Friday, July 31, 2020

A Preview of SCOTUS Term Review: Theocracy Edition

by Michael C. Dorf

On Monday of next week, I shall participate in the Practicing Law Institute (PLI)'s 22nd Annual Supreme Court Review (as I have done each year since it began). Although the day's activities will be entirely online due to the pandemic, I look forward to seeing old friends, and once again the faculty is a star-studded cast: joining co-chairs (Berkeley Law Dean) Erwin Chemerinsky and (Touro Law Emeritus Professor) Martin Schwartz will be Professors Sherry Colb (Cornell), Leon Friedman (Hofstra), Melissa Murray (NYU), Burt Neuborne (NYU), Cristina Rodriguez (Yale), and Ted Shaw (North Carolina), as well as prominent attorneys Miguel Estrada (Gibson Dunn), Judson Littleton (Sullivan & Cromwell), and Janai Nelson (NAACP LDEF), with journalist Joan Biskupic (CNN) and me rounding out the group.

Coming off a fairly momentous Term, I expect that we will give the most attention to the following issues: the role of CJ Roberts in both dominating the Court and moving it to the center (with special focus on the DACA, Title VII, abortion, and Presidential subpoena cases); whether and to what extent the opinions by Justice Gorsuch in the Title VII cases and the Creek case against Oklahoma show that he is a principled textualist who goes where the law leads him; and how the Court's performance in the presidential financial records cases (in which all the Justices rejected the broadest claims of presidential immunity) will play out in the short and long terms. I expect that there will also be considerable interest in recent leaks about internal Court deliberations based on Ms. Biskupic's reporting (on the financial records cases, the Title VII cases, the DACA case and the Second Amendment, and Justice Kavanaugh's attempts to duck hard cases).

For my part, I expect to weigh in on all of those questions and more in my role as "panelist" in three of the first four sessions. Here I want to preview my remarks for the 10:30 am panel on free speech and religion, where I have responsibility as "speaker" on the religion cases. Before doing so, however, I'll add that it's not too late to register for the program--which is an entertaining and useful way for practicing lawyers to earn a whole lot of the CLE credit they need. (It's not exactly cheap, however. We panelists/speakers are volunteers, but PLI, which is a non-profit, has to recoup its production costs.)

In many years, the cases in any particular topic area may have a miscellaneous quality to them. Not so this year for the religion cases. With one potentially important exception to which I'll return at the end, the dominant theme in the Court's religion cases over the past Term was the triumph of expansive claims of religious liberty.

In Espinoza v. Montana Dep't of Revenue, the Court all but eliminated what had been an important principle of federalism in religion cases. The First Amendment contains two religion clauses: one forbids laws establishing religion; the other protects free exercise. How to reconcile the two can be tricky, especially in cases involving government expenditures.

If a local government fire department puts out fires at all buildings except houses of worship, that is discrimination against religion. If the state spends taxpayer money on Bibles, that looks like establishment. Where is the line? A string of pre-Roberts Court cases gave state and local governments some leeway in drawing it, elaborating a principle that there is "play in the joints" between establishment and free exercise. Some sorts of direct aid to religion were forbidden by the Establishment Clause; some denials of aid on an equal footing were forbidden by the Free Exercise Clause; but in between was a gray area in which the Free Exercise Clause did not require, nor did the Establishment Clause forbid the particular kind of expenditure; whether to make it was a matter left for the states.

Espinoza duly recited the play-in-the-joints principle but considerably narrowed the ability of states to use a stricter version of church-state separation than the federal Establishment Clause provides, without thereby violating the Free Exercise Clause. A Montana law gave a tax credit of up to $150 for donations to programs that funded scholarships redeemable at private schools, but the Montana Supreme Court held that, pursuant to the state constitution's prohibition on state aid to religious institutions, the scholarships could not be used at religious schools. Partly out of a concern that allowing scholarships to be redeemed at secular but not religious private schools would violate free exercise, the Montana Supreme Court then invalidated the program for everyone. That led some justices to think the case presented no live controversy, because by the time it got to the SCOTUS, Montana was no longer treating religious institutions any differently from secular ones. However, a majority disagreed and reached the merits.

In an opinion by CJ Roberts, the Court found that the fatal flaw in Montana's application of its "no-aid provision" was that it barred "religious schools from public benefits solely because of the religious character of the schools." After Espinoza, a state or local government might still be afforded sufficient "play in the joints" to decline funding for religious training of the clergy, but there is little room left for the operation of no-aid clauses, which the Court--and especially Justice Alito in a concurrence--condemned as a legacy of anti-Catholic bias.

If Espinoza paid lip service to the play-in-the-joints principle while nearly rejecting it entirely, all of the Court's other religion cases involved a similar maneuver with respect to another core principle regarding the Constitution's religion clauses. As a formal matter, Employment Division v. Smith--which reduced the Free Exercise Clause of the First Amendment to an anti-discrimination principle that is not offended when the state substantially burdens religious practice so long as the law that imposes the burden does not single out religion--remains good law. As a practical matter, Smith is on the verge of becoming a dead letter. The Court's recent cases pose four threats to Smith.

(1) Dissenting from the denial of certiorari in January 2019, Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, suggested that they thought Smith was wrongly decided and should be re-examined. Although Smith was written by Justice Scalia and joined by other conservatives, as conservatives have discovered that religious exceptions can benefit religious Christians, they have become increasingly hostile to the Smith rule. Direct overruling of Smith could occur as early as next Term in Fulton v. Philadelphia, in which the second question raised by the cert petition the Court granted is whether to revisit Smith.

(2) Even assuming Smith remains the law, the Court will likely continue to construe the federal Religious Freedom Restoration Act (RFRA)--which overrules Smith with respect to federal laws and programs--to provide very expansive exceptions for people acting under what they contend are religious scruples. It already did so in the 2014 case of Burwell v. Hobby Lobby, in which a 5-4 Court said that a profit-making corporate employer has a statutory free exercise right to opt out of providing health insurance that covers contraception if, in the judgment of the controlling owners of the corporation, doing so would contradict their religious tenets. Two years later, in Zubik v. Burwell, the Court took seriously but ultimately did not resolve an even more extravagant RFRA claim--the argument that merely filling out a form objecting to providing contraceptive coverage, with the result that the health insurer provides and pays for such coverage on its own, was itself a violation of the religious freedom of objectors. This past term, in Little Sisters of the Poor v. Pennsylvania, the Court again ducked that question, but only just barely.

The Obama administration had tried to work out an accommodation for the Little Sisters, an order of nuns, and a handful of other religious organizations with very expansive views of what counts as complicity in what they regard as sin. The Trump administration gave up and simply capitulated, adopting a policy under which any objector to the provision of insurance covering contraception could simply opt out. Pennsylvania and New Jersey challenged the administration, but seven justices rejected the challenge. Writing for a majority of five, Justice Thomas said that the federal agencies had discretion to grant exemptions. Justice Kagan, joined by Justice Breyer, agreed with that proposition because she thought the agencies entitled to Chevron deference, but she suggested that on remand the Trump administration's exemption might be struck down as arbitrary and capricious because overbroad; it applies even to religious employers who object to providing contraception but not to filling out the form.

Meanwhile, Justice Alito, joined by Justice Gorsuch, concurred in Justice Thomas's opinion and also wrote separately to say that he thought RFRA guaranteed the Little Sisters a statutory right to object to having to object. Justice Thomas did not reach the question whether RFRA required the Trump administration's approach, but he said that the administration was entitled to rely on RFRA as a ground for defending its action as within its discretion. Taken together, Hobby Lobby, Zubik, and Little Sisters show that there are five votes for a very expansive understanding of RFRA.

(3) In Our Lady of Guadalupe School v. Morrissey-Berru, the Court addressed the scope of the "ministerial exception" to anti-discrimination law that it recognized in the 2012 case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. There the Court said that the First Amendment protects the autonomy of the church (or mosque, synagogue, etc.) in selecting its clergy, notwithstanding any contrary legal obligations, such as anti-discrimination law. As I noted at the time, Hosanna-Tabor sits in considerable tension with Smith. After all, anti-discrimination law doesn't single out religion or religious organizations.

Nonetheless, Our Lady builds on Hosanna-Tabor. Writing for the Court, Justice Alito says that whether a teacher or other person employed by a religious school or organization is covered by the ministerial exception does not depend on whether that person has any particular training or title, which is fair. But the rule he announces is very broad. It provides that "the selection and supervision of the teachers upon whom" religious schools rely to provide religious instruction "lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate."

Would it really?  In neither Hosanna-Tabor nor Our Lady did the religious school contend that firing teachers because they're old (in violation of the Age Discrimination in Employment Act) or sick (in violation of the Americans With Disabilities Act) was a religious obligation. To be sure, a good case could be made for a narrower ministerial exception where the church or religious school points to an actual conflict between a law and its tenets. For example, the Catholic Church could sensibly claim a religious exception to Title VII for its refusal to ordain women as priests. But neither CJ Roberts in Hosanna-Tabor nor Justice Alito in Our Lady explains why religious schools are entitled to an exemption from anti-discrimination principles that do not in any way contradict the schools' own understanding of their religious obligations.

Perhaps the best that can be said for the broad rule that emerges from Hosanna-Tabor and Our Lady is that by casting the rule as one of institutional autonomy that does not depend on a conflict between a religious obligation and a legal one, the Court softens the tension with Smith. Unlike RFRA or the pre-Smith free exercise law, the ministerial exception does not depend on there being any substantial burden on the exercise of religion. It's simply a freestanding get-out-of-law-free card. But if that's the best that can be said for the broad rule, there's not much to recommend it.

(4) Finally, as I explained on Monday, the Court has now twice rejected claims by churches that public health restrictions on their worship services that apply to similarly situated secular activities (such as lectures, concerts, and other live performances) amount to discrimination against religion. As I noted in Monday's post, four justices are prepared to follow the lead of Professor Laycock, who argues that if the government provides even a single exception from an otherwise generally applicable rule for a secular entity, then its failure to grant an exception to a religious organization counts as discriminatory. However, five justices have pretty clearly taken a different view--with Chief Justice Roberts joining the Democratic appointees in looking for something more like animus against religion before concluding that there's discrimination.

An insightful paper by Zalman Rothschild attributes that position to the Chief Justice based on his concurrence in the California case, South Bay United Pentecostal Church v. Newsom. I don't think it was quite so clear after South Bay that the Chief would reject what Professor Laycock calls the "most favored nation" approach. After all, in South Bay the Chief argued persuasively that the only activities treated more favorably than worship services were ones that posed substantially less risk of COVID-19 spread. However, in the Nevada case (Calvary Chapel v. Sisolak), the dissenters are pretty clearly right that worship services are treated less favorably than some secular activities and venues that pose equal or greater public health risks--especially casinos. The Chief's vote to reject the plaintiffs' claim nonetheless thus probably is best explained as resting on a rejection of the most-favored-nation principle.

Does that mean that the Chief Justice will not join with his fellow Republican appointees to overrule Smith in Fulton or some other case? Not necessarily. His votes with those same colleagues (and to some extent with Justices Breyer and Kagan) to construe RFRA and the ministerial exception broadly could be taken as an indication that he's no great fan of Smith either. Thus, just as one should not assume that the Chief's vote in June Medical (the Louisiana abortion case) signals an ultimate intent to retain abortion rights, so his votes in the COVID-19-based-worship-service-restriction cases do not necessarily signal an ultimate intent to retain Smith.