Free Exercise Jurisprudence: Does Mahmoud Silently Overrule Smith

 What is left of Smith’s holding that there is no free exercise claim against laws that are neutral and generally applicable?

Answer—not much, in fact I have argued that Smith has been silently overruled by Mahmoud.

Covid cases—Cuomo, Tandon, etc.

This Court’s decisions have made the following points clear.

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise. This is the most favored nation theory that some of us have been arguing since Smith and Lukumi were decided. Even if the law is broadly applicable, if it contains any comparable secular exemption then it is not generally applicable under Smith.

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. Comparability is concerned with the risks various activities pose, not the reasons why people gather.

Fulton v. City of Philadelphia (unanimous decision Chief Justice Roberts opinion)

Fulton holds that even if a law is otherwise completely neutral and generally applicable, it will still trigger strict scrutiny if it provides for some kind of ad hoc discretionary individualized exemption process: “A law is not generally applicable if it “invite[s]” the government to consider the particular reasons for a person’s conduct by providing “‘a mechanism for individualized exemptions.’”

In Fulton, the antidiscrimination policy concerning prospective foster or adoptive parents applied generally “unless an exception is granted by the Commissioner or the Commissioner’s designee, in his/her sole discretion.” The mere existence of that discretionary exemption process renders the law not generally applicable and thus strict scrutiny applied.

Does Mahmoud overrule Smith?

Justice Alito decided that the burden on the right of parents to direct the religious upbringing of their children was so severe in Mahmoud as to trigger strict scrutiny under the Free Exercise Clause “regardless of whether the law is neutral and generally applicable.” 

In other words, the precedent the Court applied was Yoder (and Pierce v Society of Sisters), not Employment Division v Smith.

So, does Mahmoud overrule Employment Division v. Smith? Or is it merely an exception to the general applicability test created by Smith?

Mahmoud does not explicitly overrule Smith, but I think it effectively and mortally wounds Smith’s general applicability test.

Smith may not be dead, but it is expiring on life support. Mahmoud makes clear that Yoder is not a narrow exception for the Amish, nor has it ever been confined “to its facts.” (p. 29)

 To the contrary, says Justice Alito, “Yoder is an important precedent of this Court…[and it] “embodies” a general principle of law “and that principle provides more robust protection for religious liberty than the alarmingly narrow rule that the dissent propounds.”

Just as the Lemon test was mortally wounded before Kennedy v. Bremerton mercifully euthanized that rule, Smith is equally dead as a doornail and only awaits the mercy of being finally put to sleep by the Court sometime in the near future.

Yoder, not Smith, is now the law of Free Exercise, and that law is that a substantial burden on the free exercise of religion triggers strict scrutiny “regardless of whether the law is neutral or generally applicable.” (p. 36)

When government substantially interferes with parental rights, strict scrutiny applies, even if the law is neutral and generally applicable.

When government shuts the doors of churches and religious assemblies, as it did during the Covid years, strict scrutiny applies, even if the law is neutral and generally applicable.

And when government otherwise substantially interferes with religious exercise, strict scrutiny applies, even if the law is neutral and generally applicable.

Smith has been repudiated, and Yoder and the substantial burden test is now the law of Free Exercise.

Originalism vs Living Constitution: My Lecture

 

In case you are interested, here is a video lecture in which I discuss the Great Debate--Originalism vs. The Living (Common Law) Constitution:

Duncan Originalism vs Living Constitution:

https://unl.yuja.com/V/Video?v=6827926&node=29033304&a=188047276&autoplay=1

 

 I share it just in case you are interested in learning about the Great Debate about how to read the Constitution. And here are two good short articles on originalism vs the Living Constitution:

 

Strauss article (link); Sollum Article (link) 

 

 Finally, here is a quotation from Justice Gorsuch to the NYT (link) on his view of originalism:

     So what originalism is, is just the simple idea that you are entitled to rely on the written words in the Constitution. We the people, the American people, bothered to write it down. Write down the law. It was the first written constitution of its kind in human history. And so when it promises you a right to a jury trial, when it promises you a right to confront your accuser, when the laws enacted promised somebody by treaty certain rights, an originalist, a textualist, will take that seriously. And there’s going to be no pragmatic argument, no argument from efficiency. Nothing that can undermine that. Now, if you want to change the law, there are lawful processes for doing so, but the originalists and textualists, simply put, seek to honor written law.

It seems clear that he duty of a court is to follow the written law (as opposed to amending the written law).

Prof. Solum on Originalism Prof. Strauss on Living Constitution

I would like you all to pay careful attention to Prof. Solum's statement on originalism and Prof. Strauss's statements on Living Constitutionalism.

Here are some questions to consider

1. What is Originalism?

2. How does Originalism differ from Living Constitutionalism?

3. Is Originalism required if the Court is to follow the rule of law as opposed to the rule of men? What is the Rule of Law? Is a "common law" constitution part of the Rule of Law or the Rule of Man?

4. If ratification by three-fourths of the states is what gives the Constitution legitimacy as coming from we the people in the several states, what are we to think when the Court employs  "living constitutionalism" to judicially amend the Constitution? Is this merely a legitimate form of the common law?

5. If the Court can't judicially amend the Constitution to keep it up to date with the changing circumstances of 21st Century America, how will we go about dealing with change?

 

6.  Prof. Strauss defends the living, common law constitution this way:

 " A common law Constitution is a "living" Constitution, but it is also one that can protect fundamental principles against transient public opinion, and it is not one that judges (or anyone else) can simply manipulate to fit their own ideas." If the common law constitution is mostly about precedential opinions from earlier cases, exactly who wrote those opinions? Is the common law constitution "turtles [i.e., judges] all the way down"? Today's judges remodeling and extending the opinions of earlier judges? 

{See Wikipedia: "Turtles all the way down" is an expression of the problem of infinite regress. The saying alludes to the mythological idea of a World Turtle that supports a flat Earth on its back. It suggests that this turtle rests on the back of an even larger turtle, which itself is part of a column of increasingly larger turtles that continues indefinitely}

Court Protects Girls' and Women's Sports: WEST VIRGINIA ET AL. v. B. P. J.

 NYT: 

The Supreme Court upheld West Virginia and Idaho state laws on Tuesday that bar transgender athletes from playing on girls’ and women’s sports teams, a decision with nationwide implications involving an issue championed by President Trump.

Justice Brett Kavanaugh, writing for the [6 tp 3] majority, said states “may maintain women’s and girls’ sports for biological females.”

 

Common sense and fairness prevails! 

"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.

Fifth Circuit en banc in Classroom Ten Commandment Case

Stephanie Barclay writes

 

Money quotation:

 But the Founding-era hallmark of a religious establishment was mandatory attendance at religious services, not mere exposure to religious content. In Louisiana and Texas, students are not being required to pray, to affirm religious belief, or to participate in any religious observance, or asked to view others undertaking these exercises. They are being exposed to a display of text – text that, whatever its religious significance, the states contend has historical importance to the development of American law.

Any governmental acknowledgment of religion could be characterized as “coercive” to someone who disagrees with it. That is precisely the open-ended, policy-driven inquiry that Kennedy rejected in favor of historical analysis.

Nebraska Lawyers are Courageous: Meriwether v Hartrop

 Meriwether v Hartrop is a case about competing narratives, competing versions of the truth. Is biology a social construct? Can a man become a woman by identifying as a woman? Can a woman become a man by identifying as a man? Or is biology (and faith) real and inform us that gender is fixed at birth regardless of personal choice and identity?

Meriwther believed his version of the truth. Is his version a reasonable understanding of reality? If so, can his government employer compel him to say things he believes are untrue? To borrow from 1984, does he have the right to hold to his belief that 2 plus 2 make 4? Or must he say 2 plus 2 make 5?

If he had been a coward, it would have been so easy to use compelled pronouns and protect his job and his livelihood. But he chose to be a courageous leader, and declined to say something he believed to be untrue.

Here is a way to think about it. If you shared Meriwether's views about biology and gender, what would you do if you were at a meeting of student group leaders, and the person who called the meeting said "Let's start this meeting by introducing ourselves and sharing our pronouns?" Would you set aside what you believe to be true and share your pronouns to appease those who hold the competing narrative about biology and gender? Would you sacrifice what you believe to be true in order to be "nice"? Does being nice require you to appear to embrace a narrative you believe is untrue?

Courage is contagious; when you take a stand for truth it makes it easier for the next person to do so. But cowardice is also contagious. And the Law College's mission statement makes courage part of our mission.

So be courageous. And to paraphrase Charlie Kirk's advice, live large, love God, find love, get married, and have as many children as God gives you. Marriage and children are wonderful gifts to make life on this planet full of love and joy.

Be seeing you!