Social Media Platforms Resist Regulation as Electronic Public Squares, Seeking U.S. Supreme Court Intervention in Ongoing Federal Appellate Litigation Against Texas

Netchoice, LLC and Computer and Communications Industry Association v. Ken Paxton, Attorney General of Texas, No. 21A720 (U.S. Supreme Court). Emergency Application filed May 13, 2022


When the state of Texas passed legislation that would limit the ability of internet social media sites such as Facebook, Twitter, YouTube and others to remove or to ban content the sites deemed undesirable or outside the private companies’ internal rules and user agreements, those companies immediately sought to enjoin the legislation, arguing that Texas’s bill violates the corporations First Amendment rights, including but not limited to exercising editorial discretion over content provided by others. 

The associations advocating for the social media sites successfully obtained an injunction halting the operation of the Texas law.  Recently the United States Court of Appeals, without issuing an opinion detailing its reasoning, stayed the operation of the injunction, prompting the associations to seek the United States’ Supreme Court’s intervention to vacate the appellate court’s order.

Texas, by its Attorney General, observes that the massive online presences of social media sites has caused them to become modern public squares and, as such, when a site its open to some views, it must be open to all.  Alternatively, Texas asserts that the platforms’ conduct may be regulated much as the conduct of common carries is, and that it is not speech but the act of removal of content or banning of posts or accounts that is open to statutory intervention without concern for the First Amendment. 

Social media sites strenuously resist being required to offer appeals from removal of content or banning of accounts, and complain that that reporting requirements imposed by Texas are overwhelming.  The companies state that compliance with Texas’s regime would be prohibitively costly and would require remaking of the corporations business methods, actions which would take a decade to accomplish.

The sites are extremely concerned because active operation of the Texas legislation will impact all operations throughout the United States. 

The petitioning associations enjoy the support of more than a dozen industry-related entities, First Amendment advocates, and others with interest in online activity.

Texas, by comparison, is supported by other states and a few critical voices.

The timing of issuance of a decision on the emergency petition, addressed to Justice Alito as justice for the Fifth Circuit, but in light of the stringent briefing deadline imposed on the parties, it may be that a decision will be forthcoming very soon.

The legislation in issue:

Text of Texas H.B. 20

The emergency petition, Texas’s opposition, and petitioners’ reply:

21A720 Supreme Court Vacatur Application

21A720 Response to Application

21A720 Reply in Support of Emergency Application

Amicus Submissions for Applicants:

21A720 Amicus Brief of Christopher Cox

21A270 Amicus Brief of Reporters Committee for Freedom of the Press, et al.

21A720 Amicus Brief of Professor Eric Goldman

21A720 Amicus Brief of Floor64 d/b/a/Copia Institute

21A720 Amicus Brief of Center for Democracy and Technology, et al.

21A720 Amicus Brief of TechFreedom

21A720 Amicus Brief of Chamber of Progress, et al.

21A720 Amicus Brief of The Cato Institute

Amicus Submissions for Respondent:

21A720 Amicus Brief of Philip Hamburger, et al.

21A720 Amicus Brief of Florida and 11 Other States

 

 

 

 

 

 

 

 

Stay of OSHA Covid-19 Private Employer Vaccine Mandate Dissolved:  Sixth Circuit Panel Finds Employers Failed to Meet Standard for Granting Stay


In re:  MCP No. 165, Occupational Safety and Health Administration, Interim Final Rule; Covid-19 Vaccination and Testing; Emergency Temporary Standard 86 Fed. Reg. 61402. No. 21-7000 (6th Cir.). Order dissolving Fifth Circuit stay entered December 17, 2021.


The United States Court of Appeals for the Sixth Circuit is now administering consolidated litigation from all federal circuits relating to the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS)  issued November 5, 2021.

The Emergency Temporary Standard  mandates that employers with more than one hundred employees require that employees be vaccinated against Covid-19 or be tested frequently and masked.  

On December 17, a three-member panel of judges of the Sixth Circuit dissolved the stay of the ETS entered by the Fifth Circuit Court of Appeals prior to multi-district litigation consolidation.  

Two of the three judges have published an opinion providing  a point-by-point refutation of the Fifth Circuit’s views  One judge has written a separate concurrence.  A third has dissented.  

No stealing bases. It appears that the courts may be experiencing ’emergency’ fatigue, and even if this is not so, skipping procedural steps has been discouraged. Earlier in the week the Sixth Circuit denied motions for initial review en banc.  This will serve to inhibit the litigants in seeking immediate review in the U.S. Supreme Court prior to seeking rehearing en banc and could aid the Supreme Court, if such immediate review is nonetheless sought, in remanding the case to the federal appellate court for further proceedings.  

          In procedurally unrelated but topically similar litigation, the United States Supreme Court has denied a petition to stay New York’s vaccine mandate pending review of a petition for certiorari which argues that New York’s failure to provide for religious exemption from vaccination violates the First Amendment.

The Opinion in the Multidistrict Litigation.  The Sixth Circuit perceives the Covid-19 virus to be an ongoing causative agent, one which has killed people and shut down the economy, which prompted employers to seek guidance from the Department of Labor Occupational Health and Safety Administration (OSHA), which in turn, on November 5, 2021, issued an Emergency Temporary Standard requiring certain employers to require employee vaccination or face covering and frequent testing.

          The Fifth Circuit enjoined implementation of the ETS the day after it was issued.  The court affirmed its decision a week later.

          The Sixth Circuit now observes that OSHA may issue emergency orders bypassing public notice and comment proceedings where grave danger requires employee protection.

          The OSHA emergency measure does not require employee vaccination, the court has found, as employees may be masked and tested or work from home, but employers must maintain vaccination records or face penalties. 

The Sixth Circuit panel has examined the four established evaluative factors to be considered in staying any measure before litigation.

Petitioners’ Likelihood of Success on the Merits.

          Authority for OSHA’s Action Exists.  Contrary to the Fifth Circuit’s determination, the Sixth Circuit perceives that OSHA may regulate infectious diseases within its statutory authority. 

          The “major questions” doctrine cited by the Fifth Circuit is an interpretive tool permitting exception from deference to agency authority, but it is vague and it is in any case inapplicable where agency authority has not been expanded, the court has explained.  

          Same emergency, different authority. The OSHA Covid-19 employer mandate can be distinguished from the eviction moratorium declared unconstitutional earlier this year by the U.S. Supreme Court.  The Centers for Disease Control lacks authority to regulate landlord-tenant relations, as the Supreme Court has found, but here, the Sixth Circuit panel has concluded, OSHA has established authority to regulate workplace safety.

          Moreover, OSHA gathered evidence substantiating its conclusion that an emergency exists.  The Sixth Circuit declined to find that any necessity permitting emergency intervention by OSHA be universal or absolute, but rather found that the persistence of workplace issues prompted issuance of the emergency temporary standard as the last arrow in the Secretary of Labor’s quiver. 

          The federal appellate judges dismissed attacks on the OSHA measure as over or under inclusive, finding that the efficacy of a measure, particularly an emergency measure, need not be perfectly calibrated or accompanied by a cost-benefit analysis.

          The panel dismissed the notion embraced by the Fifth Circuit that the OSHA mandate is in violation of the Commerce Clause, and impact on interstate commerce, such as viral contagion, is sufficient to establish a basis for federal law and federal preemption. 

          The Sixth Circuit judges found the non-delegation doctrine to be somewhat musty and in any case inapposite where it is well established that Congress may delegate to executive branch powers to act in the public interest or to protect public health. 

Whether Irreparable Harm Will Befall Petitioners in the Absence of a Stay. 

The Sixth Circuit explored the irreparable harm issue notwithstanding its view that its analysis of the petitioners’ assertions and arguments fail to demonstrate the likelihood of success on the merits, which could have ended the inquiry because the public interest analysis merges with the likelihood of success on the merits analysis where the government is a party.

The judges dismissed as “speculative” employers’ views of compliance cost, including loss of workers, and noted that if cited for non-compliance, an employer can always assert the impossibility of compliance as a defense.  The potential harm to the public of failure to implement Covid-19 contagion mitigation measures such as the OSHA employer mandate, in light of the harms already incurred by the nation, are staggering, and the risks to the public are only underscored where petitioners have not shown that they are likely to prevail on  the merits.  

Note well:  this panel’s opinion may not be within the judiciary’s bailiwick.

In a separate concurrence, Circuit Judge Gibbons has written to emphasize his view that the judicial branch ought not be as active in policy questions as this litigation has demanded.  The judge notes that questions of what the other branches might have done differently or “sweeping pronouncements” about constitutional law, themselves “untethered” to the present case, invite the judicial branch to exceed its limits.  Separation of powers principles preclude judicial second-guessing of coordinate branches.  Where a court concludes that an agency has acted within its authority and within constitutional bounds, the judge opined, the court ought not press further into realms committed to other branches’ expertise.  

Au Contraire:  Dissenting Judge Opines that Panel Analysis is Wrong

The dissenting member of the panel thinks the question of constitutional and statutory authority is squarely within the power of the judiciary.

The dissent wholly disagrees with the view that the OSHA emergency measure permits employers to decide how to manage workplace Covid-19 risks.  Employers must adopt written policies, demand that employees be vaccinated unless exempt, and pay employees who need time off to get vaccinated.  The mask and testing alternative was, by OSHA’s own admission, designed to be unpalatable as by its operation it imposes costs of testing on employers.

The dissent observes that it is not necessary that petitioners demonstrate a likelihood of success on each and every one of its theories in order to substantiate the need for a stay:  the potential to prevail on one theory would suffice.

Petitioners can demonstrate a likelihood of success, the dissent has concluded, because OSHA has exceeded its authority, which limits the promulgation of emergency measures to circumstances in which employees face grave danger and the emergency intervention is necessary to protect employees.

Where OSHA never made a finding that its rule was necessary, the rule cannot be upheld:  the insufficiency of extant measures, which is the justification offered by the Secretary of Labor, will.not meet the “necessary” standard. 

Moreover, effectiveness is a separate question that cannot be bootstrapped into a determination of necessity.

The dissenting justice rejects the notion that emergency measures, by their very nature, need not be as carefully crafted or supported as normative acts, and this is particularly so where OSHA has had nearly two years to consider protections and to evaluate alternatives.  Where no showing of necessity can be made, the emergency measure cannot be sustained.

Of similar concern is that the Secretary failed to locate a “grave danger” that would support the private employer vaccine mandate.  Although viral infection can be dangerous, there is no evidence showing that contracting the disease is a grave threat, as available data show varying levels of risk among different demographics.

There is no evidence linking contraction of Covid-19 to the workplace.  Those who are already vaccinated are not, by and large, imperiled.  Where a mortality rate of one in two hundred and two cases of infection is said to exist among the unvaccinated, OSHA has not met the “grave danger” requirement, particularly where no link to workplace harm has been shown.  

The dissent questions the panel’s minimization of the substance of the “major questions” concerns petitioners raise where OSHA has never issued an emergency measure of the scope of the Covid-19 employer mandate and, the dissent observes, the question is not simply one of the kind of measure OSHA may implement, but also its scope or degree (emphasis in text). 

Given the Supreme Court’s discussion of the “major questions” doctrine in declaring the CDC eviction moratorium to be invalid, it is not accurate to say, as this panel has, that the “major questions” doctrine is an arcane exception to deference to agency expertise.  

Finally, OSHA’s circumspection in other contexts supports similar caution here, and does not support promulgation of an expensive and unparalleled emergency measure.

Employers will be hamstrung by the costs of compliance and by the potential loss of employees that may ensue.  Similarly problematic is the loss that will result to individuals who submit to vaccination only to learn later, as they may,  that the command to do so was not supported in law. 

The dissent points out that OSHA cannot complain that petitioners have not substantiated their claims where by invoking emergency authority OSHA foreclosed the opportunity for notice and comment that would permit submission of evidence for agency consideration.  


Opinion of the U.S. Court of Appeals for the Sixth Circuit Dissolving Stay of OSHA Mandate

In re. MCP No. 165. Sixth Circuit Order December 17, 2021

Correspondence and Opinion of the U.S. Court of Appeals for the Sixth Circuit Denying Initial Hearing En Banc

In re. MCP No. 165, Sixth Circuit Order December 15, 2021

Order of the U.S. Supreme Court Denying Injunctive Relief with Dissenting Opinion

21A145 Dr. A v. Hochul, No. 21A 145 Order and Dissenting Opinion December 13, 2021

Time and Tide and Textualism: Supreme Court Holds “Sex” in Civil Rights Act Includes Orientation and Transexual Status

GERALD LYNN BOSTOCK v. CLAYTON COUNTY, GEORGIA, No. 17-1618; ALTITUDE EXPRESS, INC., ET AL. v. MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR., CO-INDEPENDENT EXECUTORS OF THE ESTATE OF DONALD ZARDA, No 17-1623; R.G. & G.R. HARRIS FUNERAL HOMES, INC. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL., No. 18-107 (June 15, 2020)


Today the United States Supreme Court held that interpretation of the statutory language of Title VII of the Civil Rights Act of 1964, as amended, compels the conclusion that sexual orientation and transexual status, inextricably bound to sex, are within the meaning of the statute prohibiting discrimination because of sex.

The decision will undoubtedly be hailed as a great victory for rights activists while the opinion of the majority and the opinions of the dissenting justices will undoubtedly provide grist for the jurisprudential mill for years to come.

Justice Gorsuch, writing for the majority, observed that what Congress foresaw when it enacted the Civil Rights Act of 1964 does not mean that the legislation must be myopically interpreted according to that time:

“…the limits of the drafters’ imaginations supply no reason to ignore the law’s demands.  When the express terms of a statute give us our answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.”

Slip. Op. at 2.

Each of the plaintiffs was a long term employee and each was terminated from employment because of sexual orientation or transgender status.  Employers argued that neither orientation nor transgender status are part of Title VII and that, therefore, the terminations were not discriminatory. Three federal circuit courts of appeal interpreted Title VII without consensus.

Statutory construction looks to the “ordinary public meaning” of words at the time of a law’s enactment.  This inhibits judicial meddling in legislative affairs and promotes soundness in public perception of rights and obligations.

Assuming that in 1964 “sex” meant biological sex, the majority wrote, then “because of sex” meant “by reason of” or “on account of” sex.  This establishes but-for causation and obviates the need for parsing concomitant or serial causes.  Once an employment decision is made that would not be made if an individual’s sex were different, liability attaches and it is immaterial if other causes are present.  It does an employer no good to point to other reasons once sex is a reason for a decision.  Indeed, over time the Congress has amended the Civil Rights Act to include liability where sex is a “motivating factor” in a decision.

The Court rejected the employers’ argument that discrimination could only be in reference to others similarly situated, as the statute repeatedly references individuals.  It is of no moment if an employer generally treats women well if in an individual case a decision was based unlawfully on sex.

If sex cannot be relevant to employment decisions, the Court reasoned, then neither can sexual orientation or status, as both are inextricable from sex.

Since enactment of the Civil Rights Act of 1964, discrimination “because of sex” has come to include discrimination based on habitual perceptions or stereotypes or actuarial assumptions.

It is no answer to say that Congress could not or did not foresee sexual orientation or status as a concern at the time of enactment when the statutory language addresses sex and orientation and status are inseparably related to sex.

It makes no difference, the majority found, that orientation or status was not included in the statutory language where those traits are inextricably interwoven in sex.

Concluding that orientation or status is not within Title VII based on Congress’ failure to amend Title VII where it has directly considered sexual orientation in other statutes would be speculation.

Asserting that meanings have changed since 1964 is unavailing where the plain meaning of the statute supplies the answer needed. The breadth of Title VII as it has been interpreted over time cannot be denied.  As such, the Court’s decision in this case is not unusual in light of the many unanticipated decisions flowing from the Civil Rights Act in the more than half century since its passage.

Three Dissenting Justices, Two Dissenting Opinions.   Justice Alito, joined by Justice Thomas, chastised the majority for having confused textualism with legislation, performing the former poorly and usurping Congress’ function in the latter.

The majority has engaged in a “false flag” textualist operation, as neither sexual orientation nor transgender status appear in the text and the form of ‘textualism’ which would permit the legislative updates provided by the majority was denounced by textualism’s primary proponent, Justice Antonin Scalia.

Justice Alito notes that an exhaustive review of dictionaries failed to disclose any incorporation of orientation or status within the meaning of “sex.” Moreover, orientation and status are in fact separable from “sex.”  Plaintiffs’ counsel conceded at oral argument that if an employer were to prohibit hiring on the basis of gay or transgender status but hiring would be without knowledge of biological sex, this practice would not be discrimination “because of sex.”

This very concession makes the majority’s reasoning all the more lacking, Justice Alito found. Moreover, if an employer is unaware of a potential employee’s sexual orientation or status, that employer cannot be found liable for intentional discrimination on that basis.

Justice Alito sees a rich irony in the majority’s effective statutory amendment under the guise of ‘textualism’.  Although the majority purports to interpret the statutory language as it is written, the majority overlooks more than a half century’s interpretations of that text, all the while declaring its ‘judicial humility’.

The ramifications of the Court’s decision cannot be overlooked.  The decision may impact facilities access, sports participation, housing, religious employment, and health insurance coverage for gender reassignment.  Speech freedoms may be implicated by forms of address and language.

Writing separately in dissent, Justice Kavanaugh opined that Congress and not the Supreme Court must address the question before the Court.  While stressing his position that sexual orientation and transgender stratus must fall within the law, the decision maker on this policy belongs to the legislative branch.

Justice Kavanaugh questioned the utility of the literalist textualism that he saw in the majority’s view, as the law requires that interpretation look to the ordinary, not the literal, meanings of words and phrases.  A rigid literal approach is not a good textual approach, according to textualism’s proponents.  And literal interpretations, disregarding as they may the everyday meaning of words, fail to perform the essential work of the law, which is to put the citizenry on notice of what the law is.

Equally problematic is the majority’s decision to rewrite history in creating its new interpretation.  To disregard history serves no goal well, no matter how laudable in principle that goal may be.  Historically sexual orientation discrimination has been seen as a form of discrimination separate from sex discrimination.

While it is understandable that those affected and those who support them would find joy in the majority’s decision, Justice Kavanaugh fears that the majority’s methodology will be questioned by many, and that, as a result, many will simply not buy it. A lack of confidence in the opinion is of little aid to those supporting the conclusion and undermines confidence in the Court as an institution.

17-1618 Bostock v. Clayton County (06_15_2020)

 

 

 

 

 

When Constitutional Clauses Collide:  Citizens’ Challenge to Montana’s Tax Advantaged School Choice Plan Seeks First Amendment and Equal Protection Review.

Espinoza, et al. v. Montana Department of Revenue, et al. No. 18-1195.  Oral argument set for January 22, 2020.


Many families hope that education will pave the way to successful adulthood.  Frequently private schooling is sought to serve that end, but many families find that no matter how arduously they work, the funds necessary to obtain that private schooling remain elusive:  scholarship help is a necessity for many who want to send their children to private school.   

In 2015, Montana enacted legislation providing a dollar-for-dollar tax credit, up to $150.00 annually, for donations to scholarship providing non-profit entities.  The non-profit entities would in turn use the donations to award scholarships, paid directly to the schools.  

Some 28 states have enacted at least 57 programs similar to Montana’s, called “school choice” programs.   Almost all private schools in Montana were qualified recipients of these tax advantaged scholarships. Yet very many of these schools were directly or indirectly affiliated with religious institutions.

Montana’s Constitution, Article X, Section 6, Part 1 prohibits the payment of state money, directly or indirectly, to fund religious activity.  This limitation was incorporated in the tax credit statute. Following enactment of the tax credit, state tax authorities promulgated a regulation echoing the preclusion of the use of tax money for religious entities.

Fearing that scholarships were in jeopardy, parents sued the state to enjoin it from precluding awards of scholarships to religious educational institutions, asserting that precluding aid would violate their First Amendment and Equal Protection rights.  The state countered that permitting the scholarships would run afoul of the state’s First Amendment and state constitutional obligations. 

The parents prevailed in the trial court but on appeal the Supreme Court of Montana, unable to split the constitutional baby between sectarian and nonsectarian beneficiaries of the tax credit program, declared the entire statute unconstitutional.  

The matter is now before the Supreme Court. 

Petitioners’ Challenges.  Petitioners urge the United States Supreme Court to reject the Montana Supreme Court’s wholesale invalidation of the entire tax credit statute as in violation of the federal religion clauses.  The parents ask the Court to determine the Montana state constitutional amendment forbidding aid to religion to be unconstitutional as applied to them, and to find Montana’s actions to be discrimination against religion in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Petitioners point out that Montana’s prohibition on state funding of any religious activity had its origins in the anti-Catholic Blaine Amendments of the 19th Century.  As religion is an inherently suspect clause, the state constitution as applied offends the 14th Amendment Equal Protection clause, petitioners argue.  

The wholesale ban on any and all state aid to religion does not support government neutrality but rather evinces hostility toward religion and, as such, cannot survive constitutional review, petitioners argue.  This is true, petitioners assert, whether any of the tests of Zelman v. Simmons-Harris, 536 U.S. 639 (2002) or Lemon v. Kurtzman,   403 U.S. 602 (1971) or the teachings of the recent Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012  (2017) are applied.

Zelman requires only a religiously neutral program with choice centered in the individual, not the state, which petitioners assert is true of the 2015 Montana legislation.  In contrast, the state’s ban of all aid is hostile, not neutral, and works to deprive individual families of choice. Petitioners submit that however awkward it may be in application, Lemon in no sense endorses the antipathy to religion that Montana’s actions evince.

Montana’s dismantling of the tax credit program, which was available to all without respect to religion, advances no secular purpose where, petitioners argue, its only effect is to trample the rights of the religious with no concern for students.  Petitioners urge that the preclusion of state funding of religious professionals’ training, found to be unconstitutional in Locke v. Davey, 540 U.S. 712 (2004), is inapposite, for that case concerned direct aid to churches in developing their clergy, which is not true of the Montana case.   

Montana’s Response.  Montana does not argue mootness, but does argue that the Montana Supreme Court’s invalidation of the tax advantaged school choice plan does away with constitutional concerns.  All aid has been precluded: no hostility, disparity or discrimination can be found where the statute no longer exists.  

Montana perceives that Espinoza spotlights the intersection of church/state traditions:  non-discrimination is crucial to religious freedom. The Establishment Clause permits but does not compel aid to religion. If the state is opposed to aiding religious schools the state can, as it has done here, decline to offer any aid at all.  Because petitioners concede that this is true, Montana argues, no constitutional claim remains.  

There can be no intrusion on the Free Exercise of religion where no program exists at all, the state submits.  Invalidation of the entire program works no coercion, as  the invalidation restrains the government, not the individual.

Montana denies that the 1972 re-enactment of the state constitutional no-aid clause ratified or endorsed the religious antipathy that gave rise to the 19th century Blaine Amendments.  Montana offers that the new constitution, enacted in 1972, sought to protect religious liberty by means of strict state separation from religion.  

In this case the state supreme court has protected religious freedom by enforcing the structural barrier between religious schools and the government that the no-aid clause contemplates.  Striking down the tax credit in its entirety ensures that no one is preferred and that no one is penalized for exercising their faith. 

Historic opposition to state funding of religious entities demonstrates the constitutionality of such prohibitions, the state contends.  Trinity Lutheran is not on point, for the tax credit plan does not involve a generally available benefit.

The state has not banned aid to education.  Moreover, where thirty eight states fall in line with Montana’s position, this is history to which the U.S. Supreme Court ought to defer.

The U.S. Supreme Court should not interfere with the constitutional and judicial authority of the state by enforcing a statute that the state Supreme Court has held to be unconstitutional, the state submits.   If it is conceded — and it is — that the state could decline to provide a school choice program, then it cannot be correct that if a school choice program is forbidden by the state constitution, then the application of the state constitution must be in violation of the federal constitution, and, therefore, a void statute must be enforced.

As there is no longer a school choice tax credit program, there is no unequal treatment, and therefore no Equal Protection clause violation.  Nor is there any Establishment Clause issue whether the state chooses to offer greater separation than the federal religion clause requires.

The state offers that the Supreme Court cannot recognize an amorphous “free exercise” violation where petitioners have not identified any violation. The Free Exercise clause inhibits the government: that some difficulty in exercising religion might beforeall individuals does not rise to the level of unconstitutional government prohibition on the free exercise of religious rights.

The operation, or not, of a tax advantage works no prohibition on free exercise.  Anyone can give to scholarships as they see fit: they just will not receive a tax credit.

There is no generally available benefit from which petitioners have been excluded because the tax credit program has been declared void ab initio

Without more, the state constitution’s no-aid close does not violate the Free Exercise Clause. In all, the fact that the Establishment Clause may allow a measure does not mean that the Free Exercise Clause compels it.  The state notes that where school choice is concerned, Justice Beyer has inquired of the fate of the interests of the families who would not wish to fund religious education at all.

Montana cautions that if the Supreme Court were to invalidate Montana’s no aid clause, grave constitutional concerns would arise.  Zelman does not require a single answer to whether  a “no aid” provision helps or hinders religion  Petitioners’ position lacks good sense: it is unimaginable that a statute declared unconstitutional under state law can spring back to life following federal constitutional review.

Zelman observed that choice that includes religion need not violate the Establishment Clause but declining funding is not the establishment of religion.  Lemon poses no problem because there are no unconstitutional effects created by the Montana Supreme Court’s invalidation of the school choice program.  Entitlement to a tax preference is not an establishment clause issue. Similarly, across the board disentitlement works no entitlement. 

Petitioners’ Reply.  Petitioners liken the state’s position to that of the authorities who shuttered schools rather than conform to the constitutional command to desegregate. 

Where the state emphasizes that petitioners concede that the state need not offer an aid program, the petitioners point to a comparable concession by the state:  the state cannot avoid the reality that the provision of a program that excluded religious schools would violate the federal constitution. Where protected classes are concerned, the Supreme Court has recognized that invalidating a program to prevent inclusion is just as discriminatory as exclusion from the start.  

It is not true that the Montana Supreme Court ‘harmonized’ federal and state constitutional interests.  Rather, the state understood that severability — permitting secular while forbidding sectarian aid — was a constitutional impossibility.  Eliminating a program to avoid unconstitutional results does not avoid constitutional concerns but confirms them.

Trinity Lutheran cautions that the Court ought not engage in a wooden application of Free Exercise principles:  indirect coercion or indirect penalties are within the ambit of the Free Exercise clause.  

The only reason the school choice tax credit was eliminated was concern over aid to religious schools.  The result in this case is worse than that in Trinity Lutheran, for the Espinoza petitioners have already relied on the availability of aid.  The additional financial burden and potential educational exclusion imposed on the petitioning parents falls within the concerns the Free Exercise Clause contemplates.

Locke concerned direct funding of professional clergy education, a circumstance not present here.  Further, petitioners argue that there is no “use” limitation on Trinity Lutheran’s holding.  Such an argument is irrelevant, nonetheless, where status discrimination exists: aid will be denied based only on religious status.  If religion and religious education cannot be disentangled, the state disproves its own argument: status v. use is a distinction without a difference.

Contrary to the state’s assertions, the weight of history is not on the state’s side, petitioners counter.  Most early considerations of government involvement in religion concerned direct aid to churches. This is not the case here, and there is no overwhelming reason to believe that aid that could benefit religious and secular schools would be objectionable to the founders. 

The proffered reasons for the wholesale reenactment of the Blaine Amendment in 1972 are of no moment, petitioners insist, where the significance of the measure is that of singling out religion for different treatment, which strikes at the core of Equal Protection clause concerns.  Even if it were accepted that a law’s constitutionality, or not,  cannot be determined by the motives of its enactors, the effects of a statute are reasonably evaluated in addressing constitutional concerns.  

As Montana has entirely banned aid to students seeking religiously affiliated private education, Zelman’s principles of neutrality and individual choice are decimated.

The question is not of “resurrection” of a defunct statute:  the issue is that Montana’s Supreme court determination forever precludes aid.  Similarly, the state’s resuscitation rhetoric must fail, as statutes are routinely revived following judicial review: so doing works no “inverse federalism.”

Petitioners submit that the federalism fears described by the state are phantasms.  There exists ample room for Montana to work within the “play in the joints” of the religion causes.  Montana may enact a school choice program without violating the Establishment Clause but it need not, and this would not violate the Free Exercise Clause. In contrast, adopting a wholesale ban on aid to religion would violate both religion clauses.  

Principal Briefs

Brief for Petitioners

Brief for Respondents

Reply Merits Brief

Joint Appendix

Amicus Submissions:  Note that the United States, as Amicus for Petitioners, Will Participate in Oral Argument 

The United States

Petitioners’ Amici

131 Current and Former State Legislators

Agudath Israel of America

Alliance for Choice in Education

American Center for Law & Justice

Americans for Prosperity and Yes Every Kid

Arizona Christian School Tuition Organization and Immaculate Heart of Mary Catholic School

Billy Graham Evangelistic Association et al.

Center for Constitutional Jurisprudence

Center for Education Reform et al

Christian Legal Society et al

EdChoice, Reason Foundation, and The Individual Rights Foundation

Forge Youth Mentoring

Foundation for Moral Law

Georgia Goal Scholarship Program Inc

Honorable Scott Walker

Independence-Institute

Jerry and Kathy Armstrong et al

Jewish Coalition for Religious Liberty

Justice and Freedom Fund et al

Liberty Justice Center and American Federation for Children

Mackinac Center for Public Policy

Montana Catholic School Parents, Catholic Association Foundation, and Invest in Education Foundation

Montana Family Foundation

Oklahoma et al

Opportunity Scholarship Fund

Pioneer Institute

Rusty Bowers Speaker of the Arizona House of Representatives et al

Senator Daines et al

The Becket Fund For Religious Liberty

The Rutherford Institute

Respondents’ Amici

American Federation of Teachers et al

Baptist Joint Committee for Religious Liberty

Colorado et al

Freedom from Religion Foundation et al

Montana Association of Rabbis

Montana Constitutional Convention Delegates

Montana Northern Wyoming Conference United Church of Christ

National Disability Rights Network et al

National School Boards Association et al.

Public Funds Public Schools

Religion Law Scholars

Religious and Civil Rights Organizations

State of Maine

Tennessee Education Association

 

 

 

The Constitutional and Cultural Clash Between Compelled Speech and Commercial Equanimity Continues: Arizona Holds Municipal Human Rights Act Unconstitutional As Applied to E-Commerce Custom-Made Wedding Invitations and Recognizes Claim Under State Free Exercise of Religion Act

Brush & Nib, LLC v. Phoenix, No. 18-cv-0176-PR. (Az.) September 16, 2019.


The Arizona Supreme Court has concluded that the Phoenix ordinance requiring equal treatment for all persons cannot be applied to compel the creation of wedding invitations for same-sex couples in view of the protections afforded pure speech and those afforded sincerely held religious beliefs under state law. 

A Product-Specific Decision. The court recognized the design and handmade productions of wedding invitations to be artistic creations protected as pure speech while refusing to opine concerning other aspects of plaintiffs’ business.  

An As-Applied Challenge. A portion of the municipal law that forbade statements that persons within protected classes would be unwelcome in a place of public accommodation was declared unconstitutionally vague by the Arizona Court of Appeals, leaving only an as-applied challenge before the Supreme Court.

Speech Doctrines, Protections, and Their Limits. The court noted that although the Arizona Constitution offers greater speech protections than does the United States Constitution, the distinction does not disturb the result in this case. 

The “compelled speech” doctrine developed by the United States Supreme Court establishes that the First Amendment forbids the government from demanding that an individual speak where to do so would offend his deepest beliefs.  This protection of autonomy and against compulsion extends to any requirement that an individual adopt the speech of others where to do so would offend his deepest beliefs.  

Not all speech enjoys the protection of the “compelled speech” doctrine, but “pure speech,” which includes original artwork, is protected by the First Amendment because of its self-expressive nature and not because of the medium chosen or the presence or absence of a particular message.

While a business does not forfeit First Amendment protections because it operates for profit, neither does it enjoy a blanket exemption from the laws generally applicable to commerce because the business involves speech or creative expression.  

Accordingly, plaintiffs’ business is not insulated by the First Amendment, but the particular custom made designs and products in issue do enjoy constitutional protection. 

Artistic Expression, Not Discriminatory Conduct. The court rejected the city’s argument that discriminatory conduct and not protected creation were in issue, and in particular rejected the suggestion that the plaintiffs’ position is a proxy for discrimination, for even if some protected groups were affected more than others by plaintiffs’ position, that does not cause plaintiffs’ to forfeit First Amendment protections.  Plaintiffs have no issue with same sex customers but aver that same sex marriage falls outside the Christian faith that is central to their enterprise.

It does not matter, the majority observed, that the creative process is collaborative with the customer or that no “endorsement” of same sex marriage is involved.

Ordinance Not Content Neutral As Applied. The court concluded that the ordinance, while content neutral, became content based as applied, and that, notwithstanding that a compelling state interest in fairness and equality in commerce are embodied in the ordinance, the breadth of the statute was fatal when strict scrutiny analysis was undertaken.  An ordinance aimed at inhibiting discriminatory conduct which includes speech within its sweep cannot be said to be sufficiently narrowly tailored to the government goal to be upheld. Speech regulations, where permissible, must be approached as “minimums, not maximums”

A Pointed Clash.  The majority chastened the dissenting judges for what it perceived to be hyperbolic revivification of history and stressed that the court’s conclusions in no way may be seen as permitting any merchant to fail to comply with the Phoenix public accommodations law. 

Religious Free Exercise Claim Valid. The majority concluded that plaintiffs articulated a viable claim under the state religious freedom act which, like its federal analog, provides that an individual may be exempted from a generally applicable law if compliance with the law would unduly burden the individual’s religious beliefs and the state may otherwise accomplish its legitimate ends.  

Plaintiffs are inarguably Christian and the compelled creation of work contrary to their beliefs would burden the exercise of their faith, the court observed.  The state would not similarly suffer if plaintiffs were exempted, for the surviving provisions of the public accommodations ordinance remain undisturbed.  

Conformity to Uniformity Not Outcome-Determinative. The need for uniformity in the administration of the law cannot be permitted to deny essential First Amendment rights, and the city’s speculation about flood-tides of applications for exemption is hypothetical and, in any case, it is the obligation of the courts and administrative bodies to make the sorts of determinations about claims that permitting exemptions would require.

Phoenix Not Without Armature. Neither has the city been forced to forfeit its general interest in public welfare at the altar of personal religious liberty, the majority observed, for the city may contest the sincerity of any asserted religious belief, may challenge any religious assertions as pretextual and reflective of an overarching discriminatory intent.  Finally, the city may show that any exemption contemplated would create too great a burden on the city to be permissible.

Litigative Burden Ameliorated. That plaintiffs have prevailed on their state free exercise law  claim entitles them to an award of attorneys’ fees.

Concurrence Cheers State Constitutional Protections.  One judge wrote separately to encourage the celebration of Arizona’s constitutional speech protections, which are thought to be more extensive than those of the U.S. Constitution.  The concurrence urged that the court consider its own state’s constitution rather than too readily looking to federal decisions. 

Errors Noted and Civil Rights Regression Decried. Dissenting judges have opined that the majority has erred in permitting anodyne and uniform wedding invitations providing the same information for all customers to become art subject to First Amendment protection and to permit discrimination on the basis of sexual orientation.  

Going Too Far to No Good End. The dissent questioned the majority’s need to reach constitutional questions where they need not be in addressing the application of this municipal ordinance.  

There Are No Less Restrictive Means. The dissent stressed that at issue is a content neutral conduct regulation for which no less restrictive means of application can be found:  either merchants are precluded from discriminating on the basis of protected status, or they are not. If they are permitted to discriminate, the statute fails of its essential — and recognized — compelling end. 

Infected with Bad Thinking. The dissent scorned the majority for embracing the pernicious idea that a refusal to sell to certain customers is protected expression and that the public interest in equality is insufficient to require a business to serve all customers where an element of expression is involved. 

Equanimity and Equal Treatment Cannot Be A Substantial Burden. The dissent noted that the concept of a “substantial burden” on religious exercise is not clearly defined, but found it difficult to imagine that such a burden could be found where enforcement of the ordinance would require only that the plaintiffs make and sell the same product for same sex couples as it does for others.

In the Business of Serving the Public, Not the Business Owners Beliefs. Businesses cannot be permitted to discriminate based on the business owners’ views, or the entire public accommodations law scheme will be defeated.  

Offering the Same to All Cannot Be So Different. A dissenting judge writing separately takes issue with the idea that any speech is being compelled where the plaintiffs are being asked only to create  the same product for all, and also observes that no part of the plaintiffs’ beliefs are being burdened by being asked to treat all customers equally. Plaintiffs are not facing a forced choice between their beliefs and their livelihood, as they are not being asked to support same sex marriage, only to treat all customers equally.  

Suggestive of Diametrically Opposed Weltanschauungs. The majority and the dissenting justices in this case appear to hold fundamentally different intellectual and legal constructs of the issues central to the case, with each compelling the exact opposite ordering of constitutional and statutory priorities. The majority holds sacrosanct the principles of individual autonomy and freedom from government interference in speech, expression and faith.  The dissent does not see this case as one in which the government is compelling the plaintiffs to act in disharmony with their beliefs, but one in which the plaintiffs seek to conduct their business in a way that discriminates against certain customers,which conduct cannot enjoy First Amendment protection. For the dissenting justices, the recognition of plaintiffs’ claims undermines the primacy of the protections accorded to equal consideration for all in the marketplace.

Brush & Nib, LLC, et al. v. City of Phoenix, S.Ct. AZ, September 16, 2019

Video of Oral Argument in Brush & Nib LLC v. City of Phoenix

Court of Appeals Opinion:

Brush & Nib LLC v. City of Phoenix, 1 CA-CV 16-0602