Justice Kavanaugh on Strict Scrutiny

In many areas of constitutional law, the Court allows a constitutional right to be overcome when a restriction passes "strict scrutiny"—i.e. (to oversimplify slightly), when the government can show that restricting the right is the "least restrictive means" of serving a "compelling government interest."

In some fields, such as free speech or race classifications, the inquiry is "strict in theory but [almost] fatal in fact": Very few restrictions pass the test. But in other areas, such as religious exemptions governed by RFRAs or RLUIPA (statutes that borrow the strict scrutiny test from constitutional law), a lot of restrictions must pass—no Justice thinks, for instance, that people should get religious exemptions from laws banning homicide or theft or vandalism or trespass, or for that matter from most tax laws and other important regulatory regimes. At the same time, a lot of others should fail. The details of how strict scrutiny plays out end up being quite important, but while the Court has a lot of precedents applying strict scrutiny, many of the key questions (such as how one can tell whether an interest is "compelling") remain unresolved.

I've long been interested in the subject (see, e.g., my criticisms of strict scrutiny in my 1996 Freedom of Speech, Permissible Tailoring, and Transcending Strict Scrutiny and in Part II of my A Common-Law Model for Religious Exemptions), and I was therefore especially interested in seeing Justice Kavanaugh's concurrence discussing the matter in today's Ramirez v. Collier:

[T]he Court's holding implicates significant issues about how the Court decides whether a State's asserted interest is sufficiently "compelling" and how the Court assesses whether less restrictive means could satisfy that compelling interest. This case illustrates both the difficulty of those inquiries and the important role that history and state practice often play in the analysis.

The compelling interest standard of RLUIPA—like the compelling interest standard that the Court employs when applying strict scrutiny to examine state limitations on certain constitutional rights—necessarily operates as a balancing test. The Court starts with a heavy presumption against a state law that infringes the constitutional or statutory right in question. The Court allows state infringement on that right only when the State has a sufficiently "compelling" interest.

But what does "compelling" mean, and how does the Court determine when the State's interest rises to that level? And how does the Court then determine whether less restrictive means would still satisfy that interest? Good questions, for which there are no great answers. Sometimes, the Court looks to a State's policy-based or commonsense arguments. Often, the Court also examines history and contemporary state practice to inform the inquiries.

{The strict scrutiny test requires the government to demonstrate a "compelling interest" in order to justify imposing a burden on certain constitutional rights. That test was first applied by this Court in certain First Amendment cases in the late 1950s and early 1960s. The test can be difficult to apply because it arguably "permits and even requires judges to engage recurrently in only minimally structured appraisals of the significance of competing values or interests in many cases." In RLUIPA, Congress used the term "compelling" interest without further defining it.}

Here, the State asserts that it has a compelling interest in ensuring the safety, security, and solemnity of the execution room. To further those interests, the State has sought to restrict the number of people in the room, as well as their activities. As the United States pointed out at oral argument, any disruption or interference could be "catastrophic." And a religious advisor would not ordinarily be allowed in a public hospital's operating room during a major life-or-death surgical procedure, so why should one be allowed into the execution room?

The Court has no difficulty reaching the commonsense conclusion that the State has a compelling interest in ensuring safety, security, and solemnity in the execution room. The more difficult question is: How much risk of disruption or interference must the State tolerate in order to accommodate the inmate's religious liberty claim under RLUIPA?

The Court concludes that, even if audible prayer and physical touching are allowed, the State can still sufficiently ensure safety, security, and solemnity in the execution room. The Court suggests that the risk of disruption or interference is conjecture and can be addressed in other ways. For example, security officers in the room could immediately intervene if the religious advisor accidentally or intentionally disrupts or interferes with the execution.

Even so, it is undeniable that allowing an outside individual in an execution room and allowing touching would increase the risk of a problem occurring, such as accidental or intentional disruption of or interference with the execution. So why can't the State choose to avoid any additional risk of disruption or interference, especially given the potentially catastrophic harm if the risked disruption or interference actually ensues?

That is a difficult question to answer, in my view. The core problem is that a State's understandable goal of avoiding a higher risk of great harm does not easily map onto the compelling interest/least restrictive means standards. In particular, it is difficult for a court applying those standards to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.

Here, if the Court's own intuitive policy assessment that the State can reasonably tolerate the additional risk were all that the Court could muster in response to the State's argument, I might have concluded that the State could exclude religious advisors from the execution room, or at least could restrict their activities in the room and not allow physical touching, for example.

Importantly, however, the Court does not merely point to its own policy assessment of how much risk the State must tolerate in the execution room. The Court also relies in part on the history of religious advisors at executions. To be sure, the Court acknowledges that some of the history is not precisely on point because many executions historically were outdoor public hangings where the presence of religious advisors did not raise the same risks to safety, security, and solemnity that their presence in a small execution room does. And some of the other history involved state-employed chaplains, who arguably do not raise the same risks to safety, security, and solemnity as outsiders in the execution room. Still, the history generally demonstrates that religious advisors have often been present at executions.

And perhaps even more relevant, the Federal Government and some States have recently allowed inmates' religious advisors into the execution room. Those religious advisors have been allowed to engage in audible prayer and limited touching of the inmate without apparent problems. As the Court explains, experience matters in assessing whether less restrictive alternatives could still satisfy the State's compelling interest.

{Of course, in assessing risk, a government need not wait for the flood before building the levee. But as the Court explains, the recent experience in other States can nonetheless be somewhat informative in analyzing whether the State has a sufficiently compelling interest and has employed the least restrictive means of avoiding the risk of disruption or interference from the presence of religious advisors. Courts must be discerning, however, when relying on state practice. States are not necessarily required to follow the less restrictive practices of other States in a kind of race to the top (or bottom). Moreover, state practice can fluctuate as States change their approach to an issue over time. In any event, other States' practices nonetheless have sometimes informed judicial evaluation of whether a State's interest rises to the level of "compelling," and whether a State has employed the least restrictive means of achieving that interest.}

For some related though different thoughts on the subject by Justice Scalia, see his concurrence in Sable Communications v. FCC (1989), which struck down a ban on dial-a-porn. The government argued that the ban was the least restrictive means of serving a compelling interest in shielding minors from potentially psychologically damaging pornography, but the Court held that less restrictive means—such as requiring credit card payment, special access codes issued only after age screening, or scrambling with descramblers available only to adults—would be adequate to serve that interest. Justice Scalia agreed, but added:

It should not be missed that we are making a value judgment with respect to the indecency portion of the statute. The conclusion of the reasoning in Part IV of our opinion is as follows:

"For all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case, it seems to us that § 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages."

We could as well have said:

"We know from this record that the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be inadequate, since some enterprising and disobedient young people would manage to secure access to such messages. Since this is the case, it seems to us that § 223(b) is a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages."

I join the Court's opinion because I think it correct that a wholesale prohibition upon adult access to indecent speech cannot be adopted merely because the FCC's alternate proposal could be circumvented by as few children as the evidence suggests. But where a reasonable person draws the line in this balancing process—that is, how few children render the risk unacceptable—depends in part upon what mere "indecency" (as opposed to "obscenity") includes. The more narrow the understanding of what is "obscene," and hence the more pornographic what is embraced within the residual category of "indecency," the more reasonable it becomes to insist upon greater assurance of insulation from minors. So while the Court is unanimous on the reasoning of Part IV, I am not sure it is unanimous on the assumptions underlying that reasoning. I do not believe, for example, that any sort of sexual activity portrayed or enacted over the phone lines would fall outside of the obscenity portion of the statute that we uphold, and within the indecency portion that we strike down, so long as it appeals only to "normal, healthy sexual desires" as opposed to "shameful or morbid" ones.

One can of course have different views of just how compelling the interest in shielding minors from pornography might be; but I think Justice Scalia's point about the less restrictive means inquiry is important.