Monday, March 05, 2018

What is Narrow Tailoring in Religious (and Speech) Exception Cases?

by Michael Dorf

Last Friday saw the release of an unpublished opinion of a 3-judge appeals court panel in the Colorado case of People v. Ray. The very fact that the decision is unpublished suggests that it does not decide a novel issue--and it doesn't--but thinking about this seemingly obviously correct decision may prove interesting for thinking about a different class of cases.

The facts are simple enough. Greta Lindecrantz was called by the prosecutor to testify at the state post-conviction hearing of Robert Ray, who had previously been found guilty of murder and sentenced to death. Lindecrantz is a Mennonite. She said that her truthful testimony would likely lead the court to find that, contrary to Ray's claim, he received effective assistance of counsel, which in turn would lead to his death penalty being affirmed, which in turn would render her complicit in his execution, in violation of her religious beliefs. Lindecrantz was held in contempt, which she challenged on free exercise grounds. She lost. The question I'll explore is how one of the grounds for her loss might apply in cases in which people seek exceptions to anti-discrimination law.

The federal Religious Freedom Restoration Act (RFRA) does not apply to Colorado because it was held invalid as to state and local laws in City of Boerne v. Flores. Colorado does not have a state RFRA. Meanwhile, Lindecrantz was held in contempt for violating a general obligation that is neutral with respect to religion. Thus, the court said, no heightened scrutiny applies.

Lindecrantz raised several reasons why strict scrutiny ought to apply, however, and the court credited one of these, at least arguendo. Because the applicable state procedural law allows a witness to be held in contempt for refusal to testify only if she lacks an "adequate excuse," the court assumed that the law wasn't neutral; if secular grounds might qualify as an adequate excuse, then religion ought to as well. Or at least the court so assumed.

Yet even on this assumption Lindecrantz lost. She argued that the state lacked a compelling interest in executing Ray, but the court thought that was the wrong way to formulate the issue. There is a compelling interest "in ascertaining the truth and rendering a just judgment in accordance with the law," the court said. In response to Lindecrantz's argument that requiring her to testify was not narrowly tailored because her evidence would be cumulative, the court opined that the trial judge thought otherwise.

Even without reference to a claim of religious discrimination, trial court judges typically reject proffered evidence that would be unnecessarily duplicative. And the appeals court's treatment of the narrow tailoring objection was so cursory that one has the sense that there was no effort to ascertain whether Lindecrantz's testimony was really necessary. Put differently, the appeals court panel's narrow tailoring inquiry was substantially less strict than one usually sees in genuine strict scrutiny cases--and that seems perfectly appropriate. Once the court determined that the state has a compelling interest in obtaining every person's evidence, it is hard to imagine how it could administer a rule under which every proffered piece of evidence would be scrutinized for whether it was really needed.

Now I want to focus on the implications of that last point in another context. When merchants assert a free exercise, RFRA, or free speech objection to complying with anti-discrimination law, the state can assert two potentially compelling interest. One such interest addresses the stigmatic harm that results whenever someone is denied goods or services on illicit grounds. Let's put that aside.

A second compelling interest is in access to the goods or services themselves. In response to the assertion of this second sort of compelling interest, a merchant-objector will sometimes say something like this: The anti-discrimination law isn't narrowly tailored because an exception could be made for rare religious traditionalists like me, while still leaving the customers with plenty of alternatives.

That italicized claim won't always be true, especially in small towns where there may not be more than one baker, florist, or photographer, and in very conservative parts of the country where all of the relevant merchants hold religious (or in the case of free speech claims, other) views that lead them to want to deny service. And as noted, the italicized claim isn't responsive to stigmatic injury.

But Lindecrantz's case points to another reason for rejecting the italicized claim: If it is too cumbersome for a district judge to closely scrutinize whether alternative witnesses are sufficient to make the prosecutor's case, we might also want to say that it is too cumbersome for a judge to have to determine whether a customer had sufficient alternatives to the merchant charged with violating anti-discrimination law. Courts need not be in the business of counting bakeries and floral shops, assessing their relative quality, comparing their hours with the schedules of customers, and consulting city bus schedules to see whether competitors provide sufficiently adequate alternatives.

If the approach to Lindecranz's case seems right--and I think it does, even assuming heightened scrutiny applies--the case's logic adds one further reason to reject the contention that customers denied service on illicit grounds by one merchant have not suffered a legal wrong because they might have obtained service from a different merchant.


Joe said...

The stigmatic harm concern is significant but just using the other one ...

this underlines the establishment concerns I have with the religious exemptions [at times, expressed in other ways, such as making free speech arguments] taken so far arguments. At least not generally other more, we don't say that people should be able to refuse to sell to blacks because there are other grocers in the area.

A few libertarian types do, but not generally. The argument is selectively provided when gays are involved in this sort of fashion. This amounts to favoring certain beliefs over others. It is almost compelled since a consistent application of the principle would in practice be hard to do. So, e.g., certain claims are deemed "ridiculous" or too beyond the pale. The favoring certain religions in this fashion was in fact warned against by Madison including how undue mixture of church and state will by its nature favor certain majoritarian religions.

Anyway, the bottom line argued for in the post is sound. Repeatedly, the "lack of harm" turns out to be exaggerated. It need not just be a small town. Maybe, the shop has a specific product that people like better than other shops. Shops aren't totally fungible -- even chain restaurants aren't all the same quality. So, we have a general non-discrimination rule. The stigma point however does factor into the analysis.

Asher Steinberg said...

It seems a little odd to say that something trenches on a fundamental right, but that a court needn't do the work of seeing whether it's truly necessary to advance a compelling interest because it's "too cumbersome." Also, I'm pretty sure there are evidentiary inquiries that allow the discovery of certain evidence only if what it shows can't be established by other means. That's how the work-product rule works. So while cumbersome, I doubt the inquiry you say is unnecessary is anywhere near impossible.

Joe said...

Moving on to the specific claim, Sentencing Law and Policy Blog also flagged this, and I wondered there how essential her testimony was. I'm open to be agnostic on the point, especially after someone with experience in the general area pushed back.

Looking at the opinion (it's fairly short with large margins and font), it references a "well reasoned written order" of the district judge (who found even strict scrutiny would be met) so there might be a more detailed analysis justifying the action here. It might be relevant that the appeal was done in a accelerated fashion given her imprisonment and concerns for her health. So, perhaps in another case, including one decided with more facts [e.g., the appeals court notes it is unclear what the prosecutor would ask her], would have more analysis.

I think the court's discussion as to narrow tailoring can be taken on face value.