Justice Gorsuch Sketches The Post-Fulton Roadmap in Amish Septic System GVR

1. Define the state interest with precision. 2. Consider exemptions given to other groups. 3. Demonstrate narrow tailoring with evidence.

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In January, a group of Amish people filed a cert petition. Mast v. Fillmore County challenged Minnesota's decision to require them to install a septic system. The Amish people objected to installing this system on religious grounds. They argued that the state violated RLUIPA. On Friday, the Court GVR'd Mast in light of Fulton. Justice Alito only concurred in the judgment to vacate the judgment, and remand. But he did not agree with the decision to remand in light of Fulton. He wrote, "The lower court plainly misinterpreted and misapplied" RLUIPA. I don't recall ever seeing a Justice concur in the judgment of a GVR, but not agree with the majority on the basis of the remand. He threw shade at the shadow docket!

Justice Gorsuch wrote a seven-page opinion concurring in the GVR. He agreed that the case should be reconsidered in light of Fulton. And he sketched out what should become the post-Fulton roadmap for Free Exercise Clause cases. Specifically, Justice Gorsuch highlighted three aspects of Fulton that apply in strict scrutiny cases–the standard of review that governs RLUIPA claims.

First, Justice Gorsuch explains that the government must establish its interest with specificity. This analysis must be "precise," rather than "broadly formulated."

Perhaps most notably, the County and courts below erred by treating the County's general interest in sanitation regulations as "compelling" without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands "a more precise analysis."593 U. S., at ___ (slip op., at 14). Courts cannot "rely on 'broadly formulated'" governmental interests, but must"'scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.'" Ibid. (quoting Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U. S. 418, 431 (2006)).

And the government must establish this interest with respect to the specific religious community. As I read Gorsuch, Philadelphia would be required to establish its interest with respect to the Roman Catholic Church. And Minnesota would have to establish its interest with respect to this specific Amish group.

Accordingly, the question in this case "is not whether the [County] has a compelling interest in enforcing its [septic system requirement] generally, but whether it has such an interest in denying an exception" from that requirement to the Swartzentruber Amish specifically. Fulton, 593 U. S., at ___ (slip op., at 14) (emphasis added); see also Holt v. Hobbs, 574 U. S. 352, 362–363 (2015) (RLUIPA requires courts to "scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants" (internal quotation marks omitted; emphasis added)).*

Second, Justice Gorsuch considers the sorts of exemptions the state gives to other groups.

Separately, the County and lower courts erred by failing to give due weight to exemptions other groups enjoy. For example, in Minnesota those who "hand-carr[y]" their gray water are allowed to discharge it onto the land directly. Minn. Admin. Rule 7080.1500, §2. So thousands of campers, hunters, fishermen, and owners and renters of rustic cabins are exempt from the septic system mandate.

Gorsuch explains that with strict scrutiny, the government must show why it cannot give the Amish the same exemption. And that rationale must be "compelling."

Under strict scrutiny doctrine, the County must offer a compelling explanation why the same flexibility extended to others cannot be extended to the Amish. As Fulton put it, the government must offer a "compelling reason why it has a particular interest in denying an exception to [a religious claimant] while making [exceptions] available to others." 593 U. S., at ___ (slip op., at 15). Or as this Court has said elsewhere, it is "established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993) (internal quotation marks and alteration omitted);see also Holt, 574 U. S., at 367 ("[T]he Department has not adequately demonstrated why its grooming policy is substantially underinclusive"); O Centro Espírita, 546 U. S., at 436 ("The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions").

Next, Gorsuch makes a fascinating move. The Court must consider other jurisdictions that have exempted people of faith.

Relatedly, the County and lower courts failed to give sufficient weight to rules in other jurisdictions. Governments in Montana, Wyoming, and other States allow for the disposal of gray water using mulch basins of the sort the Amish have offered to employ. App. to Pet. for Cert. 73–74.Given that, the County in this case bore the burden of presenting a "compelling reason why" it cannot offer the Amish this same alternative. Fulton, 593 U. S., at ___ (slip op., at15). To be sure, the County stresses the fact that the "record contains no evidence of a single, properly working mulch basin system in Minnesota." App. to Pet. for Cert. 74. But that is not enough.

Minnesota must show why they cannot follow the rules from other jurisdictions.

It is the government's burden to show this alternative won't work; not the Amish's to show it will. "[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13).

I don't think this principle follows from Fulton. But it could potentially be a game-changer for Free Exercise cases. States that are overly protective of religious liberty will now set the floor for states hostile to free exercise claims. California would have to follow Texas.

Third, the state must demonstrate that its policy is narrowly tailored "with evidence." Not "supposition." And Justice Gorsuch favorably cites Tandon v. Newsom, which favorably cites Judge Sutton's Neace decision: the state cannot assume that people of faith are less trustworthy. than others who receive exemptions.

But strict scrutiny demands more than supposition.The County must prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate. Here, that means proving that mulch basins will not work on these particular farms with these particular claimants. Again, if "the government can achieve its interests in a manner that does not burden religion, it must do so." Fulton, 593 U. S., at ___ (slip op., at 13) (emphasis added); see also Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per curiam) (slip op., at 3) ("The State cannot 'assume the worst when people go to worship but assume the best when people go to work'" (quoting Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam))).

I think Justice Gorsuch has sketched a three-part roadmap for Free Exercise Clause claims after Fulton. Lower courts, take notice.

NEXT: Three Supreme Court Justices Signal Willingness to Reconsider Kelo v. City of New London

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  1. Once again, the government seeks to intrude unnecessarily on religious rights….

    1. You people are pathetic—wow, the document that has the Fugitive Slave Clause also has the Free Exercise Clause and so because you believe Jesus rose from the dead you think that makes you special?? There is simply no way to allow religious people to discriminate in the name of their religion because the Constitution states “religion”…and anything can be a religion!! The Framers screwed up—move on with your life. So sadz you people will be forced to take money from lawfully paying customers. 🙁

      1. If the Constitution is wrong because “The Framers screwed up…”? Then change the Constitution. There is a mechanism for that. And before you complain that it’s too hard, that’s a feature not a bug.

        1. Actually the FEC is about promoting a robust religious market place as a check on tyranny. So the first thing a tyrant does is to consolidate power by taking over major institutions and so in Europe that would mean putting a loyalist as the leader of the state or quasi state religion. In America that would have been very difficult because we had such a robust religious market place with many powerful churches. So the FEC isn’t really about protecting every cult from laws that infringe their free exercise of religion…it’s really about perpetuating the robust religious market place. And keep in mind prior to incorporation the states wouldn’t pass laws that would piss of powerful religious leaders in their states…so just like with every other thing the entities that can lobby their representative government have the biggest voice with respect to legislation.

          1. There were, literally, state churches in the US states at the time the Constitution was ratified. It’s just that there were different state churches in the different states.

            I’m pretty sure the Founders had no interest in “a robust religious marketplace” – they merely wanted to make sure that those heretic bastards over there would never be able to oppress my Church.

            1. Correct, religion was very important in 1789 and churches were very powerful…that’s why the Framers viewed churches as a useful power structures that could play an important role in preventing tyranny while perpetuating the republic.

      2. “You people”
        -That’s bigoted.

        “you think that makes you special”
        It’s called respecting other peoples’ beliefs, no matter their creed.

        “The Framers screwed up—move on with your life.”
        While it unfortunate you don’t agree with the first amendment and freedom of religion, most of the rest of the country disagree, and it’s still the law of the land. If you want to move to a country that doesn’t support religious freedom, I suggest China. Perhaps you’ll like their more authoritarian attitude.

        1. ^^^supports ISIS exercising their deeply held religious beliefs of slaughtering infidels. Do you understand that religious beliefs can be anything??? And the Framers had no intention of protecting every cult’s asinine beliefs—they simply wanted a robust religious market place.

          1. Wow…

            I could explain the details about context, religious freedom, and how religious rights aren’t unlimited (like every other right in the Constitution). But how the government shouldn’t intrude unnecessarily on religious rights….

            But….I feel it would be lost on you.

            1. What you really want is the ability to discriminate against LGBTQ community because your side lost the culture war…maybe you should focus more on your relationship with God and less on your hate for other people.

              1. “It’s called respecting other peoples’ beliefs, no matter their creed.”

                Included in that is if they want to have same sex relationships. Let me worship my giant spaghetti monster. I’ll respect your right to make your own choices about your sexual behavior. Don’t try to force others into supporting it though.

                We can have differences from each other, and respect them, without forcing those differences down each others throats.

                1. Same sex marriage has literally nothing to do with sex. If anything gay marriage will lead to less homosexual behavior.

                2. “Included in that is if they want to have same sex relationships.”

                  By all means, f*ck whatever adults you want, who want to f*ck you.

                  But don’t try to force me to pretend that your “relationship” is valuable to society. And don’t try to force me / society to give your relationship the same benefits that society gives to the heterosexual relationships that ARE valuable to society.

                  Same sex “marriage” isn’t about you getting to f*ck who you want. It’s about demanding that the rest of use give you benefits you haven’t earned, and don’t deserve

      3. “The Framers screwed up—move on with your life”

        Ok

        This means the Supreme Court has no legitimate power.

        So dump Roe, Lawrence v Texas, Windsor, Obvergefell, and every single other SCOTUS ruling “based on the Constitution” that achieves a left wing result.

        Until then? FOAD

  2. Are you ready to accommodate a religion that considers marijuana and abortion to be sacraments and forbids its followers to associate with — to rent to, employ, play taxes that support, or transact with — bigots (especially superstitious gay-bashers, Republican racists, conservative misogynists, and half-educated xenophobes)?

    1. You’re referring to the media, academia, big tech and the current executive branch? They seem to be doing alright.

    2. You mean the Democratic Party?

  3. The behavior of the government in Mast was pretty outrageous:

    The County even unsuccessfully sought a court order authorizing its agents to inspect the inside of Amish homes as part of an investigation into what “types of modern technologies and materials” they might be using. Id., at 81. Apparently, this was part of an effort to amass “evidence” to “attack the sincerity of [the Amish’s] religious beliefs.” Ibid., n. 5.

    Eventually, the case proceeded to trial. There, the state trial court rejected the County’s most aggressive argu- ments, including (1) its claim that the Amish’s “limited use of telephones” proved that their objection to modern septic systems was contrived, App. to Pet. for Cert. 43; (2) its argument that the Bible commands the Amish to submit to “secular authority,” id., at 44, n. 16; and (3) its assertion that installing septic systems represented only a de mini- mis burden on the Amish’s religious beliefs because they sometimes “use various items of ‘modern’ technology,” such as “some rubber tires” or “power tools,” id., at 50.

    How could any lawyer think those arguments were legitimate?

    And moreover, why would they make those arguments? It’s one thing if someone says, “I’m exempt from this drug law because of my religion,” and an overzealous government official thinks that this is an insincere claim in an attempt to use illegal drugs. But do they really think that people are making up insincere religious claims to avoid using a particular type of septic system?

    1. “How could any lawyer think those arguments were legitimate?”

      Because it’s not about “legitimate”. It’s about power. Using the power of the state to crush people of divergent views.

      1. You are missing the point. I am not talking about the motives of the officials involved (about which your views are cartoonish). I am talking about the tactics of the lawyers. “They’re misreading the bible” is an incompetent (and unnecessary) argument.

        1. Because this is the mindset they have. They are so unabashedly, totally, and absolutely convinced that they are right, and the other person is wrong, that any argument is acceptable.

          The argument where the anti-religious individual attempts to convince that the person with a deep held belief that their belief is wrong according to their the person’s own scripture is sadly, extremely common.

          1. You seem to have decided every liberal is evil, and every dumb action is not actually dumb, but more proof of evil.

            It’s extremely pure outcome-oriented reasoning, and it’s not really a very smart argument to make.

            1. You seem to have decided every politician is evil

              FTFY

            2. Wow that’s a lot of strawmen there! Even for you.

          2. “Because this is the mindset they have. They are so unabashedly, totally, and absolutely convinced that they are right, and the other person is wrong, that any argument is acceptable.”

            That about sums up the snowflake-class claimants who contend that superstition-laced “just because” arguments entitle them to limitless special privilege.

            With increasing frequency, the special privilege they seek involves old-timey, ugly bigotry. In a society becoming steadily less religious and less bigoted, that seems an unsustainable trajectory.

            1. Money talks, bullshit walks…that’s the America I want to live in. If a customer has $$$ and you advertise you bake wedding cakes…then you take the money a bake the fucking cake! Implicit in “wedding cake” is that it’s going to be very gay—because gay men in LA and Manhattan set all of the trends for these asinine weddings Americans have.

          3. Fillmore County, MN, is one of those places Arthur Kirkland is perpetually mocking—population of 20,000, 98% white, voted for Trump by more than 20 points.

            How did the Saturday-morning-cartoon-villain liberal iconoclasts of your feverish imagination end up running the show there?

            1. In fairness, the real part-in-interest appears to be the Minnesota Pollution Control Agency, not Fillmore County. They’re the ones who filed the brief.

  4. Why should lower courts take notice of an opinion that most likely has only three votes in support of it?

  5. Accordingly, the question in this case “is not whether the [County] has a compelling interest in enforcing its [septic system requirement] generally, but whether it has such an interest in denying an exception” from that requirement to the Swartzentruber Amish specifically

    Does United States v Lee (decided during the Verner period) come out differently under this standard?

    1. RLUIPA was enacted 18 years after that case was decided, to fix problems in a law enacted 11 years after that case was decided, so there have been substantial statutory changes since then. But I think that courts would find a compelling and narrowly tailored government interest in everyone paying income taxes according to the Internal Revenue Code, even if they’re Amish.

      1. What’s the interest in denying the exception to the Amish specifically?

  6. No, lower courts should not “take notice” of yet another irresponsible, incoherent, and non-binding opinion by Gorsuch, writing solely for himself.

    Barrett and Roberts have, at least, shown themselves to be far more careful about the rules they lay out than Gorsuch has, or that Josh seems capable of discerning. I don’t see any reason why they would choose to “apply” Fulton for purposes of the RLUIPA in the way that Gorsuch describes, and it’s five votes you need to make law, not some lonely concurrence on the so-called “shadow docket,” itself increasingly a perversion of the rule of law and the rule against handing down advisory opinions.

    Simply put, the courts should not take it upon themselves to apply a national MFN standard for determining whether a state’s approach to serving a compelling state interest is sufficiently narrowly tailored. Just because one state chooses to be more deferential to religious objections does not mean that all states must be no less deferential. And the idea that a generally applicable law’s general applicability has to itself be justified by a compelling state interest in regulation a specific religious claimants behavior is just nonsensical on its face. It renders Smith incoherent and would make regulation of any conduct that is ostensibly religiously motivated effectively impossible. This is almost certainly not what the First Amendment requires.

    None of the conservative justices can really seem to be trusted to write for themselves. They all need to have their reasoning tested by the moderate center. When they write these lonely concurrences, they make one head’s spin at the cynicism and violence they’re directing at the rule of law.

    And Josh, for his part, is letting down his putative profession.

    1. Simply put, the courts should not take it upon themselves to apply a national MFN standard for determining whether a state’s approach to serving a compelling state interest is sufficiently narrowly tailored. Just because one state chooses to be more deferential to religious objections does not mean that all states must be no less deferential. And the idea that a generally applicable law’s general applicability has to itself be justified by a compelling state interest in regulation a specific religious claimants behavior is just nonsensical on its face. It renders Smith incoherent and would make regulation of any conduct that is ostensibly religiously motivated effectively impossible. This is almost certainly not what the First Amendment requires.

      I’m not sure why you’re talking about Smith and the FA, when this was a RLUIPA case. And RLUIPA does require narrow tailoring and a compelling state interest.

      1. Blackman brought it up when he said

        I think Justice Gorsuch has sketched a three-part roadmap for Free Exercise Clause claims after Fulton.

        And I think it is clear Blackman is correct that Gorsuch wants to apply this standard to neutral and generally-applicable laws.

    2. That’s not fair. There are plenty of times where solo concurrences and ideas developed by singular justices end up in majority opinions. The recent campaign disclouser case was a result of a single concurrance by Thomas that eventually developed into its own thing.

      The lower courts aren’t “bound” by the concurrance, but it is something to keep in mind. I’m sure Alito and Thomas agree with portions of it. And if it ever comes up again some aspects will probably end up in the majority.

      Justices provide this sort of guidance all the time.

  7. Justice Gorsuch’s position stakes out the most protective version of strict scrutiny out there, the position, not of the Court, but of the Court’s right wing. Even assuming this position can get a majority on RLUIPA statutory claims, I think it’s very unlikely that it will command a majority of the current justices on Free Exercise Clause claims.

    I did find it odd that the court GVR’d in light of Fulton. Fulton was a Free Exercise Clause case, while this was a RLUIPA case. The standards involved are very different. If Minnesota Court of Appeals was supposed to apply some aspect of Fulton — for example, take into account the various exceptions Minnesota gave — it seems to me the court should have written a per curiam opinion explaining how Fulton was relevant and what it was the court below missed. It seems to me the court should only use naked GVR in cases that are very similar, at least that apply the same legal standard.

  8. >>>
    Minnesota must show why they cannot follow the rules from other jurisdictions.

    It is the government’s burden to show this alternative won’t work; not the Amish’s to show it will. “[S]o long as the government can achieve its interests in a manner that does not burden religion, it must do so.” Fulton, 593 U. S., at ___ (slip op., at 13).
    <<<

    I think this was "septic system specific." 🙂

    MN is arguing that "we need clean groundwater, so we require X septic systems." Gorsuch replies: Other States want clean water, and they allow the use of these systems. Tell us why you can't use them. If you can't, you lose

    So, not just septic systems, but more "you have a goal to achieve. If some other State else is achieving that goal in way X, and the religious people are willing to do X, then you're going to have to prove that X won't actually achieve your "compelling" goal (in this case: clean ground water)

    Which IMAO is a perfectly valid question to ask. And indicates that the locals are probably driven more by spite against the Amish, and / or "you must respect my authority!", rather than any desire to simply insure clean water

  9. I have a suggestion for Justice Gorsuch here.

    I think Minnesota’s main argument here had more to it than the opinion indicates. It is a view that a significant portion of the country is likely to hold. Rather than quickly dismissing it as “extreme,” I think it’s important to pay attention to the argument and give a careful, patient, reasoned explanation why it shouldn’t prevail.

    What Minnesota did here is take the Police v. Newark framework at face value and apply it reciprocally, making sauce for the goose into sauce for the gander. If we say states’ laws lack general applicability and their interests aren’t compelling if they make exceptions for others, why shouldn’t we do the same for religious rules? Ifa religion makes an exception for various other reasons, why can’t jolly well make an exception for the state? If when the state makes exceptions, that becomes evidence that its laws aren’t really general and it’s interests aren’t really compelling, why shouldn’t religions get the same treatment? Why shouldn’t courts scrutinize the religions making these claims for exceptions and inconsistencies in the same way they scrutinize states, and if any exist, why isn’t that proof that the belief isn’t really sincerely held and/or complying with the law won’t really be a burden? Why shouldn’t sauce for the goose also be sauce for the gander?

    I think this is a much more serious argument than Justice Gorsuch gave it credit for. The comes from a position that the whole pre-Smith framework is nothing but favoratism for religious, a framework in which religions get special favors and don’t get equal treatment.

    While it’s true that religions don’t get equal treatment under the pre-Smith framework, there’s a reason for this. I think Justice Gorsuch needs to explain why a reasonable application of the Free Exercise Clause and/or statutory rights requires states’ motives to be closely scrutinized and exceptions held against them, but not only do religious beliefs not get anything like this scrutiny, but glaring inconsistencies and even outright hypocracy are not held against them.

    I think the Court’s right wing has an obligation not to simply dismiss such arguments as nonsense and assert raw power. I think it has an obligation to give a reasoned explanation why its approach is necessary to give meaning to the relevant clauses. It needs to take opposing arguments like these seriously.

    I would think this even if the votes of the middle 3 justices weren’t uncertain and up for grabs. But because they are, it’s important pragmatically in terms of counting up to 5, not just in terms of values like respecting the judiciary’s responsibility and accountability to the public and acting as a court of law rather than just as an instrument of power.

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