Constitutional Law Prof Blog

Ninth Circuit Rules for Student who Sought to Wear Feather at Graduation

The Ninth Circuit last week ruled in favor of a member of the Sisseton Wahpeton Oyate tribe and graduating high-school student who sought to wear a feather on her cap during graduation ceremonies. The ruling reverses a district court's dismissal of the case and allows it to move forward.

The case, Waln v. Dysart School District, arose when the student asked permission to wear an eagle feather on her graduation cap in honor of her religious beliefs and to pay respect to her ancestors. The district denied permission, pointing to a policy that prohibits students from adding any decoration to their cap or gown. The student showed up at graduation with a feather, and school officials denied her entry. She sued, arguing that the district violated her free speech and free exercise rights, given that other students appeared at the ceremony with secular decorations on their caps.

The district court dismissed the case, but the Ninth Circuit reversed.

The court held that the student plausibly pleaded that school officials treated her differently than other students who decorated their caps with secular messages. The court said that this rendered the policy not generally applicable (under free exercise) and viewpoint based (under free speech).

The court then rejected the district's claim that compliance with the Establishment Clause justified its actions. "[T]he District has not sufficiently met its burden, at this stage, to show that accommodating religious dress for an individual student would have any effect on other students' rights."

Check it Out: Tang's Who's Afraid of Carson v. Makin?

Aaron Tang, Who's Afraid of Carson v. Makin?, 132 Yale L. J. Forum 504 (2022):

How worried should progressives be about the Supreme Court’s latest ruling in favor of publicly funded religious schools?

Maybe less than we have assumed. In this Essay, I argue that Carson v. Makin—which struck down Maine’s policy of excluding religious private schools from its publicly funded tuition-aid program—may have surprisingly limited repercussions for a cautiously hopeful reason. By enacting a statute that explicitly prohibits all private schools from discriminating against LGBTQ students, Maine’s progressive lawmakers simultaneously protected a vulnerable student population, limited church/state entanglement, and preserved the state’s commitment to public education. In other words, Carson teaches much about the Court’s strident efforts to shift the law further to the right. But its most important lesson may have more to do with how progressives can best respond to a Court that has forsaken us: through smart and impactful lawmaking.

Justice Sotomayor Declines to Halt NYC Public Employee Vaccine Mandate

Steven D. Schwinn, University of Illinois Chicago School of Law

Justice Sotomayor, as Second Circuit justice, denied an emergency application to halt New York City's vaccine mandate for public employees, pending appeal.

The denial came without explanation. That's not unusual for this kind of thing.

A group called New Yorkers for Religious Liberty filed the application. It argued that the City's enforcement of the vaccine mandate violate the Free Exercise Clause. In particular, the group maintained that the City had too much discretion in granting religious exemptions, that the City "play[ed] denominational favorites" and made other arbitrary decisions regarding exemptions, and that "[t]he City uses its executive discretion to prefer secular conduct that undermines the government's asserted interest in similar ways as non-exempted religious conduct."

The arguments looked to exploit holes in the Smith test, which applies rational basis review to government actions that are neutral with regard to religion and generally applicable. The Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission held that statements by commissioners reflected anti-religious animus, and therefore the Commission failed to apply Colorado's anti-discrimination law in a way that was neutral with regard to religion. More recently, in Fulton v. City of Philadelphia, the Court ruled that the City's discretion in enforcing anti-discrimination law made it not generally applicable. The two rulings significantly chipped away at Smith, even if the Court (so far) has declined to outright overrule Smith.

The group's arguments in its emergency application are in the same spirit--that the City enforces the otherwise neutral and generally applicable vaccine mandate in a way that discriminates against certain religious beliefs, or leaves too much discretion in the hands of City officials who can grant exemptions.

Justice Sotomayor's denial follows two Court rulings earlier this year, one rejecting a Biden Administration effort to impose a vaccine mandate on employees of large employers and another one upholding a Biden Administration move to require facilities that receive Medicare or Medicaid funding to ensure that their employees are vaccinated. Those rulings turned on the Administration's authority to adopt those rules, however, and not the Free Exercise Clause.

Second Circuit Sends Measles Vaccine Mandate Case Back for Trial

Steven D. Schwinn, University of Illinois Chicago School of Law

The Second Circuit ruled that a district court improperly granted summary judgment to the Rockland County Department of Health (NY) and its officials in a claim by parents of minor children that the Department's order excluding unvaccinated children from school violated their right to free exercise of religion.

The ruling means that the district court must hold a trial to resolve disputed facts surrounding the claim before ruling on the free exercise issue.

The case, M.A. v. Rockland County Department of Health, arose when the Department excluded children who were not vaccinated against measles from attending school. The Department issued the order in response to a measles outbreak.

Parents sued, arguing that the order violated free exercise, among other things. The district court ruled that the order was neutral with regard to religion and generally applicable. It applied Smith's rational basis review and granted summary judgment to the district.

The Second Circuit reversed. The court said there were facts in dispute as to the order's neutrality and general applicability that made the case inappropriate for summary judgment.

While a reasonable juror could conclude that [a Department official's] statements [about individuals who oppose vaccines] evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County's purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court's grant of summary judgment on the Plaintiffs' Free Exercise Claim was erroneous.

The case now goes back to the district court for a trial on these questions.

Court Rules in Favor of Praying Football Coach

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court on Monday ruled in Kennedy v. Bremerton School District that a public-school district violated the Free Exercise and Free Speech rights of a football coach who prayed at the 50-yard line after football games, and that the district could not justify its violations under the Establishment Clause.

The ruling is yet another move by the Court to expand free-exercise rights at the expense of anti-establishment concerns, and thus to allow and require religion to play a larger role in public life.

Still, it's not clear exactly how far this ruling will extend. That's because Court took pains to describe the coach's prayers as private religious exercises, contrary to the facts. By one reading, then, the case only allows a public employee to engage in private religious exercise that doesn't impede their job or coerce others to join. But don't expect the Court to limit this case to its facts. This is part of a larger move to expand free-exercise rights and limit the Establishment Clause, and we can expect the Court to use this case as a building block as it moves forward in this effort.

As part of the ruling, the Court abandoned the three-part Establishment Clause test under Lemon v. Kurtzman and replaced it with a "historical practices and understandings" test that "faithfully reflec[ts] the understanding of the Founding Fathers." (The Court acknowledged that this test includes an anti-coercion component, but it didn't specify exactly what coercion means.) It's not at all clear what that test means, or how lower courts will apply it. But again: this is part of the Court's larger move to expand free-exercise rights and limit the Establishment Clause, so we can expect the Court to apply this "historical practices and understandings" test consistently with that trend.

Justice Gorsuch wrote for the Court, joined by Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh (except the part on the coach's free-speech claim), and Barrett. The Court held that the district violated the Free Exercise and Free Speech Clauses for disciplining the coach for "offer[ing] a quiet personal prayer" at the 50-yard line after football games. It went on to hold that the district couldn't justify its violations under any standard of scrutiny. It said that the district lacked a sufficient anti-establishment concern under its "historical practices and understandings" test, including that the district failed to demonstrate that the coach's prayers were impermissibly coercive.

Justice Sotomayor dissented, joined by Justices Breyer and Kagan. She argued that the Court got the facts wrong--this was no private prayer, but rather a very public exhibition--and that

Today's decision goes beyond merely misreading the record. The Court overruled Lemon v. Kurtzman and calls into question decades of subsequent precedents that it deems "offshoot[s]" of that decision. In the process, the Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new "history and tradition" test. In addition, while the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation's longstanding commitment to the separation of church and state.

Supreme Court Allows Military COVID Vaccine Requirement, Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court today stayed a lower-court injunction against the Defense Department's COVID vaccine mandate for 35 Navy special warfare personnel. The ruling means that the Navy can impose the mandate (or consequences) on servicemembers pending their appeal to the Fifth Circuit.

The case, Austin v. U.S. Navy Seals 1-26, arose when 35 Navy servicemembers assigned to naval Special Warfare Command units sued the Defense Department, arguing that DOD's COVID vaccine mandate violated the Religious Freedom Restoration Act and the Free Exercise Clause. The district court ruled in their favor and entered a preliminary injunction against the mandate. It later declined to stay the injunction, however, and the Fifth Circuit affirmed. The government then sought a "partial stay" of the injunction at the Supreme Court.

Today the Court granted the stay in an unsigned order.

Justice Kavanaugh wrote a concurrence, arguing that the district court's preliminary injunction improperly inserted the court into the military chain of command.

Justice Alito dissented, joined by Justice Gorsuch. He argued that DOD set up an unduly burdensome process for religious exemptions, and that it hadn't granted a single one. He claimed that the military's summary rejection of religious exemptions wasn't narrowly tailored to meet its compelling interest in minimizing serious health risks to Navy personnel, and that the government treated servicemembers who sought medical exemptions more favorably than those who sought religious exemptions.

Court to Hear Arguments in Religious School Funding Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Wednesday in Carson v. Makin, the case testing whether a state can exclude private schools with an overtly religious educational mission from a state program that provides public funds for private education. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or "sectarian," instruction?

FACTS

Maine’s Constitution requires local governments to provide free public education to the K-12 students in the state. Maine divides its schools across 260 local school administrative units (SAUs), serving nearly 180,000 students.

Maine gives SAUs the option to either operate their own schools “or otherwise provide for students to participate in [kindergarten through grade twelve] as authorized elsewhere” by statute. Me. Rev. Stat. Ann. tit. 20-A, § 1001(8). More than half of the SAUs do not operate their own public schools. For those SAUs, state law provides two options: they can contract with another public or approved private school for some or all of its students, or they can pay tuition for its students at another public school or “the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann. tit. 20-A, § 5204(4). Maine is careful to say that this is not a typical school-choice or voucher program. Instead, Maine only allows parents who live in SAUs with neither their own public schools nor with contracts with other schools to choose from “a small group of private schools who demonstrate to the State that the educational program they provide is a suitable equivalent to public education.” (Less than 5,000 students live in SAUs that contract with other schools or that pay students’ tuition at a private school.)

Maine law sets certain requirements for approved private schools to receive public funds for tuition. Among other things, any private school approved for the receipt of public funds must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Me. Rev. Stat. Ann. tit. 20-A, § 2951(2). Private schools typically self-identify as sectarian with the Maine Department of Education. But if there’s any question, the Department

considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.

Two sets of parents sued the state, arguing that the exclusion for tuition payments to sectarian schools violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. One set of parents, David and Amy Carson, send their daughter to Bangor Christian Schools, a sectarian school with an overtly religious educational mission. The other set, Troy and Angela Nelson, currently send their daughter to Erskine Academy, a nonsectarian school, but would like to send her to Temple Academy, a sectarian school also with an overtly religious educational mission. Under state law, the plaintiffs’ SAUs could not pay for tuition at these schools.

The district court ruled in favor of the state, and the United States Court of Appeals for the First Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case implicates a couple strands of free-exercise jurisprudence. Let’s take a look in order to give some context to the parties’ arguments.

First, under the Free Exercise Clause, a generally applicable government action that is neutral with regard to religion is constitutional, so long as the action is rationally related to a legitimate government interest. That’s a very low-level test, and most government action will almost always pass.

But on the other hand, government action that targets religion, or that is based on anti-religion animus, must be narrowly tailored to meet a compelling government interest. That’s a very stringent test, and most government action will fail.

Next, the two religion clauses give states some limited room to make religion-based choices in designing their public policies. For example, the Court ruled in Locke v. Davey that a state could operate a program that provided scholarships for talented postsecondary students, even if it excluded students who pursued a degree in devotional theology. 504 U.S. 712 (2004). The state in that case adoption the exclusion pursuant to its own state constitution and in order to avoid direct state support of religion. The Court held that the exclusion fell in the “play in the joints” between the two religion clauses. On the one hand, the Court said that the state could include devotional theology students in the scholarship program without violating the Establishment Clause. But on the other hand, it said that the state’s exclusion didn’t violate the Free Exercise. The Establishment Clause didn’t compel the state to exclude devotional theology students, but the Free Exercise Clause didn’t require the state to include them, either. Under the play in the joints, the state could choose.

Finally, the Court more recently has interpreted Locke to say that a state may exclude the religious use of a state benefit, but that it may not exclude an otherwise qualified individual or organization based on religious status. The difference is between how a person or organization uses state resources, and what that person or organization is. For example, the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, (2017), that Missouri violated the Free Exercise Clause when it categorically excluded a Lutheran church’s school from a state grant program to resurface school playgrounds. The state excluded the school based only on the school’s affiliation with the church (its status), not because the school would use the funds for a religious purpose (its use).

Most recently, the Court ruled in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), that a state that provides tax credits for contributions to organizations that provided scholarships to private schools must also provide tax credits for contributions for scholarships to private schools controlled by a “church, sect, or denomination.” Again, the state impermissibly excluded religions from its benefits program based only on a school’s religious status, not its religious use of public benefits.

Against this backdrop, the parents argue first that the tuition exclusion for sectarian schools violates the Free Exercise Clause, because it “is neither neutral toward religion nor generally applicable.” They say that the Court “has long held that a law lacking either characteristic is subject to strict scrutiny,” and that the exclusion must fail.

The parents argue next that the First Circuit was wrong to apply the “use/status distinction” to dodge this result. They contend that there is simply no basis for the distinction. They assert that the Framers elected to protect religious “exercise,” and not belief or conscience, and that this covers both use and status. Moreover, they claim that the Court has never used the distinction “as grounds for eluding strict scrutiny of laws that discriminate based on religion.” To the extent that Locke says otherwise, the parents argue that the Court should overrule it.

But even if the Court applies the use/status distinction, the parents argue that Maine’s exclusion must fail. They say that the exclusion “forces students to choose between their free exercise rights and receipt of a public benefit,” that it “discriminates based on religious use and status in equal measure,” and that “it is not narrowly targeted at an essentially religious endeavor,” or use.

The parents argue that because the exclusion discriminates against religion, Maine must proffer an “historic” and “substantial” interest. But they say that Maine’s asserted interests are insufficient. For one, they contend that Maine’s interest in avoiding an Establishment Clause violation by funding sectarian education is legally flawed under Court precedent. For another, they claim that Maine’s interest in ensuring that public funds “support only the rough equivalent of public education” is neither historic nor substantial, and that the exclusion does not support it, in any event.

The parents argue next that the exclusion violates the Establishment Clause. They say that the exclusion lacks a secular purpose, that it has a principal effect of inhibiting religion, and that it requires excessive government entanglement with religion. As to that last point, they contend that the state, in order to enforce the exclusion, “must make intrusive inquiries and judgments regarding the school’s religious curriculum and activities” and, worse, must make judgments about a school’s religious status versus its religious use of public funds.

Finally, the parents argue that the exclusion impermissibly discriminates against religious schools in violation of the Equal Protection Clause. The parents point to the Fourteenth Amendment’s framer’s “concern[] with ensuring that religious educators supported by the Freedman’s Bureau could continue their efforts to educate the freedmen in the wake of the Civil War.” They say that “[i]t would be perverse” to hold that the Clause means less today than it did to the framers of the Fourteenth Amendment.

Maine counters first that the exclusion does not violate the Free Exercise Clause. Maine contends that this case is really about public education, and that its exclusion is merely designed to ensure that private schools that receive public tuition funds provide an education that substantially equivalent to public education. The state says that “religious education is nothing like a public education”: “An education that includes proselytization and inculcation in specific religious beliefs and supports the exclusion of some children and families is antithetical to a public education.” Maine asserts that while parents are free to provide their children with this kind of religious education, the Free Exercise Clause does not require the state to support it. Maine says that the exclusion is designed only to ensure that private schools that receive state fund provide the equivalent to a secular public education; it is not designed to target religion, or out of any anti-religion animus.

Maine argues that the Court has recognized that a state need not extend a public-benefits program for religious use, even if a state cannot deny participation in a public-benefits program based on religious status. The state claims that its system and criteria fall on the “use” side, and that its system and criteria fall in the permissible play-in-the-joints between the two religion clauses.

But even if the Court treats the exclusion as targeting religion, Maine argues that it satisfies strict scrutiny. The state says that it has a compelling government interest in providing a secular public education. And it claims that the exclusion is narrowly tailored to achieve this interest, because it only excludes religious uses of public funds, consistent with its interest in providing a secular public education.

As to the Establishment Clause, Maine argues that the parents’ approach is wrong, and “would turn that clause on its head.” That’s because Maine’s exclusion is designed to prevent the use of public funds for religious practices, not to promote religion. The state says that “[a]ny Establishment Clause concerns weigh heavily” in its favor, as the exclusion, if anything, helps to avoid Establishment Clause violations.

Maine argues that the same arguments that the exclusion does not violate the Free Exercise Clause also mean that the exclusion does not violate the Equal Protection Clause. 

Finally, Maine argues that the parents lack standing. The state says that “it is speculative whether a favorable ruling will result in the relief they seek,” because the evidence suggests that their preferred schools might not accept public funds. Maine claims that if the schools won’t accept public funds, any relief that the Court could grant would not redress their alleged injury, because the children would not be able to attend the schools at public expense, anyway.

(The government, as amicus in support of Maine, makes substantially similar arguments.)

SIGNIFICANCE

The Court in recent years has dramatically expanded religious liberties and the role of religion in public life. In rulings favoring religion over anti-discrimination laws, requiring state and local governments to treat religious organizations on par with secular organizations (even when that means that the government must support religion), and creating extraordinary exceptions for religions to broadly applicable and religiously neutral laws, the Court has moved incrementally, but manifestly, to expand religious liberties.

This case gives the Court a chance to expand religious liberties once more, or to cabin the expansion. In this case, it’ll likely come down to the use/status distinction. On the one hand, the Court could expand religious liberties by abandoning the use/status distinction altogether, or to blur the distinction by ruling that Maine’s exception applies to the religious private schools’ status (not use). This is not far-fetched. After all, the distinction is relatively new, since Trinity Lutheran, and, as Justice Neil Gorsuch argued in Trinity Lutheran and Espinoza, the line between status and use can be murky.

On the other hand, the Court could cabin the expansion by drawing a hard line between use and status, and ruling that that Maine’s exception applies to religious private schools’ use of the funds (not their religion status). This isn’t far-fetched, either; indeed, the facts support it: Maine introduced evidence that it applies the exemption only to schools that promote a faith or belief system, or teach the material through faith. If so, the Court’s ruling here would buck the Court’s larger trend toward greater religious liberties and a larger role for religion in public life.

Finally, Maine gave the Court a potential off ramp with its standing argument. The Court could rule that the parents lack standing for the reasons Maine says. This seems unlikely, though: Maine pitched this argument in its brief in opposition to the parents’ petition for certiorari, and the Court decided to take the case, anyway.

Sixth Circuit Upholds Michigan Schools Mask Mandate Against Free Exercise, Equal Protection Claims

Steven D. Schwinn, University of Illinois Chicago School of Law

The Sixth Circuit yesterday upheld Michigan's mask mandate in schools against free exercise and equal protection challenges. The mandate expired since the lawsuit began, however, so the ruling only means that Michigan didn't violate the Constitution in implementing the mandate, and that it (and other jurisdictions in the Sixth Circuit) can do it again.

The case, Resurrection School v. Hertel, tested the Michigan Department of Health and Human Service requirement that all persons five years of age and older wear a mask in indoor public settings, including while attending public and private K-12 schools. The requirement contained certain exceptions for eating and drinking, for those "engaging in a religious service," for those who have health conditions that restrict their mask wearing, and others. Resurrection sued, arguing that the mandate violated free exercise and equal protection, among other claims.

While the case was pending, the Department rescinded the mask requirement. The Sixth Circuit nevertheless ruled that the case wasn't moot under the voluntary-cessation and capable-of-repetition-but-evading-review exceptions.

On the merits, however, the court rejected the plaintiffs' claims. The court ruled that the mask requirement was a religiously neutral law of general applicability, and easily satisfied rational basis review. As to religious neutrality, the court declined to look outside the schools for a secular comparator to religious schools (like gyms or movie theaters, as some courts have done), which might've demonstrated that the Department was targeting religious schools; instead, it said that the mask requirement treated religious schools exactly as it treated secular schools--the relevant comparator here.

Identifying a comparable secular activity for religious schools other than a public or private nonreligious school is difficult. Schools educating students in grades K-5 are unique in bringing together students not yet old enough to be vaccinated against COVID-19 in an indoor setting and every day. Accordingly, the proper comparable secular activity in this case remains public and private nonreligious schools.

Even under this broader conception of comparable secular activity, the [Department] orders are not so riddled with secular exceptions as to fail to be neutral and generally applicable. . . .

The court also rejected the plaintiffs' equal protection and substantive due process claims, holding that these were merely repackaged free exercise claims.

Check it Out: Lupu and Tuttle on Fulton and the Future of Free Exercise

You gotta check out Chip Lupu and Bob Tuttle's outstanding piece on Fulton and the future of free exercise, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, forthcoming in the American Constitution Society Supreme Court Review (OT19 Term's here). In addition to reviewing Fulton and examining the opinions (you'll especially want to check out their critique of Justice Alito's opinion), Lupu and Tuttle integrate the Court's COVID cases into the trend line and argue that

[t]hese moves, taken to their logical end, effectively undo Smith. The history of Free Exercise Clause adjudication, however, suggests that neither the Supreme Court nor the lower courts will take the Free Exercise Clause to the religion-favoring extremes that this trend invites.

Read it.

Court Says Philly's Anti-Discrimination Contract Provision Violates Free Exercise, but Keeps Smith on Books

Steven D. Schwinn, University of Illinois Chicago School of Law

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.

Supreme Court Halts California's At-Home COVID Restriction Pending Appeal

Steven D. Schwinn, University of Illinois Chicago School of Law

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.

Ninth Circuit Rebuffs Plaintiffs' Effort to Halt California's COVID Restrictions Based on Free Exercise

Steven D. Schwinn, University of Illinois Chicago School of Law

The Ninth Circuit yesterday denied plaintiffs' motion for an emergency injunction pending appeal to halt California's COVID restrictions as applied to their religious practices, among other claims. The ruling means that California's restrictions stay in place, at least for now.

The case raises, once again, the question of the relevant comparator in determining whether the restrictions are neutral with regard to religion, or whether they target religion.

The plaintiffs challenged California's restrictions on private "gatherings" as applied to their in-home religious studies. Under the state's restrictions, indoor and outdoor gatherings are limited to three households; and gatherings must be held in a large enough space to allow distancing of six feet, they must last no longer than two hours, and attendees must wear face coverings. Singing, chanting, shouting, and cheering are allowed at outdoor gatherings, but not indoor gatherings.

The plaintiffs argued that the restrictions prevent them from holding in-home Bible studies and communal worship with more than three households, even though California allows more than three households to engage in certain commercial activities. They said that this amounts to religious targeting, triggering strict scrutiny.

The court rejected the argument. The court said that the plaintiffs were looking to the wrong class of activities to compare: "When compared to analogous secular in-home private gatherings, the State's restrictions on in-home private religious gatherings are neutral and generally applicable and, thus, subject to rational basis review." The court said that "[t]here is no indication that the State is applying the restrictions to in-home private religious gatherings any differently than to in-home private secular gatherings." As to the restrictions' application to small businesses and commercial activities (like barbershops and tattoo parlors), the court acknowledged that these businesses are not subject to the three-household restriction, but noted that they're subject to a host of other restrictions that are directed to the particular, place-specific risks that they raise.

Judge Bumatay dissented, arguing that the state's restrictions target religion, because they don't apply equally to small businesses and commercial activities (again, like barbershops and tattoo parlors). Judge Bumatay would therefore apply strict scrutiny, rule that the plaintiffs showed that they'd likely succeed on the merits, and enjoin the restrictions.

Court Strikes Colorado Covid Restriction on Church

Steven D. Schwinn, University of Illinois Chicago Law School

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.

Court Halts Application of New York's Occupancy Limits to Synagogues, Churches

Steven D. Schwinn, University of Illinois Chicago Law School

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. 

Supreme Court Tests LBGTQ Rights Against Free Exercise Claim

Steven D. Schwinn, University of Illinois Chicago Law School

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:

FACTS

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.

CASE ANALYSIS

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.”

Free Speech

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.

Overruling Smith

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.”

 

 

SIGNIFICANCE

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.

SCOTUS Broadens Ministerial Exemption from Anti-Discrimination Laws

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Our Lady of Guadalupe School v. Morrissey-Berru, consolidated with St. James School v. Biel, the Court extended the application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, to the teachers at schools run by religious organizations in the cases, and seemingly to all teachers employed by religiously-affiliated schools. 

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.

SCOTUS Holds Free Exercise Clause Bars Application of State's No-Aid to Religious Institutions Clause in State Constitution

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

 

SCOTUS Denies Emergency Injunction by Church Challenging California COVID-19 Order

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

Sixth Circuit Says Governor's Shut-Down Order Likely Violates Free Exercise

Steven D. Schwinn, UIC John Marshall Law School

The Sixth Circuit ruled earlier this week that Kentucky Governor Beshear's business shut-down order likely violates the Free Exercise Clause as applied to religious services. The ruling prevents the government from enforcing the shut-down order against religious services while the case moves forward. At the same time, however, the ruling tells the Governor how to regulate religious services consistent with free exercise (simply impose social distancing requirements, e.g.).

The court recognized that religiously-neutral, generally-applicable laws are usually upheld (under rational basis review). But it said that the shut-down order wasn't generally applicable, as demonstrated by the many "life-sustaining" "exceptions" to shut-down:

Do the four pages of exceptions in the orders, and the kinds of group activities allowed, remove them from the safe harbor for generally applicable laws? We think so. As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non-discriminatory law. "At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny. . . .

The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services.

The court went on to say that the Governor's order would likely fail strict scrutiny, because it wasn't narrowly tailored. "There are plenty of less restrictive ways to address these public-health issues," for example, "insist[ing] that the congregants adhere to social-distancing and other health requirements and leave it at that--just as the Governor has done for comparable secular activities[.]"

SCOTUS Hears Oral Arguments in Ministerial Exemption Cases

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court heard oral arguments (telephonically) in the consolidated cases of Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel. 

Recall that these cases involve an application of the First Amendment's "ministerial exception" first accepted by the Court in 2012 in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC.  In the unanimous decision in Hosanna-Tabor, the Court found that the school teacher Cheryl Perich was tantamount to a minister. Thus, under both Religion Clauses of the First Amendment, as a "minister" her employment relations with her church school employer were eligible for a "ministerial exception" to the otherwise applicable employment laws, in that case the Americans with Disabilities Act. 

But how far such this extend and who should qualify as a "ministerial" employee subject to the exemption from employment laws?  The factors that courts have derived from Hosana-Tabor include:

• (1) whether the employer held the employee out as a minister by bestowing a formal religious title;
• (2) whether the employee’s title reflected ministerial substance and training;
• (3) whether the employee held herself out as a minister; and
• (4) whether the employee’s job duties included “important religious functions.”

Throughout the oral argument, the question was which of these factors should be the test.  Morgan Ratner, on behalf of the United States as amicus curiae argued that the sole factor of  the employee performing an "important religious function" should be the test.  And yet, the very determination of whether an employee was performing "important religious functions" implicates an Establishment Clause issue should the court make such determinations. Indeed, Justice Gorsuch pressed on whether the court should simply accept the religious organization's statement that it had a sincere religious belief.

Nevertheless, the United States argued that this "important religious functions" factor should govern,  even if the employee was not terminated for a religious reason, but — as is the allegation in these cases — for a health issue or for age discrimination. Both Justices Ginsburg and Sotomayor repeated the broadness of the exemption sought. And further, the fact that the teacher need not share religious identity with the organization should not be relevant to a determination of "important religious functions":

KAGAN: [A]nd if a position can be filled by any old person, not by a member of a faith, isn't that a pretty good sign that the employee doesn't have that special role within the religious community?
MS. RATNER: No, Justice Kagan, I don't think so. And -- and there are really several reasons. The -- the most important one is that's essentially a religious judgment about who is qualified to perform certain important religious functions and how much of the creed of that religion you need to share to perform that function.

Arguing for the teachers who had been terminated, Jeffrey Fisher pointed out the number of teachers employed in religious schools, and the number of other employees in religious hospitals. Fisher argued the expansiveness of the religious organization's argument:

So it really is a sea change – even as to teachers, leaving everything else aside, it is truly a sea change that is being requested by the other side here today in terms of how teachers and schools are classified and whether they have any employment rights at all or -- or, in fact, whether at least if you follow the way the lower courts have -- have implemented the ministerial exception, you basically have employment law-free zones in all religious schools.

Fisher also contended that many other laws were at stake, not only discrimination laws, but wage and hour and equal pay acts, as well as teacher credentialing laws including specific provisions such as criminal background checks.

Thus, while the ministerial exemption as rooted in the free exercise and establishment clauses of the First Amendment originally excepted only "ministers," there is a chance that it will be broadened to include all - - - or almost all - - - employees at religious organizations.