Tag: Freedom of Religion

Church of the Lukumi Babalu Aye v. City of Hialeah (1993)

~ Blue Cereal ~ 2 Comments

Three Big Things

1. The Santeria religion includes animal sacrifices as part of many rituals. These sacrifices are essential to both believers and their deities.

2. When the Church of the Lukumi Babalu Aye announced its plans to build facilities in the city of Hialeah, Florida, city officials quickly moved to outlaw animal sacrifice for any reason – except for just about every other reason one might kill an animal, in which case it was still OK. Just not for the Santeria.

3. The Supreme Court found this violated the Free Exercise Clause by targeting specific religious behaviors without adequate justification, neutral application, or reasonable effort to accommodate the beliefs of the Santeria.

Background

Santeria is one of those religions that the folks most likely to demand more “freedom of religion” in the United States don’t actually mean to include.

Its roots are African, mixed with elements of Catholicism and perhaps a few other things as well. It is thus a prime example of “syncretism” (cultural mixing) – one of those fancy terms you no doubt recall from your world history class in high school. Thanks to the all-expense paid vacations offered to African natives by European powers prior to the mid-nineteenth century, it spread quickly to the Caribbean region and parts of the United States. It’s impossible to gauge actual numbers, of course – there were no official surveys regarding the preferred belief systems of slaves or anything.  

For many years, Santeria remained largely “underground” in the U.S. Most adherents were people of color, many descended from former slaves or recent immigrants, and they no doubt had a pretty good idea how society would respond to such an “African”-flavored faith. Like many other elements of Black culture historically, many found it best to remain under white radar whenever possible.

Santeria remained particularly strong in Cuba, however, meaning it eventually carved out a presence in Florida as well, along with other scattered enclaves across the country. Membership has become slightly more diverse, with a noticeable minority of white folks and an Asian American or two. It’s not exactly “mainstream,” but neither is it totally obscure – at least from a statistical perspective.

Santeria is a very hands-on, get involved religion – far closer to Latin-flavored Catholicism than upper crust Protestantism. Its adherents (and no, they’re not called “Santerians”) often have alters in their homes on which they place flowers, cake, rum, or cigars to keep the gods happy. The “gods” in this case are the Orishas – powerful, but not omnipotent beings. Orishas are often conflated with or represented by various Catholic saints, each of whom has a “specialty” of sorts when it comes to divine intervention. Somewhat like the Hindu pantheon, Orishas are both distinct entities and manifestations or reflections of the same higher (or highest) power.

Spiritual truths don’t always follow worldly logic, after all.

What sets Santeria apart – at least in modern times – is the role of animal sacrifice. Historically, the ritual slaughter of various critters as offerings to the gods is pretty standard stuff. The Jews of the Old Testament are the most familiar example, but it was also common among the Greeks, Romans, Celts, Norse, Egyptians, and numerous other cultures. Christians echo the tradition by symbolically drinking of the blood and eating the flesh of the Son of God, thus maintaining the ritual with less clean-up afterwards. Islam rejects the “blood for favors or forgiveness” element and retains a single annual sacrifice of thankfulness each year during Eid al-Adha.

But in Santeria, sacrifices are far more old school. The relationships of believers and Orishas is symbiotic. Worshippers ask for assistance in fulfilling their divinely-approved destinies, and in exchange they perform the appropriate rituals. Acceptable sacrifices include various foods, drinks, and pretty things, but for big stuff – births, marriages, funerals, curing illness, confirming new members, etc. – animal slaughter is essential. Typical critters include chickens, doves, ducks, guinea pigs, goats, sheep, and turtles. For many (but not all) rituals, the animals are cooked and eaten by the community afterwards – a kind of “dining with the gods” thing. It’s not all just about animal sacrifices, of course. Drumming, dancing, speaking to the spirits, and the like, are usually in the mix as well. It’s interactive, both in terms of believer-to-believer and mortals-to-gods. The Orishas take care of the faithful, and in turn, they subsist on the rituals and sacrifices offered by faithful mortals. Without them, the Orishas would perish.

The Conflict

In 1987, the Church of the Lukumi Babalu Aye, led by Italero (“Priest”) Ernesto Pichardo, leased some land in Hialeah, Florida, and began securing the appropriate permits to establish a house of worship there. Santeria doesn’t generally have its own buildings, but this particular assembly hoped to start their own school, a cultural center, and a museum on site as well. Their stated goal was to bring Santeria out of the shadows and into the open, welcoming the community to learn more about them while providing their “congregation” with the same sort of facilities as any other mainstream religion.

Unfortunately, not all members of the surrounding community embraced this wonderful expansion of multiculturalism. Many, in fact, lost their proverbial minds. The Hialeah City Council began holding emergency meetings in which it was resolved that they’d find some way to shut this nonsense down. As community members lined up to voice their disapproval, many city officials simply couldn’t contain themselves and proclaimed that good Christian communities wouldn’t stand for this outrageous pagan stuff because America and democracy and gross-they-kill-chickens! One city councilman insisted with absolutely zero sense of irony that allowing Santeria to be practiced in their city was “in violation of everything this country stands for.” Another supported banning Santeria because he was certain the Bible didn’t approve of animal sacrifice.

I’ll give you a moment to process that one.

In short, the city was certain that Jesus would certainly never tolerate anyone who broke with the dominant religious beliefs of his day – and neither should Florida.   

When it came time to actually commit words to paper, some effort was made to keep official rhetoric confined to the plausibly constitutional, framing the city’s objections as part of a larger, perfectly sensible policy against “certain religions” which might choose “to engage in practices which are inconsistent with public morals, peace, or safety.” As a body, the council declared that the “City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace, or safety.”

Put that way, it almost sounded reasonable.

Without mentioning Santeria or the Church of Lukumi Babalu Aye by name, the city council passed an emergency ordinance which repeated the state of Florida’s existing animal cruelty laws and clarified that these very much applied in Hialeah – as if perhaps not everyone was aware of how “state laws” worked. Finding this insufficient, but realizing there were limits as to how far the city could go in creating its own new criminal statues, they asked the state’s attorney general to get involved. He replied that existing Florida law prohibited the “unnecessary” killing of animals, which he defined as “done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal.” This included “ritual sacrifice of animals for purposes other than food consumption.”

In other words, according to Florida’s Attorney General, Hialeah could pass all the laws it liked to support the prohibition. Before the year was out, the city council passed several new ordinances prohibiting animal sacrifice within city limits, whether the flesh was eaten afterwards or not.

It’s worth noting the implicit assumption that religious rituals are by default lacking in “useful motive” and are not “in any sense beneficial or useful.” State and local lawmakers were careful to exempt all sorts of other reasons one might kill an animal – slaughterhouses and butchers were exempt, as were those hunting or fishing for sport or who raised a few small animals for food. It was OK to kill household pests or put down strays at the local veterinary clinic or kill an animal in self-defense. In fact, the law allowed almost anyone to kill any animals for any reason except for the Santeria and their whole “animal sacrifice” thing – all without actually admitting on paper that’s what it was designed to do.

The Santeria objected, and eventually the case worked its way up to the Supreme Court.

Evolving Precedents

Way back in Reynolds v. United States (1879), the Court had ruled that it was acceptable for government to ban polygamy despite the impact this had on the practices of the Church of Jesus Christ of Latter-Day Saints (aka, “Mormons”). The Court acknowledged that marriage had a “sacred” element but noted that it was nevertheless typically regulated by secular laws in most civilized societies. You may believe whatever you like in a free country, the majority explained, but that doesn’t mean you can circumvent reasonable secular regulations based on those beliefs.

A few years later, in Davis v. Beason (1890), the Court validated state laws which prevented citizens from voting unless they were willing to swear they neither supported nor participated in polygamy. The majority opinion by Justice Stephen Field referred to polygamy as a violation of “the laws of all civilized and Christian countries” and said it tended to “destroy the purity of the marriage relation” as well as “degrade woman and… debase man.” Polygamy was gross and wrong and they should (literally) lock you up for even talking about it.

Once Justice Field had gotten some of the outrage out of his system, he was able to dial back his rhetoric enough to summarize the Court’s central point:

It was never intended or supposed that the {First} amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society… However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation.

In other words, just as in Reynolds a decade before, the Court drew a line between what individuals were allowed to believe and what they were allowed to do. (The fact that the laws in question in Davis required citizens to deny specific beliefs in order to vote was thus both validated and ignored at the same time.)

Fast-forward to the early 1960s, right around the same time the Supreme Court was bullying God out of schools, allowing people to marry outside their race, and generally destroying the morality of an otherwise holy and prosperous people. Once again, some wacky fringe religion was making things difficult for real Americans.

Adele Sherbert was a Seventh-Day Adventist. The Adventists believe that God commanded man to rest on the Sabbath, which a glance at any wall calendar or daily pill dispenser will confirm is Saturday. She was fired and then denied unemployment for refusing to work on Saturdays. This rule did not apply to those unwilling to work on Sundays however – because church and stuff.

In Sherbert v. Verner (1963), the Court ruled that the government can only restrict free exercise if the rules and procedures involved have been narrowly tailored to fulfill an essential state interest and with the minimum possible disruption to religious beliefs or rituals. Offering unemployment benefits to Sherbert wouldn’t be favoring her religion over others; it would merely be treating it the same as others with minor adjustments in the details. That’s the goal of the Free Exercise Clause, explained the Court.

Sherbert was a substantial shift in how the Court balanced secular law and religious freedom. Government at all levels was now expected to make every effort to accommodate religious beliefs or to restrict them as minimally as possible when applying neutral and essential rules and procedures. The state must have a “compelling interest” in play to justify violating free exercise.

A generation later, in Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court again shifted its perspective on free exercise. In this case, Alfred Smith was fired from his job as a drug rehabilitation counselor because his employer discovered he used peyote (a hallucinogenic) as part of his Native American religious rituals. The state denied him unemployment benefits because he’d been dismissed for “work-related misconduct.” Smith’s attorneys argued that based on the standard established in Sherbert, his use of peyote for religious purposes should be exempt from otherwise general rules prohibiting drug use.

The Court decided to cut loose the “compelling interest” test of Sherbert and determined instead that generally applicable laws which only incidentally impact religious behavior (i.e., they’re clearly not designed to target it) do not violate the Free Exercise Clause of the First Amendment. The majority also drew a critical distinction between the two situations. Sherbert had been denied unemployment because the state refused to make minor policy adjustments to accommodate her religious beliefs. Smith was fired and denied unemployment for committing a felony for which he hoped to secure a religious exemption.

The Court also added another odd little wrinkle to the mix to be considered moving forward. Many free exercise cases involved related rights as well – freedom of speech and the press, parental rights over their children, etc. Smith’s case did not. In “hybrid” cases, the Court would generally use the same “strict scrutiny” standard requiring government to show a “compelling interest” in infringing on individual beliefs. In a “pure” case, however, the government need only show that the laws or policies in question are legitimate roles of government and have been applied neutrally. In the case of Smith’s peyote use, this was clearly the case.

Smith specifically rejected the premise that government was required to show a “compelling interest” whenever general laws substantially interfered with religious practices.

The Decision

Justice Anthony Kennedy wrote for a unanimous Court in favor of the Church of the Lukumi Babalu Aye. Or, rather, the justices unanimously found in favor of the church – although few of them agreed entirely as to why. (Apparently, religious freedom in the face of government regulation can be a sticky subject.) The Court was unified enough, however, to establish several clear takeaways from the case.

The Court acknowledged that the government may sometimes put burdens on religious practices with legislation that doesn’t target those practices but nevertheless impacts them. (A church who promoted human sacrifice or driving as fast as possible wouldn’t get exemptions from general laws prohibiting such things.)

The problem was that the city’s ordinances weren’t neutral. They didn’t even do a very good job of pretending they were. While state law already prohibited some animal slaughter, Hialeah officials clearly sought to prohibit this specific religious practice – they responded to community concerns that way, debated legislation that way, and crafted the specific language of local statutes that way. They’d essentially “gerrymandered” the rules to target the practices and beliefs of one specific religious organization. That’s a big constitutional no-no.

(It’s worth noting that both Justice Scalia and Chief Justice Rehnquist dissented from this part – they objected to the use of legislative motivation as a factor in determining the constitutionality of specific acts of legislation. As the Court has become more conservative in recent years, it’s become increasingly comfortable setting aside obvious context and loudly proclaimed intent in order to justify some rather counterintuitive outcomes based on technicalities or the “letter of the laws” in question.)

When laws aren’t clearly neutral, or are not applied in a neutral way, the government body making and enforcing those rules needs to be able to demonstrate a “compelling interest” which justifies the necessity of such rules and must show that it’s “narrowly tailored” its actions to interfere with religious as little as possible while still accomplishing its goals. In the case of Hialeah and the state of Florida, the laws in question didn’t consistently prioritize public health and safety (the supposed reason for passing them in the first place), and when they did address public health and safety, they were often unnecessarily broad. In other words, they were both too general and too limited all at the same time.

That happens when you’re trying to fight the even ooga-booga men and their devil faith but you have to distort and twist everything to get there… so the “truth” can win.   

In short, the efforts of the city of Hialeah to ban Santeria violated the Free Exercise Clause of the First Amendment. Whenever general laws end up infringing on religious beliefs or practices, they are subject to what the Court calls “close scrutiny” to determine whether or not such laws are both neutral (applying equally to everyone regardless of religious factors) and necessary (serving a legitimate government goal with as little interference as possible in religious matters). These laws were neither.

There Ought To Be A Law

While the Lukumi Babalu case was working its way through the system, Congress was up in arms about the Court’s decision in Employment Division v. Smith and passed the Religious Freedom Restoration Act (RFRA) of 1993. Setting aside the unnecessarily dramatic title, this legislation required courts to use “strict scrutiny” in all free exercise cases and mandated the revival of the “compelling interest” standard from Sherbert. The goal was to make it more difficult in general for government at any level to enforce general rules and regulations against religious groups or individuals – to essentially grant religious behavior a partial exemption from the laws governing everything and everyone else.

The Court invalidated most of the RFRA in City of Boerne v. Flores (1997) based on shut-up-don’t-tell-us-how-to-do-our-job. Congress tried again with the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000, and this time most of what they wanted seemed to stick. In matters related to prisoners’ religious rights or religious institutions wanting to ignore zoning regulations, historical preservation statutes, parking requirements, etc., government has to meet a much higher standard before being allowed to infringe on free exercise by treating people or institutions of faith like everyone else.

It’s quite doubtful Congress had Santeria in mind while crafting RFRA or its sequel, but their respective impacts certainly complement one another. RLUIPA is still in effect, and Lukumi Babalu is still cited regularly in cases involving general laws or practices which in some way interfere with sincere religious choices. (It was referenced in both 2022 cases involving religion in schools – Carson v. Makin and Kennedy v. Bremerton – although not as the primary foundation for either decision.)

Generally speaking, any governmental action which infringes on religious behaviors or beliefs must be “narrowly tailored” to accomplish legitimate government goals and applied neutrally. In recent years, the Court has come to conflate this with a constitutional requirement that government overtly support religion in certain instances – that anything short of that is, in fact, infringes on free exercise. Just how far this stretches and in what specific situations it does or doesn’t apply is still being… sorted out.

We’ll see how it goes.  

Excerpts from Church of the Lukumi Babalu Aye v. City of Hialeah (1993), Majority Opinion by Justice Anthony Kennedy
{Edited for Readability}

The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment (see Cantwell v. Connecticut, 1940), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” … Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection” (Thomas v. Review Board of Indiana Employment Security Division, 1981). Given the historical association between animal sacrifice and religious worship, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible” (Frazee v. Illinois Dept. of Employment Security, 1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons…

In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice (Employment Division, Dept. of Human Resources of Oregon v. Smith, 1990). Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied… These ordinances fail to satisfy {either}…

At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons…  

There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face…

We reject the contention advanced by the city that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality” (Gillette v. United States, 1971) and “covert suppression of particular religious beliefs” (Bowen v. Roy, 1986). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders” (Walz v. Tax Commission of New York City, 1970).

The record in this case compels the conclusion that suppression of the central element of the Santeria worship service was the object of the ordinances…

Resolution 87-66, adopted June 9, 1987, recited that “residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterated” the city’s commitment to prohibit “any and all such acts of any and all religious groups.” No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santeria.

It becomes evident that these ordinances target Santeria sacrifice when the ordinances’ operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object… The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a “religious gerrymander” (Walz), an impermissible attempt to target petitioners and their religious practices…

We begin with Ordinance 87-71. It prohibits the sacrifice of animals, but defines sacrifice as “to unnecessarily kill… an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter… The net result of the gerrymander is that few if any killings of animals are prohibited other than Santeria sacrifice…

Operating in similar fashion is Ordinance 87-52, which prohibits the “possession, sacrifice, or slaughter” of an animal with the “intent to use such animal for food purposes.” … The ordinance exempts, however, “any licensed food establishment” with regard to “any animals which are specifically raised for food purposes” … Again, the burden of the ordinance, in practical terms, falls on Santeria adherents but almost no others… A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander.

Ordinance 87-40 incorporates the Florida animal cruelty statute… The city claims that this ordinance is the epitome of a neutral prohibition. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general. Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary… Indeed, one of the few reported Florida cases decided under {this same state law} concludes that the use of live rabbits to train greyhounds is not unnecessary… Respondent’s application of the ordinance’s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons. Thus, religious practice is being singled out for discriminatory treatment.

We also find significant evidence of the ordinances’ improper targeting of Santeria sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends…

The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a fiat prohibition of all Santeria sacrificial practice. If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santeria sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Thus, these broad ordinances prohibit Santeria sacrifice even when it does not threaten the city’s interest in the public health…

With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city’s interest in prohibiting cruel methods of killing… If the city has a real concern…, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it…

In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases… Here, as in equal protection cases, we may determine the city council’s object from both direct and circumstantial evidence (Arlington Heights v. Metropolitan Housing Development Corp., 1977). Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body…

That the ordinances were enacted “because of,” not merely “in spite of,” their suppression of Santeria religious practice is revealed by the events preceding their enactment… The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santeria religion and its practice of animal sacrifice. The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santeria with cheers and the brief comments of Pichardo {the church’s primary religious leader} with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba “people were put in jail for practicing this religion,” the audience applauded.

Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santeria was outlawed in Cuba, questioned: “If we could not practice this religion in our homeland, why bring it to this country?” Councilman Cardoso said that Santeria devotees at the Church “are in violation of everything this country stands for.” Councilman Mejides indicated that he was “totally against the sacrificing of animals” and distinguished kosher slaughter because it had a “real purpose.” The “Bible says we are allowed to sacrifice an animal for consumption,” he continued, “but for any other purposes, I don’t believe that the Bible allows that.” …

Various Hialeah city officials made comparable comments…

In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion…

The principle that government, {even} in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause… In this case we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.

 

Holt v. Hobbs (2015): Who Then Can Be Shaved?

~ Blue Cereal

Three Big Things

1. The Religious Land Use and Institutionalized Persons Act (RLUIP) passed by Congress in 2000 requires (among other things) that states go a little further than absolutely demanded by the First Amendment to protect inmates’ religious expression. Prison officials may still do what’s necessary to maintain order, but they must make every effort to accommodate faith while they do.

2. Arkansas didn’t allow prisoners to grow beards – even short ones – unless they’d been diagnosed with specific skin disorders making a short beard desirable. Greg Holt, a devout Muslim going by the name Abdul Maalik Muhammed, asked for a religious exemption allowing him to grow a half-inch beard. Prison officials said no.

3. The Supreme Court found in favor of Holt because officials had numerous options to accomplish the same goals (safety and security) without infringing on Holt’s sincerely held religious beliefs.

The Situation

The Arkansas Department of Corrections doesn’t allow prisoners to grow beards (with some exceptions made for inmates with specific skin conditions). The argument was that inmates could conceivably hide contraband in their beards and that shaving them off would allow them to quickly change their appearance should they escape.

One suspects these were largely rationalizations, but prison isn’t primarily intended to be a great place for personal expression, so maybe officials have the right to tweak a few rules for their own purposes.

Greg Holt, aka Abdul Maalik Muhammed, requested an exemption on religious grounds. As a good Muslim, he explained, he shouldn’t be trimming his beard at all, but as a compromise with the system, he wished to maintain a modest one-half inch beard as a symbolic gesture of adherence to his faith. Prison officials said no.

Holt filed suit in the nearest district court. (As a civil rights issue, rather than a criminal complaint, the federal courts were the appropriate venue.) The state argued that the system made allowances for Holt to express his faith in other ways – they weren’t trying to keep him from practicing his religion within reason. It also pointed out that not all Muslims believed the beard thing was a big deal. Most of all, however, much like with questionable police actions, the courts should defer to those doing the actual job and not second-guess every detail from afar.

They put that last bit more professionally, of course.

Holt appealed to the Eight Circuit Court, which affirmed the decision. The general guideline in such cases is that government at any level should avoid restricting free exercise of religion whenever possible. When religious actions conflict with otherwise neutral, reasonable laws or procedures, the government must seek out the “least restrictive means” of satisfying its goals – in this case, prison security. If the result is that some religious behaviors are curtailed, that’s unfortunate, but not necessarily unconstitutional.  

Holt and his advocates appealed to the Supreme Court, who agreed to hear the case during its 2014-2015 session. The Court, in a unanimous decision, found in Holt’s favor.

The Decision

While the case certainly involved the issue of free exercise as protected by the First Amendment, the specific legislation guiding such things was the Religious Land Use and Institutionalized Persons Act (RLUIPA) passed by Congress in 2000 with the dual goals of making it easier for inmates to bring suits just like this one and protecting local churches from zoning regulations and other rules applicable to other businesses or organizations. The Court had struck down parts of an earlier effort, 1993’s Religious Freedom Restoration Act (RFRA), so with RLUIPA Congress focused on two areas it felt were more clearly in its purview – land use and the prison system.

The majority opinion, written by Justice Samuel Alito, begins by acknowledging that the prison system has a right to first consider the issue of “sincerity” when religious claims are made. While the specifics of testing such things could potentially get messy, this has long been one way courts allow institutions to push back against frivolous uses of faux religious claims by prisoners, employees, or the like, to circumvent rules or expectations they simply don’t like. In this case, there was no doubt of Holt’s sincerity; he was a devout Muslim in word and deed and no one on either side was challenging this.

The lower courts had erred, however, in their assumption that because Holt was allowed to practice his faith in other ways, that somehow offset the beard issue. He was still literally being forced to choose between violating his own religious beliefs (by shaving) or being punished by the system. If the issue were purely a free exercise claim based on the First Amendment, the existing accommodations might have been more of a consideration. Under RLUIPA terms, however, the state is required to bend much further than that.

As to the argument that some Muslims didn’t have beards, this seriously missed the point of about a zillion previous Supreme Court decisions. Government entities can consider overt indications that someone is just messing with them (“my religion says I have to get drunk and have sex with beautiful women every Thursday”), but they don’t get to parse the validity of individual beliefs beyond that.  

Now came the issue of “least restrictive means.” The Court was not convinced that a half-inch of beard growth was such a serious threat to prison security that it justified violating free exercise. Even if officials were genuinely concerned about all the items potentially hidden in that half-inch, a quick search here and there wouldn’t consume much in terms of time and resources. If they wanted to know what an inmate looked like without the beard, take a picture of him without it, then let him grow it back. Many other prison systems accommodate beards without it leading to a complete breakdown of security – perhaps Arkansas could get a few tips from them.

Perhaps most damning for the state’s position was the allowance of one-quarter inch beards for prisoners with specific skin conditions and the lack of additional security measures designed to deal with these furry incubators of subversive behavior. In other words, the system accommodated non-religious beards quite easily and only made an issue of beards grown for religious purposes.

That sort of distinction is usually a deal-breaker with the Court these days. It certainly was here.

Concurring Opinions

Alito’s opinion cites several other cases by way of support for various points, but none so often as Burwell v. Hobby Lobby Stores, Inc. (2014) from the previous term. In that case, the Court had ruled (in a 5-4 split) that RFRA allowed companies like Hobby Lobby to deny its employees health coverage for stuff like contraceptives based on the organization’s religious beliefs. Justice Alito had written the majority opinion for the Hobby Lobby case as well, and it was no doubt fresh in his mind. The Holt opinion references it more than every other case it cites combined.  

Thus the very brief written opinion of Justice Ruth Bader Ginsburg, who pointed out that while she agreed with the results, this case was different than Hobby Lobby because “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”

Justice Sonia Sotomayor joined Ginsburg’s concurring opinion but added her own as well. It primarily seeks to clarify that officials still have options for enforcing whatever rules may be necessary, they simply have to do so within the confines of RLUIPA. She also notes that the policies in question were rejected by the Court because they failed to meet the standards required in the legislation – not because the majority (via the words of Justice Alito) thought they were stupid… because let’s be honest, he mostly just loves snippy and critical.

OK, she didn’t come right out and put it that way – but you read it and tell me that’s not what she meant. I dare you.

Holt v. Hobbs (2015): Excerpts from the Majority Opinion by Justice Samuel Alito

We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.

Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), “in order to provide very broad protection for religious liberty” (Burwell v. Hobby Lobby Stores, Inc., 2014)  RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment…

Section 3 {of 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… 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.” … Congress mandated that {these guidelines} “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise” (Hobby Lobby).
Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “{n}o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs…

Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation (see Hobby Lobby). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.

{P}etitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation… If petitioner contravenes {prison} policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise…

{T}he District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights (see O’Lone v. Estate of Shabazz, 1987 {and} Turner v. Safley, 1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise… not whether the RLUIPA claimant is able to engage in other forms of religious exercise…

{T}he District Court {also} went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic… But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect” (Thomas v. Review Board of Indiana Employment Security Division, 1981). …

The Department argues that its grooming policy represents the least restrictive means of furthering a “broadly formulated interest,” namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “more focused” inquiry and “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” …

The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.

(A) The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards.

We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a half-inch beard is hard to take seriously… An item of contraband would have to be very small indeed to be concealed by a half-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a half-inch beard rather than in the longer hair on his head…

Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a half-inch beard actually furthers the Department’s interest in rooting out contraband.

Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband… The Department already searches prisoners’ hair and clothing… And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard…

(B) The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities… But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here…

The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter… In fact, the Department (like many other States) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during {his} incarceration.” (Arkansas Department of Correction Inmate Handbook)…

In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department… has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a half-inch beard, it permits prisoners with a dermatological condition to grow quarter-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a half-inch of hair on their heads… Hair on the head is a more plausible place to hide contraband than a half-inch beard – and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “{t}he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993)…

Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow half-inch beards, either for any reason or for religious reasons, but it cannot… That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.

We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here…

We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security… {For example,} if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic” (Cutter v. Wilkinson, 2005)… {Also,} even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.

In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a half-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Holt v. Hobbs (2015): Concurring Opinion by Justice Ruth Bader Ginsburg

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc. (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

Holt v. Hobbs (2015): Excerpts of Concurring Opinion by Justice Sonia Sotomayor

I concur in the Court’s opinion, which holds that the Department failed to show why the less restrictive alternatives identified by petitioner in the course of this litigation were inadequate to achieve the Department’s compelling security-related interests. I write separately to explain my understanding of the applicable legal standard.

Nothing in the Court’s opinion calls into question our prior holding in Cutter v. Wilkinson (2005) that “context matters” in the application of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). In the dangerous prison environment, “regulations and procedures” are needed to “maintain good order, security and discipline, consistent with consideration of costs and limited resources.” … Thus, we recognized “that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area” (Cutter)…

Here, the Department’s failure to demonstrate why the less restrictive policies petitioner identified in the course of the litigation were insufficient to achieve its compelling interests – not the Court’s independent judgment concerning the merit of these alternative approaches – is ultimately fatal to the Department’s position. The Court is appropriately skeptical of the relationship between the Department’s no-beard policy and its alleged compelling interests because the Department offered little more than unsupported assertions in defense of its refusal of petitioner’s requested religious accommodation. RLUIPA requires more.

This Post Is Part Of “Have To” History. You can find more rambling and rough drafts there.

 

Stomping Decisis / A Matter of Degrees (Introduction)

~ Blue Cereal

NOTE: I’m toying with the idea of a follow-up volume to both “Have To” History: Landmark Supreme Court Cases and “Have To” History: A Wall of Separation. The working title is Stomping Decisis (I’ll probably change it if I can think of something better) and the central subject would be major Supreme Court decisions of the Roberts Court with focus on the past few years and the nature of the Court’s lurch to the far right. We’ll see if it actually happens. 

What follows is a rough draft of one possible introduction. I’ve begun playing with the intro this early in the process because I’m trying to figure out the exact approach and “shape” of the book if I actually end up writing it. I’m not even sure at this point if this intro even makes sense or fits where the book is likely to go, but one sure way to get honest feedback is to put it out there and see what happens. Plus, I haven’t posted anything in over a week, and it seemed time. 

As always, your comments and questions are welcome below or via email. You are appreciated. 

MAGA JusticeStomping Decisis (Introduction)

In the spring and summer of 2022, the United States Supreme Court began announcing its findings in the dozens of cases it chose to hear that session. As its decisions began to circulate, there was much rejoicing on the far right and substantial shock from progressives and moderates at the radical direction the Court seemed to be taking. Apparently, social media informed us, states now have to pay for religious education (including overt homophobia and science denial) and public school teachers can pray in front of their students. States are no longer allowed to regulate guns and the C.I.A. doesn’t have to tell anyone the locations of its favorite torture chambers. The Environmental Protection Agency is prohibited from protecting the environment quite so much. Oh, and yes – Roe v. Wade has been overturned. Everyone who gets pregnant for any reason, with their cooperation or without, must now carry the child through delivery whether it’s alive or dead and whether they’re likely to survive the experience or not. 

What the hell happened?

That’s what we’re going to look at in the following pages – once we get through a few spoilers by way of context. 

First, while the Court’s decisions absolutely indicate a lurch to the far right, the descriptions above aren’t entirely accurate or fair – at least not for every case. The emotional reactions many of us experienced (and may still be experiencing) are perfectly understandable and perhaps even justified, but once our collective blood pressure has stabilized a bit, it’s worth looking at precisely what the Court did and didn’t say in its recent decisions. It’s not always as insane as it sounds at first. (Well, except some of the parts written by Justice Thomas.)

Second, shifts like these rarely come completely out of nowhere. It’s easy to miss the signs along the way because most of us have busy lives and other things to pay attention to. When we hear on the news that the Court “saved” the Affordable Care Act or neglected to overturn Roe, we file it all away under “no change” even if that’s not the full story. We rarely dig deeper to see what, in fact, they did say. Sometimes the details just aren’t quite right yet. Other times, the Court is still too ideologically balanced to allow destabilizing lurches to the left or right without better reasons. 

Spoiler alert: that last one is not currently an issue. The far right is in complete control of this Court and will be for the foreseeable future. 

Finally, many of the issues addressed in these cases are simplified and summarized as a practical matter during most media coverage. The Court’s reasoning can get a bit verbose or technical. Other times, there are legal technicalities impacting the specific decision but not directly related to the larger issues involved. And, to be fair, the average American isn’t well-known for their firm grasp on the U.S. Constitution and its amendments or landmark jurisprudence over the past century.

If that’s you, don’t feel too bad – it’s possible you’ve simply had better things to do than slog through this stuff repeatedly during each slew of announcements. 

A Matter Of Degrees

Activists and ideologues have a vested interest in keeping their audiences as stirred up as possible by unfolding events. (That doesn’t mean they’re always wrong – merely that they’re not always the most rational, balanced folks in the conversation.) One of the most foundational means of maintaining this is to repeatedly frame everything in terms of dichotomies – this belief vs. that one, this value vs. the opposite value, and perhaps most importantly, us vs. them.  

In reality, however, there aren’t that many issues over which a clear majority of Americans absolutely, dogmatically disagree in all possible situations. Most of the time, controversies come down to matters of degrees. We’re often working with the same basic sliding scale; we just don’t like where the other guy is trying to mark what’s acceptable and what’s not in ways which then impact all of us.   

Take, for example, the issue of religion in public schools. There are two clauses in the First Amendment which involve religion – the very first two, in fact:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

That’s it. Sixteen words. These are where all the kerfuffles begin. 

The first bit is known as the Establishment Clause. It’s widely understood to mean that government (including states and local governments, thanks to the Fourteenth Amendment) should avoid doing anything that promotes religion in general, or one type of religion or belief system over another. The second part is the Free Exercise Clause. It says that government shouldn’t do anything to hinder or punish religious beliefs or practices. In short, government at all levels should simply stay out of people’s religions. 

It certainly sounds straightforward enough. How hard could this be? 

Now, imagine that there’s a fire in a little Methodist church down the street from wherever you are now. You’ve never been there, but they seem nice enough. Should the fire department rush to the scene and try to save the church, or merely stand by ready to protect nearby homes and businesses if the flame starts to spread?

Most people would insist that the fire department should respond and treat the situation the same way they would any other fire. I could argue, however, that this is a violation of the Establishment Clause because the city is using public resources to promote religion. The faster those firefighters respond and the harder they work, the less damage that fire will do and the more resources that little church will have left over to proselytize and organize potlucks and run Vacation Bible School over the summer.

The same is true of police protection. Road repairs. Ambulance service. You get the idea. Our tax dollars help religious people and organizations all the time. If state or local government refused to do for that little church what it does for every everyone else in town just, it would in effect be punishing church members for their faith. If they wish to participate in the traditions and activities of their religion, they must give up benefits they could have if they weren’t being all “religious.”

Sliding The Scales

Now let’s imagine that we’re not talking about fire or police protection, but public transportation. The city has invested in some stylin’ new shuttles and wants to make it easy for people to get around, no matter what their income levels. There’s a small cost for a ticket to the airport, the mall, downtown, or the theater district, but tickets are free for passengers going to school, a public library, the local health department, or any of the churches along the route – including that little Methodist chapel we’ve been discussing.

How about now? Is this the same as fire protection and road repairs, or is this a special benefit for religion? It’s not even for all religions – just churches which happen to be near established routes! We’re still pretty close to the “put out the fire” end of the scale, but we’re definitely moving a bit. 

Maybe the county has been given funding to improve the lives of children in the area. As part of this, they’re offering to pay for playground upgrades (including that bouncy foam stuff to replace dirt or sand) for any qualifying site. Several schools secure the grant, as does the privately managed area outside the Children’s Science Museum across town. Should our church down the street be allowed to apply as well on the same terms as everyone else? On the one hand, it’s just a playground. On the other, they make no secret of their desire to bring kids into their faith. They use their playground extensively on Sundays and during Vacation Bible School, even though it’s accessible to the neighborhood year-round. 

We’re definitely further along that scale now. Are you still comfortable with letting them partake, or have we crossed a line somewhere along the way from “free exercise” to “establishment”?

As the church grows, perhaps they add a homeless shelter and food pantry comparable to those in other parts of town which receive government grants to support their efforts and ask for similar assistance. Should the state allot funds to this location as well? Would it be OK if the state only provided funds on the condition they be used exclusively for food and shelter and not in direct support of proselytizing or other religious teaching? Does such a distinction even matter when every dollar the church doesn’t have to spend on bread and peanut butter can go to providing Bibles?

Where are we on that scale now?

Homelessness often involves mental illness or other extenuating circumstances. Now the church wants to incorporate counseling and rehab services. Their personnel are trained professionals, but they’re also faithful Christians who share elements of their faith during discussions with clients. If the state supports these efforts to the same extent they do secular services, they’re definitely supporting religion now – right? So what if they only support the “clinical” parts of the counseling and not the “religious” parts. Like, every time someone mentions Jesus, they hold down a button that stops the timer for a bit or something. What do you think now?

Perhaps there’s a lawyer or two in the congregation and the church gradually becomes a primary provider of adoption services in the area as part of their mission to serve the community around them. They’re not comfortable placing children with same-sex couples or divorced women, however. This service isn’t even receiving direct government funding, although it does have to contend with the complex web of laws regulating adoption and they’ve effectively become the only real option in this half of the state. Should they be allowed to pick and choose who they’ll serve, like restaurants in the 1950s?

While we’re at it, we might as well have our little Methodist church start its own private school and ask for the same per-student funding as the public school down the street. We’re not quite to the opposite end of that sliding scale from where we started, but we’re heading that way at a good clip. 

Let’s cap the far end with your legislature declaring the United Methodist Church the official religion of your state and instituting a new tax enabling them to pay for Methodist Preachers and more Methodist buildings. They will not, however, imprison or execute you for believing differently – as long as you pay your taxes. Unless you’re Clarence Thomas, you probably wouldn’t consider that a good balance between establishment and free exercise, meaning somewhere along our scale (or in one of the endless variations continually complicating the issue in real life), you decided there’d been enough “free exercise” and the government was now veering into “establishment.” Lines needed to be drawn to clarify the difference. 

And, if you’re like most Americans, you consider wherever you drew the line to be so obvious that anyone too far right or left of your mark is a bit of a wacko, and possibly dangerous.  

Staking Out Positions

In each iteration, treating the church’s efforts the same as other institutions risks promoting their religion, thus violating the Establishment Clause. The church’s activities aren’t independent of its beliefs; this particular little church strives to serve people and their community because they believe that’s what Jesus wants them to do. On the other hand, treating the church differently than other groups might very well infringe on their faith by denying them the same cooperation or support they’d receive if they weren’t religious (or if they gave up their faith). This violates the Free Exercise Clause. 

Just to complicate things, sometimes the same rules which govern how states or communities relate to or support private organizations are at odds with the specific belief systems of a particular religion. In other words, sometimes treating that little Methodist church the same as everyone else infringes on their free exercise just as much as excluding them altogether. This is when things get really interesting (or maddening, depending on your point of view). 

We can argue the details (they’re very much worth arguing), but the point is that the Establishment Clause and the Free Exercise Clause pull against one another in ways that mean anytime we try to protect one, there’s a chance we’re offending the other a little bit. I’m not aware of any major “wall of separation” cases in which either party has argued in favor of simply eliminating one clause or the other. Where the disagreement comes is precisely where on that sliding scale the lines should be drawn. 

The same sorts of “sliding scales” are present in most debates over the death penalty, immigration policy, reproductive rights, and the like, as well as many issues less likely to end up in the Supreme Court – school dress codes, regulations imposed by your local homeowners’ association, and speed limits just to name a few. This doesn’t suggest that all possible points along each scale are equally defensible or that there are no “right” answers (constitutionally speaking), but recognizing the relative nature of these arguments is often essential to making sense of them along the way and understanding the Court’s rulings and how they sometimes change over time.  

That’s what we’re going to try to do here by visiting a variety of recent Supreme Court decisions and what different justices specifically said about those decisions (whether in support or opposition). We’re also going to zoom in on a few representative topics and trace some of their jurisprudential history over the past century in order to better understand where we are now, and why. 

At every stage, my goal is to keep things as understandable as possible without overly compromising the substance of each argument or issue. It’s worth keeping in mind that I write this book not as a legal expert, but as an educator with twenty-plus years breaking down complex historical and legal issues for teenagers to better help them wrestle with many of these same subjects for themselves. While I certainly have my own points of view on most of these topics (and you’ll have little trouble figuring out what they are along the way), I’ve made every effort to make this material accessible, enjoyable, and useful for readers of all stripes.

Except Justice Clarence Thomas. I doubt he’d enjoy this one at all. 

Carson v. Makin (My Free Exercise Can Beat Up Your Wall of Separation)

~ Blue Cereal ~ 2 Comments

SeparationWell, any pretense Chief Justice John Roberts has been maintaining about being in any way “moderate” or “reasonable” seems to have been blown to hell this week. The Court’s decision in Carson v. Makin (2022) accelerates the jurisprudential slide away from the proverbial “wall of separation” and elevates the “free exercise” of the minority with the most influence in federal government over the right of anyone else not to pay for it. In the process, the Supreme Court is now openly deriding the suggestion that states have an obligation (or even the right?) to provide a secular public education for kids to begin with.

In Zelman v. Simmons-Harris (2002), the Supreme Court decided that state voucher programs providing funding for students to attend private schools – even religious institutions – can be constitutional. It relied heavily on the role of “parent choice” to determine where state funds were actually spent. Even if the majority of vouchers were used at private religious institutions, as long as there were valid secular options and the choices were made by families rather than the government, the program did not violate the Establishment Clause.

In Trinity Lutheran Church of Columbia, Inc., v. Comer (2017), the Court required the state of Missouri to include churches or other religious organization in a state program to modernize playgrounds. This was the first time the Court determined that the U.S. Constitution required government to provide direct public assistance to religious institutions. In so doing, it called into question the validity of “the Blaine Amendment” – provisions in many state constitutions which prohibit direct support of sectarian institutions. Usually, this meant schools.

In Espinoza v. Montana Department of Revenue (2020), the Court determined that excluding religious schools from voucher programs violated the Free Exercise Clause of the First Amendment. The Court had previously distinguished between what funds were being used to DO (meaning that general good being done by religious institutions might still qualify for public funding) vs. distinctions based on what an institution WAS or BELIEVED. Restricting public funding based on what was being promoted might be OK; restricting it based on the beliefs or values of the institution was NOT. In Espinoza, despite token acknowledgement of this historical consideration in the majority opinion, in practice the distinction was clearly beginning to crumble.

In Our Lady of Guadalupe School v. Morrissey-Berry (2020), the Supreme Court extended its earlier ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) and determined that for purposes of hiring, firing, or other human resources type decisions, teachers and staff at religious schools were clergy. Normal protections regarding age, illness, sexuality, political affiliations, race, unexpected life events, etc., simply did not and could not apply. It didn’t matter whether the teacher in question was even a member of the faith – they could be hired and fired at will and treated however the institution wishes to treat them with little redress.

As I said so very profoundly in “Have To” History: A Wall of Education…  

The combination of Espinoza v. Montana and Our Lady of Guadalupe (decided during the same session) seemed to set up something of a paradox. Private religious schools are primarily “schools” when it’s time to hand out tax dollars but primarily “churches” when the specter of accountability appears. This is a tad frustrating for public school advocates who see tax dollars being redirected for religious uses minus any real expectations or accountability.

I know – makes you wish you’d already bought the book, doesn’t it?

Now comes Carson v. Makin, in which the Court has just ruled that if Maine wishes to provide ANY assistance or aid to non-public schools, it cannot exclude religious institutions, no matter what policies they uphold or which doctrines they teach as part of that education. This is particularly problematic in Maine, where apparently there are many areas without secondary public schooling options, but the larger principle will impact educational institutions in every state, regardless of local wishes or logistics.

I’ll post a separate breakdown of the ruling in the next few days, but for now I’ll simply link to some of the better summaries of the decision by others. I don’t think any of them are behind paywalls, but honestly I lose track sometimes, so my apologies if any of the links take you to a dead end.

“Supreme Court Rejects Maine’s Ban on Aid to Religious Schools” (The New York Times) – this is one of the more balanced and succinct articles on the list and a good place to start if you don’t know much about the case to begin with.

“The Supreme Court Just Forced Maine to Fund Religious Education. It Won’t Stop There.” (Slate) – this one offers excellent analysis of the likely impact of this case and shares many of my own concerns. There are also plenty of helpful links to related cases and analyses embedded in the article itself. As a teaser, here’s the opening paragraph:

The Supreme Court’s conservative supermajority effectively declared on Tuesday that the separation of church and state—a principle enshrined in the Constitution—is, itself, unconstitutional. Its 6–3 decision in Carson v. Makin requires Maine to give public money to private religious schools, steamrolling decades of precedent in a race to compel state funding of religion. Carson is radical enough on its own, but the implications of the ruling are even more frightening: As Justice Stephen Breyer noted in dissent, it has the potential to dismantle secular public education in the United States.

“The Supreme Court Tears a New Hole in the Wall Separating Church and State” (Vox) – another excellent analysis of the case, although the tone is slightly less horrified than that of the folks at Slate or myself. I particularly like this analogy:

Think of it this way: Suppose that a state provides grants to help private institutions set up food banks and soup kitchens. If a church sought one of these grants, it could not be denied because of its Christian identity. But the state could require the church to spend 100 percent of the grant money it receives on secular activities such as feeding the poor, and not on religious activity such as distributing Bibles to the needy.

Carson effectively eliminates this distinction between organizations that have a religious identity, and organizations that want to use government funds for religious purposes. After Carson, a private school may not only receive a government tuition subsidy, it may also use that subsidy to fund explicitly religious instruction.

Even if you’re a religious person yourself, which specific theology do you think it’s most likely your tax dollars will be supporting going forward? If you need a hint, check out the dominant voices in the Republican Party over the past few years.

“Court’s Excellent Free-Exercise Ruling in Carson v. Makin” (National Review) – even if you’re not familiar with National Review, the title should tip you off that they’re not at all displeased with this decision. I’m including this piece partly to pretend I’m fair and balanced, but mostly because it includes some relevant background and perspective not present in the other links. Like most conservative voices, it deals with the worst of the decision by simply ignoring the obvious ramifications, but that doesn’t mean it’s not worth a read.

“How Supreme Court Ruling Lays Groundwork for Religious Charter Schools” (The Washington Post) – I have a digital subscription, but WP might do one of those “limited number of free articles” things. This one covers the important stuff but focuses especially on the “status-use distinction” mentioned above.

Finally, here’s a PDF of the Court’s written decision, including dissents from the usual suspects. As I’ve lovingly suggested in both of my books on our nation’s highest court, these aren’t as hard to read as they may seem when you first peruse them. Some of the language gets wonky, and the formatting is at times off-putting, but most of the various opinions are quite accessible and worth your time.

I hope to give this one further attention and perhaps draw attention to my own thoughts and concerns in the next few days. As always, your comments are welcome below.

The Decision (Westside Community Schools v. Mergens, 1990 – Part Two)

~ Blue Cereal

Summary of Part One:

1. The Equal Access Act of 1984 prohibited any public school which permitted “non-curricular” clubs to meet on school property from picking and choosing which clubs they allowed based on ideologies or beliefs. The trick was figuring out what counted as “non-curricular.”

2. Bridget Mergens was a student at Westside High School in Omaha, Nebraska. In 1985, she asked her principal for permission to form a Christian club at the school. 

3. The school said no, arguing that organizations like Chess Club and Scuba Club were essentially (if not directly) curriculum-related in that they were extensions of the sorts of things the school promoted as a whole, and thus inadequate to trigger the requirements of the act. Bridget didn’t buy it.  

The Decision

The Supreme Court determined that Westside’s existing activities were non-curricular enough that they had a “limited open forum,” and the Equal Access Act did not violate the Establishment Clause. The school would let the kids have their Bible Club. Justice Sandra Day O’Connor wrote most of the opinion for the majority and the rest for a plurality of justices, while several who supported the result wrote concurrences differing in some of the details or focusing on different factors. Justice John Paul Stevens was the sole voice of dissent, which at least simplified the math on that side of things.

Justice O’Connor’s mostly-majority opinion recapped the history of the case, including the role of Widmar v. Vincent (1981) and the Equal Access Act which was clearly intended to apply the standards outlined in Widmar to public schools. The sticking point, she acknowledged, was the use of the term “noncurriculum related student group” in the Act. The bill’s authors somehow overlooked that one tiny little detail – like when you forget to add coffee to your cream and sugar or bring your car with you to the gas station. O’Connor weighed several possible approaches to resolving this before arriving at the Court’s solution:

In our view, a student group directly relates to a school’s curriculum if the subject matter of the group is actually taught… in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a common sense interpretation of the Act that is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.

For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school’s student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school…

On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of that group’s speech…

In other words, if Westside had a Scuba Club but not a Scuba Class, they’d have to allow Bible Club as well – along with any ideological undesirables seeking similar sanctuary.

As to the Establishment Clause, the Equal Access Act passed the “Lemon Test” on all three fronts. It had a secular legislative purpose (equal access and protection of different viewpoints or beliefs), it did not substantially advance or hinder religion (it merely stayed out of the way), and it didn’t create excessive entanglement (the school wasn’t funding or regulating the meetings beyond what it would do for anything else happening on campus). “Indeed,” O’Connor explained, “the message is one of neutrality rather than endorsement; if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion.”

Perhaps hoping the message would resonate more effectively if marinated in a light snark sauce, she circled back for a double tap:

{T}here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis… The proposition that schools do not endorse everything they fail to censor is not complicated.

So there you go.

Cautious Concurrence

Justice Anthony Kennedy, joined by Justice Antonin Scalia, agreed with the decision, but for slightly different reasons than those explained by Justice O’Connor. Justice Thurgood Marshall, joined by Justice William Brennan, on the other hand, had something more extensive on his mind:

I agree with the majority that “noncurriculum” must be construed broadly to “prohibit schools from discriminating on the basis of the content of a student group’s speech.” As the majority demonstrates, such a construction “is consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.” …

The Act’s low threshold for triggering equal access, however, raises serious Establishment Clause concerns where secondary schools with fora that differ substantially from the forum in Widmar are required to grant access to student religious groups…

Justice Marshall explained that the University of Missouri—Kansas City (the institution prompting the Widmar case) had over a hundred different organizations on campus, many of which were political or issue-driven. There was little danger any reasonable person could believe that so many conflicting ideologies were simultaneously promoted by the University. The University also took great pains to ensure that none of these groups promoted themselves as official extensions of UMKC.

Westside, on the other hand, had for years openly embraced and promoted its extracurricular clubs and extolled the roles they played in the developing student character. They were part of the overall culture of the school, just like the football team or band. While Marshall and Brennan had no problem with the addition of Bible Club to the mix, this sort of enthusiastic endorsement by school officials would be inappropriate for a religious group. It would be too easy, they argued, for the average student to assume that the district was advocating this new option on the same terms as the rest.

Justice Stevens’ Dissent

The lone voice of dissent, Justice John Paul Stevens, was having none of it.

Can Congress really have intended to issue an order to every public high school in the nation stating, in substance, that if you sponsor a chess club, a scuba diving club, or a French club – without having formal classes in those subjects – you must also open your doors to every religious, political, or social organization, no matter how controversial or distasteful its views may be? I think not. 

Well, gosh – when you put it that way…

Justice Stevens agreed with the majority that determining appropriate application of the Equal Access Act hinged on the definition of “noncurriculum related student group.” He agreed that the Court should look to Congress’ intent to help do so, and that Congress clearly meant to apply the principles of Widmar to schools like Westside. The Act was obviously intended to prevent discrimination against religious groups once a “limited open forum” had been established and contained language to prevent school officials from evading the Act’s requirements through sophistry – creatively redefining terms to fit their desired outcome.

At that point, however, Justice Stevens believed the majority had lost their black-robed minds.

What the Court of Appeals failed to recognize, however, is the critical difference between the university forum in Widmar and the high school forum involved in this case. None of the clubs at the high school is even arguably controversial or partisan.

Nor would it be wise to ignore this difference. High school students may be adult enough to distinguish between those organizations that are sponsored by the school and those which lack school sponsorship even though they participate in a forum that the school does sponsor. But high school students are also young enough that open fora may be less suitable for them than for college students…

That’s why Congress, in his understanding, left it up to school officials to decide whether to limit school clubs to those clearly supporting institutional ideals and goals – things the district could safely promote and encourage – or whether to open them up to more mature topics, as was the case in Widmar.

Once opened to political or religious ideologies, the district must honor the “limited public forum.” But, Justice Stevens insisted, neither Chess Club nor Scuba Club did that.

I believe that the distinctions between Westside’s program and the University of Missouri’s program suggest what is the best understanding of the Act: an extracurricular student organization is “noncurriculum related” if it has as its purpose (or as part of its purpose) the advocacy of partisan theological, political, or ethical views. A school that admits at least one such club has apparently made the judgment that students are better off if the student community is permitted to… compete along ideological lines… {I}t seems absurd to presume that Westside has invoked {this} strategy by recognizing clubs like Swim Timing Team and Subsurfers which, though they may not correspond directly to anything in Westside’s course offerings, are no more controversial than a grilled cheese sandwich… 

{A} high school could properly sponsor a French club, a chess club, or a scuba diving club… because their activities are fully consistent with the school’s curricular mission… Nothing in Widmar implies that the existence of a French club… would create a constitutional obligation to allow student members of the Ku Klux Klan or the Communist Party to have access to school facilities.

Justice Stevens’ reasoning hearkened back to that of the district court which first heard the case (and wasn’t so far removed from Justices Marshall and Brennan in their concurrence). He seemed to share the same sorts of concerns which likely motivated Westside officials to turn down Bridget Mergens in the first place.

Aftermath

The courts have largely held to the standards established in Widmar and legislated by the Equal Access Act, in some cases extending them by inference to circumstances not specifically addressed in either.

A few years after Mergens, in Lamb’s Chapel v. Center Moriches Union Free School District (1993), the Court held that schools allowing community groups to use their facilities after hours could not deny the same access to a group based on its religious message. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), the Court required the University to fund religious student publications on the same terms it did for other non-curricular student periodicals. Good News Club v. Milford Central School (2001) offered a few minor variations on the theme but was otherwise a repeat of Lamb’s Chapel – with the same outcome.

Some districts have chosen to eliminate extra-curricular activities entirely rather than open their doors to kids wanting to meet under the auspices of Gay-Straight Alliance (GSA), Muslim Students Club, or any of the variations of Atheist or Satan Club. Districts are permitted to refuse groups promoting behavior or values clearly antithetical to the school’s mission (the KKK, for example, could be refused without much constitutional danger – although the Communists would probably get their club), but the boundaries of this discretion are still being tested here and there.

Local courts have also periodically confronted variations of the issue (if the district cancels all clubs to avoid allowing Teen Q-Anon to meet, does that violate the spirit of the law?) By and large, however, the principles established in Mergens have remained firm for over three decades and there’s little reason to expect them to change anytime soon.

NOTE: This post is an excerpt from “Have To” History: A Wall Of Education