The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Prof. Michael McConnell on The Supreme Court's Religion Docket
I'm delighted to be able to pass along this item from my Stanford colleague Prof. Michael McConnell (Stanford Law School), one of the nation's leading scholars on the Religion Clauses:
The Supreme Court has a unique opportunity this Term (or next) to hear four cases with major implications for religious liberty. One case is already on the merits docket—Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, which involves a challenge to Wisconsin's determination that Catholic Charities is not sufficiently religious to qualify for an exemption from the state's unemployment program.
This Friday, the Court will consider adding three more:
- Apache Stronghold v. United States—in which Native Americans are challenging the federal government's plan to destroy a sacred site by turning it into a copper mine.
- Mahmoud v. Taylor—in which Muslim parents are challenging a school district's refusal to notify parents or let children opt out when teachers present controversial readings on sex and gender identity.
- Roman Catholic Diocese of Albany v. Harris—in which religious groups are challenging New York's mandate to cover abortions in their health insurance plans.
(Full disclosure: I participated in amicus briefs in all four cases.)
While these cases may seem unrelated, they converge on two pressing issues that have divided lower courts, distorted the law, and harmed religious liberty. The Court should hear all four cases. Here's why.
[1.] Apache Stronghold and Mahmoud present the first issue that has divided lower courts: What kind of "burden" on religious exercise triggers heightened judicial scrutiny?
The Apaches have been worshipping at their sacred site, Oak Flat, since before European contact. Oak Flat occupies a unique role in Apache cosmology as a site of specific religious rites that cannot take place elsewhere. Now the government plans to transfer Oak Flat to a mining company that will destroy it—ending Apache rituals forever. This would seem to be a textbook case of a "substantial burden" on religious exercise under the Religious Freedom Restoration Act (RFRA). Yet the en banc Ninth Circuit, in a 6-5 ruling, held that there is no "cognizable" burden at all. According to the court, "the Government's management of its own land and internal affairs" does not burden religious exercise unless the government also coerces, discriminates, imposes a penalty, or denies equal rights.
It is, of course, possible that the copper mine would be found to serve a compelling governmental purpose—but RFRA was intended to put the government to the test on matters such as these. I know little about the geological circumstances, but it is often possible to find ways to advance important governmental interest while minimizing impacts on religious exercise.
In Mahmoud, a public school district requires children as young as three to participate in reading and discussion of controversial books on sexuality and gender identity—with no notice to parents and no opportunity to opt out. Muslim parents say that subjecting their children to this instruction violates their faith. Yet the Fourth Circuit held that there is no "cognizable" burden on their religious exercise unless the school "coerces" the children "to change their religious beliefs or conduct."
Both rulings are counterintuitive. Of course destroying the irreplaceable locus of sacred rites burdens the ability to practice those rites. And of course subjecting children to sexually-themed lessons that are forbidden by their religion burdens their religious exercise. Other circuits have recognized the obvious burden on religious exercise in similar circumstances, as the cert petitions have noted. Yet the Ninth and Fourth Circuits strained to find no burden in either case. Why?
The answer may lie in the much-maligned Employment Division v. Smith, which rejected heightened judicial scrutiny for laws that are "neutral" and "generally applicable" toward religion. Smith was animated by Justice Scalia's desire to get courts out of the business of granting case-by-case exemptions from laws that burden religious exercise. But whether or not Smith was correctly decided—in my opinion, it wasn't—the law has changed significantly since Smith was decided. First, Congress enacted RFRA, which expressly calls for courts to engage in case-by-case overrides of religion-burdening laws. Second, the Supreme Court itself has made it harder for governments to claim the mantle of Smith by tightening up what it means for laws to be "neutral" and "generally applicable."
The upshot is that the law now often requires heightened judicial scrutiny of laws the burden religious exercise. But some courts remain reluctant to engage in that scrutiny—whether motivated by a Scalia-like aversion to case-by-case balancing, distaste for the religious beliefs at issue, fear of slippery slopes, or other policy concerns. So we get decisions like Apache Stronghold and Mahmoud—where courts bend over backwards to avoid finding a "cognizable" burden on religious exercise, even when the burden is staring them in the face. The Supreme Court should grant review to address the issue.
[2.] But which case should the Court take—Apache Stronghold or Mahmoud? While it might be tempting to grant cert in one and GVR the other, doing so would not fully address the division in the lower courts or prove fruitful here, given differences in the facts and legal issues in each case.
Consider, first, a grant in Apache Stronghold and a GVR in Mahmoud. Apache Stronghold focuses mainly on RFRA, which requires strict scrutiny when the federal government "substantially burdens" religious exercise. If the Court resolves Apache Stronghold based on the ordinary meaning of "substantial burden" in RFRA (as it should), that would not necessarily control the application of the Free Exercise Clause to the local government policy at issue in Mahmoud. It would be easy for the Fourth Circuit, after a GVR in Mahmoud, to treat Apache Stronghold as limited to the language of federal RFRA and to reissue the same ruling in Mahmoud.
Alternatively, consider a grant in Mahmoud and a GVR in Apache Stronghold. If the Court resolves Mahmoud on the ground that subjecting children to religiously-forbidden instruction without parental knowledge is a burden under the Free Exercise Clause, that would not necessarily control the RFRA question in Apache Stronghold, because the Apache Stronghold court purported to divine a land-use-specific meaning of "burden" from the Supreme Court's earlier decision in Lyng v. Northwest Indian Cemetery Protective Association. Thus, it would be easy for the Ninth Circuit, after a GVR in Apache Stronghold, to say that the ruling in Mahmoud does not affect its land-use-specific analysis under Lyng.
To fully address the conflict in the lower courts, the Court should grant cert in both cases, allowing it to address the vitally important burden issue under both RFRA and the Free Exercise Clause.
[3.] Catholic Charities Bureau and Diocese of Albany presents the second issue dividing lower courts: the issue of religiously discriminatory exemptions. In both cases, a state has enacted a general rule, crafted a narrow religious exemption, and then applied the exemption in a way that discriminates among religious groups.
In Catholic Charities Bureau, Wisconsin generally requires nonprofits to pay into its unemployment program, but exempts organizations controlled by a church and "operated primarily for religious purposes." Based on this provision, Wisconsin exempts, for example, the Diocese of Superior. But it refuses to exempt Catholic Charities—the social ministry arm of the Diocese of Superior—on the ground that, because Catholic Charities serves and employs non-Catholics, it is not engaged in "typical" religious activities and therefore is not "operated primarily for religious purposes."
Likewise, in Diocese of Albany, New York generally requires employer health insurance plans to cover abortions, but exempts religious organizations that have the "purpose" of "inculcat[ing] … religious values" and that primarily "employ[]" and "serve[]" those of the same religion. Based on this exemption, New York exempts some churches and religious schools but not others, based on whether they hire and serve people of other faiths.
In both cases, the narrow religious exemption has the effect of discriminating among different religious institutions. Yet in both cases, state high courts upheld the exemption—despite contrary rulings from other state high courts, federal circuit courts, and the Supreme Court.
The Court has already granted cert in Catholic Charities Bureau; argument will be heard in March or April. But what should the Court do with Diocese of Albany? It may be tempting to hold Diocese of Albany and later GVR it in light of Catholic Charities Bureau. That may, in fact, be the simplest course. But as the Petitioner in Diocese of Albany has noted, that case has already been GVR'ed before in light of Fulton v. Philadelphia. And the New York courts thumbed their noses at Fulton during three more years of litigation. Another GVR could simply lead to a third cert petition after several more years of state-court litigation. Stronger medicine is needed; the Court should grant plenary review in Diocese of Albany, too.
[4.] Granting all four of these cases would not be unusual. The Court resolved four religion cases in OT 2021 (Kennedy, Carson, Shurtleff, and Ramirez) and OT 2020 (Tanzin, Little Sisters, Our Lady, and Espinoza)—five if you count Our Lady and St. James School v. Biel separately. It resolved three religion cases in OT 2015 (Holt, Reed, Abercrombie) and OT 2014 (McCullen, Town of Greece, Hobby Lobby). If anything was unusual, it was the much-commented-on absence of any religion cases from the Court's docket in OT 2023.
Meanwhile, important conflicts linger in the lower courts. Two of those conflicts are cleanly presented by this set of cases. The conflict presented in Apache Stronghold and Mahmoud is especially important, given the centrality of the "burden" issue in almost every RFRA and free exercise case. Those conflicts are also uniquely urgent given the irreversible consequences faced by the plaintiffs in these cases—the physical destruction of the sacred site and permanent erasure of religious practices in Apache Stronghold, and the loss of parental rights and childhood religious autonomy in Mahmoud. And Diocese of Albany presents an important opportunity for the Court to clarify that laws that discriminate among religions are not neutral and generally applicable, at least absent grounds for distinction that meet that test. The Court can do a great service to the jurisprudence of the Religion Clauses by granting review in all four cases.
