Justices’ Disappointments Surround Supreme Court’s Decision that Free Exercise Clause Permits Exemption from Philadelphia’s Foster Placement Policies

Fulton, et al., v. City of Philadelphia, et al., No. 19-123.  Opinion of the Court by Roberts, C.J., issued June 17, 2021.


The Catholic Church has long been involved in providing services to children in need.  Until recently, Catholic Social Services of Philadelphia, under contract with the city, evaluated potential foster parents and made recommendations to the city for placement.  However, when Catholic Social Services disclosed that it would not certify same-sex couples for placements, Philadelphia determined that it would not enter into another contract with Catholic Social Services unless Catholic Social Services would agree to certify same sex couples for foster care service.

Litigation ensued, notwithstanding that no same sex couple has ever requested or been denied certification by Catholic Social Service.

A federal district court denied  Catholic Social Services request for injunctive relief, finding that the agency was unlikely to prevail on either a Free Exercise or Free Speech claim, as a neutral law of general applicability is not subject to Free Exercise challenges, and Free Speech principles were inapplicable where the social services agency was certifying for a government agency.

The Third Circuit agreed.  The Supreme Court granted certiorari, having in mind whether or not it ought to overrule Employment Division of the Department of Human Services of Oregon v. Smith, 494 U.S. 872 (1990).

Employment Division of the Department of Human Services of Oregon v. Smith (“Smith”), supra, held that neutral laws of general applicability are not subject to Free Exercise challenges.

In this case, the Supreme Court declined to revisit Smtih, deciding instead that because Philadelphia’s contract with Catholic Social Services included the potential for exemption from same-sex services, the possibility of exemption removes the agreement from consideration as would apply to “neutral laws of general applicability”.  

The Supreme Court found it unquestionable that Philadelphia’s refusal to enter into an agreement with Catholic Social Services, and its retroactive rejection of certifications already made, substantially burdened religious exercise by forcing Catholic Social Services to exercise its faith and refrain from providing services to the city, or by abandoning its faith and providing those services.

The Court could find no compelling reason for rejecting Catholic Social Services, particularly as no harm could be envisioned from continuing to accept their services.  If a request for certification of a same-sex couple were presented, that request could be presented instead to another agency that could accept the couple. 

The Court rejected Philadelphia’s arguments that it ought to have more latitude and received more deference in Free Exercise matters when the city acts in a managerial capacity.  The Court found no basis in the law for abandoning constitutional principles on the basis of the City’s role.

Heckling the Umpire.  The Court’s narrow decision in this case precipitated the issuance of three separate concurrences, each reflecting the joining justices’ disappointment in not overruling Smith.  Justice Alito has published a 77-page history of Free Exercise jurisprudence, which includes a scathing assessment of the Court’s opinion, offering that it might as well have been written in disappearing ink.  All Philadelphia needs to do to avert the Court’s decision is remove the exemption language.  This would place petitioners back at the beginning, with another cycle of litigation ahead.

Fulton v. Philadelphia, No. 19-123 (S. Ct.) June 17, 2021  

 






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

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

 

 

The Preacher Talked to Me and He Smiled: Supreme Court Upholds Injunction Permitting Minister’s Presence at Alabama Prisoner’s Execution

Commissioner v. Smith, No. 20A128, 592 U.S. ____ (February 11, 2021).


Justice Kagan, with three others, has opined that Alabama failed to meet the strict scrutiny test applicable under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Alabama’s global prohibition on ministerial presence at execution substantially burdens a prisoner’s religious exercise, and Alabama failed to demonstrate that this preclusion is the least restrictive means of advancing the compelling state interest in prison security.  As such, the injunction permitting the prisoner to have a religious presence at execution is proper and will not be dissolved.

Justice Thomas, without writing separately,  would have granted the petition to dissolve the injunction.

Justice Kavanaugh and Chief Justice Roberts would grant the petition as reflecting a non-discriminatory policy, but would encourage states to implement measures that would fulfill requests such as the inmate’s here and thereby avoid protracted litigation. 

 

Commissioner v. Smith, 20a128, 592 U.S.__(February 11, 2021)




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

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)