Funny Things Have Happened on the Way to the Fora: Justice Thomas Proffers Adapting Common Carrier Law to Digital Media to Address Speech Concerns

Biden v. Knight First Amendment Institute at Columbia University, No. 20-197 (April 5, 2021).


Former President Trump petitioned the U.S. Supreme Court for certiorari review of a decision of the U.S. Court of Appeals for the Second Circuit which held that his use of his personal Twitter account, @realDonaldTrump for administration messages made the account a public space.  As such, the former president could not block others’ or their responses without violating the First Amendment. 

 

In view of the change in presidents, the Supreme Court granted the petition but remanded it to the Second Circuit to vacate its opinion and dismiss the case as moot.

 

While in agreement with the Court’s determination, Justice Thomas has written separately that subsequent events and a more careful analysis of the balance of powers between digital media platforms and its users calls into question the applicability of First Amendment analysis.  

 

Justice Thomas is of the view that the time has arrived for a close look at digital platforms, particularly where it now appears that extraordinarily broad powers reside in the hands of a few individuals and entities that control the internet. 

 

Twitter banned former President Trump from its platform, which Twitter may do, according to Twitter’s rules of use, for any reason or for no reason.  This, in Justice Thomas’ view, highlights how extensive the digital platforms’ powers are.  It is less readily apparent that an individual has created a public forum, traditionally defined as a ‘“government controlled” space, when a private individual or entity can unilaterally deny access to its digital platform.

 

If First Amendment analyses become an uneasy — if not wholly inappropriate — fit in such circumstances, Justice Thomas has suggested that resort to the common law and subsequent developments concerning regulation of common carriers may present opportunities for legislative action.  Where common carriers such as communications and transportation entities receive special privileges as a result of government regulation, they also must, as a result, adopt responsibilities, including limitations on a private entitiy’s rights of exclusion such that common carriers must treat clients and customers equally.  While market power has traditionally been a part of common carrier analyses, it is not a determining factor:  entities of differing sizes and contours may be “common carriers” responsible for transport, whether on highways or rails or telephone wires or otherwise.  



This framework, grounded in common carrier constructs as well as civil rights concepts applicable to public accommodations, might offer an opportunity to make inroads in the nation’s understanding of how best to adapt the law to the digital area. Perhaps best of all, Justice Thomas has observed, this approach could aid all concerned without requiring that digital platforms sacrifice their own First Amendment rights or be perceived to have endorsed any of the speech presented on its platforms.  


Supreme Court Determination 

20-197 Biden v. Knight First Amendment Institute at Columbia Univ. (04_05_2021)

Second Circuit Decision Regarding Rehearing en banc:

Knight First Amendment Inst at Columbia Univ v Trump 953 F3d 216 Mem 2nd Cir 2020

Second Circuit Decision on Appeal:

Knight First Amendment Inst At Columbia Univ v Trump 928 F3d 226 2nd Cir 2019

Opinion of the United States District Court

Knight First Amendment Inst At Columbia Univ v Trump 302 F Supp 3d 541 SD NY 2018


 



 

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.

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 Constitution Is Not Under Quarantine: U.S. Supreme Court Enjoins New York’s Pandemic Restrictions on Religious Gatherings



Roman Catholic Diocese of Brooklyn v. Cuomo, No 20A87; Agudath Israel of America, et al. v. Cuomo, No. 20A90, 592 U.S.  _____. Injunctions pending appeal entered November 25, 2020.


The Supreme Court has enjoined the operation of New York’s executive orders limiting religious gatherings pending resolution of Free Exercise challenges in the Second Circuit or regulation of any petition for certiorari.  The court’s ostensibly per curiam opinion is accompanied by two separate concurrences and three separate dissents.

Executive Orders concerning public health have been issued and been modified and remain in effect or subject to further modification since the inception of the COVID-19 pandemic.  These emergency measures, in board brush, are an admixture of geographic zones of danger combined with purportedly correlative restraints on public gatherings for secular or religious purposes.  The measures may be enhanced or relaxed as the perception of prevalence or risk changes. 

Both Orthodox Jewish and Catholic organizations have challenged the imposition of restraints on attendance at religious services in New York during the Covid-19 pandemic as violative of the  Free Exercise Clause of the First Amendment of the United States Constitution.  The restrictions apply to the religious entities more harshly than the more liberal constraints on ‘essential’ or commercial entities, they have argued.  The measures have no bearing on reality, the petitioners submit, as there is no reason for limiting the numbers of those who may attend services to an inordinately small number where in fact churches and synagogues have the capacity to accommodate hundreds.  

There is no question of compliance and there have been no known incidents of illness relating to the operation of the synagogues and services. 

Both petitioners were denied relief in the district and appellate courts.  Decision on the merits in the Second Circuit awaits briefing and argument in December.

Immediately after petitions were filed in the United States Supreme Court, the Governor relaxed restraints that had applied.  

The Governor has argued that the pandemic restrictions favor churches and that no relief is necessary as the measures complained of are no longer in effect.

The Supreme Court has disagreed.  

The Supreme Court has concluded that strict scrutiny must be applied to the emergency measures, and that these measures cannot withstand this scrutiny, as there is no doubt of the impact on religion and no support for the capacity of the measures to serve the government’s ends.  Because the measures recently relaxed may be just as suddenly enhanced, the threats to the religious groups remain real and palpable.  As the groups have established a likelihood of success on the merits, and as the harm to first amendment interests is present and ongoing, relief pending review in the Second Circuit is appropriate. 

The Court’s per curiam opinion makes plain that the latitude accorded the political branches to act to ensure public health during crises is not unlimited:  “Even in a pandemic, the Constitution cannot be put away and forgotten,” particularly where the restrictions in question strike at core constitutional concerns.  Slip Op. at pp. 5-6.  

Justice Gorsuch wrote separately to stress the vitality of the Constitution during the pandemic, stressing that “Government is not free to disregard the First amendment in times of crisis.”  Slip. Gorsuch dissent  at 2.  The particular orders in issue, subject by their nature to strict scrutiny analysis, merit the observation that public health has uncannily allied with secular convenience.  If the Constitution  has “taken a holiday” during the pandemic, this may not be permitted to become “a sabbatical.”  Gorsuch dissent at 3.  

Justice Gorsuch takes particular aim at the Supreme Court’s and the lower courts’ reliance on Jacobson v. Massachusetts, 197 U.S. 11  (1905 ) as support for plenary emergency powers during crises that must be accorded judicial deference.  Jacobson involved different rights and offered the affected a range of options, which the restrictions upon churches do not.  As the current restrictions involve core constitutional concerns, Jacobson does not control.  Even if deference is due the political branches, all emergency measures must measure up to Constitutional commands.  

Justice Kavanaugh wrote a separate concurrence, noting that New York’s restrictions are more stringent than those of other locations.  Once discriminatory measures are imposed, it is not good enough to not that they apply to others, he observed.  Once a favored class is created, the state must say why those who are less favored are excluded.  

Justice Kavanaugh takes a programmatic view of the Court’s offer of relief.  If the recently relaxed regulations are abandoned, the petitioners will be protected but if there is not change there is no impact.  The petitioners will at least be permitted some clarity during the pending appellate process.

Chief Justice Roberts has dissented, opining that there is no injunctive relief required where the challenged measures are no longer in effect.  If that were to change the petitioners could return to the court. An order instructing the governor not to do what is not being done cannot be said to meet the standards required for awarding injunctive relief.  

Justice Breyer, with Justices Sotomayor and Kagan, have joined in dissent to emphasize that there is no present need for intervention and that if intervention was needed, the parties could return and the need for relief could be promptly assessed and addressed.  The justices opine that it is not clear that the restrictions violate the Free Exercise clause and that the interests of public health  and  safety must be balanced against religion.  The courts have and must continue to recognize that assessments and interventions affecting public health crises, with their concomitant likely needs for prompt action, are the province of the political branches.  

Justice Sotomayor, with Justice Kagan, wrote a separate dissent, expressing fear that further suffering may follow from the Supreme Court’s order.  The worry is that success of the stringent measures has rendered them inapplicable, yet because of the court’s intervention, the more stringent measures may not be revived if they are needed. In Justice Sotomayor’s view, New York’s actions fall comfortably within the confines of prior analyses that hold that a law is not necessarily constitutionally infirm if it impacts religion provided there is reasonable parity with secular restrictions.  

Here, where it has been shown that New York has preferred religious gatherings over others, neither intervention nor heightened scrutiny appears apt, the justice offers.

Disregarding or second guessing the governor with respect to matters of public health is a “deadly game,” in this dissenting view.  And the mere reference to religion within the measures will not suffice to make them discriminatory.  Any statement by the governor mentioning a particular religion likewise cannot establish discrimination, where statements by the President about a religious or ethnic group were set aside by the Court in reviewing the neutrality of travel measures in their entirety.  

Roman Catholic Diocese of Brooklyn v. Cuomo 20A87 Order November 25, 2020

Agudath Israel et al. v. Cuomo 20A90 Order November 25, 2020

Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).


In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.


Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

Suitable Accommodations Must Await Another Day: Supreme Court Declines Review of Walgreen Employee’s Religious Discrimination Claim

Patterson v. Walgreen, No. 18-349, 549 U.S. ____ (cert. denied February 24, 2020).


A decades-old Supreme Court case offhandedly announced that the “undue burden” that would relieve employers of any obligation to accommodate an employee’s religion need only be more than de minimus.  Joining in denial of certiorari of an employee’s case against Walgreen, Justices Alito and Thomas would like to revisit the standing precept, particularly where the old decision relied not on the civil rights statute but on federal agency guidance which predated statutory refinements of the definition of ‘religion’.

 

The Solicitor General suggested that other issues are of concern that need review, but the Court does not consider this case to be the proper vehicle.  The Solicitor General has asked whether an employer must offer a partial accommodation where a full accommodation would pose an undue hardship, or whether speculative harm can establish undue harm.  

 

Patterson alleged that Walgreen’s discriminated against him because his religion forbade working on his sabbath.  Walgreen’s routinely accommodated him in scheduling his work but declined to do so when an urgent need arose and it was thought that  accommodation would work an unairmness to another employee.

 

Patterson failed to appear for the requested Saturday work, which precipitated a delay in training Walgreen employees.  Discussion with Patterson was not fruitful. Patterson wanted a guarantee that he would never be asked to work on his sabbath.  He declined consideration of other positions where the issue would not arise. Walgreen’s suspended and later terminated Patterson.

 

The 11th Circuit observed that Patterson had established a prima facie case, leaving for decision on whether Walgreen failed to offer a reasonable accommodation or that Walgreen’s could not offer a reasonable accommodation which would not pose an undue hardship, which hardship can embrace both direct and indirect costs.  

 

An accommodation need not be the one requested by an employee, nor need the employer offer an array of accommodations from which to choose.  The duty to accommodate his match by a countervailing duty on the employee’s part to work with the employers as the employer suggests.

 

The 11th Circuit declined to address in depth the issue of undue hardwhip because Walgrehaten’s had offered Patterson the opportunity to change schedules when practicable or to obtain another position.  Even if undue hardship were considered, however, Patterson would not prevail because Walgreens would have incurred undue hardship had it been forced to rearrange its business schedule and that of other employees’ to accommodate Patterson.

 

The 11th Circuit also affirmed the trial court’s rejection of Patterson’s retaliation claim.  It cannot be said, the appellate court observed, that Patterson’s termination subsequent to his rejection of all reasonable accommodations was retaliatory.  An employee cannot both reject proffered reasonable accommodations and then claim retaliatory termination.  

 

Although the case will not be heard by the Supreme Court, the opinion accompanying denial of certiorari establishes that at least some of the associate justices are not at ease with the low standard that applies to employers concerning religious accommodations nor are they pleased with the continued existence of outdated definitions of religion.  The denial of certiorari means that the 11th Circuit’s view that an employee must cooperate with an employer concerning accommodations stands. As the 11th Circuit sees it, an employee seeking a religious accommodation cannot insist on the employee’s choice of accommodation, nor can the employee complain of retaliation where reasonable accommodations were offered and the employee rejected them.  

 

JustLawful prognostication:  This case was continued on conference lists for nearly a year, indicating its significance to the Court was not insubstantial but, as the concurring justices noted, the case did not present squarely the open issues that ought, in their views, to be addressed.   With the opinion below undisturbed, the balance of power in employer – employee relations in religious accommodations, at least in the 11th Circuit, rests with the employer. An employer may terminate an employee who refuses a reasonable accommodation, and may demonstrate that accommodation presents an ‘undue burden’ by offering only that the accommodation would cause more than slight harm.  

These issues will not diminish but only expand as the nation moves toward embracing a more expansive notion of religion and religious observances, and as the population of the United States grows ever more diverse in its demographics and in its religious practices.  The push and pull of employer and employee needs will likely not abate any time soon, making the hope for an apt case to serve as a vehicle to review will be presented sooner rather than later. Of course, there is nothing that stands in the way of legislative correction or executive and/or administrative refinement, perhaps obviating judicial intervention, should the coordinate branches’ respective spirits be so inclined.

 

Patterson v. Walgreen 18-349_7j70 February 24, 2020

Patterson v. Walgreen 11th Cir. March 9 2018

“Leveling Down:” Dismantling Problematic Programs to Remediate Constitutional Conflict: Attractive to Some Supreme Court Justices, Insufficient to Others

Espinoza v. Montana, No. 18-1195.  Oral argument held January 22, 2020.


Oral argument for the Espinoza case shed little light on its outcome, although it did underscore that the Supreme Court justices hold divergent views on what is appropriate not only constitutionally, but with respect to addressing constitutional error.  

Justice Ginsburg intimated that the parents who brought suit have no taxpayer standing as they are not directly involved with the Montana tax credit in issue.  She further suggested that the state supreme court was not unreasonable in “leveling down,” or avoiding constitutional problems by dispensing with the scholarship program entirely.  

Justice Sotomayor signaled disdain for any state involvement in religion, pointing to history for support, much as others point to history for support for the opposite view, that the framers would abhor hostility toward religion but rather sought to guard against preferential government treatment for one faith over another.

Other justices asked how the circumstances of the Espinoza case would even conceivably be acceptable if the issue were race rather than religion. Justice Alito reminded counsel that it is not really possible to overlook the coincidence of the enactment of Blaine Amendments with the wave of immigration that accompanied the Irish potato famine. 

Justice Breyer noted that there is no Establishment Clause respecting race, demolishing the “no distinction” point of view respecting race and religion.  The justice likewise worried about how a determination that the state might permissibly be involved in religion by means of the tax credit would impact subsequent funding decisions.  His principal worry seemed to be that a determination that religion could not be excluded would compel inclusion of religion in all state funding.  

Justice Kagan, noting her joinder in the Trinity Lutheran decision, asked whether the Espinoza case was not distinguishable from Trinity LutheranTrinity Lutheran concluded that it is unconstitutional to preclude participation in neutral and generally available government programs because of religion.  In this case, she stated, religion is directly involved: the issue is payment of money to religious institutions.

Justice Gorsuch interjected for clarity the question whether a federal court may aptly intervene where a state court has made an error under federal law, intimating that the question whether the state court error was active or passive is a red herring.

The Chief Justice questioned the role of intent in discrimination cases, suggesting, without more, that there may be some relevance for Espinoza. Thee Chief Justice cited a 1977 case holding that an ordinance with discriminatory impact was nonetheless constitutional because its enactment was without discriminatory intent.  

There are no certainties in the law, but it is not irrational to speculate that there will be no unanimity in any determination the court makes. The divergence in thought will not unlikely be reflected in a multiplicity of opinions.

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

 

 

 

Fundamental Speech Freedoms Ill-Served by Denial of Petitions for Certiorari in “Climate Change” Defamation Cases: Justice Alito Dissents

National Review, Inc. v. Michael E. Mann, No. 18-1451 and Competitive Enterprise Institute v. Michael E. Mann, No. 18-1477.  Petitions for Certiorari denied November 25, 2019.


To encourage the free flow of ideas and debate on matters of public concern, the First Amendment insulates statements of opinion from liability in defamation unless those opinions can be shown to be premised on demonstrably false assertions. 

If Jones says, “Smith could not defend my dog,” Jones cannot be sued if Jones has simply offered a sardonic appraisal of Smith’s advocacy.  If, however, Jones makes this statement when Smith has in fact won Fido’s acquittal, Jones may be liable in defamation, for his opinion is grounded in a falsehood. 

Unsurprisingly, yet apparently quite unpleasantly, the eruption of a firestorm of controversy about the soundness of the scientific evidence concerning climate change, accompanied by no small number of challenges to the character of its proponents and opponents, prompted scientist Mann to sue two conservative opponents of his research in defamation.   

No trial has been held as yet:  Defendants the National Review and the Competitive Enterprise Institute asked that the Supreme Court consider who — judge or jury — should decide the contours of defamation claims, and how that should be accomplished.

The petitions for certiorari were denied on November 25, 2019.

Determinations about what is opinion and what is demonstrably true or false may be conclusive of liability in defamation cases, at least insofar as opinion is not actionable.  Special statutes reflect the goal of promptly resolving, through motions practice, claims concerning comment on matters of public interest. 

The capacity of the statutory framework to suit constitutional ends may become more intensive complex where the integrity of matters of scientific inquiry are concerned, as testing the truth of asserted facts and hypotheses is the very purpose of scientific inquiry.  Few would suggest that pretermitting discussion would serve any good end.

Just how much foundation in fact and how much hyperbole may be tolerated before speech loses First Amendment protection and becomes actionable in defamation generates no end of controversy, not the least component of which is who may decide such questions:  judge or jury. If these are questions of law, a judge may decide. If these are questions of fact, a jury may decide, and a judge ought not invade a jury’s fact-finding province.

The time and toil involved in preparing for trial is substantial, making the decision about deciders of great significance.  Yet notwithstanding advocates’ proffered arguments that there is a need for Supreme Court review of these questions, the Court has declined, to the disappointment of Justice Alito, who wrote separately in dissent from denial of the petitions of certiorari.  Justice Alito noted the critical nature of addressing these questions in order to ensure the preservation of First Amendment freedoms, which serve to guarantee that all may “speak freely and without fear” on matters of public concern.

 Confidence in constitutional guarantees is not well served by the uncertainty that is sustained by failure to resolve these questions, Justice Alito has offered.  This is especially so, he has noted, where the Court in recent years has not shied away from addressing First Amendment concerns in regulatory matters.  

While it is true that no rights have been conclusively forfeited in these cases because of the interlocutory nature of the appeal and the availability of trial, Justice Alito perceives the burdens of litigation and trial in themselves as potential impediments to participation in commentary on matters of public concern.  Justice Alito would have the Court step in to resolve such issues sooner rather than later or not at all.  

The Alito commentary:

18-1451_2019 11 25 Alito Dissent from Denial of Certiorari

The Opinion of the District of Columbia Court of Appeals that prompted petitions for certiorari:

Inst v. Mann, 150 A.3d 1213 (D.C., 2016)