Monday: Finish this assignment from last week:
Reynolds case (Link); Casebook p. 1856-1886;; Cuomo ; Fulton (link); Read: Nebraska Revised Stats sections 20-701 to 20-705 (link)
New:
Tuesday & Wednesday:
--Hosanna-Tabor decision (link); Our Lady of Guadalupe (link)
-- Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900(notice Justice Thomas's concurring opinion in particular)
I. Reynolds (1878)—Religious belief and opinions are protected, but religiously-motivated conduct (i.e. religious exercise) is not protected.
II. Sherbert (1963) & Yoder (1972)—free exercise (conduct) is protected under a compelling interest test when a law substantially burdens religiously-motivated conduct.
III. Smith (1990) (back to the belief/conduct distinction)—religious belief and opinions are protected, but religiously-motivated conduct is not protected against neutral laws of general application.
IV. Post-Smith (1990 to present)—the Court attempts to define which laws are not neutral or not generally applicable. Also begins to question whether Smith should be overruled.
WASHINGTON – A diverse coalition of religious groups asked the Supreme Court late yesterday to block New York’s mandate forcing them to cover abortions in their employee health insurance plans. In Diocese of Albany v. Harris, a group of Anglican and Catholic nuns, Catholic dioceses, Christian churches, and faith-based social ministries initially sued over the mandate in 2017. After New York courts declined to protect the religious institutions, Becket and Jones Day asked the Supreme Court to step in. In 2021, the Justices reversed the lower courts’ rulings and told them to reconsider the case. However, the state courts ignored the Supreme Court and again refused to protect religious organizations, leaving them no choice but to return to the Supreme Court (Watch this short video to learn more).
When the New York State Department of Financial Services initially proposed the abortion mandate, it promised to exempt all employers with religious objections. However, after facing pressure from abortion activists, New York narrowed the exemption to cover only religious groups that primarily teach religion and primarily serve and hire those who share their faith. This exception does not apply to most religious ministries because they seek to serve all people, regardless of faith. For example, the exemption doesn’t extend to the Carmelite Sisters for the Aged and Infirm and their Teresian Nursing Home because they serve the elderly and dying regardless of religious affiliation.
“New York’s abortion mandate is so extreme that not even Jesus, Mother Teresa, or Mahatma Gandhi would qualify for an exemption,” said Eric Baxter, vice president and senior counsel at Becket. “The Justices should exempt religious organizations once and for all so they can focus on caring for the most vulnerable.”
After New York courts refused to protect religious organizations, the religious groups asked the Supreme Court to take their case. In 2021, the Court reversed the unfavorable rulings from New York state courts and told them to reconsider the case in light of Becket’s landmark victory in Fulton v. City of Philadelphia. Despite this, the state courts ignored Fulton, forcing the religious groups back to the Supreme Court once more to protect their freedom to serve according to their faith.
“Religious groups in New York should not be required to provide insurance coverage that violates their deeply held religious beliefs,” said Noel J. Francisco, partner-in-charge of Jones Day’s Washington office. “We are asking the Court to protect religious freedom and make clear that the mandate cannot be applied to this diverse group of religious organizations.”
The Court will consider whether to hear the case later this fall.
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.”
As we leave the Establishment Clause behind, you should keep in my Justice ("Professor") Kavanaugh's summary of the current EC doctrine from his concurrence in American Legion:
"[T]he Court today applies a history and tradition test in examining and upholding the constitutionality of the Bladensburg Cross....And the cases together lead to an overarching set of principles: If the challenged government practice is not coercive and if it (i) is rooted in history and tradition; or (ii) treats religious people, organizations, speech, or activity equally to comparable secular people, organizations, speech, or activity; or (iii) represents a permissible legislative accommodation or exemption from a generally applicable law, then there ordinarily is no Establishment Clause violation. The practice of displaying religious memorials, particularly religious war memorials, on public land is not coercive and is rooted in history and tradition. The Bladensburg Cross does not violate the Establishment Clause. . . ."
After we finish our discussion of Zelman, please feel free to ask me anything about the EC.
No longer a Wall, but an affirmation of confident pluralism and authentic neutrality.
-- Monday: Finish discussion of Rosenberger; Casebook p. 1827-1856 (we will focus primarily on Zelman)
Be sure to watch these videos:
-- Tuesday & Wednesday:Free Exercise Clause:
Reynolds case (Link); Casebook p. 1856-1886;; Cuomo ; Fulton (link); Read: Nebraska Revised Stats sections 20-701 to 20-705 (link)
The dissent's assertion that no viewpoint discrimination occurs because the Guidelines discriminate against an entire class of viewpoints reflects an insupportable assumption that all debate is bipolar and that antireligious speech is the only response to religious speech. Our understanding of the complex and multifaceted nature of public discourse has not embraced such a contrived description of the marketplace of ideas. If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint. The dissent's declaration that debate is not skewed so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways.
In my opinion, whether a restriction is viewpoint discriminatory [depends upon the answer to the following] realistic question: Are there any identifiable ideological groups of thought that are put at a disadvantage relative to their competitors? When religious speakers are excluded (even if 'religious' includes atheists), their perspective is put at a disadvantage vis-a-vis dozens of other competing worldviews. Thus, a person who thinks the welfare reform bill is bad because it is contrary to Marxist theory can get government money and proclaim his views, but the person who thinks it is bad because it is contrary to Christ's admonition to feed the poor cannot.
Finally, consider this hypo involving content vs viewpoint discrimination.
Suppose the University of Virginia decided to subsidize student publications concerning the history of the state of Virginia. So, groups writing about Virginia history could be funded, but not groups writing about national politics, or feminism, or socialism, or Christianity.
Content? or Viewpoint?
But now, suppose Wide Awake wished to publish a student journal on Virginia History from a Christian perspective and was denied funding because its approach to the history of Virginia ""primarily promotes or manifests a particular belief in or about a deity or an ultimate reality."
Content? Or viewpoint?
Basically, the Court upheld the programs struck down in Felton I and Ball.
The remedial courses are purely secular (they are regular public school courses simply being taught on private school campuses. As the Court puts it on p. 1832:
. . . We . . . hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here. . . . Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.
We turn now to Aguilar's conclusion that New York City's Title I program resulted in an excessive entanglement between church and state. Whether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis. We have considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion, Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 674 (1970), and as a factor separate and apart from "effect," Lemon v. Kurtzman, 403 U.S., at 612 -613. Regardless of how we have characterized the issue, however, the factors we use to assess whether an entanglement is "excessive" are similar to the factors we use to examine "effect." That is, to assess entanglement, we have looked to "the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority." Id., at 615. Similarly, we have assessed a law's "effect" by examining the character of the institutions benefited (e.g., whether the religious institutions were "predominantly religious"), see Meek, 421 U.S., at 363 -364; cf. Hunt v. McNair, 413 U.S. 734, 743 -744 (1973), and the nature of the aid that the State provided (e.g., whether it was neutral and nonideological), see Everson, 330 U.S., at 18 ; Wolman, 433 U.S., at 244 . Indeed, in Lemon itself, the entanglement that the Court found "independently" to necessitate the program's invalidation also was found to have the effectof inhibiting religion. See, e.g., 403 U.S., at 620 ("[W]e cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion . . ."). Thus, it is simplest to recognize why entanglement is significant and treat it--as we did in Walz--as an aspect of the inquiry into a statute's effect.
