Let's Finish Well!

 As I said in class yesterdays,  today we will discuss compelled speech and the last two cases from the syllabus:

Christian Legal Society v. Martinez (link);Citizens United (link)

Liar, Liar, Pants on Fire: Justice Ginsburg in CLS Decision

 Justice Ginsburg begins her opinion with this statement: "CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy."

Is this true? If CLS had won under the right of expressive association, would it be "a preferential exemption?"  Or would every other student group have had an equal right to expressive association? Would an LGBT group have been allowed to deny leadership to a student who opposed same-sex marriage? Would a animal rights group have been allowed to deny leadership to an avid hunting enthusiast? Would a Civil Rights group been allowed to deny admission to a member of the KKK?

CLS was not seeking preferential treatment; it was only asking the Court to protect the 1A right of expressive association from Hastings restrictive student group policies.

Wednesday June 14 Assignment

 --Finish Tuesday's Assignment

--.Casebook p. 1597-1613; my article on Telescope Media (link); discussion of 303 Creative

 

I deleted the link to the Telescope Media opinion. I don't want to overwork you with only 2 days to go.

Assignments for Tuesday June 13

 --Finish discussion of  cases concerning free speech in public schools

-- Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592; Casebook p. 1597-1613;

Assignment For Monday June 12

 --Finish last Friday's Assignment

--Casebook p. 1482-1499; 

 If time permits, we may get started on this material:

Casebook p. 1520-1541; Mahanoy School District

Groff v. DeJoy SCOTUS Preview

 Here is the SCOTUSblog preview by Kalvis Golde:

In the Equal Employment Opportunity Act of 1972, Congress strengthened the religious protections in Title VII of the Civil Rights Act by requiring employers to accommodate all aspects of their employees’ religious beliefs and practices, unless doing so would impose “undue hardship” on the business. Five years later, the court stated in Trans World Airlines v. Hardison that an employer suffers undue hardship if accommodating an employee’s religion would require “more than a de minimis cost.” This week, we highlight cert petitions that ask the court to consider, among other things, whether to revisit Hardison’s more-than-de-minimis-cost test.

Gerald Groff worked as a mail carrier for the U.S. Postal Service in Pennsylvania. An Evangelical Christian, Groff observes a Sunday Sabbath. When USPS signed an agreement with Amazon in 2013 to deliver packages on Sundays and holidays, Groff was initially able to avoid working Sundays by picking up extra shifts during the week – and eventually transferring to another post office. But as demand for deliveries increased, the accommodations wore thin. Groff soon received multiple disciplinary actions for refusing to work on Sundays.

Facing termination, Groff chose to resign, and sued USPS in federal court for refusing to accommodate his religious beliefs and practices under Title VII. The trial court ruled for the Postal Service under Hardison, and the U.S. Court of Appeals for the 3rd Circuit affirmed. Exempting Groff from work on Sundays imposed a more than de minimis cost on USPS, the appeals court held, because it forced his coworkers to pick up more than their share of Sunday shifts – at the expense of their own religious observance or family time – and weakened workplace morale at the post office.

In Groff v. DeJoy, Groff asks the justices to dispose of Hardison’s more-than-de-minimis-cost test. Inconvenience to coworkers does not qualify as a business cost to USPS, Groff reasons. But even if it does, he argues, an undue hardship means a significant burden, while his inability to work on Sundays imposes only a minor hurdle. Other petitions have asked the court to jettison Hardison’s test in recent years, and although the court has yet to take up the issue, at least three justices have indicated their interest in doing so.

Established Religious Philosophy of Our Government and Elite Culture

 I really enjoyed our class discussion yesterday about whether football is a religion in America.

By the way, I do believe that there is an established religious philosophy in America, but it is not football. Just look around as you go about living, and it will become apparent. For example, what kinds of words and ideas are you afraid to express as you go about your life here in the Law College and everywhere else? Who are the gods whose names you are afraid to take in vain? What truths do you believe that you are afraid to declare? 

How you answer these questions for yourselves will reveal the secular worldview that has become the established religion of America in 2023.

First Amendment Assignments for Friday June 9

 1. Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482;  Snyder v. Phelps (link)

First Amendment Assignments for Thursday June 8

 Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900(notice Justice Thomas's concurring opinion in particular) ; Carson v. Makin (link)

 4. City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Preview of Groff v. DeJoy (currently before SCOTUS)(link)

 

Video 14

"Justice Gorsuch Sketches The Post-Fulton Roadmap in Amish Septic System GVR"

We won't cover all this in class, but this is an  interesting prediction of where Free Exercise law may be heading.

Josh Blackman writes (link):

In January, a group of Amish people filed a cert petition. Mast v. Fillmore County challenged Minnesota's decision to require them to install a septic system. The Amish people objected to installing this system on religious grounds. They argued that the state violated RLUIPA. On Friday, the Court GVR'd Mast in light of Fulton. Justice Alito only concurred in the judgment to vacate the judgment, and remand. But he did not agree with the decision to remand in light of Fulton. He wrote, "The lower court plainly misinterpreted and misapplied" RLUIPA. I don't recall ever seeing a Justice concur in the judgment of a GVR, but not agree with the majority on the basis of the remand. He threw shade at the shadow docket!

Justice Gorsuch wrote a seven-page opinion concurring in the GVR. He agreed that the case should be reconsidered in light of Fulton. And he sketched out what should become the post-Fulton roadmap for Free Exercise Clause cases. Specifically, Justice Gorsuch highlighted three aspects of Fulton that apply in strict scrutiny cases–the standard of review that governs RLUIPA claims.

First, Justice Gorsuch explains that the government must establish its interest with specificity. This analysis must be "precise," rather than "broadly formulated."

Perhaps most notably, the County and courts below erred by treating the County's general interest in sanitation regulations as "compelling" without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands "a more precise analysis."593 U. S., at ___ (slip op., at 14). Courts cannot "rely on 'broadly formulated'" governmental interests, but must"'scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.'" Ibid. (quoting Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 431 (2006)).

And the government must establish this interest with respect to the specific religious community. As I read Gorsuch, Philadelphia would be required to establish its interest with respect to the Roman Catholic Church. And Minnesota would have to establish its interest with respect to this specific Amish group.

Accordingly, the question in this case "is not whether the [County] has a compelling interest in enforcing its [septic system requirement] generally, but whether it has such an interest in denying an exception" from that requirement to the Swartzentruber Amish specifically. Fulton, 593 U. S., at ___ (slip op., at 14) (emphasis added); see also Holt v. Hobbs, 574 U. S. 352, 362–363 (2015) (RLUIPA requires courts to "scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants" (internal quotation marks omitted; emphasis added)).*

Second, Justice Gorsuch considers the sorts of exemptions the state gives to other groups.

Separately, the County and lower courts erred by failing to give due weight to exemptions other groups enjoy. For example, in Minnesota those who "hand-carr[y]" their gray water are allowed to discharge it onto the land directly. Minn. Admin. Rule 7080.1500, §2. So thousands of campers, hunters, fishermen, and owners and renters of rustic cabins are exempt from the septic system mandate.

Gorsuch explains that with strict scrutiny, the government must show why it cannot give the Amish the same exemption. And that rationale must be "compelling."

Under strict scrutiny doctrine, the County must offer a compelling explanation why the same flexibility extended to others cannot be extended to the Amish. As Fulton put it, the government must offer a "compelling reason why it has a particular interest in denying an exception to [a religious claimant] while making [exceptions] available to others." 593 U. S., at ___ (slip op., at 15). Or as this Court has said elsewhere, it is "established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993) (internal quotation marks and alteration omitted);see also Holt, 574 U. S., at 367 ("[T]he Department has not adequately demonstrated why its grooming policy is substantially underinclusive"); O Centro Espírita, 546 U. S., at 436 ("The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions").

Next, Gorsuch makes a fascinating move. The Court must consider other jurisdictions that have exempted people of faith.

Relatedly, the County and lower courts failed to give sufficient weight to rules in other jurisdictions. Governments in Montana, Wyoming, and other States allow for the disposal of gray water using mulch basins of the sort the Amish have offered to employ. App. to Pet. for Cert. 73–74.Given that, the County in this case bore the burden of presenting a "compelling reason why" it cannot offer the Amish this same alternative. Fulton, 593 U. S., at ___ (slip op., at15). To be sure, the County stresses the fact that the "record contains no evidence of a single, properly working mulch basin system in Minnesota." App. to Pet. for Cert. 74. But that is not enough.

Minnesota must show why they cannot follow the rules from other jurisdictions.

It is the government's burden to show this alternative won't work; not the Amish's to show it will. "[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13).

I don't think this principle follows from Fulton. But it could potentially be a game-changer for Free Exercise cases. States that are overly protective of religious liberty will now set the floor for states hostile to free exercise claims. California would have to follow Texas.

Third, the state must demonstrate that its policy is narrowly tailored "with evidence." Not "supposition." And Justice Gorsuch favorably cites Tandon v. Newsom, which favorably cites Judge Sutton's Neace decision: the state cannot assume that people of faith are less trustworthy. than others who receive exemptions.

But strict scrutiny demands more than supposition.The County must prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate. Here, that means proving that mulch basins will not work on these particular farms with these particular claimants. Again, if "the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13) (emphasis added); see also Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 3) ("The State cannot 'assume the worst when people go to worship but assume the best when people go to work'" (quoting Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam))).

I think Justice Gorsuch has sketched a three-part roadmap for Free Exercise Clause claims after Fulton. Lower courts, take notice.

Vouchers and Taxes: Do they Subsidize Religious Education?

Some would argue that school choice results in non-believers being taxed to fund religious educations for believers. That somehow this is unfair to unbelievers. Is that true? Is this preferential funding of religion?

From a law and economics perspective, how should we think about this issue? 

Might it be the other way around?

Michael McConnell and Richard Posner, take the position that equal funding of school choice is necessary for neutrality. They explain the economic impact of school choice this way:

“No one is taxed to support the religious education of another; rather, each person pays one lifetime's worth of taxes earmarked for education and in return receives (in advance) one education. Of course, things would not work out as neatly in practice as they do in this very abstract model. There would still be a subsidy from rich to poor…. But there would be no systematic transfer of wealth from individuals who attend religious schools to those who do not. On the contrary, to force individuals to pay education taxes but deny them education financing because they have chosen a religious school brings about a systematic transfer of wealth from the religious to the nonreligious.”

[McConnell & Posner, An Economic Approach to Issues of Religious Freedom, 56 U. Chi. L.Rev. 1, 18 (1989).]

 

 McConnell and Posner thus view k-12 education as a benefit to each child (not to their parents). Each person (each child) receives one government-paid education at the school of his or her choice; each person then pays a lifetime of taxes to repay the educational “loan.” No one is taxed to pay for someone else’s “religious” indoctrination.

Everyone receives what amounts to a government loan for a k-12 education and everyone pays a lifetime of taxes to pay back that loan.

Assignment For Monday June 5

 1. We will finish discussing the Establishment Clause Materials (mostly focus on Zelman)

2. Reynolds case (Link); Casebook p. 1856-1863

 Video 9

 

EC Blog Posts for Monday June 5

 School Choice as a Civil Rights Policy: Justice Thomas Concurring in Zelman

 Zelman Facts

 Zelman Hypo

Generality Plus Indirection Equals EC Satisfied

 Mitchell v. Helms: Neutrality vs. No Direct Aid

 Tilton, Hunt and Roemer

First Amendment Assignments for Tuesday June 6 and Wednesday June 7

 Casebook p. 1863-1886; Cuomo ; Fulton (link) ;

 Hosanna-Tabor decision (link); Our Lady of Guadalupe (link)

 

 

Video 10

 

Video 11  

Video 12

 

Video 13

Rosenberger Oral Argument Link

Link to Oyez

Passive Displays and Hecklers' Vetoes

 Let me start with a general question before we discuss the Establishment Clause issue in these cases. 

Suppose an LGBT group got permission from the city of Pittsburgh to put up an artistic display celebrating “Marriage Equality Week.”  The display was located on the Grand Staircase of the County Courthouse.  Further suppose that another group of citizens, calling themselves the “family values coalition,” publicly demanded that the City remove the display. 

Would it be correct to refer to this attempt to get rid of the marriage equality display as censorship? As what the law calls a hecklers’ veto?

If the City removed the display to appease the protesters, would this be a case in which liberty was advanced or one in which liberty is inhibited?

Should we allow offended observers, who could easily have averted their eyes from the display, to deprive the willing audience for the display of an opportunity to view and enjoy it?

If so, again apart from the Establishment Clause, is the attempt in the Allegheny County case to remove the Creche and Menorah displays accurately referred to as censorship?

Now let me read you a comment and get your response to it:

The Establishment Clause does not expressly require government to engage in censorship of the art government chooses to sponsor.  The First Amendment is generally quite hostile to censorship of all kinds.  Therefore, in the absence of clear historical evidence demonstrating that the Establishment Clause was designed to require that which the First Amendment generally forbids, the Court should not interfere with public displays celebrating events of historical or cultural significance merely because they contain or recognize symbols of religious significance.

What are your comments?

The Lemon Test and Allegheny

The "endorsement" test applied in County of Allegheny is really just a way to apply the second prong of the 3-prong "Lemon" test. Here is how the Court has stated the Lemon test:

In order to be valid under the EC, a law touching upon religion must satisfy each of these three requirements:

1. it must have a secular purpose

2. "its principal or primary effect must be one that neither advances nor inhibits religion"

3. it "must not foster an excessive government entanglement with religion"

The "endorsement test" is really a way of thinking about the first and (especially) the second prongs of the Lemon test--a law must not have the purpose or effect of endorsing religion, of expressing approval or disapproval of any religion or any religious belief.

But again, notice that the test is a two-edged sword--laws may neither advance or inhibit religion, neither endorse approval or disapproval of religion.

If including a Nativity display in the public square can be viewed by reasonable observers as "endorsing" approval of religion, can you argue that excluding all religious displays from a public square open to many secular ideas and celebrations can be viewed by reasonable observers as "endorsing" disapproval of religion? In other words, is strict religious cleansing of the public square neutral with respect to religion and religious citizens? Or does it inhibit religion?

Town of Greece--Important Excerpts

First, the Court makes clear that not only is Marsh still good law, it should not be viewed as some kind of a "legislative prayer" exception to the Establishment Clause.

"Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change." p.1793

How does this apply to passive display cases such as those involving a Nativity Display or a Ten Commandments display? Or to Commencement prayer cases or to student-led prayer before football games?

What about the argument that legislative prayer must be "nonsectarian or ecumenical?"  p.1793

  This argument is "not consistent with the tradition of legislative prayer outlined in the Court's cases." p. 1793

Sectarian prayers are fine, because we acknowledge "our growing diversity not by proscibing sectarian content but by welcoming ministers of many creeds." p. 1794 The EC does not require "that legislative prayer may be addressed only to a generic God." p. 1792 (some of this is in the original opinion but has been edited from the casebook)

Government may invite prayer into the public sphere, and "must permit the prayer giver to address his or her own God or gods as conscience dictates." p. 1794 The only constraint on the content of prayers is this:

"If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion," that "would present a different case than the one presently before the Court."  p. 1794

What about those offended by the prayer--the offended observers?

1, See p.1795

2. "Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions." --Town of Greece, 134 S. Ct. at 1826.

Here is how I summarize this last point in a short article I have written:

The Town of Greece majority opinion was also not persuaded by the argument that prayer at town board meetings “coerces participation by nonadherents.”Although there was no actual coercion or intimidation of those wishing not to pray, Respondents argued that some members of the public might feel “subtle pressure” to join in prayers in order to please town board members “who would be ruling on their petitions." In the alternative, Respondents argued that they found the prayers offensive and this made them feel “excluded and disrespected.” The Supreme Court rejected all of these arguments reasoning that “mature adults” should have the capacity to resist subtle pressure and to either leave “the meeting room during the prayer” or remain in the room and quietly decline to join in the prayer. Moreover, in response to Respondents’ argument that sectarian prayers offended them and hurt their feelings, the Court essentially instructed them to grow up and get over it:

“Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.”

In other words, neither subtle pressure to participate nor hurt feelings will suffice to give mature adults a constitutional right to enjoin legislative prayer at town board meetings. Religious liberty under the Establishment Clause does not give dissenters a heckler’s veto over the practice or content of legislative prayers. Or, as Justice Kennedy put it so clearly in Town of Greece, “[s]o long as the town maintains a policy of nondiscrimination,” government does not “engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.”  

 Do not overlook Justice Thomas' concurring opinion (at p.1797) in which he speaks of the EC as a "federalism provision." What does that mean? How would it affect cases such as these?

7th Circuit Upholds Nativity Display

 Becket Fund Press Release

 Some Money quotations:

It turns out the ACLU can’t cancel Baby Jesus. A federal appeals court just ruled that the nativity scene at the Jackson County courthouse can stay, making it one of the first federal appeals courts to apply the Supreme Court’s recognition that religious displays like nativity scenes are allowed their place in the public square. The three wise men and the shepherds can now rest easy. 

And this:

The Seventh Circuit Court of Appeals said that the County’s display “fits within a long national tradition of using the nativity scene in broader holiday displays to ‘depict the historical origins’ of Christmas—a ‘traditional event long recognized as a National Holiday.’”

When SCOTUS speaks the lower courts listen.

   

An Excerpt From My Article on Town of Greece

Relying on Marsh rather than dictum in other decisions, the Supreme Court held that the Establishment Clause does not require generic or nonsectarian prayer. Indeed, as an article in the Harvard Law Review reports, “not only was mandating nonsectarian prayer not required, but requiring nonsectarian prayer was also itself prohibited.”The unbroken history of legislative prayer recognized in Marsh “permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths.”
Indeed, as Justice Alito observed in his concurring opinion in Town of Greece, during the First Continental Congress in 1774, Samuel Adams viewed legislative prayer as a means of unifying delegates from different religious religious traditions. Adams responded to those who opposed legislative prayer because those of different religious traditions “could not join in the same act of worship,” by proclaiming that “he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who who was at the same time a friend to his country.” Echoing the spirit of Samuel Adams, the majority opinion concluded, that “[s]o long as the town maintains a policy of nondiscrimination,” legislative prayer is constitutional and the “content of the prayer is not of concern to judges.”