Constitutional Law Prof Blog

Ninth Circuit Upholds Title IX's Exemption for Religious Institutions Against Establishment Clause, Equal Protection Challenges

The Ninth Circuit ruled that Title IX's exemption for religious organizations from its prohibition on sex discrimination did not violate the Establishment Clause or equal protection. The court also dismissed the plaintiffs' Administrative Procedure Act claim for lack of standing.

The case, Hunter v. U.S. Department of Education, arose when LGBTQ+ students alleged that religious schools discriminated against them on the basis of their gender identity, and that Title IX's exemption for religious institutions allowed that discrimination in violation of the Establishment Clause and equal protection.

The Ninth Circuit disagreed. The court applied the history-and-tradition test for the Establishment Clause from Kennedy v. Bremerton School District and ruled that there's a long history of accommodating religion, even if that history doesn't include accommodations from government benefit programs exactly like Title IX:

[These cases] evidence a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause. The examples provided by the Department demonstrate that religious exemptions have "withstood the critical scrutiny of time and political change." And given that this exact law did not exist at the Founding, that more recent (albeit, still lengthy) tradition is of greater salience.

As to the equal protection claim, the court said that Title IX's exemption meets intermediate scrutiny, and therefore doesn't violate equal protection:

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion. As the Department states, the "statutory limitations on its application ensure a substantial fit between [ends and] means." It only exempts educational institutions (a) controlled by religious institutions and (b) only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organizations. The exemption does not give a free pass to discriminate on the basis of sex to every institution; it contains limits that ensure that Title IX is not enforced only where it would create a direct conflict with a religious institution's exercise of religion. Thus, the exemption substantially relates to a "fundamentally important" government interest.

Court Says Free Speech Trumps Antidiscrimination for Website Designer

The Supreme Court ruled on Friday that Colorado's anti-discrimination law violated the free-speech rights of a website designer who does not wish to create custom wedding websites for same-sex couples.

The ruling leaves the anti-discrimination law in place, but prohibits enforcement that would compel speech.

The Court didn't define "speech," however, at least not with any precision. The case therefore promises to bring new rounds of litigation as individuals and businesses seek to get out from under anti-discrimination laws--including laws that prohibit discrimination by sexual orientation or, apparently, any other characteristic--by defining their products and services as "speech." In short, we don't know exactly how far this ruling extends--to what kinds of objections based on what kinds of characteristics, and what constitutes "speech."

The ruling, while dealing with free speech (not religion), also follows the Court's trend in its Religion Clause cases of inviting and compelling religion and religious beliefs to play a greater and greater role in public life. That's because the plaintiff in the case, Lorie Smith, who owns 303 Creative, objects to creating custom wedding websites for same-sex couples because of her religious beliefs. But just to be clear: nothing in the ruling protects only a person or business who objects based only on religion; instead, the ruling prohibits the government from applying anti-discrimination laws in a way that would compel a speaker to communicate in violation of any of their beliefs.

The case, 303 Creative v. Elenis, tested whether Colorado's anti-discrimination law (which prohibits discrimination by public accommodations because of sexual orientation, among other characteristics) impermissibly compelled Smith, who sought to provide custom wedding websites for customers, to create websites for same-sex couples. The Court said yes: the Colorado law compelled Smith to speak against her beliefs in violation of the First Amendment.

Justice Sotomayor wrote a lengthy and scathing dissent, joined by Justices Kagan and Jackson.

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.

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.

Supremes Rule for Death-Row Inmate in Religious Liberty Case

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

The Supreme Court ruled today that a condemned prisoner was likely to succeed on his claim that prison authorities violated his religious rights when they denied his request to allow his pastor to pray and lay hands on him in the execution chamber.

The preliminary ruling only means that the prisoner's execution without his pastor is temporarily halted. Prison authorities could, of course, allow the pastor to pray and lay hands, and then schedule the execution.

The case, Ramirez v. Collier, arose when condemned prisoner John Ramirez asked prison authorities to allow his pastor to pray and lay hands on him in the execution chamber before and during his execution. Authorities denied the request, and Ramirez sued, arguing that the denial violated the Religious Land Use and Institutionalized Persons Act. Ramirez sought a temporary injunction halting his pastor-less execution.

The Court granted Ramirez that injunction. The Court held that the prison's failure to honor Ramirez's request amounted to a "substantial" burden on his religious exercise, "sincerely based on a religious belief." Moreover, the Court said that the prison's denial wasn't the "least restrictive means" of achieving its stated interests in denying the request. The Court held that the prison's denial thus failed RLUIPA's strict scrutiny test for actions that substantially burden religious exercise.

As the Court noted, this is not a ruling under the Free Exercise Clause.

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.

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.

Court Rebuffs Religious School Challenge to State School Closing Order

Steven D. Schwinn, University of Illinois Chicago Law School

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."

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.

Obergefell as Precedent: First Monday in October

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

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."

Court Upholds Administration's Religious, Moral Exemptions to ACA's Contraception Guarantee

UIC John Marshall Law School

The Supreme Court today upheld the Trump Administration's rules substantially broadening the religious exemption and expanding it to those with a "moral" objection to the Affordable Care Act's contraception guarantee.

Our argument preview of the case is here.

The ruling in Little Sisters v. Pennsylvania means that a dramatically expanded group of employers--those with a religious objection or moral objection to contraception--get an automatic free pass on the requirement that employers provide their female employees with health-insurance coverage that includes contraceptives. Covered employers need not file for an self-certified exemption or accommodation; they just have to, well, not provide coverage.

This could mean that between 70,500 and 126,400 women would lose access to contraceptive services under their employer-provided health insurance plans. (This is the Administration's estimate.)

The Court's ruling leaves open another challenge to the rules, however, and the plaintiffs could raise the argument on remand, that is, that the rules are arbitrary and capricious under the Administrative Procedure Act.

Justice Thomas wrote for the Court, joined by Chief Justice Roberts, Alito, Gorsuch, and Kavanaugh. The Court ruled that the Departments had statutory authority to adopt the rules under 42 U.S.C. Sec. 300gg-13(a)(4), which provides that "with respect to women," group health plans must "at a minimum, provide . . . such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by [HRSA]." The Court said that the "as provided for" clause "grants sweeping authority to HRSA to craft a set of standards defining the preventive care that applicable health plans must cover," leaving the HRSA with "virtually unbridled discretion to decide what counts as preventive care and screenings." The Court held that this authority included the power "to identify and create exemptions" like the ones in the challenged rules.

The Court also held that the Departments complied with the procedural requirements in the Administrative Procedure Act in adopting the rules.

The Court expressly declined to say whether RFRA compelled the exemptions in the rules, as the Administration argued. Still, the Court did say that the Departments were within their powers to consider RFRA in writing the rules, and even that "[i]t is clear from the face of the statute that the contraceptive mandate is capable of violating RFRA."

Justice Alito concurred in full, joined by Justice Gorsuch. Justice Alito argued that the Court should have resolved the RFRA question in favor of the Administration--that is, that RFRA compelled the rules. According to Justice Alito, this would have meant that the rules were not impermissibly arbitrary and capricious under the APA, and thus foreclosed that argument on remand.

Justice Kagan, joined by Justice Breyer, concurred in the judgment. Justice Kagan argued that HRSA had statutory authority to exempt certain employers from the contraceptive guarantee, but (different than the Court) because the HRSA was entitled to Chevron deference in its interpretation of the ambiguous statutory language. She also argued that the rules could be arbitrary and capricious--an issue for the lower court on remand.

Justice Ginsburg dissented, joined by Justice Sotomayor. Justice Ginsburg pointed to an earlier provision in the Act that specifies that group health plans and health insurance issuers "shall" cover specified services. She argued that this provision mandates who is required to provide specified services--and that it doesn't include any exemptions. (She argued that the section that the Court relied on only went to what services must be provided, not who must provide them. And yet the rules provide exemptions for who must provide services.) She also argued that the rules weren't compelled by the Free Exercise Clause or RFRA.

 

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.

SCOTUS Hears Oral Arguments on Montana Blaine Amendment for School Scholarship

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

The Court heard oral arguments in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships as violating the First Amendment's religion clauses and the equal protection clause.

Under the original Tax Credit Program, the law provided a taxpayer a dollar-for-dollar tax credit based on the taxpayer’s donation to a Student Scholarship Organization. However, Montana has a constitutional provision, Art. X §6, which prohibits aid to sectarian schools, so the department of revenue added "Rule 1" to the state tax credit scheme excluding from the definition of "qualified education provider" eligible under the scheme "a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination."  Parents challenged the constitutionality of Rule 1, but when the litigation reached the Montana Supreme Court, it held that the Tax Credit Program was unconstitutional under Art. X §6 and therefore it did not need to reach the issue regarding Rule 1:

Having concluded the Tax Credit Program violates Article X, Section 6, it is not necessary to consider federal precedent interpreting the First Amendment’s less-restrictive Establishment Clause. Conversely, however, an overly-broad analysis of Article X, Section 6, could implicate free exercise concerns. Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases. We recognize we can only close the “room for play” between the joints of the Establishment and Free Exercise Clauses to a certain extent before our interpretation of one violates the other.

In the oral argument, Justice Ginsberg characterized the option exercised by the Montana Supreme Court as leveling down: "When a differential is challenged, the court inspecting the state law can level up or level down. And here it leveled down." (This "leveling down" approach occurred in Justice Ginsburg's opinion for the Court in Sessions v. Santana-Morales (2017)). And here that leveling down effected questions of standing which troubled Justices Ginsburg, Sotomayor, and Kagan in their early questions to the attorney for the petitioners — the parents and original plaintiffs — who are "three levels removed" from any injury as Sotmayor stated.

The Montana Supreme Court assumed center stage at times, with Justice Alito for example questioning not simply whether the court was wrong but whether it was discriminatory:

isn't the crucial question why the state court did what it did?

If it did what it did for an unconstitutionally discriminatory reason, then there's a problem under Village of Arlington Heights.

So I'll give you an example. The state legislature sets up a scholarship fund, and after a while, people look at the – the recipients of the scholarships, and some people say: Wow, these are mostly going to blacks and we don't like that and that's contrary to state law. So the state supreme court says: Okay,that discrimination is -- we're going to strike down the whole thing.

Is that constitutional?

The attorney for Montana, Adam Unikowsky rejected "the race analogy" stating that "we just don't think that race and religion are identical for all constitutional reasons."

Justice Breyer explained, "what he's saying is that, look, the court took the case in the Prince Edward County thing -- " or "the equivalent and said they couldn't do that. They can't shut down all the schools, even though the Constitution they didn't say had a right and so that's the similarity."

This question of the race-religion analogy persisted, with the motivation behind the Montana state constitutional provision, often known as a Blaine Amendment, being "rooted in -- in grotesque religious bigotry against Catholics," as Justice Kavanaugh phrased it. Justice Kagan seemingly rejected the notion that the court's striking down the entire program must be motivated by animus towards religion:

And I can think of many reasons why you would strike down the whole program that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both. Now, none of those things have anything to do with animus towards religion . . . .

Yet soon after, Chief Justice Roberts returned to the race analogy. Later, Justice Breyer would ask:

can we--can you or could I say this: Yes, race is different from religion. Why? There is no Establishment Clause in regard to race.

The specific doctrinal arguments revolve around the extension of Trinity Lutheran Church of Columbia, Mo. v. Comer, decided in 2017, involving Missouri's state constitutional Blaine Amendment and the denial of funds to a church school playground.  And more deeply, the "play in the joints" notion from Locke v. Davey — which was itself divisive in Trinity Lutheran — is implicated. At stake is the possibility that Free Exercise Clause will now overwhelm any anti-Establishment concerns.

 

SCOTUS to Hear Ministerial Exception Cases

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

The United States Supreme Court granted certiorari to two Ninth Circuit cases and consolidated them: Our Lady of Guadalupe School v. Morrisey-Berru and St. James School v. Biel. 

Both 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 who is a "ministerial" employee subject to the exemption from employment laws?

Chief Justice Roberts' opinion for the Court in Hosanna-Tabor declined to provide a test for deciding whether or not an employee was within the ministerial exception. However, the Court did extensively analyze Cheryl Perich's employment. And the lower courts have been struggling with how to analogize to the Court's conclusions regarding the "called teacher" Perich.

In the unpublished and very brief panel opinion in Morrisey-Berru, the court stated that the Court in Hosanna-Tabor considered four factors in analyzing whether the exception applied:

• (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.”

Applying those factors, the Ninth Circuit panel stated:

Considering the totality of the circumstances in this case, we conclude that the district court erred in concluding that Morrissey-Berru was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, Morrissey-Berru’s formal title of “Teacher” was secular. Aside from taking a single course on the history of the Catholic church, Morrissey-Berru did not have any religious credential, training, or ministerial background. Morrissey-Berru also did not hold herself out to the public as a religious leader or minister.

Morrissey-Berru did have significant religious responsibilities as a teacher at the School. She committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year. However, an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework. See Biel v. St. James Sch. (9th Cir. 2018). Therefore, on balance, we conclude that the ministerial exception does not bar Morrissey-Berru’s ADEA claim.

Biel, relied upon in Morrisey-Berru's unpublished opinion, was much more contentious. Reversing the district court, the Ninth Circuit panel's opinion in Biel similarly considered four factors from Hosanna-Tabor and applying them to the school teacher Kristen Biel concluded that she was not a ministerial employee. For the panel in Biel, she

by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

***

Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.

Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required. We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone. If it did, most of the analysis in Hosanna-Tabor would be irrelevant dicta, given that Perich’s role in teaching religion was only one of the four characteristics the Court relied upon in reaching the conclusion that she fell within the ministerial exception.

And even Biel’s role in teaching religion was not equivalent to Perich’s.. . .

The panel's opinion in Biel was not unanimous. A dissenting judge would have held that Biel was a minister in large part because her teaching duties at a Catholic school included religious teachings; the judge was "struck by the importance of her stewardship of the Catholic faith to the children in her class. Biel’s Grade 5 Teacher title may not have explicitly announced her role in ministry, but the substance reflected in her title demonstrates that she was a Catholic school educator with a distinctly religious purpose."

The petition for rehearing en banc was denied, but with a lengthy dissenting opinion  by Judge R. Nelson joined by an addition eight Ninth Circuit Judges - - - that's nine Judges dissenting.  Judge Nelson's opinion argues that the panel opinion in Biel (as well as the opinion in Morrisey-Berru) had taken the narrowest possible interpretation of Hosanna-Tabor, so narrow as to have "excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone." For the dissenting judges, 

In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid.

With the Court's grant of certiorari in Biel and Morrisey-Berru, perhaps there will be more clarity regarding the factors of Hosanna-Tabor and how they should be applied to teachers in private schools run by religious organizations. 

The facts of Biel may strike many as particularly sympathetic: Kristen Biel was diagnosed with breast cancer and terminated when she said she would have to take some time off work when she underwent chemotherapy. St. James's principal, Sister Mary Margaret, told Biel it was not "fair" "to have two teachers for the children during the school year.” If she had worked for a nonreligious school, Biel would have been protected by the Americans with Disabilities Act.

The Court is set to decide whether Biel and seemingly almost every teacher at a private school operated by a religious organization should be excluded from the employment protections afforded other workers.

[image "Chalk Lessons, or the Black-board in the Sunday School. A Practical Guide for Superintendents and Teachers" by Frank Beard (1896), via]

SCOTUS Terms Begins With LGBTQ Title VII Cases

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

The United States Supreme Courts 2019 Term begins with oral arguments in three cases that will impact LGBTQ equality.  To be clear, the Court is not considering constitutional law issues.  Instead all three cases involve statutory interpretation of the prohibition of discrimination "because of sex" in Title VII of the 1964 Civil Rights Act, 42 U.S.C. §2000e et. seq.

The two consolidated cases both involve sexual orientation discrimination. In Altitude Express v. Zarda, the Second Circuit en banc held that sexual orientation discrimination constituted a form of discrimination "because of sex" under Title VII, overruling previous Second Circuit decisions, and provoking the dissent of four judges.  Reaching the opposite conclusion, the Eleventh Circuit in Bostock v. Clayton County Board of Commissioners, clung to its previous precedent, first in an unpublished opinion affirming the dismissal of the complaint, and then in a denial of rehearing en banc requested by a member of the court, with two judges issuing a dissenting opinion. 

In deciding whether or not sexual orientation discrimination is included in Title VII's "because of sex" language, the primary precedent for the Court is its unanimous opinion in Oncale v. Sundowner Offshore Services (1998), authored by the late Justice Scalia.  The claim involved same-sex sexual harassment and the Court held:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

The third case LGBTQ Title VII case to be considered by the Court in the Term's opening days is R.G. & G.R. Harris Funeral Homes v. EEOC.  The Sixth Circuit, in its unanimous panel opinion reversing the district judge, found that discrimination "against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII" under the "because of sex" discrimination prohibition. The court found that the "Funeral Home fired Stephens because she refused to abide by her employer’s stereotypical conception of her sex" and that the religious claim under the Religious Freedom Restoration Act, RFRA, 42 U.S.C. § 2000bb–1, raised by the funeral home's owner failed because "Title VII here is the least restrictive means of furthering its compelling interest in combating and eradicating sex discrimination."

While the Court has not previously decided a case of transgender discrimination under Title VII, the Court's opinion in Price Waterhouse  v. Hopkins (1989) held that sex-stereotyping is included within the prohibition of discrimination "because of sex" under Title VII.  Hopkins is a fractured opinion, and none of the Justices who decided the case remain on the Court.

These statutory interpretation cases will provide an indication of the Court's views on LGBTQ equality, a subject last at the Court in the closely-divided same-sex case Obergefell v. Hodges (2015), decided under the Fourteenth Amendment. Further, these three Title VII cases may illuminate how the Court is considering precedent.

Finally, no matter how the Court decides these Title VII issues, Congress retains ultimately authority. In 2019, the House of Representatives passed "The Equality Act" which would amend the 1964 Civil Rights Act to include prohibitions of discrimination on the basis of sexual orientation and gender identity.  The Senate has yet to take up this legislation.

 

Arizona Supreme Court Finds Religious Exemption for Same-Sex Wedding Invitations Despite Nondiscrimination Ordinance

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

In lengthy and sharply divided opinion in Brush & Nib Studio v. City of Phoenix, the Arizona Supreme Court has held that a custom wedding invitation company and its proprietors have a right to refuse to express to make invitations for same-sex weddings under article 2, section 6 of the Arizona Constitution, providing that "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right," as well as Arizona’s Free Exercise of Religion Act (“FERA”), A.R.S. § 41-1493.01. This right prevailed over the City of Phoenix’s Ordinance, as amended in 2013, which prohibits public accommodations from discriminating against persons based on their status in a “protected” group, which includes a person’s sexual orientation.  Phx., Ariz., City Code (“PCC”) § 18-4(B). As the majority made clear, however, its holding was " limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record," and did not "recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations," or reach the question of other wedding services. The court appended illustrative samples in the appendix (and see below).

The opinion rests on the independent ground of the state constitution and is thus insulated from federal review (given that no other constitutional right is at issue). The majority notes that the free expression provision of the state constitution "by its terms" "provides broader protections for free speech than the First Amendment."

Nevertheless, the majority extensively relies upon United States Supreme Court cases.  The citations include the Court's 2018 opinion in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, although in Masterpiece there was a conclusion that the Colorado Civil Rights Commission, enforcing its state nondiscrimination statute, expressed hostility on the basis of religion in its adjudication of the case - an issue that is not raised by the multiple opinions in Brush & Nib. The majority traces some of the rationales in the Masterpiece arguments: finding that the same-sex wedding invitations with their art and calligraphy (like the cake-baking) is "art" and speech, and finding that nondiscrimination ordinance seeks to compel their speech in support of beliefs they do not hold, such as same-sex marriage. The majority thus applies strict scrutiny, holding that a nondiscrimination public accommodations law is not a compelling governmental interest, and that such laws target conduct rather than speech and it is therefore not narrowly tailored.

Three of the seven Justices of the Arizona Supreme Court dissented. The dissenting opinion that all three Justices joined found that  there was a tension between "our fundamental values of liberty and equality," but because "the interest in preventing discrimination is compelling, equality prevails when we are dealing with public accommodations such as businesses serving the public." The dissenters also argued that "the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers."

And while this case is not suitable for certiorari to the Supreme Court, this issue will most likely recur in Arizona given the majority's attempt to limit the decision and the sharp divisions on the court; just as it will be recurring elsewhere.

Washington Supreme Court on Remand in Arlene's Flowers: No First Amendment Violation

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

In its unanimous opinion in State of Washington v. Arlene's Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene's Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.

Recall that in June 2018, the United States Supreme Court without opinion, in Arlene's Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited "hostility" to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene's Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.

The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: "We now hold that the answer to the Supreme Court's question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . ." 

The Washington Supreme Court's lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion.  The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court's 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman's claim that the scope of the injunction in the 2017 opinion mandated that Stutzman "personally attend and participate in same-sex weddings."

The Washington Supreme Court's opinion concludes that "After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court's rulings."

It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it's likely that Arlene's Flowers will again petition the United States Supreme Court for certiorari.

image: Vincent Van Gogh, Twelve Sunflowers in a Vase, circa 1887, via.