likely to reverse its decision, creating a capable-of-repetition-but-evading-review exception to mootness. This suggests that the Court is either loosening up its mootness exception doctrine, or (more likely) reaching for cases to expand religious freedom under the Free Exercise Clause.
Thursday, November 26, 2020
The Supreme Court yesterday granted an application to temporarily halt the enforcement of New York's "red zone" and "orange zone" occupancy limits to the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, the plaintiffs challenging the restrictions. The ruling means that New York cannot apply its red- and orange-zone restrictions to the plaintiffs as their case works its way through the lower courts. (It's currently on appeal at the Second Circuit.) But it also telegraphs the way the Court will rule when the case eventually comes to it on the merits.
The 5-4 ruling reflected the conventional divide on the Court (with Chief Justice Roberts siding with the three progressives). It also revealed a rift between Justice Gorsuch and Chief Justice Roberts, as Justice Gorsuch took aim at the Chief for his earlier opinion in South Bay. The ruling illustrates the impact of Justice Amy Coney Barrett: it almost certainly would've come out the other way if Justice Ginsburg were still on the Court.
The Court held that New York's 10- and 25-person occupancy restrictions (the red- and orange-zone restrictions, respectively) likely violate the Free Exercise Clause. The per curiam opinion said that the zones "single out houses of worship for especially harsh treatment" in comparison to secular "essential" businesses like "acupuncture facilities, camp grounds, garages[, and] plants manufacturing chemicals and microelectronics and transportation facilities." The Court said that because the restrictions are not "neutral" and of "general applicability," they must satisfy strict scrutiny, and that they failed. The Court noted that New York's zones are far more restrictive than other COVID-related regulations that the Court has considered, that "there is no evidence that the applicants have contributed to the spread of COVID-19," and that the state could achieve its objective (to minimize the risk of transmission) with less restrictive means, for example, tying the occupancy limits to the size of the synagogue or church (rather than setting the limit at a particular number).
Chief Justice Roberts dissented, arguing that an injunction isn't necessary, because the state lifted the red- and orange-zone restrictions on the plaintiffs.
Justice Breyer dissented, joined by Justices Sotomayor and Kagan, arguing that the injunction isn't necessary and that the plaintiffs didn't meet the requirements for an "extraordinary remedy."
Justice Sotomayor dissented, too, joined by Justice Kagan, arguing that the state treats synagogues and churches more favorably than similar secular activities (like concerts), and that the state's "essential services" that enjoy more favorable treatment are distinguishable based on the science.
Wednesday, November 4, 2020
The Supreme Court will hear oral arguments today in Fulton v. City of Philadelphia, the case testing whether the city's enforcement of a clause in its foster-care contracts that prohibits discrimination by sexual orientation violates Catholic Social Service's Free Exercise rights. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:
The City of Philadelphia’s Department of Human Services (DHS) operates the City’s foster-care program. DHS takes legal custody of children whom courts have removed from their homes, and places the children in a foster home or facility that is appropriate to each child’s interests and needs.
In order to help operate the program, DHS contracts with private-sector social-service providers. Some of these providers serve as “Community Umbrella Agencies” (CUAs), which provide social services to foster children. Some operate congregate-care facilities, which provide group housing for children. And some operate as “Foster Family Care Agencies” (FFCAs), which conduct home studies of potential foster parents, issue certifications for families that meet state criteria, and, upon referral from DHS, place children with foster parents that the FFCAs have certified. State law delegates authority to FFCAs, so that FFCAs exercise state power when they evaluate and certify foster parents. Private agencies have no authority to place children with foster parents without an FFCA contract. Still, DHS’s standard contract says that a contracting agency “is an independent contractor,” and not “an employee or agent of the City.”
DHS contracts include a standard nondiscrimination clause. The clause says that FFCAs must comply with the City’s Fair Practices Ordinance, which prohibits discrimination based on any protected characteristic, including sexual orientation. The contracts also say that contractors “shall not discriminate” in any “public accommodations practices” on the basis of sexual orientation.
Catholic Social Services (CSS) is a faith-based social-service organization that has long contracted with DHS to provide services in the City’s foster-care program. On March 13, 2018, the Philadelphia Inquirer ran a piece titled “Two foster agencies in Philly won’t place kids with LGBTQ people.” The story reported that CSS and another social-service organization would not certify same-sex couples for foster-care placements. In the article, the Archdiocese’s spokesperson confirmed CSS’s longstanding religion-based policy against providing foster-care certification for unmarried couples and for same-sex married couples, but emphasized that CSS had received no inquiries from same-sex couples. (CSS maintains that if it received such an inquiry, it would refer the couple to another agency.)
Two days after the story ran, the City Council passed a resolution condemning “discrimination that occurs under the guise of religious freedom.” Around the same time, the Philadelphia Commission on Human Relations (PCHR), at the request of the Mayor, sent a letter to the Auxiliary Bishop who oversees CSS. The letter asked the Bishop to answer questions about CSS’s policies, including whether “you have authority as a local affiliate/branch of a larger organiz[ation] to create or follow your own policies.” (CSS maintains that the Mayor previously said that he “could care less about the people of the Archdiocese,” called the Archbishop’s actions “not Christian,” and called on Pope Francis “to kick some ass here!”)
The Mayor also contacted DHS Commissioner Cynthia Figueroa. Figueroa met with CSS representatives “to find a mutually agreeable solution.” During the meeting, she urged CSS representatives to follow “the teachings of Pope Francis,” and told them that “times have changed,” “attitudes have changed,” and that CSS should change its policy because it was “not 100 years ago.” CSS maintained its position, however, and DHS then halted its referrals to CSS for the rest of its contractual term, through the City’s Fiscal Year 2018.
CSS’s FY 2018 FFCA contract expired on June 30, 2018. DHS repeatedly expressed its “strong desire to keep CSS as a foster care agency,” and offered CSS FFCA contracts on the same terms as other agencies. In FYs 2019 and 2020, DHS offered CSS a choice between the same contract it offered to other FFCA agencies and a “maintenance contract” to provide foster-care services for families that CSS was already supporting. CSS chose the maintenance contract. (Although CSS declined to enter into an FFCA contract, the agency nevertheless continued to contract with DHS to provide CUA and a congregate-care services.)
In May 2018, while its FY 2018 FFCA contract was still in force, CSS sued DHS. CSS argued that DHS’s move to halt referrals violated the Free Exercise Clause, the Establishment Clause, the Free Speech Clause, and the Pennsylvania Religious Freedom Protection Act. The district court denied CSS’s motion for a preliminary injunction, and the Third Circuit and the Supreme Court denied CSS’s motion for an injunction pending appeal. Fulton v. City of Philadelphia, 139 S. Ct. 49 (2018). (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted their dissent.) The Third Circuit affirmed the district court’s ruling. This appeal followed.
The case includes three distinct issues. We’ll review them one by one.
Free Exercise Clause
Under the Free Exercise Clause, a government action that targets religion or a religious practice must be narrowly tailored, or necessary, to meet a compelling government interest. This test, “strict scrutiny,” is the most rigorous test known to constitutional law; under strict scrutiny, the challenged government action almost always fails. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
On the other hand, a government action that is generally applicable and neutral with regard to religion, but that nevertheless has an “incidental” effect on religion, must only be rationally related to a legitimate government interest. This test, “rational basis review,” is one of the more lenient tests known to constitutional law, and the challenged government action almost always passes. Employment Division v. Smith, 494 U.S. 872 (1990).
In this case, CSS argues that DHS’s nondiscrimination policy targets the agency’s religious exercise, that it is not generally applicable, and that it fails strict scrutiny. CSS claims that “[t]he City has repeatedly shifted policies,” developed post hoc rationalizations for its nondiscrimination policy, and “changed the rules in response to CSS”—all proving that the City targeted CSS’s religious exercise. Moreover, CSS contends that the actions and statements of the City Council, the Mayor, the PCHR, and DHS all reflect hostility toward CSS’s religious beliefs. CSS asserts that the City’s nondiscrimination policy is not generally applicable, because it allows for exemptions by a “Waiver/Exemption Committee” for “constitutional issues” and by “the Commissioner or the Commissioner’s designee, in his/her sole discretion.” CSS contends that the City’s exemptions undermine its own interests, and that the City does not even apply nondiscrimination to its own actions.
CSS argues that the City’s nondiscrimination policy cannot satisfy strict scrutiny. CSS says that the City’s “hostility towards CSS’s religious exercise” and the policy’s many exemptions both show that the City’s interest cannot be compelling. And it claims that the City’s categorical freeze on CSS referrals was not narrowly tailored to meet any City interest, because the move meant that CSS could not place children in already-certified homes, and because the City could instead simply require CSS to refer same-sex couples to another FFCA. (CSS maintains that it already has a policy to do this.)
(The government weighs in to support CSS on this point, and this point only. It argues that the City’s policy targets CSS’s exercise of religion and fails strict scrutiny for many of the same reasons. Notably, the government does not argue that the Court should overrule Smith. It also does not argue that the City violated CSS’s free speech.)
The City responds that its nondiscrimination policy is a neutral law of general applicability, and that it easily satisfies Smith’s rational basis review. The City starts by claiming that it has “significantly greater leeway” in directing its own employees and contractors than when it regulates private individuals. It says that this “extra power” applies with full force to this case, and that the Court should “be especially hesitant to infer anti-religious animus from stray remarks of government officials.”
The City argues that its nondiscrimination requirement is generally applicable and neutral with regard to religion. It says that every FFCA contract contains an identical nondiscrimination requirement, and (contrary to CSS’s understanding) that DHS has no authority to make exceptions and, indeed, has never done so. The City contends that the policy contains “no trace of religious hostility,” and that CSS wrongly infers hostility “from the statements of persons who played no role in the decisionmaking process and from events far removed from the relevant decisions.”
Finally, the City argues that its nondiscrimination requirement does not require CSS to do anything contrary to its religious beliefs. In particular, the City says that neither the policy nor state law requires CSS “to endorse a couple’s relationship when certifying them as qualified foster parents.”
CSS argues that the City compels it to support nondiscrimination in violation of its right to free speech. CSS says that the City requires CSS, as a condition of participation in the foster care system, to issue written certifications of potential foster parents that “evaluat[e] and endors[e] same-sex and unmarried cohabitating relationships.” CSS maintains that this is “private speech,” based on Commissioner Figueroa’s testimony that the City has “nothing to do with” home studies, and does not control their content. CSS claims that the City violated its free speech by revoking its contract and attempting to “leverage a program it pays for to compel speech it does not pay for.” CSS claims that the City cannot justify these violations under strict scrutiny, for the same reasons that it cannot justify its violation of the Free Exercise Clause under strict scrutiny, above.
The City counters that its nondiscrimination policy simply does not compel CSS to say anything about the validity of same-sex relationships. Instead, the City claims that the policy simply regulates CSS’s conduct—not to discriminate against foster parents based on their sexual orientation.
CSS argues that the Court should overrule Smith and its rational basis review test. CSS claims that the Court designed the Smith test to apply when “legislatures make general laws and courts apply them.” But it says that government officials “often infringe religious exercise with non-neutral, non-general laws, and courts mistakenly apply Smith anyway.” (CSS contends that this is exactly what the City and the Third Circuit, respectively, did in this case.) CSS claims that the Smith test is therefore not an administrable standard, and that none of its predictions about its administrability came true. Moreover, CSS asserts that the Smith test lacks support in the text, history, and tradition of the Free Exercise Clause. It says that courts have done much better applying a higher level of scrutiny under the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, and similar state laws, and it argues that the Court should replace the Smith test with strict scrutiny, or at least a more rigorous test based on the “purpose and history” of the Free Exercise Clause. CSS maintains that under a proper heightened standard, the City’s move to freeze its contract would fail.
The City counters that the Court should not overrule Smith. The City says that this case is “an extremely poor vehicle to reconsider Smith,” because it involves government contracting (not direct government regulation) and because the City’s nondiscrimination policy satisfies strict scrutiny, anyway. (The City and intervenor Support Center for Child Advocates and Philadelphia Family Pride say that banning discrimination in its FFCA contracts is narrowly tailored to achieve the compelling government interests of eliminating discrimination based on sexual orientation and ensuring that children in foster care have access to all qualified families.) Moreover, it claims that the Smith test “has firm support” in the original meaning of the Constitution, and that it “has served as the predicate for three decades of precedents and legislative enactments.”
This case pits a plaintiff’s right to free exercise of religion against the government’s power to ban discrimination by sexual orientation—a tension that is increasingly familiar in today’s politics and constitutional law. Under existing free-exercise law, in Smith, a plaintiff’s religious rights would almost certainly give way to a government’s categorical ban on discrimination. But if a plaintiff can demonstrate that a government’s ban is not generally applicable or neutral with regard to religion, or that a government official targeted or exhibited hostility toward the plaintiff’s religion, then a plaintiff’s free-exercise claim would almost surely prevail.
The Court last addressed this tension just three Terms ago, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018). In that case, a baker claimed that Colorado’s ban on discrimination would require him to bake a wedding cake for a same-sex couple in violation of his right to free exercise. The Court, in a seven-to-two ruling, held that members of the Colorado Civil Rights Commission exhibited hostility toward the baker’s religion in considering his case, and that the Commission therefore violated his free-exercise rights. The Court, however, did not say whether Colorado’s anti-discrimination law would violate the baker’s religious rights without that kind of hostility, under the Smith test. (We expected to see other similar challenges like this, especially in the wake of Obergefell v. Hodges, 135 S. Ct. 2071 (2015), where the Court struck state laws that banned same-sex marriage. But the Court has not (yet) taken these cases. In fact, the Court earlier this month declined to take up the appeal of Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples because of her religious beliefs. Justices Clarence Thomas and Samuel Alito issued a strong statement on the Court’s denial of certiorari that took aim at Obergefell and elevated Davis’s religious claim. Davis v. Ermold, 2020 WL 5881537 (Oct. 5, 2020).)
Masterpiece Cakeshop and Fulton well illustrate the increasingly familiar tension between nondiscrimination by sexual orientation and free exercise. Fulton now gives the Court another shot to reckon with it.
The parties in Fulton frame at least some of their free-exercise arguments around Masterpiece Cakeshop. CSS says that the City exhibited exactly the same kind of hostility toward religion that members of the Colorado Civil Rights Commission exhibited against the baker in that case. The City, for its part, contends that its officers did not exhibit this kind of hostility, and that, in any event, those officers weren’t in the decisionmaking loop. The City also says that the Court should grant greater leeway to the City in regulating its contractors than the Court granted the Colorado Civil Rights Commission in regulating a private person (the baker).
If the Court sees Fulton through the lens of Masterpiece Cakeshop, these similarities and differences will matter. A ruling for CSS could continue the Court’s trend toward increasing free-exercise rights, while a ruling for the City could provide an important backstop to Masterpiece Cakeshop. Either way, though, if the Court sees Fulton through the lens of Masterpiece Cakeshop, it could retain the Smith test.
But if the Court also tackles the Smith issue, the case could be even more important. Smith was a hotly controversial ruling from the start, provoking legislative responses from the federal government (in the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act) and states (in “mini-RFRAs”). The case remains controversial today. Moreover, the issue comes to the Court as it has moved steadily in recent years to privilege the right to free exercise of religion. For these reasons, the issue seems well teed-up for the Court. If so, Fulton could accelerate the Court’s trend toward greater and greater religious rights, and even provide a capstone to the Court’s cases in this area by overruling Smith. At the same time, Fulton could restrict, at least to some degree, governments at all levels from enacting and enforcing generally applicable laws, like the nondiscrimination policy at issue in this case. But on the other hand, as the City points out, this may not be the right case for the Court to take such a significant step.
As to CSS’s free speech claim: don’t look for the Court to hang its hat here. The claim itself is weak; it’s overshadowed by the free-exercise issues; and the parties did not heavily brief it. Free speech may have been an obligatory adjunct to CSS’s claims (as it was in the baker’s case in Masterpiece Cakeshop), but this case is much more likely to be significant for what it’ll say about free exercise.
Monday, October 5, 2020
On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg's death in September.
In today's Order List of the Term, the Court denied certiorari in Davis v. Ermold to the Sixth Circuit's decision that court clerk Kim Davis did not have immunity from a damages suit. (Recall that in 2017 the Sixth Circuit allowed the damages suit to proceed). Kim Davis achieved notoriety as a clerk who refused to issue a marriage license to a same-sex couple despite the United States Supreme Court's ruling in Obergefell v. Hodges.
Two Justices on the Court who dissented in Obergefell — Thomas joined by Alito — used today's denial of certiorari to issue a "statement" (it is not a dissent as the issue is not "cleanly presented" in this case) to cast doubt on the continued validity of Obergefell:
this petition provides a stark reminder of the consequences of Obergefell. By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected in the First Amendment, and by doing so undemocratically, the Court has created a problem that only it can fix. Until then, Obergefell will continue to have “ruinous consequences for religious liberty.”
Two Justices who joined the slim 5-4 majority in Obergefell — Ginsburg and Kennedy — are no longer on the Court. This statement sends a strong message to courts and advocates that the the Court would contemplate overruling or severely limiting Obergefell should the issue be more "cleanly presented."
Sunday, October 4, 2020
Supreme Court to Hear First Amendment Challenge to Political Balancing Requirements for State Courts
The Supreme Court will hear oral arguments tomorrow, the opening day of October Term 2020, in Carney v. Adams. The case tests whether Delaware's "political balancing" requirements for its courts violate the First Amendment. A ruling on the merits could have implications for a variety of state and federal commissions that have similar balancing requirements. But first the Court'll need to address the plaintiff's standing . . . .
Here's my Preview of the case, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Delaware attorney James Adams, a registered Independent, considered applying for a judicial position on the state courts. Despite his interest, however, Adams did not apply, because he believed that, as an Independent, he would not qualify. Adams pointed to a state constitutional provision that capped the number of judges from a political party to no more than a bare majority on the courts (the “bare-majority” requirement) and that, for some courts, required that the other judges come from the other major political party (the “major-party” requirement). Instead of applying for judicial vacancies on these courts, Adams sued, arguing that the provision violated the First Amendment.
According to the Supreme Court, the First Amendment permits the government to use a person’s political affiliation as a qualification for “policymaking” positions, but generally not for lower-level government jobs. This case tests how that principle applies to Delaware’s political balancing provision for judges. But before we get to the merits, the case raises a significant question whether Adams even has standing to sue.
- Does Adams have standing to sue, given that he declined to apply for judicial vacancies, and given that he would have qualified for vacancies on two of Delaware’s courts?
- Does the First Amendment prohibit a state from specifying and defining the composition of its courts by reference to the judges’ political parties?
- Is the provision of Delaware’s constitution that caps the judges from one political party on three of the state’s courts severable from the provision that requires that all judges on those courts are members of a major political party?
Delaware’s “Bare Majority” and “Major Party” Political Balancing Requirements
In 1897, delegates to the Delaware constitutional convention sought to reduce the influence of politics on the state’s judiciary. In order to achieve this goal, delegates recommended a political balancing requirement for the state’s principal courts. Under the requirement, these courts could not have more than a single-judge majority from any one political party. The state adopted the bare-majority proposal, and Delaware has had some form of a bare-majority requirement for its principal courts ever since.
In 1951, the state modified the political balancing requirements to exclude third party and unaffiliated voters from applying to serve as judges on the Supreme Court, the Superior Court, and the Chancery Court, the so-called “business courts.” The change retained the existing bare-majority requirement, but it added a major-party requirement that limited service on these courts only to members of a major political party, Republican or Democrat. The major-party requirement helped to ensure that a governor could not side-step the bare-majority requirement by appointing a nominal third-party or independent judge to a seat reserved for the other side. The change stuck through several amendment processes, including in 2005.
Today, Article IV, Section 3, of the Delaware Constitution specifies that these three courts shall include no more than a single-judge majority from one major political party, and that all other judges shall be from the other major political party. (If one of these courts has an even number of judges, the provision specifies that the judges on that court shall be equally divided, Republican and Democrat.)
The same section also specifies that the Family Court and the Court of Common Pleas shall include no more than a single-judge majority of the same political party. (If one of these courts has an even number of judges, the provision specifies that no more than one-half of the judges shall be of the same political party.) But in contrast to the provision for the business courts, the provision for these two courts does not include a major-party requirement. As a result, members of non-major political parties, including independents, may serve on these two courts, so long as these courts satisfy their bare-majority requirement.
Delaware’s Judicial Nominations
Since 1978, Delaware governors have relied on recommendations from a judicial nominating commission to identify candidates to appoint to judicial vacancies. Under this practice, the commission, which is politically balanced and comprised of both lawyers and non-lawyers, recommends three candidates for each judicial vacancy. The governor then selects one of the three nominees for appointment. If the governor is not satisfied with the commission’s recommendations, the commission may generate another list of recommendations.
When a judicial position becomes available, the commission provides public notice of the position, the salary, and the job requirements, including the party membership, in order to comply with the bare-majority and major-party requirements, discussed above.
James Adams’s Non-Application for a Judicial Position
In December 2015, Delaware attorney James Adams retired and went on “emeritus” status with the Delaware state bar. Sometime in late 2016 or early 2017, Adams decided to explore judicial vacancies. He reactivated his full state bar membership and changed his party affiliation from Democrat to Independent. Adams said that he would have considered and applied for any available positions on any of the state’s courts. (Adams said he changed his party affiliation because he grew disenchanted with the Delaware Democratic Party and considered himself “more of a Bernie [Sanders] independent.” The state, in contrast, suggests that he changed his party only to bring this suit. Adams also claims that he declined to apply for judicial vacancies in the past, because he would not have qualified as a Democrat. The state disputes this and says that he would have qualified for at least ten judgeships.)
Rather than applying for any vacancies, however, Adams brought this suit. He claimed that the political balancing requirements rendered him ineligible for available vacancies based on his Independent political status, and argued that the requirements violated the First Amendment. The district court agreed and struck both the bare-majority requirement and the major-party requirement as they applied to all five courts.
The Third Circuit affirmed in part and reversed in part. The court ruled that Adams lacked standing to challenge the bare-majority requirements for the Family Court and the Court of Common Pleas, because the bare-majority requirements did not bar his appointment as an Independent to those courts. The court also accepted that Adams lacked standing to challenge the bare-majority requirement for the business courts for the same reason. On the merits, the court held that the major-party requirement for the business courts violated the First Amendment. It ruled that the bare-majority requirement failed, too, because (notwithstanding Adams’s lack of standing to challenge it) the bare-majority requirement was not severable from the major-party requirement. This appeal followed.
There are three issues in this case. Let’s take them one at a time.
In order to sue in federal court, plaintiffs must establish that they have suffered, or imminently will suffer, a concrete and particularized injury that was caused by the challenged law. Here, the state argues that Adams failed to establish a sufficient injury to challenge the political balancing requirements. The state says that the bare-majority requirement could not possibly injure Adams, because he does not belong to either political party. Moreover, the state contends that Adams failed to establish that he suffered past injuries based on the bare-majority requirement, because he would have qualified “for at least ten judgeships.” The state asserts that Adams failed to establish that he will suffer future harms based on the major-party requirement, because he cannot say with certainty that the major-party requirement will disqualify him from future consideration. Finally, the state notes that Adam declined to apply for any positions as an Independent, and that any harm he suffered is therefore “self-inflicted” and non-cognizable.
Adams counters that he only has to allege that the political balancing requirements chilled his exercise of his First Amendment right to affiliate (or not) with a political party (and not that the state actually denied his application). He says he easily meets this standard, because he alleged that he would have applied for judicial vacancies but for the balancing requirements’ political discrimination. He claims that the requirements force him “to choose between the right to seek a judgeship and violating his political conscience by re-registering as a Democrat or a Republican in order to be considered.” And he contends that a decision striking the political balancing requirements would allow him to submit an application as an Independent and have it “accepted and considered on its own merit.”
The Political Balancing Requirements
The state argues that it may consider party affiliation of state judges consistent with the First Amendment. It contends that under Supreme Court precedent, the First Amendment only limits a state from considering political affiliation for “low-level public employees,” not for “policymaking” jobs. The state asserts that the “ultimate inquiry” is “whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” Branti v. Finkel, 445 U.S. 508 (1980).
The state says that its use of party affiliation for judges easily meets these tests. It contends that judges occupy “policymaking” positions, because, among other things, they “develop the common law.” And it claims that party affiliation is “an appropriate requirement” for the job, “[b]ecause party affiliation is a proxy for how would-be judges might understand their role,” and because it helps to ensure bipartisan decisionmaking on the bench. The state asserts that the Third Circuit adopted an unduly narrow definition of “policymaking”—one that does not square with Supreme Court precedent.
Finally, the state argues that even if its political balancing requirements are subject to heightened First Amendment scrutiny (because judgeships are not “policymaking” positions), they pass muster. The state says that they are narrowly tailored to ensure a politically balanced judiciary, and that this, in turn, serves its compelling interest of preserving “public confidence in judicial integrity.”
Adams counters that the balancing requirements violate the First Amendment, because “[p]olitical affiliation is not only not necessary for the work of a judge, it also is inconsistent with the role of a judge.” Adams claims that judges only make “policy” insofar as they rule on the immediate cases before them, and so are not policymakers under Supreme Court precedent. Moreover, he says that judges are supposed to render their decisions without consideration of politics, and so their political affiliation is not “an appropriate requirement” for their office. In short, he contends that the state’s balancing requirements run exactly against the state’s own interests in a politically neutral judiciary.
The state argues that the bare-majority requirement is severable from the major-party requirement, and that the Court can therefore strike the major-party requirement (if it must) without also striking the bare-majority requirement. As an initial matter, the state asserts again that Adams lacks standing to challenge the bare-majority provision, and argues that he cannot use its non-severability from the major-party requirement to create standing to challenge it. Such a rule, the state contends, “would allow parties to obtain sweeping relief against whole statutory schemes even if injured by only part of them.” Moreover, the state claims that the bare-majority requirement can stand alone, independent of the major-party requirement, as it stood for 54 years before the state adopted the major-party requirement, and as it currently stands for the state’s Family Court and Court of Common Pleas. According to the state, “[t]here is simply no evidence that the Delaware Constitution’s framers would have preferred no political balance provisions at all to a system with just the bare majority provision.”
Adams counters that the state failed to raise the severability argument before the lower courts, and so waived it. But if the Court rules on severability, Adams argues that the major-party requirement is not severable from the bare-majority requirement, because the two provisions “are textually intertwined” and necessarily work together. He says that the history of the bare-majority requirement reveals that “the Legislature had only Democrats and Republicans in mind.” Moreover, he claims that the major-party requirement is necessary for the bare-majority requirement to achieve its goals. He contends that the major-party requirement “has no independent justification for its existence,” and so the two are not severable. According to Adams, this means that when the Court strikes the major-party requirement, it must also strike the bare-majority requirement.
First and foremost, there is a circuit split on an issue central to the merits question in this case, whether judges are “policymakers.” The Third Circuit said no, but the Second, Sixth, and Seventh Circuits (and, according to the state, “every other court to address the issue”) has said yes. Under Court precedent, if judges are “policymakers,” then the state can use their political affiliation as a qualification without violating the First Amendment. If they are not, then the state must show that its use of political affiliation is necessary to achieve a compelling government interest. This is a high standard, but one that the state argues, in the alternative, that it can satisfy. If the Court reaches the central merits question in this case, it may resolve the circuit split and determine whether judges are “policymakers” that fall under this exception to the First Amendment.
I say “may,” because it’s not entirely obvious that the Court’s precedents establishing the “policymakers” standard apply here. Those precedents deal more directly with the problem of political patronage, that is, when the government doles out jobs to politically friendly allies. But Delaware’s stated interest is very different here, to reduce the influence of politics in the judiciary by mandating a non-partisan, or, in this case, a bi-partisan, process. According to the State and Local Government Associations, as amicus in support of the state, merely applying the Court’s patronage precedents could threaten similar state and local government balancing requirements far beyond the judiciary. According to amicus, this could affect state and local governments’ efforts to reduce the influence of politics in a variety of policy areas.
But all that’s only if the Court reaches the central merits question, whether Delaware’s balancing provision violates the First Amendment. Before the Court can address this issue, it must determine that Adams has standing to sue. Given that Adams declined to apply for several positions for which he apparently qualified (either as a Democrat, in the past, or as an Independent, in the present and future), it seems likely that the Court may simply dismiss the case for lack of standing, vacate the Third Circuit’s ruling, and wait for a more appropriate case to address the hard question of whether Delaware’s political balancing provision violates the First Amendment.
Friday, July 24, 2020
Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon
In a Temporary Restraining Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S. Marshals Service ("USMS") — the "Federal Defendants" — from arresting and otherwise interfering with journalists and legal observers who are documenting the troublesome and now widely reported events in Portland, Oregon, which have attracted Congressional attention.
Judge Simon's relatively brief TRO opinion, first finds that the plaintiffs have standing, and then applying the TRO criteria importantly finds that there is a likelihood the plaintiffs would prevail on the First Amendment claim. Judge Simon found both that there was sufficient circumstantial evidence of retaliatory intent against First Amendment rights and that plaintiffs had a right of access under Press-Enterprise Co. v. Superior Court (1986). Judge Simon found fault with many of the specific arguments of the federal defendants, including the unworkability of the remedy:
The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable. When asked at oral argument why it could be workable for City police but not federal officers, counsel for the Federal Defendants responded that the current protests are chaotic. But as the Federal Defendants have emphatically argued, Portland has been subject to the protests nonstop for every night for more than 50 nights, and purportedly that is why the federal officers were sent to Portland. There is no evidence that the previous 21 nights were any less chaotic. Indeed, the Federal Defendants' describe chaotic events over the Fourth of July weekend through July 7th, including involving Portland police, and the previous TRO was issued on July 2nd and was in effect at that time. The workability of the previous TRO also shows that there is a less restrictive means than exclusion or force that is available.
The TRO is quite specific as to journalists as well as to legal observers, providing in paragraph 5, to "facilitate the Federal Defendants' identification of Legal Observers protected under this Order, the following shall be considered indicia of being a Legal Observer: wearing a green National Lawyers' Guild-issued or authorized Legal Observer hat (typically a green NLG hat) or wearing a blue ACLU-issued or authorized Legal Observer vest."
The TRO lasts for 14 days; the litigation will undoubtedly last much longer.
Wednesday, July 8, 2020
Writing for the Court, Alito's opinion — joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh — held that although the teachers in these cases were not actually "ministers" by title and did not have as much as religious training as the teacher in Hosanna-Tabor, they are encompassed in the same exception from enforcement of anti-discrimination laws. The Court stated that the First Amendment protects a religious institution's independence on matters of "faith and doctrine" without interference from secular authorities, including selection of its "ministers." But who should qualify as a "minister" subject to this exemption? Recall that the factors of Hosanna-Tabor figured in the oral argument (and recall also that they figured in the Ninth Circuit's opinions). But here, the Court stated that while there may be factors, "What matters, at bottom, is what an employee does," rather than what the employee is titled. Moreover, the "religious institution's explanation of the role of such employees in the life of the religion" is important. Indeed, the religious institution's "explanation" seems determinative. The Court rejected a "rigid formula" for determining whether an employee is within the ministerial exception, concluding instead that:
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.
The brief concurring opinion by Thomas, joined by Gorsuch, argues that the Court should go further and essentially make the implicit more explicit: the Court should decline to ever weigh in "on the theological question of which positions qualify as 'ministerial.' "
Sotomayor dissenting opinion, joined by Ginsburg, begins:
Two employers fired their employees allegedly because one had breast cancer and the other was elderly. Purporting to rely on this Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), the majority shields those employers from disability and age-discrimination claims. In the Court’s view, because the employees taught short religion modules at Catholic elementary schools, they were “ministers” of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse. The Court reaches this result even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school- teachers of their legal protections, I respectfully dissent.
For the dissent, the Court's conclusion has "grave consequences," noting that it is estimated that over 100,000 secular teachers employed by religiously-affiliated schools are now without employment protections. Further, it contrasts Esponiza v. Montana Dept of Revenue, decided this Term, in which the Court "lamented a perceived 'discrimination against religion,'" but here "it swings the pendulum in the extreme opposite direction, permitting religious entities to discriminate widely and with impunity for reasons wholly divorced from religious beliefs." The dissent concludes with a hope that the Court will be "deft" enough to "cabin the consequences" of this ministerial exception, but given the current composition of the Court, that hope seems a narrow one.
Monday, July 6, 2020
In its opinion in Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the “TCPA”), 47 U.S.C. § 227(b)(1)(A), exempting certain calls from the prohibition of robocalls violated the First Amendment.
Recall from our discussion when certiorari was granted that the federal law prohibits calls to cell phones by use of an automated dialing system or an artificial or prerecorded voice ("robocalls") subject to three statutory exemptions including one added in 2015 for automated calls that relate to the collection of debts owed to or guaranteed by the federal government including mortgages and student loans. Recall also from our oral argument preview that the case involves the tension between marketplace of ideas and privacy.
The challengers, political consultants and similar entities, argued that this exemption violated the First Amendment as a content regulation that could not survive strict scrutiny and further that the exemption could not be severed from the TCPA. To win, the challengers had to prevail on both arguments. However, a majority of the Justices found that while the exemption violated the First Amendment, it could be severed and so the prohibition in the TCPA applicable to the challengers remained valid.
As the plurality opinion expresses it:
Six Members of the Court today conclude that Congress has impermissibly favored debt-collection speech over political and other speech, in violation of the First Amendment. Applying traditional severability principles, seven Members of the Court conclude that the entire 1991 robocall restriction should not be invalidated, but rather that the 2015 government-debt exception must be invalidated and severed from the remainder of the statute. As a result, plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech. The judgment of the U. S. Court of Appeals for the Fourth Circuit is affirmed.
Despite this seeming overwhelming agreement, there is no majority opinion and the opinions demonstrate a perhaps needless fragmentation of the Justices and complication of precedent.
- Kavanaugh's plurality opinion garnered support from Chief Justice Roberts and Justice Alito, with Thomas joining on the First Amendment issue applying strict scrutiny to a content-based regulation, but not on the severability issue (Part III).
- Sotomayor wrote a brief solo concurring opinion, concluding that although the First Amendment standard should be the more relaxed intermediate scrutiny, the standard was not satisfied. She agreed that severability of the exemption was proper.
- Breyer, joined by Ginsburg and Kagan, agreed that the provision was severable, but dissented on the First Amendment issue, finding that strict scrutiny should not apply and that the robocall exemption survived intermediate-type scrutiny ("The speech-related harm at issue here — and any related effect of the marketplace of ideas — is modest").
- Gorsuch, joined in part by Thomas, agreed that the exemption violated the First Amendment, but argued that it was no severable, or more accurately that severability should not be the issue. He argued that severing and voiding the government-debt exemption does nothing to address the injury the challengers claimed and it harms strangers to this lawsuit. The opinion calls for a reconsideration of "severability doctrine" as a whole, citing in a footnote Thomas's partial dissent in Selia Law just last week.
Thus while the outcome is clear, its ultimate basis is muddied.
Tuesday, June 30, 2020
SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution
In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded to religious schools so that the Free Exercise Clause was not violated.
Recall that the Montana Supreme Court held that the tax credit program's application to religious schools was unconstitutional under its state constitution, Art. X §6 , which prohibits aid to sectarian schools. This type of no-aid provision is often referred to as (or similar to) a Blaine Amendment and frequently appears in state constitutions.
In a closely-divided decision, the Court decided that the Montana Supreme Court's decision that the tax credit program could not be extended to religious schools should be subject to struct scrutiny under the First Amendment's Free Exercise Clause and did not survive. (The Court therefore stated it need not reach the equal protection clause claims). The Court essentially found that this case was more like Trinity Lutheran Church of Columbia v. Comer (2017) (involving playground resurfacing) and less like Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld State of Washington statutes and constitutional provisions that barred public scholarship aid to post-secondary students pursuing a degree in theology. The Court distinguishes Locke v. Davey as pertaining to what Davey proposed "to do" (become a minister) and invoking a "historic and substantial” state interest in not funding the training of clergy. Instead, the Court opined that like Trinity Lutheran, Esponiza "turns expressly on religious status and not religious use."
The Court's opinion, by Chief Justice Roberts and joined by Thomas, Alito, Gorsuch, and Kavanaugh, is relatively compact at 22 pages. In addition to taking time to distinguish Locke v. Davey, the opinion devotes some discussion to federalism, invoking the Supremacy Clause and Marbury v. Madison in its final section. But the opinion also engages with the dissenting Justices' positions in its text and its footnotes. Along with the concurring opinions, the overall impression of Espinoza is a fragmented Court, despite the carefully crafted majority opinion.
The concurring opinion of Thomas — joined by Gorsuch — reiterates Thomas's view that the Establishment Clause should not apply to the states; the original meaning of the clause was to prevent the federal establishment of religion while allowing states to establish their own religions. While this concurring opinion criticizes the Court's Establishment Clause opinions, it does not confront why a state constitution would not be free to take an anti-establishment position.
Gorsuch also wrote separately, seemingly to emphasize that the record contained references to religious use (exercise) and not simply religious status. Gorsuch did not discuss the federalism issues he stressed in his opinion released yesterday in June Medical Services.
Alito's thirteen page concurring opinion is an exegesis on the origins of the Montana constitutional provision as biased. Alito interestingly invokes his dissenting opinion in Ramos v. Louisiana decided earlier this Term in which he argued that the original motivation of a state law should have no bearing on its present constitutionality: "But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here."
(Noteworthy perhaps is that Roberts joined Alito's dissenting opinion in Ramos and Roberts's opinion in Esponiza does spend about 3 pages discussing the Blaine amendments' problematical history, but apparently this was insufficient for Alito).
Ginsburg's dissenting opinion, joined by Kagan, pointed to an issue regarding the applicability of the Court's opinion:
By urging that it is impossible to apply the no-aid provision in harmony with the Free Exercise Clause, the Court seems to treat the no-aid provision itself as unconstitutional. Petitioners, however, disavowed a facial First Amendment challenge, and the state courts were never asked to address the constitutionality of the no- aid provision divorced from its application to a specific government benefit.
Breyer, joined in part by Kagan, essentially argued that the majority gave short-shrift to Locke v. Davey and its "play-in-the-joints" concept authored by Rehnquist as expressing the relationship between the Establishment and Free Exercise Clause of the First Amendment. Breyer's opinion is almost as long as the majority opinion, and the majority takes several opportunities to express its disagreement with Breyer, including in a two paragraph discussion, his implicit departure from precedent (e.g., "building on his solo opinion in Trinity Lutheran").
Sotomayor's dissent, also criticized by the majority in text, argues that the Court is "wrong to decide the case at all" and furthermore decides it wrongly. The Court's reframing incorrectly addressed (or seemingly addressed?) whether the longstanding state constitutional provision was constitutional. Thus, she argues, the Court has essentially issued an advisory opinion. On the merits, she contends, "the Court’s answer to its hypothetical question is incorrect." She concludes that the majority's ruling is "perverse" because while the Court once held that "the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs,” it now departs from that balanced view.
The Court's opinion is much more divided than it seems at first blush. And the future of state constitutional provisions that prohibit taxpayer money from being used to support religious institutions remains in doubt.
June 30, 2020 in Courts and Judging, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Free Exercise Clause, Opinion Analysis, State Constitutional Law, Supreme Court (US), Theory | Permalink | Comments (0)
Monday, June 29, 2020
In its opinion in Agency for International Development v. Alliance for Open Society International — or what will be called USAID v. Alliance for Open Society II — the Court's majority rejected the applicability of the First Amendment to foreign affiliates of the United States organizations who had previously prevailed in their First Amendment challenge.
Recall that AOSI I, the Court in 2013 held that the anti-prostitution pledge required of organizations seeking federal funding under the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, violated the First Amendment. Writing for the Court, Chief Justice Roberts opined that the provision was an unconstitutional condition ("the relevant distinction that has emerged from our cases is between conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself").
Yet questions arose whether this holding extended to not only to the plaintiffs but to their "foreign affiliates." A district court and a divided Second Circuit found that foreign affiliates were included.
A divided United States Supreme Court, in an opinion written by the Court's newest Justice, held that foreign organizations have no First Amendment rights. Kavanaugh, joined by Chief Justice Roberts, Thomas, Alito, and Gorsuch, wrote that
two bedrock principles of American constitutional law and American corporate law together lead to a simple conclusion: As foreign organizations operating abroad, plaintiffs’ foreign affiliates possess no rights under the First Amendment.
Thomas authored a brief concurring opinion restating his view that AOSI I was incorrectly decided.
Justice Breyer wrote a dissenting opinion which was joined by Ginsburg and Sotomayor (note that Kagan had recused herself), arguing that the Court's opinion misapprehended the issue:
The Court, in my view, asks the wrong question and gives the wrong answer. This case is not about the First Amendment rights of foreign organizations. It is about—and has always been about—the First Amendment rights of American organizations. . . .
the question is whether the American organizations enjoy that same constitutional protection against government-compelled distortion when they speak through clearly identified affiliates that have been incorporated overseas. The answer to that question, as I see it, is yes.
Monday, June 15, 2020
In its opinion in the consolidated cases of Bostock v. Clayton County, the United States Supreme Court interpreted the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq. to include sexual and transgender identities. As we discussed in our preview, two of the consolidated cases involved sexual orientation discrimination - Altitude Express v. Zarda and Bostock v. Clayton County Board of Commissioners - while the third - R.G. & G.R. Harris Funeral Homes v. EEOC - involved gender identity.
The Court's opinion, authored by Justice Gorsuch and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, and Kagan, states:
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.”
After considering and rejecting the employers' arguments, the opinion concludes:
Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Court's opinion is 33 pages or so and there are no concurring opinions. Justice Alito's dissent, joined by Justice Thomas, weighs in at over 100 pages including its appendices. There is another dissenting opinion by Justice Kavanaugh, at a more modest 27 pages.
It is the dissenting opinions that provide the constitutional law perspective to the Court's statutory interpretation decision: both claim that the Court is violating separation of powers. Justice Alito begins his lengthy dissent by stating:
There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive.
And the Court's most recently appointed Justice, Kavanaugh, begins in a similar vein:
Like many cases in this Court, this case boils down to one fundamental question: Who decides?
Kavanaugh concludes that it should not be the Court's decision, but does expound on why the Court's interpretation regarding "sex" is incorrect.
Congress could, of course, amend Title VII to exclude LGBTQ identities. But the momentum in Congress has tilted in the direction of inclusion, a step which would now be redundant.
As for the connections between Title VII and the Equal Protection Clause and the definitions of "sex" and protection for LGBTQ individuals, these arise in the dissenting opinions. Alito's dissent worries that the Title VII interpretation will "exert a gravitational pull in constitutional cases," so that LGBTQ identities will be afforded the heightened scrutiny standard applicable to sex/gender. For his part, Kavanaugh's dissent stresses that in the Court's discussions of sexual orientation in equal protection doctrine, the Court did not consider sexual orientation part of sex discrimination.
Additionally, all of the opinions raise the First Amendment free exercise of religion specter. The Court's majority states that "worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage," but that issue is for another day:
So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.
For Alito dissenting, his views are similar to his views in the same-sex marriage cases. He states here that the " position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty."
Saturday, May 30, 2020
A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.
There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion. On the merits, Chief Justice Roberts wrote:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.
In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.
Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.
As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.
May 30, 2020 in Cases and Case Materials, Courts and Judging, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Science, Supreme Court (US) | Permalink | Comments (0)