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Justice Kavanaugh Is Not Going To Lay A Hand On Employment Division v. Smith

Kavanuagh's concerns about the "compelling interest" test in RLUIPA do not bode well from him restoring that test to Free Exercise Clause jurisprudence.


On Thursday, the Supreme Court decided Ramirez v. Collier. Ramirez, a capital defendant, was scheduled for execution. But Texas did not allow Ramirez's pastor to lay hands on him, and engage in audible prayer, during the execution. On appeal to the Supreme Court, Ramirez argued that Texas's policy violated the Religious Land Use and Institutionalized Persons Act, or RLUIPA (one of my favorite acronyms). The defendant did not preserve arguments based on the Free Exercise Clause. (The Becket Fund sought to participate in oral argument to address First Amendment arguments.)

The Supreme Court ruled for Ramirez in a lopsided 8-1 vote. Chief Justice Roberts wrote the majority opinion, and Justice Thomas wrote a solo dissent.

The Court found that Ramirez was likely to prevail on his RLUIPA claim, and instructed the district court, if appropriate, to enter a preliminary injunction: the state must allow the pastor to lay hands and engage in audible prayer during the execution, subject to certain restrictions.

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez's execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. 

This remedy may have a Marbury problem: the Court didn't simply review the lower court judgment--the denial of a stay of execution. Both the majority and dissent agree that the stay issue was already decided. Indeed, the stay on execution was dissolved, so the execution can go forward with religious accommodations. Rather, the Court ruled on an entirely new form of relief. No lower court passed on this injunction. Was the Court exercising appellate or original jurisdiction here? The Solicitor General raised similar objections in the OSHA vaccine litigation. For all the protestations about the insidious shadow docket, we may have an actual Article III problem here. I'll have more on this topic in another post. Here, I want to talk about the merits analysis.

RLUIPA, like RFRA, was enacted in the wake of Employment Division v. Smith. Through RLUIPA, Congress instructed the Courts to review federal laws burdening the free exercise of religion with something like strict scrutiny. Chief Justice Roberts laid out the test:

RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution"—including state prisoners—"even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U. S. C. §2000cc–1(a).

Chief Justice Roberts largely agreed that Texas had several compelling interests:

We do not doubt that prison officials have a compelling interest in monitoring an execution and responding effectively during any potential emergency. . . .

We agree that the government has a compelling interest in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber. . . .

They point to three governmental interests they say are compelling: security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim's family members. All three goals are commendable. . . .

But Texas was not able to show their policy was the "least restrictive means of furthering" these compelling interests.

Justice Kavanaugh wrote a concurrence that criticized the "compelling interest" prong of RLUIPA:

Second, the 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. . . .

But what does "compelling" mean, and how does theCourt 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. 

Kavanaugh expressed a strong discomfort with the judiciary determining which interests are compelling:

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. See generally B. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1914– 1919 (2017).

Kavanaugh's position is not new. Indeed, Kavanaugh's further self-citation points us to his 2017 Notre Dame Law Review article. Kavanaugh explains at some length that determining whether an interest is compelling is inherently a "common law" inquiry.

These verbal formulations are challenging because judges have no objective way of deciding whether an interest is "compelling" or "important" without making a judgment about the desirability of that interest. . . . What is really going on with these tests, it appears, is old-fashioned common- law judging. This may be unavoidable, as I will explain. But we should be under no illusions that this is not what's happening when those tests are being applied.

Kavanaugh expressly cited RFRA as an example of a statute that adopted the "compelling interest" test. The article goes on to discuss the compelling interest in the context of abortion, affirmative action, and the Second Amendment. On this last point, Kavanaugh refers to his D.C. Circuit Heller II decision:

The litigation in the lower courts since Heller has centered on which gun regulations are constitutional and which gun regulations are unconstitutional. 28 Not surprisingly, this has played out as a battle over whether strict scrutiny or intermediate scrutiny applies. Must the regulations serve a compelling interest or merely an important interest? As I have stated, I view much of that debate as a smokescreen that is disguising basic common-law balancing and deciding what is reasonable versus what is unreasonable, what is important versus what is not as important. And in this context in particular, I view Heller as having already told us that the content of exceptions to the Second Amendment right is not to be assessed based on strict scrutiny or intermediate scrutiny. Rather, the exceptions are to be assessed by reference to history and tradition. I wrote an opinion to that effect, although I am the first to acknowledge that most other lower-court judges have disagreed. The issue has not returned yet to the Supreme Court. To be determined.

To be determined, indeed. NYS Rifle & Pistol remains pending.

None of this should come as a surprise. Unlike the most recent Supreme Court nominee, then-Judge Kavanaugh gave extensive thought to his judicial philosophy. Kavanaugh does not like strict scrutiny, and the compelling interest test. He prefers a test based on text and history, which he considers more determinate.

Kavanaugh's prior writings may shed some light on his Fulton concurrence. Recall that Kavanaugh, along with Justice Barrett, declined to overrule Employment Division v. Smith. Barrett's concurrence raised a phalanx of apparently-unanswered questions. But we didn't hear separately from Kavanaugh. I think his Ramirez concurrence speaks directly to his concerns: if Smith is overruled, the compelling interest test would (likely) be restored to Free Exercise Clause jurisprudence. And the "smokescreen" from Sherbert and Yoder would also be restored. Justice Kavanaugh may favor a text-and-history approach to the Free Exercise Clause, but would oppose strict scrutiny--the precise framework adopted by Justices Alito, Thomas, and Gorsuch in Fulton. Indeed, Kavanaugh's concurrence links his analysis to the strict scrutiny debate:

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. See R. Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1270–1271 (2007); S.Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 356–357 (2006). 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." R. Fallon, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 66–67 (2019). In RLUIPA, Congress used the term "compelling" interest without further defining it.

And guess what case Fallon discussed on pages 1269, right before the pincite to 1270: Smith.

Reading through the Ramirez concurrence made me think of Justice Scalia's objections to the compelling interest prong. In Smith, Scalia wrote:

If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them.

Who wants to court anarchy? Kavanaugh would, instead, turn to a historical approach:

In short, as this case demonstrates, the compelling interest and least restrictive means standards require this Court to make difficult judgments about the strength of the State's interests and whether those interests can be satisfied in other ways that are less restrictive of religious exercise. Although the compelling interest and least restrictive means standards are necessarily imprecise, history and state practice can at least help structure the inquiry and focus the Court's assessment of the State's arguments. 

Kavanaugh's approach is far more favorable than the methodology of his predecessor; Justice Kennedy also rejected the tiers of scrutiny, but preferred appeals to post-modern values like dignity and autonomy.

I think the upshot to this concurrence is that Justice Kavanaugh will not lay a hand on Smith, to borrow a phrase, if doing so means restoring the compelling interest test. He won't even touch Smith's foot. Advocates should instead focus on how historical practice undermines a state's interest to burden free exercise. Ditto for free speech. This approach will be useful in 303 Creative. Stay tuned.