-- Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900 (notice Justice Thomas's concurring opinion in particular); Carson v. Makin (link); My Article on School Choice and 1A: (link)
--City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Groff v. DeJoy (link)(follow link to opinion)
RLUIPA provides:
(1) General rule
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—
(A)
is in furtherance of a compelling governmental interest; and
(B)
is the least restrictive means of furthering that compelling governmental interest.
City of Boerne (casebook p. 1214)
Just a brief concluding note on RFRA and RLUIPA.RFRA originally applied to both federal and state and local laws burdening religious liberty. But in the City of Boerne case the Court declared RFRA unconstitutional as applied to state and local laws restricting religious liberty.
The issue is really a Con Law I issue about enumerated national powers and state reserved powers under the 10th Amendment. The issue is where does Congress get the power to impose RFRA’s protection of religious liberty on the states?
There is no enumerated power to forbid generally applicable state laws from being applied to burden religious conduct.
Section 5 of the 14th Amendment gives Congress the power “to enforce, by appropriate legislation, the provisions of this article.” So, the only possible power of Congress to impose RFRA on the states is the power to ”enforce” the Free Exercise Clause as incorporated by the Due Process Clause of the 14th Amendment.
But is RFRA an attempt to enforce Free Exercise as defined by Smith? Or is it an attempt to overrule by statute the Court’s holding in Smith?
Justice Kennedy said that “Congress does not enforce a
constitutional right by changing what that right is…It has been given the power
‘to enforce’ not the power to determine what constitutes a constitutional violation.” p. 1217
So, the Court holds that RFRA is unconstitutional as applied to state and local government because the scope of RFRA is so sweeping as to intrude “into the States' traditional prerogatives and general authority to regulate for the health and safety of their citizens.” P. 1220
The Court is also concerned about separation of powers--specifically its own Article III power to "say what the law is." The Court views RFRA not so much as an attempt to enforce the incorporated Free Exercise Clause, but rather as an attempt to overrule Smith by statute.
Of course, Congress does have power to regulate the national
government; thus, RFRA remains good law (as in Hobby Lobby) when national law
restricts religious liberty.
RLUIPA is within Congress’s power to regulate state and local government because it is based, not just upon Section 5 of the 14th Amendment, but also the spending power and the commerce power of Congress. RLUIPA only covers prisons and land use regulations. It covers prisons that receive federal funding, and land use regulations of real property which substantially effect interstate commerce.
Here is the Text of the 14th Amendment and in particular, section 5 of the 14th Amendment.
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5.The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Don't forget to take a look at the Nebraska First Freedom Act for tomorrow:
Read: Nebraska Revised Stats sections 20-701 to 20-705 (link)
Passed in March 2024
Section 20-703 of the First Freedom Act provides that:
“Notwithstanding any other provision of law, state action shall not:
(1) Substantially burden a person's right to the exercise of religion unless it is demonstrated that applying the burden to that person's exercise of religion in this particular instance is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest; or
(2) Restrict a religious organization from operating and engaging in religious services during a state of emergency to a greater extent than the state restricts other organizations or businesses from operating during a state of emergency.”
Neb Rev Stat section 20-702:
(1) Exercise of religion means the practice or observance of religion and includes any action that is motivated by a sincerely held religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief;
(6)(a) Substantially burden means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion.
(b) Substantially burden includes withholding benefits, imposing criminal, civil, or administrative penalties or damages, or exclusion from governmental programs or access to governmental facilities.
The First Freedom Act is very broad: it “applies to all state and local laws, and the implementation of those laws, whether statutory or otherwise, regardless of whether adopted before or after July 19, 2024 [the date the act became operative].” Section 20-705
Moreover, “State action means the implementation or application of any law, including state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by state or local law.” Section 20-720 (5)
Thus, the law protects people of faith against the policies, rules, and regulations of state and local government, including public schools and state universities.
He opens a Masterpiece Cakeshop bakery in Omaha.
One day a customer walks into the shop and requests two things:
He wants Jack to create a custom wedding cake celebrating his same-sex marriage to another man.
He wants Jack to cater the wedding breakfast, by serving breakfast croissants and assorted fruit pastries.
If state action imposes a substantial burden on religious exercise, the burden is unlawful unless “it is demonstrated that applying the burden to that person's exercise of religion in this particular instance is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.”
The assertion of some broad “compelling” governmental interest is not enough. The state must show that granting a religious exemption to the particular person claiming religious liberty is necessary to further a compelling interest. Rarely. If ever, will that be the case. Even if the state passes that test, it must also show that it is the least restrictive means of furthering that particularized compelling interest.
The state must pass through what I call a gauntlet of superlatives under this test. It will rarely be able to do so—overriding importance and least restrictive means!
How about a hypo involving religious liberty in the public schools.
Suppose a public school has a sex education class that includes units on homosexuality and transgenderism. If a religious family requests an opt-out from this unit, do they have religious liberty rights under the FFA to have their children excused from the unit?
Is there a substantial burden on the family’s religious exercise? If so, is there a compelling interest in this particular case?
Suppose a public school requires all teachers to take a mandatory DEI orientation program on sexual orientation and gender identity. Can religious teachers opt out?
Suppose a public school does not allow Muslim students an excused absence from class to pray together for a few minutes in an empty classroom during Ramadan?
Suppose the state has a law requiring all pharmacies to stock the abortion pill. The owner of a small drug store objects based upon his pro-life religious beliefs.
Suppose a professor at a state university has a policy that requires every student to attend class the day a guest lecturer will teach the class. The class conflicts with a student's Good Friday service at church.
Section 20-702(5): “State action means the implementation or application of any law, including state and local laws, ordinances, rules, regulations, and policies, whether statutory or otherwise, or other action by the state or any political subdivision thereof and any local government, municipality, instrumentality, or public official authorized by state or local law;”
Notwithstanding any other provision of law, state action shall not:
(2) Restrict a religious organization from operating and engaging in religious services during a state of emergency to a greater extent than the state restricts other organizations or businesses from operating during a state of emergency.
“Actual damages; Such preliminary and other equitable or declaratory relief as may be appropriate; and [wonderful, wonderful, wonderful] Reasonable attorney's fees and other litigation costs reasonably incurred.” Section 20-704(3)
As I often say, pro bono work pays well when you have a law awarding attorney’s fees!
The Government deserves a good slap on the hand when it restricts fundamental civil liberties. Fool around, find out!
Consider this excerpt from my article on school choice:
Although dicta in Carson makes clear that a state “may provide a strictly secular education in its public schools” and no state is required to fund private education, the facts of this case and the Court’s expansive free exercise reasoning hint at the argument that the Free Exercise Clause can be read as requiring states to fund school choice for all K-12 students. Indeed, in his dissent, Justice Breyer predicted that the arc of Carson may indeed require states to fund school choice for all families:
"We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education. What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?"
Although I don’t share Justice Breyer’s fear of religious equality for all K-12 students, I agree with his reading of the spirit of free exercise emanating from Trinity Lutheran, Espinoza, and Carson. That magnificent spirit of equality makes clear that religious families are entitled to their fair share of the benefits of the Welfare State and should not be forced to choose between their faith and the single largest benefit most families receive from state and local government. Most certainly, such discrimination is odious to the First Amendment and should not be allowed to stand.
In other words, if a state pays for a secular public education for students who attend public schools, the spirit of free exercise and equality of social benefits arguably requires the states to fund school choice.
Thoughts?
But first, an excerpt from a recent law review article of mine on school choice and the First Amendment:
Maine is the most rural state in America. Many of Maine’s rural areas are too small to operate a public high school. Thus, Maine law provides that in such rural areas, local government shall pay the tuition at “the approved private school of the parent’s choice.” Parents may choose any private school, whether “inside or outside the State.” However, there is a catch: tuition assistance payments may only be directed to “nonsectarian” schools. Alan and Judy Gillis of rural Orrington, Maine, explained how it feels to be excluded from educational benefits because you choose to educate your children in a private religious school: “We feel discriminated against because of our religious convictions[.] . . . If our neighbors have the freedom to choose a private school and receive tuition from our town, why are we denied this same benefit just because we desire a religious education for our daughter?”
Why indeed?
1. "Maine has
enacted a program of tuition assistance for
parents who live in school districts that do not
operate a secondary school of their own. Under
the program, parents designate the secondary
school they would like their child to
attend—public or private—and the school district
transmits payments to that school to help defray
the costs of tuition. Most private schools are
eligible to receive the payments, so long as
they are “nonsectarian.” The question presented
is whether this restriction violates the Free
Exercise Clause of the First Amendment." (p.1)
2. The Court says Trinity Lutheran and Espinoza control: "But as we
explained in both Trinity Lutheran and
Espinoza, such an “interest in
separating church and state ‘more fiercely’ than
the Federal Constitution . . . ‘cannot
qualify as compelling’ in the face of the
infringement of free exercise.” Justice Breyer
stresses the importance of “government
neutrality” when it comes to religious
matters, but there is nothing neutral
about Maine’s program. The State pays tuition
for certain students at private schools—so long
as the schools are not religious. That is
discrimination against religion. A State’s
anti-establishment interest does not justify
enactments that exclude some members of
the community from an otherwise generally
available public benefit because of their
religious exercise." (p. 4, just before III)
3. And notice that the status/use distinction is no more:
Our opinions in Trinity Lutheran and Espinoza, however, have already explained why Locke can be of no help to Maine here. Both precedents emphasized, as did Locke itself, that the funding in Locke was intended to be used “to prepare for the ministry.” Funds could be and were used for theology courses; only pursuing a “vocational religious” degree was excluded.Locke’s reasoning expressly turned on what it identified as the “historic and substantial state interest” against using “taxpayer funds to support church leaders.” But as we explained at length in Espinoza, “it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools comparable to the tradition against state-supported clergy invoked by Locke.” Locke cannot be read beyond its narrow focus on vocational religious degrees to generally authorize the State to exclude religious persons from the enjoyment of public benefits on the basis of their anticipated religious use of the benefits.
Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. (p.4-5)
Today, Ms. Sherbert would probably not have lost her job, because under Title VII of the Civil Rights law her employer would be required to accommodate her religious practices unless doing so would impose“undue hardship on the conduct of the employer’s business”
The unanimous Court in Groff further held that “undue hardship” is shown when the burden of accommodating the employee is “substantial in the overall context of an employers’ business.”
In the wake of Groff, religious employees who were fired for refusing the Covid vax have won some huge verdicts against their employees for refusing accommodation.
