Pronouns and Principles: Sixth Circuit Holds that University Faculty Member’s Speech and Religious Beliefs Enjoy First Amendment Protections

Meriwether v. Hartop, et al, Jane Doe, and Sexuality and Gender Acceptance, No. 20-2389 (6th Cir.).  March 26, 2021.


The United States Court of Appeals for the Sixth Circuit, observing that the trial court had lost sight of fundamental First Amendment principles, has vacated dismissal of a professor’s case alleging that his employer, state university, impermissibly infringed on his First Amendment speech rights and impinged on his Free Exercise interests.  

 

Accepting solely for purposes of its review that plaintiff Meriwether’s allegations are true, the court recounted that in the course of teaching that Meriwether, a professor at Shawnee State University for 25 years, referred to a student as a male.  That student approached Meriwether after class and demanded to be referred to as a female.  Meriwether demurred based on religious principles and an inability to affirm that which he believes to be untrue.  The student uttered a coarse epithet and promised to have Meriwether fired.

 

After reporting the incident, one colleague opined that religion ought not be taught at the school, knowing that Meriwether had done exactly that for a quarter of a century.   The school insisted that Meriwether conform to its anti-discrimination policies by conforming his language to the student’s preference or by not using pronouns at all.  As Meriwether stated he could not on principle do the first nor in practice do the second, the school administrators attempted to reach a compromise in which Meriwether would address the student with neutral terms.  

 

The student complained repeatedly, prompting Title IX review, which concluded that Meriwether had created a hostile environment in violation of that law, which guarantees equal treatment in education.  Meriwether presented a grievance through the faculty union which prompted laughter from the hearing official, who would later be the reviewing official on appeal.  That reviewing official’s delegate determined that Meriwether was undeserving of an accommodation based on religious principles perceived to be bigoted, and therefore unworthy of legal protection. 

 

Meetings were held and memoranda were generated and the compromise offered to Meriwether was revoked.  He was instructed to conform to the school’s speech policies or face discipline, which might include termination or suspension without pay.  A written warning to that effect was added to his official file.  

 

Meriwether sued and lost in federal district court.  On appeal, the Sixth Circuit has stressed that teachers at public universities do not lose First Amendment rights by virtue of that status. The university’s interest in administration, premised on inchoate fears, did not outweigh the faculty member’s speech rights.  Statutes and policies intended to ensure the fair treatment of all are not superior to all other statutes and policies, the court observed.  The finding of a violation of Title IX was in error where there was no pervasive culture making student life intolerable. 

 

The Sixth Circuit concluded that the school had compelled speech by demanding that Meriwether use pronouns deemed acceptable according to policy, and compelled silence in that speech without pronouns was impossible, and an explanation of his views on his syllabus was denied, as was his request for religious accommodation, none of which, subject to development of the record, may be constitutionally tolerable.  Equally problematic was the school’s failure to treat Meriwether’s beliefs even-handedly.  The court found the hostility displayed toward Meriwether troubling and contrary to Supreme Court precedent.  

 

The case has been remanded to the federal trial court for further proceedings.  

Meriwether v. Hartop, et al. No. 20-3289 (6thCircuit).Opinion March 26, 2021

From Press Immunity to Impunity: Dissenting Senior U.S. Court of Appeals Judge for D.C. Circuit Suggests Overruling New York Times v. Sullivan

Tah and McClain v. Global Witness Publishing, et al., No. 19-7132 (D.C. Cir.) March 19, 2021.

Defendants Global Witness Publishing and Global Witness (“Global Witness”) published an investigation into bonuses paid to plaintiffs as members of a government entity engaged in negotiating to conclusion an oil lease of unprecedented significance for Liberia. Plaintiffs sued Global Witness for libel as Global Witness’ report on Liberian corruption intimated that the bonuses were bribes.

The United States District Court for the District of Columbia dismissed anti-Slapp proceedings, as federal courts are not bound by the District of Columbia Anti-Slapp Act. This conclusion was affirmed on appeal.

Similarly, the trial court’s dismissal of the libel action because the publication was subject to First Amendment protections. Plaintiffs assertions concerning ‘actual malice’ were without foundation in law, the court found. This conclusion, also affirmed on appeal, generated significant debate among the panelists about the meaning and future of the “actual malice” standard for libel actions concerning public figures, as established in New York Times v. Sullivan, 376 U.S. 254 (1964).

New York Times v. Sullivan insulated the press from suit for defamation for publication or broadcast of arguably defamatory material unless the publication was made with “actual malice,” either a knowledge that the published information was false or a reckless disregard of its truth or falsity. Id. Subsequent to the decision, it has been noted that meeting the “actual malice” standard is difficult, to say the least.

The present Global Witness affirmation of dismissal of plaintiffs’ claims prompted Senior Circuit Judge Silberman to dissent with some force, taking aim not only at currents in jurisprudence but also offering concerns about the consolidation of power in the media and in the technological giants engaging in distribution and curation of online publications.

The “actual malice” standard is unworkable and in this case has been erroneously interpreted, Judge Silberman declared, causing a rift between the D.C. Circuit and the Second Circuit. The standard for dismissal is “whether a complaint is plausible, not whether it is less plausible than another alternative explanation,” quoting Palin v. New York Times, 940 F.3d 804, 815 (2nd Cir. 2019). Dissent, Slip. op. at 15.

More significantly, New York Times v. Sullivan, Judge Silberman offered, echoing the views of Supreme Court Associate Justice Clarence Thomas, was a policy decision presented as interpretation of the Constitution. While it can be argued that the decision was necessary to protect the press from an avalanche of libel suits intended to discourage coverage of civil rights activities, the opinion itself is not jurisprudentially sound, as it is lacking in grounding in the facts and as it departs from centuries of common law. Id.

The Silberman dissent brooks activist judges no mercy. By “constitutionalizing” policy, the Supreme Court has embraced the standards of communist regimes. Once a principle is established, it will not be willingly relinquished. Dissent, Slip. Op. a 16. If comparing the Supreme Court’s actions to those of regimes antithetical to United States’ freedoms were not enough, Judge Silberman next ventured into the theological realm, remarking that an Associate Justice of the Supreme Court had scolded him for a perceived deficiency in regard for the Court. This chiding, Judge Silberman wrote, caused him to sense that the Court is more concerned with “maintaining a veneer of infallibility” than in correcting errors, no matter how far afield the Court had wandered or stepped on the toes of correlative branches. Id.

However much the New York Times v. Sullivan decision sought to promote the freedom of the press at the time the case was decided, today there is great concern, in Judge SIlberman’s mind, about the consolidation of media within one political point of view. Where it was once feared that press consolidation would induce bland homogeneity, that is hardly the case currently, he has observed, as hasty publication of extreme material, with the assurance no liability will ensue, causes no small amount of harm for which, for public figures, there is likely no redress.

When press powers are aligned with technological giants that curate material in line with the political iew of the press, the threat of suppression of ideas is, in Judge Silberman’s view, too real to overlook. While private technological companies are not bound by the First Amendment, suppression of disfavored views strikes the judge as “un-American.” Dissent, Slip. Op. at 22. Where history instructs that control of communication is an essential first step in establishing authoritarian control, the need to consider these issues is pressing indeed, Judge Silberman has written. Dissent, Slip. Op. at 23.

JustLawful Two Cents’ Worth: JustLawful shares the concerns expressed about media “hive mind” and about the capacity of online gatekeepers to work great mischief. JustLawful would never question the power and potency of the manner in which New York Times v. Sullivan has, rightly or not, accorded the press an immunity ordinarily reserved for the sovereign. Yet JustLawful questions whether overruling New York Times v. Sullivan would cause the press to be any more open to divergent thought. Moreover, if New York Times v. Sullivan were overruled with the view in mind to cause openness to divergence of thought, would that not be as much a policy decision as Judge Silberman’s criticism suggests the case has always been?

Tah and McClain v. Global Witness Publishing, Inc. and Global Witness, No. 19-7132 (D.C. Cir.) March 19, 2021.

Not Quite Down Pat: New First Amendment Bivens Action Emerges from TSA Employees’ Interference with Recording of “Pat Down” Search

Dyer v. Smith et al., No. 3:19-cv-921 (E.D. Va.) February 23, 2021


The United States District Court for the Eastern District of Virginia recently denied transportation security agents’ motion to dismiss in a suit precipitated by the agents’ insistence that a travelling couple stop  video recording agents patting down — physically searching outside the clothes — one partner, and that anything already recorded be destroyed. 

The federal district court reviewed and rejected factors cautioning against expansion of Bivens actions, observing that the law is clear not only through decisions but also by custom that there exists a recognized First Amendment right to gather news and, as a corollary proposition, to record officials in the conduct of official business.  The court concluded that in the absence of any available remedy, the couple’s Bivens action may proceed.  

JustLawful Observation:  This straightforward summary may provoke an “of course!” response, but that response might be a bit hasty, given that the court recognized a new Bivens action, when in the wake of Hernadez v. Mesa, 528 U.S. ____ (2020), decided during the last Supreme Court term, it was thought that Bivens actions would soon be unicorns:  fanciful but imaginary.

Counsel for the transportation agents thinks so, too, and is pursuing interlocutory review.E.D. Virginia Opinion:

Dyer v Smith, No. 3:19-cv-921 (E.D. Va.) February 23, 2021

Request for Interlocutory Review:

Dyer v. Smith, No. 3:19-cv-921. Defendants’ Memorandum Supporting Motion to Certify Interlocutory Review

Recent U.S. Supreme Court Consideration of Bivens Actions:

Hernandez v Mesa, 528 U.S. , 140 SCt 735, 206 LEd2d 29 (2020)

Commentary on the Future of Bivens Actions

SCOTUS Sharply Limits Bivens Claims—and Hints at Further Retrenchment. Robertson, C. ABA Practice Points. April, 2020.

When Zeal Outstrips Reason: Second Circuit Upholds Judgment Stemming from Website’s Publication of Allegations of Child Sexual Abuse

Powell v. Jones-Soderman and Foundation for the Child Victims of Family Courts, No. 20-532-CV (2nd Cir.) February 26, 2021.


The United States Court of Appeals for the Second Circuit recently upheld a Connecticut federal court judgment that the founder of a child advocacy foundation had libeled a Connecticut father when, during pending divorce proceedings, she published on her website allegations that the father had committed child sexual abuse. 

On appeal, Jones-Soderman argued that the trial court erred in finding her liable because proof of the falsity of her statements was lacking, and such proof was necessary to overcome her First Amendment defense. Moreover, she said that the trial court failed to give consideration to her good faith belief that she was publishing the truth.  

While the First Amendment may protect commentary on matters of public interest, no such protection extends to demonstrably false statements, which the appellate court found were amply examined by the federal trial court in taking testimony and in admitting to the record state court findings that the allegations of sexual abuse were without merit.  

Jones-Soderman is not entitled to reliance on an “actual malice” standard for publication of defamatory material, the Second Circuit found, but even if she were, that standard would have been met, and it would negate any qualified privilege she might have.  

That Jones-Soderman published statements about the plaintiff when in his ex-wife’s employ in a custody battle and with knowledge that clinicians, state authorities, and the state court had found the abuse claims without foundation.  No qualified privilege may serve as shield in such circumstances, nor may a “good faith belief” in the truth of the published statements be invoked where Jones-Soderman knew of evidence contradicting the claims.

Jones-Soderman’s status as a mandated reporter of child abuse is of no moment with respect to the facts in this case, particularly where no complaint to Child Protective Services was ever made.

Powell v. Jones-Soderberg, No. 20-532 (2nd Cir.)

Going to the Chapel (Again): Supreme Court Enjoins California’s Restriction on Indoor Worship, Chastising Ninth Circuit for Failing to Reach Result “Clearly Dictated” by Supreme Court’s Decision Just Days Earlier

Gateway City Church v. Newsom, No. 20A138 (U.S.) February 26, 2021.

In early February the United States Supreme Court enjoined California’s wholesale preclusion of indoor worship, while leaving in place percentage of capacity limitations and restrictions on singing and chanting indoors during services. South Bay United Petecostal Church v. Newsom, No. 20A136, 592 U.S.       (February 5, 2021).   Four opinions issued, as outlined below

  • Justices Thomas and Gorsuch would grant all the relief sought by the church.  
  • Justice Alito would enjoin the capacity and vocalizing restrictions but would stay the injunction on percentage of capacity restrictions to give California an opportunity to demonstrate that only the restrictions in controversy could halt indoor contagion to the same degree as those in place in activities the state deems essential.  
  • Chief Justice Roberts wrote to reiterate the Court’s earlier expression of the importance of deference to political officials in fashioning pandemic relief, but concluded that “deference has its limits,” observing that the issue of singing indoors may be founded in public health but the conclusion that all indoor public worship is unsafe seems ill-considered.
  • Justices Barrett and Kavanaugh opined that the church had not established entitlement to relief from the singing ban, the scope and applicable tests for which are not, in their views, clear.
  • Justice Gorsuch, with Justices Thomas and Alito, would grant all injunctive relief as California’s imposition of more stringent restrictions on churches than on secular activities cannot survive Free Exercise challenge.
  • Justice Gorsuch opined that California could not demonstrate that its unequally applied measures — including a ban on all indoor worship — were the least restrictive means to achieve the government’s inarguably compelling interest in inhibiting the spread of disease.
  • California cannot demonstrate any cognizable difference between personal crowding and mingling in church versus commercial settings and cannot support a total prohibition of worship, Justice Gorsuch concluded.  
  • The inexplicable imposition of more stringent measures on religious activities than on secular gatherings cannot survive strict scrutiny, Justice Gorsuch opined, commenting that the present case ought not have come before the Court, as the Court’s earlier decisions on the same questions compelled the same results in this case.
  • Justice Gorsuch noted that the focus of the present order is on the wholesale preclusion of indoor worship and that additional challenges might be brought concerning other measures.
  • Justice Gorsuch cautioned against championing the singing exclusion as a reasonable deterrent to disease where the entertainment industry has obtained an exemption from it. 
  • Nor is the scope of the singing exclusion comprehensible:  even if an entire congregation singing together might raise risks, what of a single cantor?  California’s confusing regulations do not deserve particular deference. 
  • Whie California offers that some enterprises have adopted self-help in the form of testing requirements, Calfirnai fails to explain why such adaptations would not be permitted to churches. 
  • In all, Justice Gorsuch concluded, Californaita “must do more to tailor the requirements’ of public health to the rights of its people.”  Statement of Gorsuch, J., slip op. at 6.
  • The ”temporary” justification proffered by California rings hollow where “temporary” bans have been in place for months and the nation is entering a second year of restrictions.
  • Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, observing that as justices they are neither scientists nor experts in public health, into which territory the majority wrongly ventured in this case. The state granted worship parity with similar secular assemblies:  the Court erred in compelling the state to apply rules to churches that apply to less risky gatherings. 
  • The dissenting justices observed that while those who are similarly situated ust be treated similarly, it is not true that those who are not must be compelled to conform to each other, as the Court has done here.  The dissenting justices assert that the same measures such as masking, distancing, singing, and capacity apply to religious and secular activities alike in California.
  • The determination that Free Exercise principles must prevail is faulty in fact, for some religious and secular gatherings are similarly treated, and in law, for the Court has impeded the state in meeting its obligation to promote the health and safety of its people  
  • The Court’s earlier decisions do not compel the present result, the dissent found, because no group was singled out here for inferior treatment  
  • Moreover, as a practical matter, the intrusion of the Court into California’s operations open up entirely new questions to be addressed when time and resources are scarce. If the Court has erred and lives are endangered, the Court will pay no price, the dissent observed, as the justices are insulated by lifetime tenure and physically protected against harm.  

One week after the order was entered in South Bay United Pentecostal Church v. Newsom, supra, the Ninth Circuit denied relief to Gateway City Church, upholding the ban on indoor worship, and concluding that where secular and religious entities were subject to the same restrictions, no constitutional violation could be found, particularly, where houses of worship were not singled out for unfavorable treatment.  Gateway City Church v. Newsom, No. 21-15189 (9th Cir.) February 12, 2021. 

Moreover, the Ninth Circuit found that there had been no showing that the prohibition on indoor gathering was other than a neutral and generally applicable law, requiring no more than rational basis review.  Id.  

Gateway City Church sought relief from the Ninth Circuit’s order in the Supreme Court.  The request was opposed but one day after the opposition was filed that state advised the Supreme Court that the challenged regulations would soon end.

The Supreme Court declined the tacit invitation to allow the church’s request to become moot, and issued an order declaring the Ninth Circuit to have erred, and in particular erred in denying relief to the church when a contrary result was “clearly dictated” by the decision in South Bay United Pentecostal Church.  

South Bay United Pentecostal Church v. Newsom No. 20A136 , 592 U.S. ___(February 5, 2021)

Gateway City Church v. Newsom, 9th Cir. Order February 12, 2021

Gateway City Church v. Newsom, No. 20A138 , U.S. Sup.Ct. Order February 26, 2021

Where Two Or More Have Gathered, Litigation Has Ensued: Maine Church Argues That Recent Decisions Compel The Conclusion That Maine’s Pandemic Capacity Restrictions On Assembly Violate The Religion Clauses of the First Amendment


 

Calvary Chapel of Bangor v. Mills, Governor of the State of Maine, No. 1:20-cv-00156-NT (D. Maine).

Calvary Chapel Church of Bangor, Maine has challenged pandemic-related capacity restrictions on church attendance since shortly after the state imposed those restrictions nearly a year ago.  

The church believes that Maine’s are now the most restrictive assembly limitations in the nation.

Following an appeal to the First Circuit and remand to the federal district court in Maine, Calvary Chapel now argues that recent decisions of the United States Supreme Court and the federal circuit courts of appeals compel the issuance of an injunction against the governor’s restrictions on church attendance.

The church asserts that the state’s pandemic related imposition of limits on church assembly, where similar limits are not imposed on secular entities and activities, unlawfully discriminates against Calvary Chapel of Bangor, in violation of the Free Exercise Clause of the First Amendment.  Moreover, the state’s restrictions impermissibly interfere with the church’s management of its own affairs and, as the restrictions preclude participation in religious services, they violate the Establishment Clause.  

Calvary Chapel of Bangor differs from other congregations that have engaged in challenges to pandemic-related measures.   Calvary Chapel not only serves as a church for community congregants, but also operates a residential program for persons seeking to renew their lives and recover from life-limiting conditions through, among other things, participation in religious assembly.

The pastor of Calvary Chapel of Bangor notes that not only is assembly commanded by scripture, but also that greater fervor is commanded during times of trouble  

The pastor submits that because almost 50 residents are always in place at the residential program, when those residents are called to church services, then community congregants cannot attend, as the gathering would exceed the Governor’s order’s limits.  

Conversely, if congregants were permitted to attend services, the residents would be precluded from doing so. Such a choice diminishes the dignity of all and undermines the effect of the residential treatment program, which envisions full acceptance within the larger community after completion of the program.

The pastor states he finds himself in an untenable situation, as he must choose between violating the law, which has criminal penalties, and violating his beliefs and obligations as minister.

The pastor points out that this choice is an impossible one, and is particularly troubling in a nation founded on principles of freedom of religious worship.

The governor of Maine’s response to the newly filed motion for injunctive relief has not yet been submitted, nor is there any date for hearing established


What follows are links to the Calvary Church brief and the pastor’s declaration and copies of opinions considering challenges to restrictions on Church attendance during the pandemic.

 

Here are links to Calvary Church’s recent submission to the court:

Calvary Chapel v. Mills Renewed Motion for Injunctive Relief

Calvary Chapel v. Mills Declaration of Ken Graves, Pastor

And here are links to recent opinions:

South Bay United Pentecostal Church v. Newsom, 592 US (Feb.5, 2021)

Calvary Chapel Bangor v Mills 1st Cir 2020

S Bay United Pentecostal Church v Newsom (SD Cal 2020) (Dec.)

High Plains Harvest Church v. Polis, 592 U.S. ( ) Dec. 15, 2020

Calvary Chapel Lone Mountain v Sisolak 9th Cir 2020

Calvary Chapel Dayton Valley v Sisolak 9th Cir 2020

Roman Catholic Diocese of Brooklyn v Cuomo 2020

Calvary Chapel Dayton Valley v Sisolak 140 S Ct 2603 2020

S Bay United Pentecostal Church v Newsom 140 S Ct 1613 207 L Ed 2d 154 2020

 

 

No Place Like Stay-at-Home for the Holidays: New York Continues to Defend Against Free Exercise Challenges to Restrictions Imposed on “Houses of Worship”


Agudath Israel of America, et al. v. Cuomo, No. 20-3571; Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20-3520 (2nd Cir.) December 28, 2020.


New York continues to contest the application of strict scrutiny review to portions of an order entered last October singling out “houses of worship” for particular capacity restrictions notwithstanding the determination of the U.S. Supreme Court that this most rigorous review is apt for these circumstances. On Monday, the Second Circuit directed a trial court to enjoin enforcement of the restrictions and to conduct further proceedings in light of the Supreme Court’s and the Second Circuit’s determinations.

In conformity with the United States Supreme Court’s analysis, the Second Circuit found the New York orders are subject to strict scrutiny analysis and are not narrowly tailored to serve the important goal of deterring the spread of COVID-19.

Both Jewish and Catholic entities have challenged, under the Free Exercise Clause of the First Amendment, the New York Governor’s orders that are alleged to be unduly harsh toward religion while favoring “essential” secular enterprises and activities.

The state has limited attendance in churches or synagogues on either a fixed number of attendees or a fixed percentage of capacity basis Although the Governor no longer defends the fixed capacity limits, the percentage of capacity limits remain contested, as the Governor has recently asserted that building code calculations differ for certain activities and this may produce different results for secular and religious activities.

The Second Circuit noted that the Free Exercise Clause will not relieve religious groups or individuals from neutral general laws but where a law unduly burdens religion, that law must be subjected to strict scrutiny.

In these cases, the appellate panel held, the Governor’s action on its face singles out religion for different treatment in the absence of any reason for so doing, and there has been no evidence adduced that lesser risks predominated in designating activities as ‘essential.’

Both the fixed number and percentage of capacity measures failed in the Supreme Court’s view, as the distinction between religious and secular groups is premised on an impermissible view of religion as inessential.

The Governor has never argued that its orders are narrowly tailored to inhibit disease, the appellate court observed, and has conceded that the limits on houses of worship are more severe than needed. The absence of any relationship between the number of persons admissible to a house of worship and its overall capacity only underscores this deficiency in the

Governor’s policy.

The notion that the percentage of capacity rules may be salvageable under rational basis analysis has arisen late in the day and will be reviewed on remand.

Similarly consistent with the Supreme Court’s review of these cases, the Second Circuit stressed that Jacobson v. Massachusetts, 197 U.S. 11 (1905), is not controlling. Not only were different interests involved in Jacobson, but Jacobson itself stressed that exercises of emergency powers must nonetheless be constitutional.

It is not the law that houses of worship are exempt from constraints during public health emergencies. They are subject to emergency regulations but religious entities cannot be subjected to regulations that are different from and more harsh than those that apply to other entities because of their religious nature.

Denial of First Amendment rights is presumptively harmful, the Second Circuit observed. Moreover, the appellate court stated that the trial court erred in its earlier suggestion that observant religious persons could work around some of the restrictions. It is not for courts to interpret or to inject themselves into the meaning of any religious practices, or to suggest that religious groups ought to abandon their practices in favor of equivalents or substitutes in order to avoid constitutional harm.  Such intrusions by the courts would only compound harms to religious interests.

If the Governor’s arguments concerning percentage of capacity limitations are not persuasive on remand, the appellate panel noted, it will be fair for the trial court to presume there has been harm.

The Second Circuit concluded by noting that the public interest is not served by policies that deny constitutionally secured rights where alternatives exist that could avoid such injuries.

Agudath Isr. of Am. v. Cuomo (2nd Cir. 2020) December 28, 2020

From the Same Hymnal: Message of Roman Catholic Diocese of Brooklyn v. Cuo to Be Adopted in Ninth and Tenth Circuits


High Plains Harvest Church v. Polis, 592 U.S. ___ , December 15, 2020; Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.), December 15, 2020.


This week both the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit affirmed the recent New York determination that pandemic restrictions on public gatherings cannot be more restrictive for religious gatherings than for others.  

In the Calvary Chapel case, the Ninth Circuit has concluded that petitioners are likely to succeed on the merits in their challenge to Nevada’s pandemic-related public gathering restrictions because the disparate treatment accorded to secular and religious groups cannot survive strict scrutiny analysis,  Permitting secular activities at 50% of capacity while limiting religious gatherings to 50 persons without reference to capacity unduly burdens religion.  Pending review in the federal trial court, the Ninth Circuit has granted injunctive relief ordering that no more harsh restriction than 25% of fire code capacity may be attached to in-person religious gatherings.  

The Supreme Court has reiterated that the decision and analysis applied to restrictions on religious services announced in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S.  _____, November 25, 2020, and has directed the U.S. Court of Appeals for the Tenth Circuit to address the challenge to Colorado’s pandemic-related restrictions accordingly.  

Three justices dissented because they believe that the case is moot, as Colorado removed the challenged restrictions following the Court’s November determination concerning New York’s emergency measures.  

JustLawful Observation:  Some may be consoled that Christmas and Chanukah gatherings may have been saved by the Supreme Court’s intervention in New York, which will be applied elsewhere, while others may question why it required the intervention of the nation’s highest court to do what custom and practice, even in a public emergency, once might have dictated.  The more comforting lesson may be that the Supreme Court has rejected the states’ arguments that the Court’s early 20th century views of states’ expansive emergency powers permits unequal treatment of religious and secular activities.   Jacobson v. Massachusetts, 197 U.S. 11 (1905)  was and remains good law, but Jacobson did not decide the questions presented in the present cases, and the Court is not willing to expand states’ powers beyond the limits of the First Amendment. 

High Plains Harvest Church v. Polis 20A105 December 15, 2020

Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169 (9th Cir.) December 15, 2020

Roman Catholic Diocese of New York v. Cuomo 20A87 (U.S.) November 25 2020

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

An Even More Perfect Union: Committees of Conservative, Progressive and Libertarian Thinkers Try Their Hands at Drafting a U.S. Constitution Consonant with Their Respective Political Philosophies


It is inescapably apparent, all too often painfully so, that there is great discontent within our nation that runs not just to its operations but to its foundations.  So pervasive is this malaise that its presence may soon surpass the status once held by the weather:  everyone complains about it, but no one does anything about it. 

Not so at the National Constitution Center, which recently published three proposed drafts of a new U.S. Constitution, each drawn in accordance with the points of view of three separate committees of noted conservatives, progressives, and libertarians.

The conservatives, not unsurprisingly, are not as irked by the Founders’ handiwork than others, yet they are vehement in urgining the installation of reforms which would temporally limit public office and which would restore to the Senate an obligation to debate the common good.  

The conservative focus is on minimizing opportunities for mischief that ensue when short term gains are advanced at substantial costs to long term stability in service of shared goals.

The progressives focus on their overarching concern with true democracy and equality, with a particular interest in coming to terms with what, in fact and in practice, are rights, which rights ought to be protected, and in what manner.

Libertarians have even less cavil with the original Constitution, thinking initially that the committee would merely review the existing document and add to each Article and Amendment a succinct “we mean it.”  The were not so pleased with themselves, however, as to forsake drafting with an emphasis on curtailing the existence and exercise of federal powers. 

As such efforts go, this project seems a good one, efforts which might serve as starting points for the seemingly ever more elusive civil discussions that are hoped for but too infrequently had.  

The recently published drafts, with commentary, may be found at the links below.

The_Conservative_Constitution

The_Progressive_Constitution

The_Libertarian_Constitution_1

Supreme Court Holds Federal Officials May Be Liable Individually for Damages for Violations of the Religious Freedom Restoration Act


Tanzin, et al. v. Tanvir, et al., No. 19-71.  Opinion issued December 10, 2020.


The Religious Freedom Restoration Act (“RFRA”) was Congress’ attempt to re-introduce the highest standard of review for analyses of the constitutionality of laws that burden religion.  To survive a RFRA challenge, a measure that substantially burdens religious exercise must serve a compelling government interest by the least restrictive means. 

Prior to the enactment of RFRA, Employment Division v. Smith, 494 U.S. 872 (1990), a decision that remains both widely criticized and widely discussed, held that in general there is no constitutional offense to be found in generally applicable neutral laws that may incidentally burden religion. Enacted in 1993, RFRA was intended to restore the higher standard of review that Smith was perceived to have eroded.  

The scope of available remedies provided but not enumerated in RFRA is the subject of the case just decided, in which the plaintiffs objected to the government’s having placed them on “no fly” lists because, they asserted, they refused to act as informants for religious communities for the Federal Bureau of Investigation.  

Plaintiffs sued federal officials in their individual capacities.  Claims for injunctive relief were mooted by their removal from “no fly” lists, but plaintiffs would not abandon their claims for money damages.

The trial court that dismissed the claims for monetary damages was reversed by the United States Court of Appeals for the Second Circuit, which concluded that the language of RFRA providing “appropriate relief” to claimants and permitting actions against “the government” includes federal officials in their individual capacities.  The Supreme Court has agreed. 

Justice Thomas has proffered a textual analysis in support of the Court’s decision to reject the government’s argument that “government” as used in RFRA is limited to acts of officials in their official capacities, and that “government” cannot extend to the individual assets of federal employees which would be reached to satisfy judgments.

An ordinary and limited meaning of a word in a statute changes where Congress chooses to change the use of the word, Justice Thomas observed.  RFRA expands the definition of “government” to include officials or persons acting under color of law.

Officials are “persons” who are answerable under RFRA and judgments against them can be considered to be relief against the government.

Moreover, the “under color of law” language that appears in RFRA echoes the language of a principal civil rights statute, 42 U.S.C. Section 1983, which has been interpreted to apply to suits against officials in their official capacities. 

In general, “appropriate relief” may be fashioned according to context, but from common law forward money damages against officials have been available even where the sovereign itself is immune from suit.

In addition, although the 1988 Westfall Act precludes common law claims against federal officials, constitutional and statutory remedies are preserved.

Just as the language of 42 U.S.C. Section 1983 is an appropriate source of comparison for analysis of the scope of a cause of action under RFRA, so does the availability of money damages under Section 1983 serve as support for recognizing claims for money damages under RFRA. 

This is all the more apt, Justice Thomas states, where Section 1983 permits relief for violations of First Amendment interests.  In that RFRA was intended to return the law to the status quo ante Smith, monetary damages should be available in service of that end, to re-establish and to maintain a full panoply of relief.  

Congress did not limit redress under RFRA to equitable remedies, although it could have, and it is plain that such remedies will not be adequate, and hence not appropriate, Justice Thomas concluded, where costs have been incurred and losses occasioned which cannot be cured by any form of injunctive relief.

Neither the spectre of separation of powers concerns nor the desire for a presumption against monetary damages, as raised by the government, can transform those questions into matters for judicial intervention, the Court continued, where addressing such questions is the province of the legislative branch. 

With policy soundly committed to Congress, the Court noted that its decision does not in any way diminish the availability of qualified immunity defenses. 

JustLawful Observation:  The brevity of this opinion ought not be confused with the scope of its potential reach.  At a minimum, it will have all officialdom on its toes when it comes to matters impacting religion.

19-71 Tanzin v. Tanvir (12_10_2020)