Posted on by Marc O. DeGirolami

The Rhetoric and the Reality of Employment Division v. Smith

This column by Linda Greenhouse offering a defense of the HHS contraception mandate begins mistakenly, in my opinion, when it claims that the “obvious starting point” in considering the question of the claims of conscience being made against the mandate is “the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point in their reproductive lives.”  I think that is not the right place to begin, but it’s territory that has been covered at length elsewhere.

The more interesting point that Greenhouse makes is that Employment Division v. Smith demonstrates that the claim made by those who are opposed to the contraception mandate — a claim “to conscience that trumps law” — is one which the Supreme Court emphatically rejected in Smith.  “[T]hat,” Greenhouse writes, “is not a principle that our legal system embraces.”

Both the way of posing the proposition and the conclusion seem, again, mistaken to me, but let’s concede the former and explore the latter.  Suppose it is really true that we are dealing with a claim that “conscience trumps law.”  “Our legal system,” in fact, “embraces” just this claim in a great variety of situations.  If it did not, the Roman Catholic Church would be compelled to appoint female priests; it would be forbidden from offering sacramental wine to children; religious communities would be compelled to hire those who don’t share their religious commitments.  Moreover, as Greenhouse recognizes later, “our legal system” responded to Smith by passing some statutes which make it highly likely that in some situations, “conscience trumps law.”  So it simply is not true that “our legal system” does not make any room for the protection of conscience when it conflicts with law.

Greenhouse’s praise for Smith also represents, I think, a widespread misconception about Smith.  The misconception is that Smith is an iron rule with no exceptions — that any law which appears “neutral” when considered in some sort of antiseptic laboratory (i.e., neutral by the plain meaning of the text) is permissible.  But in fact, that isn’t at all what Smith held.  As I have discussed here, Smith’s exceptions are, or are rapidly becoming, at least as important as its rule.  The rhetorical appeal of Smith’s hard-edged language has given people the misimpression that “our legal system” admits of no exceptions for religious conscience, ever.  And this, from my point of view, is another problem with Smith.  It confuses the discourse about religious liberty — it warps it by suggesting a hard, exceptionless rule as somehow constitutive of “our” political and legal traditions.  But that rule — and the values which underwrite it — have never, in fact, represented our approach to religious liberty.

Posted on by Marc O. DeGirolami

Uniao do Vegetal Back In Court

União do Vegetal was the petitioner in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), a case in which the Supreme Court held that the federal government’s seizure of a hallucinogenic tea, hoasca, which was used by the petitioner as part of a religious ritual violated the Religious Freedom Restoration Act.  In the process the Court clarified that RFRA did, in fact, continue to apply against the federal government (it held in City of Boerne v. Flores that it did not apply against the states).

In this complaint, União do Vegetal has now sued the municipality of Santa Fe, bringing claims under the Religious Land Use and Institutionalized Persons Act and the Free Exercise Clause, among others, in response to Santa Fe’s denial of a permit to build a temple on land outside Santa Fe.  The allegation is that the permit was denied because neighbors of the proposed temple site objected on NIMBY grounds.  Of special interest (to me) is the fact that the plaintiff’s free exercise claim alleges unequal (non-neutral) application of the individual assessment exception in Employment Division v. Smith.  (h/t Eric Rassbach)

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Beschile on Defining Religion

Donald L. Beschile (The John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”?. The introduction follows.

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions.  The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

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Posted on by Marc O. DeGirolami

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

CLR Forum readers will know that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application — where a system of individualized assessments with respect to exemption from the law has been adopted — then the law is again subject to strict scrutiny.  I’ve looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out…a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case reported by my colleague, Mark, just below, and just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school’s “no referral to other counselors” policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see Mark’s item below.  You might wonder just how powerful the individualized assessment exception is…you will have to wait for my book to see just how much!  For the third exception…follow the jump!

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Posted on by Mark Movsesian

Sixth Circuit Rules in Favor of Christian University Student in Religious Discrimination Case

A Sixth Circuit panel has ruled unanimously in favor of a Christian university student who claims that Eastern Michigan University expelled her from its graduate counseling program because of her religious beliefs. Julea Ward told the university that as a Christian she could not affirm same-sex relationships (as well as non-marital heterosexual relationships); when a client in her counseling practicum sought counseling about a same-sex relationship, Ward asked that the client be referred to a different counselor. As a result, the university commenced a disciplinary proceeding and eventually expelled her from the program, ostensibly because the university had a blanket policy against students referring clients to other counselors. When Ward sued the university under title VII, claiming the university had dismissed her in violation of her free speech and free exercise rights, the district court granted summary judgment for the university.

Today, the Sixth Circuit reversed. Writing for the panel, Judge Sutton held that a jury could reasonably find that the “no referral” policy was merely a pretext the university had manufactured after the fact. Even worse, a jury could find that it was a poor pretext: there was evidence that the university allowed students to refer clients to other counselors for certain “secular” reasons.  A jury could thus find that the no-referrals rule was not neutral with respect to religion; as a result, under Employment Division v. Smith, the university would have to show a compelling interest to justify the rule – which, on the record, seemed very unlikely. The Sixth Circuit distinguished last month’s decision by the Eleventh Circuit in Keeton v. Anderson Wiley, which CLR Forum discussed here. Today’s case is Ward v. Polite (6th Cir., slip op. Jan. 27, 2012).

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Raccuia on RLUIPA and Burdens of Proof

Thomas E. Raccuia (student at Fordham University School of Law) has posted RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases. The abstract follows.

Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects religious land use. RLUIPA’s Equal Terms provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions.

Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases. Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants.  Read more

Posted on by Marc O. DeGirolami · 3 Comments

The Historical and Particularist Quality of Hosanna-Tabor

I’m still digesting the Court’s unanimous decision in Hosanna-Tabor.  But I thought to note something interesting (to me), given my current book project titled Tragedy and History: The Quality of Religious Liberty. 

In this post over at Mirror of Justice a few months ago, I predicted that the Court would issue a decision that reflected a highly particularized and deeply historically informed sensibility — historical both in a social and doctrinal fashion.  I think that Chief Justice Roberts’s majority opinion does just that.  Take a little tour of the decision with me.

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Posted on by Marc O. DeGirolami

Hosanna-Tabor Decision

Here is the text of the decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The decision in favor of Hosanna-Tabor was 9-0, in a majority opinion authored by Chief Justice Roberts and with concurrences by Justice Thomas and Justice Alito (joined by Justice Kagan).

More in a bit after I’ve read the decision.

Posted on by Marc O. DeGirolami

Sidhu on Religious Liberty and Prison Grooming Requirements

A very interesting paper by Dawinder S. Sidhu (New Mexico), Religious Freedom and Inmate Grooming Standards, about the appropriate standard for claims for exemption under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment.  The abstract follows.

This Article explores the Eleventh Circuit’s repeated rejection of challenges, under the First Amendment’s Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), to “restrictive” inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states’ policies, and recent legal developments, that the Eleventh Circuit’s approach in upholding these policies is no longer sustainable.

Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states — including the three states within the Eleventh Circuit — that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the “specific plaintiffs” in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit’s routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny.

Accordingly, I propose the following:

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Posted on by Mark Movsesian

11th Circuit Rules Against Christian Student in Religious Discrimination Case

Last Friday, the 11th Circuit dismissed a lawsuit a graduate student had brought against Augusta State University in Georgia, arguing her expulsion from the university’s school-counseling program violated her constitutional rights. The student, a Christian, had expressed skeptical views about homosexual identity and conduct, and the university required her to participate in a “remediation plan” to make sure that her views did not affect the counseling she would provide clients in the program’s clinical practicum, particularly clients from the “gay, lesbian, bisexual, transgender and queer/questioning (GLBTQ) populations.” When she refused to do so, the university expelled her. The 11th Circuit ruled that her expulsion violated neither her free speech nor free exercise rights. Briefly, with respect to the former, the court noted that the student would be advising clients in a university-sponsored clinic; the university thus could require her to conduct herself in accordance with the American Counseling Association’s code of ethics, which forbids counselors from imposing moral views on clients. The university was not disciplining the student for her religious views, in other words, but for failing to agree to put them aside in accordance with her professional responsibilities. With respect to the student’s free exercise claims, the court held that school’s requirement that students abide by the ACA code, notwithstanding their own religious convictions, was neutral and generally applicable, and rationally related to the university’s legitimate interest in maintaining its accreditation. The case is Keeton v. Anderson-Wiley (Dec. 16, 2011).