The Volokh Conspiracy

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Courts should not decide issues that are not there

My take on On Fire Christian Center, Inc v. Greg Fischer, et al.


After law school, I clerked for two years in a federal district court. A district court clerkship is very different from a circuit court clerkship. In the circuit court, the clerks and judges often have months to think about and decide cases. Invariably, appeals concern distinct legal questions, as the factual record below is set. And, at least two other judges on the panel will review any decision before it is published. The district court is very different. Only one judge is involved, perhaps with the assistance of one or two law clerks. And it is impractical to spend months pondering over deep legal questions. Some matters must be resolved as soon as possible. And that urgency, invariably, leads to errors. For that reason, appellate courts perform an important function.

I distinctly remember one of the biggest mistakes I made in two years of clerking. (And there were several blunders). During my first year in chambers, I was working on a routine dispute between two businesses. Party A's summary judgment motion alleged that Part B copied some design elements (color scheme, style, layout, etc.) from Party A's web site. At the time, I was really excited by that argument. Most of the cases I worked on were fairly mundane. But this issue presented a fascinating question about emerging technologies and intellectual property.

I prepared a lengthy, detailed draft opinion about how to define the "look and feel" of a web site, and the different factors that should be considered. I had a lot of fun writing it. The Court granted summary judgment to Party A on that claim. A few days later, Party B filed a motion for reconsideration. The motion was terse: Party A did not raise the "look and feel" claim in its complaint; it was raised for the first time in the summary judgment motion; therefore, the claim was waived. At first I was in denial: how could I have possibly missed such a simple argument? But I soon realized I messed up. In my haste to tackle a fascinating legal question, I failed to check whether it was mentioned in the complaint. I apologized to the judge, and the decision was promptly withdrawn.

I learned an important lesson the hard way: Courts should not decide issues that are not there. For the remainder of my district court clerkship, I would always assiduously review every complaint and amended complaint. And during my circuit clerkship, I carefully reviewed all pleadings in the district court to make sure claims were not waived. To this day, I am always careful to post all relevant pleadings when I discuss a case.

My experience in the district court came rushing back to me when I read On Fire Christian Center, Inc v. Greg Fischer, et al. (Eugene blogged about it here).

The district court entered an ex parte temporary restraining order against the City of Louisville "from enforcing; attempting to enforce; threatening to enforce; or otherwise requiring compliance with any prohibition on drive-in church services at On Fire." If Louisville actually sought to prevent church-goers from attending a "drive-in church" service, the city would have violated Kentucky's Religious Freedom Restoration Act. Whether the city would also violate the Free Exercise Clause, as interpreted in Employment Division v. Smith, is a closer question.

My analysis is hedged, however, because it isn't at all clear that the City sought to take any enforcement action against drive-through church-goers. Here, the TRO was issued ex parte. The district court did not give the City an opportunity to respond.

After the TRO was issued, Mayor Fischer stated that there were no planned enforcement actions. He also said that they were unable to reach the court:

"I regret that the judge did not allow us to present evidence that would have demonstrated there has been no legal enforcement mechanism communicated," Fischer said. "We attempted twice to contact the court."

Had the District Court held a 15 minute telephonic status conference, any doubts about the proposed enforcement could have been resolved. And the District Court could have simply denied the TRO as moot on the Mayor's official representation that there would be no enforcement action. I don't think voluntary cessation concerns would kick in here. If the Mayor's response was equivocal, then a TRO may have been proper. But the District Court skipped that route. Instead, it spent nearly 24-hours writing a twenty-page published decision, with 86 footnotes.

The opinion read like something of a law review article. It provided a thorough exegesis of religious freedom from biblical times, to Plymouth Colony, to slavery, to Latter Day Saints, to Blaine Amendments, to Harvard's quotas for Jewish students, to the KKK. None of this discourse was necessary to decide the narrow question. And much of the rhetoric was over-the-top. Why was it necessary, for example, to note that Hugo Black and Robert Byrd were members of the KKK? Indeed, the Court did not even need to discuss the Free Exercise Clause of the First Amendment. Kentucky's RFRA provided all the relief the Plaintiff's sought. Constitutional questions should generally be avoided. But here, they were addressed head-on.

Finally, I remain perplexed by the final, 86th footnote.

But for the men and women of On Fire, Christ's sacrifice isn't about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, "it isn't a matter of reason; finally, it's a matter of love."85 86

85 Robert Bolt, A Man for All Seasons 141.

86 JRW, SDR, & PBB.

JRW are the initials of Judge Justin R. Walker. What about SDR and PBB? My best guess: those are the initials of Judge Walker's law clerks who worked around the clock to prepare this thorough discourse of religious freedom. I hope I am wrong about this last bit. I don't recall ever seeing a judge formally acknowledge the contributions of his or her law clerks. (Though I know law clerks sometime slip in Easter Eggs.) All too often law clerks say "that was my opinion," or something to that effect. They really shouldn't. It's the court's decision.

Ultimately, I think the District Court reached the right result, but made numerous, unforced errors along the way.