Religious Liberty at the Supreme Court: Previewing the New Term

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.

Nick Marr:  Welcome to The Federalist Society's Teleforum Conference call as this afternoon, September 24, 2020, we're discussing "Religious Liberty at the Supreme Court: A Preview of the Upcoming Term."

      My name is Nick Marr. I am Assistant Director of Practice Groups at The Federalist Society. As always, please note that expressions of opinion on today's call are those of the experts.

And today, we are fortunate to have with us Mark Rienzi. He's the President of the Becket Fund for Religious Liberty. He's also a Professor of Law and Co-Director of the Center for Religious Liberty at the Catholic University of America. We also have today with us Professor Bill Saunders. He's a Professor at Catholic University, Director of the Program in Human Rights at the Institute of Human Ecology, and Chairman of our Religious Liberties Practice Group.  

So after our speakers give their remarks, we'll go back and forth. Then we'll open it up for audience question and answer. So that'll be towards the end of the call. Be thinking of those as we go along so you have those prepared for when we get to that portion of the call.

Thanks for being with us here today, Mark and Bill. So Bill, I'll hand off the floor to you first.  

Prof. William Saunders:  Thank you, Nick. Welcome everyone, on behalf of the Religious Liberties Practice Group. I want to start off with something that Attorney General Barr said recently. And he said there were three big cases on religious liberty decided last term by the Supreme Court.

So before we look ahead to the upcoming term of the Court, which begins in just a few days, I thought it'd be helpful to review those three cases. One is Our Lady of Guadalupe, one is Espinoza, and one is Little Sisters of the Poor. So I would like to ask Mark Rienzi if he would tell us the significance of those three cases.

Mark Rienzi:  Happy to, Bill. And thanks very much for having me here and for everybody joining in.

      Our Lady of Guadalupe was our case concerning the ministerial exception. It was over whether Catholic grammar schools or other religious grammar schools have the right to select their own teachers and hire and fire teachers as they see fit. It was a case in which the Supreme Court gave a very strong win for religious liberty. It was a 7-2 decision, and it made clear that important church autonomy principles under both the Free Exercise Clause and the Establishment Clause protect the right of religious schools to hire teachers who perform important religious functions like teaching the faith, which is something that each of the teachers in the Our Lady of Guadalupe case did.

      You mentioned the Espinoza case. Espinoza v. The Montana Department of Revenue was a case brought by the folks at Institute for Justice in which they won a victory in which the Supreme Court said that Montana's exclusion of religious schools from a program set up to allow tax benefits for money being saved to send kids to private school, that Montana's exclusion of those schools violated the Free Exercise Clause of the First Amendment.

      Montana was excluding the schools, or at least its lower courts thought that they had to exclude the schools, based on a Blaine Amendment. This is one of those state laws that forbid state funds from going anywhere near religious schools. They have them, or maybe I should say had them, in 30-some odd states before the Espinoza decision. But the Supreme Court's opinion in Espinoza, written by Chief Justice Roberts, I think pretty clearly says that Blaine Amendments can't be applied anymore to exclude religious groups from participating in otherwise neutral and open programs. So it was a very big win for religious liberty in Espinoza.

      The third of those cases was Little Sisters of the Poor v. Commonwealth of Pennsylvania. This is the religious liberty case that the other side just can't seem to let go of, and they keep wanting to bring back and lose again at the Supreme Court. This is the third time the Little Sisters had to go to the Supreme Court over their exemption from the contraceptive mandate. It's the third time that they've won. It was another 7-2 decision.

      The precise question that the Court was addressing was whether the federal government in 2017—so this is the Trump administration—had the authority to create religious and moral exemptions from its own contraceptive mandate. That was something -- there's so much that is so hotly debated generally these days and particularly in these areas. But this is one in which under the Trump administration and the Obama administration saw eye to eye. They both thought that the federal government had authority to create religious exemptions to its own mandates.

It's always been a little bit odd that states would come in and deny that the federal government had that authority, but that's the posture we were in. And, again, seven justices said both that the federal government had authority to create the exemptions. And then Justice Thomas's opinion for the five justice majority also said that the government had an affirmative obligation to consider the RFRA rights, the Religious Freedom Restoration Act rights, of the Little Sisters when formulating its policies and that it wasn't allowed to do what had been done before which is to say well, it's just a form. It's not a big deal. You shouldn't worry about it. But instead, that they had to take the sincere religious objections seriously and that they were obligated to obey RFRA as they were doing it. So another big win for religious liberty there.

      And the one last -- Attorney General Barr said three cases, that's true. But also the Bostock case, the Title VII case over whether no discrimination because of sex includes sexual orientation and gender identity. That decision also included some very strong and positive language about religious liberty. The Court said that the promise of free exercise lies at the heart of our pluralistic democracy and talked about how RFRA is a super statute that may provide protection against those Title VII claims and also said that Title VII's religious exemption could be used if expanding Title VII causes difficulties for religious groups.

      So even in a non-religious liberty case, the justices are making strong statements in support of religious liberty. So that's the update from last term.

Prof. William Saunders:  So thanks, Mark. So obviously, as we look into the term that's about to begin, there may be cases that further develop decisions of the Supreme Court in these three cases, indeed, the four cases that Mark just mentioned.

For those who don't follow the Supreme Court daily, the docket is obviously not set for the entire term because there's some cases that have been set for oral argument, but there's a huge number of cases, there always is, awaiting orders, which is whether the court will hear the case or not or dismiss it or send it back without oral argument. And there's a mega conference on September the 29th where I expect a lot of these cases that are in the queue will be dealt with one way or another.

      So the docket of the Supreme Court this term will change. So but there are three cases that have been scheduled for oral argument that I think certainly merit some conversation. I'll let Mark talk about them. I will say that one of them is Fulton v. City of Philadelphia. And there are a number of cases that I was just mentioning that are apparently on hold pending the outcome of this case.

      So Fulton is a very significant case. Again, I'll let Mark tell you more. And then there's two other cases, Tenzin and Uzuegbunam. So, Mark, let me turn it over to you to discuss those cases on the docket.

Mark Rienzi:  Terrific. Thanks, Bill. And why don't I just start right off with Fulton. Fulton will be argued on November 4, so the morning after election day when everybody will be clear eyed and bright eyed and know the answers, I hope. This is a case about foster care in Philadelphia.

      My firm, Becket, represents Sharonell Fulton, Toni Simms-Busch, and Catholic Social Services of Philadelphia. Sharonell and Toni are foster care heroes. They are single moms, women of color. Between them, they've fostered over 45 kids over the years. That's an incredibly difficult job, and to do it, they rely on the support of the foster agency that affirms their Catholic faith and that's Catholic Social Services. Participating in foster care, helping the widow and the orphan is nothing new for the Catholic Church. They've been doing it in Philadelphia for about 200 years, long before the city's government in Philadelphia was doing it.

      When the Philadelphia city government got involved a few decades ago, they, from then 'til now, they've always relied on private agencies to find and support the families who are helping these children. Foster moms like Sharonell and Toni work with agencies, here, Catholic Social Services, and they know they can pick up the phone day or night and get their social worker, that there are people there who know their families, know their kids, and take care of them.

      Through foster care and other services like immigration and refugee services and housing for the homeless, Catholic Social Services serves people in need regardless of their race, sex, religion, or sexual orientation. But Catholic Social Services can't provide foster care endorsements for same-sex couples.

      Now, one of the key facts in the case is that the evidence at trial showed that none had ever asked. There had never actually been a same-sex couple who wanted the Catholic Church to come into their house and do the home study. But if they had asked, Catholic Social Services said that they wouldn't do the certification themselves. They would simply find another foster care agency in town that would help them. There are 28 other agencies in town that would do that including several that have special expertise and have received praise from LGBTQ groups for how well they provide the service for LGBTQ families.

      But Philadelphia's government says none of this is enough and that Catholic Social Services can't be allowed to place any foster care kids with any families who work with Catholic Social Services. So the City has shut out Catholic Social Services. It's also shut out foster moms like Sharonell and Toni from being able to help foster kids in need and that's even though Philadelphia has a backlog of more kids than they can place. So kids who need homes, Philadelphia won't place them with the homes of people who work with Catholic charities.

      That, unsurprisingly, has real and serious consequences. There is a foster care crisis in Philadelphia and throughout the country. Foster kids in Philadelphia are, as you might suspect, often underprivileged kids. And they as often face abuse and neglect, and they need these foster homes.

Supreme Court has taken up the case after the Third Circuit refused to grant an injunction to keep the agencies' doors open. The Court is looking at three questions. One is whether Philly violated the Free Exercise Clause and whether it violated the Free Speech Clause when it said that Catholic Social Services had to endorse same-sex couples.

The Court has also taken up the question of whether it should revisit Employment Division v. Smith, which is the 1990 peyote case in which the Court created its neutral and generally applicable rule for the legal standard for free exercise claims. The lower courts thought that this was clearly covered by that rule, even though there is strong arguments that it's not. But the Court has taken up and granted cert of whether to revisit that case here.

The briefing has just been completed recently, and the arguments focus chiefly on the nature of foster care in Philadelphia, all the different types of exceptions and individualized treatment that Philadelphia allows, and whether there is any need for them to force Catholic Social Services to provide these home studies that apparently nobody had asked them for at the time.

We shift gears to the next case -- and actually, I say the next case. This one's actually going to be argued in October, which is Tanzin v. Tanvir. Tanzin v. Tanvir is a case about three Muslim men who refuse to serve as informants against their fellow Muslims, so Muhammad Tanvir, Jameel Algibah, and Naveed Shinwari.

The FBI asked each of them to be informants against fellow Muslims. They said they didn't want to do that and as payback for their refusal, they were put on the no-fly list. And they each spent as long as four years on the no-fly list until they filed their lawsuit. When they filed their lawsuit, the federal government said oh, okay, fine. We'll take you off the list.

And they had sought damages in the case. And so the question at the Supreme Court is whether RFRA, the Religious Freedom Restoration Act, allows for plaintiffs to get money damages. And so the Court will be considering that case in October. And our argument and the petitioner's argument is that RFRA authorizes all appropriate relief, and sometimes, damages are appropriate relief, particularly where you have the government playing this unfortunately not unfamiliar game where the government violates people's rights and then when it gets sued, it decides oh, okay. I should stop that, and it stops.

Damages remedies help keep government from simply saying well, as long as I stop whenever somebody catches me, I can do it until I get sued. Here, these men, for apparently no actual lawful reason, had several years of their lives where they were barred from flying because the government put them on the no-fly list to try to pressure them here. And they've got a strong claim for damages, and that's what the Court will hear in October.

The third case -- third merits case that they've already granted is called Uzuegbunam v. Preczewski. And it's about a college student named Chike Uzuegbunam, who's a student at Georgia Gwinnett College, which is part of the state-run college system in Georgia. It's a case that involves one of these free speech zones. So Uzuegbunam wanted to share his faith publicly and give that information about his faith, and he was originally doing it in public spaces on the campus.

Campus police came and told him, "No, you can't do that here. You've got to go do it in a free speech zone." He went to do it in the free speech zone like he was told, and then they came over and said look, people are not very comfortable with you talking about your religion out here. You need to stop it. And they told him he couldn't do it, and they told one of his friends that he couldn't do it as well.

A little bit like the Tanzin case, once the plaintiff sued, the college said oh, okay, fine. We now realize we're violating the First Amendment. We will change our rules, and we'll let you speak here. And the college then argued successfully in the lower courts that therefore the Court should dismiss the case. Uzuegbunam, though, had pled both compensatory and nominal damages, and the fight is really over the nominal damages part.

The Eleventh Circuit had said that nominal damages is not enough to keep a case alive after the government has changed its behavior. And that's the question the Court is going to consider in Uzuegbunam is does the pleading of nominal damages defeat mootness where the government defendant has changed its behavior after the suit has already been going.

Again, I would say in some ways, it's similar to Tanzin. Both cases are about this question of what tools does a religious plaintiff have in the arsenal? And frankly, I think it probably goes beyond that for the Uzuegbunam case. But what tools does the plaintiff have in the arsenal where the government does the unfortunately common thing of violating your rights until you bother getting a lawyer and going to court and showing that you can beat them up and then backing off? Both cases involved efforts to make sure that the courts can still hear the case and that the governments can still be held responsible.

Let me pause there. As Bill said, there are a number of other religious liberty issues in the cert petitions, both the ones that have already been filed and ones that are coming. I'll just flag one cert petition issue that is in front of the Court that they have expressed some interest in in recent years.

There have been several references by the justices in prior cert denials that they're interested in revisiting their decision in TWA v. Hardison. That's the case from the late 1970s in which the Court interpreted the religious accommodation provision of Title VII saying that employers have to reasonably accommodate their religious employees unless it's an undue hardship.

The Hardison case had interpreted undue hardship to be essentially anything more than the minimus. So essentially, even a trifling cost would be enough to get the employer out of having to accommodate. A year and a half ago or so, four justices in the Coach Kennedy case, Kennedy v. Bremerton, noted that no one's asked us to revisit that one. Then in the Patterson v. Walgreens case last term, the Solicitor General's office said that they thought that was an issue the Court should revisit too, although the Court didn't because they saw some vehicle issues with the Patterson case.

There's two cases at least that are likely to raise that this fall. One is one of Becket's cases, Dalberiste v. GLE Associates. The petition's already on file on that. And the other is one coming out of the Sixth Circuit called Small v. Memphis Light. Both of those cases present the opportunity for the Court if it chooses to revisit TWA v. Hardison decision that they've expressed some interest in revisiting and, from my point of view, hopefully correct it.

Prof. William Saunders:  This is Bill. I just thought I'd -- it might be useful, Mark, before Nick opens us up for questions, if you would just say—because we may have lawyers with all kinds of different expertise's on the call—just a couple sentences about what RFRA is and couple sentences about what the test under Employment Division v. Smith is.

Mark Rienzi:  Sure thing, happy to. So RFRA is the statute passed in 1993 after Smith. So why don't I do Smith first. Actually, I'll go one step before Smith. So prior to Smith, the court in cases like Sherbert v. Verner and Wisconsin v. Yoder had applied strict scrutiny whenever the government burdens somebody religion, right. The government had to prove if it was going to force you to violate your religion, that it had a really good reasoning, a compelling government interest, and that it was using the least restrictive means of advancing that interest. That's cases like Wisconsin v. Yoder and Sherbert v. Verner.

      In Employment Division v. Smith, Justice Scalia cabined those cases pretty narrowly and purported to establish or announce or recognize a general rule that if a law is a neutral law of general applicability, then only rational basis scrutiny applies. So if your religious exercises are restricted by a neutral and general applicable law, the Free Exercise Clause doesn't give you much help. You are stuck with—you can't prove the law fails rational basis, you're going to lose. I think courts have frankly overinterpreted Employment Division v. Smith and applied it more broadly than it may have originally been intended.

      But the upshot of that has been pretty bad for religious plaintiffs and religious groups over the past 30 years. And much of the Smith decision was premised on a prediction that if we have religious exemptions, if we hold the government to strict scrutiny, there will be anarchy.

      But shortly after Smith, Congress essentially ran the experiment for us by passing the Religious Freedom Restoration Act, RFRA. And in that, as a statutory matter, they made the Sherbert v. Verner and Wisconsin v. Yoder standard applicable so that strict scrutiny applies where the federal government has burdened somebody's religion. And about 30 plus states, through either state RFRA statutes or their state supreme court's interpretation of their state's constitutions, have done the same.

      So one of the big differences between Smith and now is we've now had between 20 and 30 years of lots of jurisdictions applying the rule that the Smith decision thought it would lead to anarchy. And it quite obviously hasn't led to anything like anarchy.

      And so one of the fights in the Fulton case will be over whether to get rid of the Smith rule. I don't think the Court actually needs to get rid of it to decide this case, but I think if they look at what's gone on in the case and in the courts below, they'll see that the Smith rule has caused quite a bit of difficulty and is really something that the Court ought to revisit.

Prof. William Saunders:  Okay, Nick.

Nick Marr:  Okay. We'll open it up for audience questions now, and we'll go to our first one now.

Caller 1:  Mark, concerning the Fulton case, what do you think the chances are that the Supreme Court will actually take up and reconsider the Smith case since there's several threshold issues where the Court could decide the case and therefore never reach the Smith question?

Mark Rienzi:  Yeah, I think the short answer is it's difficult to predict. What I know is that they granted cert on that question. So I know that there's some significant interest there because they granted on it. They didn't have to do that.

      But the short of it is, there's only eight people right now who really know enough to have a strong sense of that. From our point of view, it's a very important question. It's why we've briefed it. We actually think this case demonstrates a lot of the problems of what Smith leads to where here -- Smith is supposed to be about a neutral and generally applicable law.

      Philadelphia never really had a law at issue on this at all. It's really just all kind of different post hoc rationalizations to try to get to the outcome they wanted which is to kick Catholic charities out. So in many ways, this case demonstrates all the problems with the Smith regime in really stark relief.

      But whether that means the Court actually goes there or just decides it under Smith, I don't know. And we'll have to wait and see. And, again, to me, the only thing that's clear that they've given us is that they in fact granted cert on that question, which they did not have to. It was a separate question, and they chose to grant it.

Caller 1:  Just a quick follow up. As a matter of procedure, do they have to decide the other issues against you before reaching Smith? Or could they jump right to the Smith question?

Mark Rienzi:  No, I don't think it's clear cut in that way. In other words, they're being asked to apply Smith -- the City's actually asking to expand Smith in a different way. So I think Smith is on the table, and I think if they're going to apply Smith, they can tell us what it means or what it should mean or whether it got something wrong. So I don't think there's an obligation to decide things against us in order to say what Smith means or whether it's right.

Caller 1:  Great. Thanks so much.

Nick Marr:  Okay. We'll go to our next question now.

Caller 2:  Yes. Sort of a follow up question to the prior caller's. Not sure if it's a -- my ignorance of the Supreme Court procedure or process, but with both state and federal RFRA in action, isn't that going to prevent the Court from getting to the Smith question? I mean, if Smith is the First Amendment constitutional issue or did that count or did the other plaintiffs in these cases just not plead that to intentionally force the Smith issue?

Mark Rienzi:  I wish I were that scheming and devious, but I'm not. No, but the short of it is your instinct is right that the RFRA laws in a lot of cases will make it such that the Court never needs to reach -- never gets to reach the Smith issue because Smith is essentially spared from bearing its own weight. That's certainly been part of how the cases stuck around this long.

      In this particular case, one, federal RFRA doesn't apply at all because federal RFRA only applies to the federal government. And Pennsylvania has had some relatively narrow interpretations of its own RFRA law. So the claims that are in front of the court are strictly federal constitutional claims. So there's no arguments being presented at the Supreme Court about how to apply that state law. So it really is just the federal constitutional stuff.

Caller 2:  Got it. Thank you.

Nick Marr:  We've got one right now.

Anne(sp):  Hello. My name is Anne. I'm from Washington, D.C. I'm just curious, you mentioned that there are a number of cases pending based on how the Fulton case is going to be resolved, and I'm wondering are they all -- do you know if they're all foster care cases similarly or if there's something else possibly also monumental pending there?

Mark Rienzi:  So good question. No, they're not -- there may be some foster care cases. I can't profess to know what all the cases are, but the ones I'm aware of are not other foster care cases waiting at the Supreme Court. They're other cases that --

And to be clear also, we don't really strictly know that they're on hold. We can all take a guess from the outside, that these are cases that raise similar issues and that we see the justices don't seem to be doing anything on those petitions so that people who watch the Court can deduce from the outside that it looks like they're holding it for a particular case.

      But the truth of the matter is nobody on the outside ever really knows. But with all those caveats, the cases that I've seen that are waiting on the outside deal with a range of things. There's the Arlene's Flowers case that Alliance Defending Freedoms is handling. And by the way, they're also handling the Uzuegbunam case I mentioned before.

      The Arlene's Flowers case, which is kind of a Masterpiece type of fact setup where what we're dealing with is a florist who didn't want to do flowers for same-sex weddings. So that is one that people say is probably on hold. We have one called Ricks v. Idaho, which is about a contractor who wants to be a general contractor but has a religious objection to using a social security number.

      So there's just a number of petitions that deal with a range of different issues related to the Free Exercise Clause that it's at least a plausible guess from the outside looking in that they may be being held for Fulton. Although, again, the truth is none of us really knows.

Anne:  That makes sense. Thank you very much.

Nick Marr:  We'll go to our next caller now.

Stephen Casey:  Hey. Thanks very much. Stephen Casey from Austin, Texas. The question I have is this. And it's very evident that there's a lot of people that are -- they don’t like Smith. There's, I think, a smaller contingent that doesn’t like Sherbert v. Verner. It seems like the litigators fall mainly on the favoring the RFRA standard. But the question I have is this, right, is that if you have this totalistic society where you don't have judges that come in, it seems to me there's only two categories of judges.

There's judges that are really going to acknowledge what I call a two-story world view where there's transcendent values so that those transcendent values are overarching of the state. And then there's going to be judges who maybe have an empirical world view. There's nothing transcendent. When you die, you push up daisies.

And so when we have issues like religious freedom, which addresses transcendence, when we have issues that, like, the primary argument with which it addresses transcendence, any instance where you have a legal framework, an analytical framework, we're going to come to the Court with and say here is my case. Apply X standard to it.

The Sherbert v. Verner standard invites into the mix what the world view of the judge is. And so you're going to get a myriad number of worldviews and a myriad number of opinions. The Employment Division v. Smith, while it's not liked, it at least doesn't ask, to me, a self-taught question of the judge. Are there exceptions, or are there not?

      If we are going to jettison Smith, even though it seems to be neutral as to the world view of the judge, and embrace the Sherbert v. Verner, even though it's going to invite a world view from a judge that you may not agree with which could be determinate of the outcome, what other standards should we go to if we're going to have judges that have differing world views as it goes toward transcendence? Because transcendence, as it applies to religious freedom, to me, seems to be the key. What is the judge's view on transcendence?

Because you could be, like, Kennedy, right? Or a judge even says, kind of like Peter and John, the Sanhedrin told me not to talk about Jesus, but you be the judge. Should I follow God or follow you? Some judges are going to say God supremes. Some judges are going to say the state supremes. And it's all going to depend on that transcendence. And so we need something that's at least neutral to a judge's self-talk on transcendence. So where do you see it going then if a judge whose non-transcendent embraces Verner and then shoots the case down?

Mark Rienzi:  Thanks for the question, Steve. I think it's a good question. To me, I think if they're doing it right, if they're doing strict scrutiny right, they're not consulting their own view of the transcendent, right. They're, instead, measuring stuff that we ask them to measure all the time in other constitutional contexts like how good is the government's reason, right? Do they have the compelling reason for this? And are these really the only means they have to advance it?

      So if the judges are doing the compelling interest test from Sherbert v. Verner properly, I think I disagree or I think they shouldn't be doing what you are fearing, which is consulting their own views of the transcendent. Instead, they should be measuring the stuff that they measure everyday in speech cases and other days and other types of constitutional cases which is how good is the government's interest here.

      The reason I don't think Smith has been a solution to the kind of problem that you're talking about, though, is that Smith essentially says the government can apply its burdens to you, and it often doesn’t even need to show a particularly good reason. So to me, the vast superiority of Sherbert v. Verner's test or something like it, something that's tied to the text and history of the First Amendment, the vast superiority of something like that to something like Employment Division v. Smith is in Employment Division v. Smith says well, as long as they'll apply the same rule to the other guy, no one's violated your religion.

      And I think in a world where we have and a country where we have religious diversity and people of different faiths, that's a particularly lousy rule. And what that ends up with is a lot of people just lose their claims at step one because the answer's well, the government imposed that on everybody, so you lose.

      I agree with you that, sure, judges can cheat on the analysis. You know, judges are judges, and they're human and they're fallible and all that. But I still think I prefer a system in which if someone's constitutional rights are going to get violated, the judge at least has to answer the question and the government has to answer the question do you have a good enough reason. And I think Sherbert makes them do that.

Stephen Casey:  Well, again, sorry, if I can follow up on that. So you had the case in Montana where you had the construction companies that were religious, and they had a covenant not to sue in them. And so their overhead was wildly lower than everybody else. They could underbid them, and they were getting a lot of projects. And it went to the Montana Legislature and the construction lobby there got it passed that you didn't have a religious exemption in Montana. And that kind of leveled the market playing field, so to speak.

      And since we live in a majoritarian society, and in The Federalist Society, the position is judges should say what the law is, not what they want it to be, isn't that a little -- I see that inconsistent because you're saying now the judges have become the protector of that religious minority rather than the religious minority in a majoritarian society making their case in the legislature for their exception.

      For example, in Texas, the RFRA statute is a constitutional -- it's not constitutional, but the RFRA statute is long, like everybody had a hand in making it. It's one of the longest statutes we got. And so we're inviting the judges to become the protector of the minority rather than shifting the balance of power away from judges to just say what the law is and to carve out me and my exception even though I didn't make my case by persuasion in the legislature.

Mark Rienzi:  So I think our disagreement there, I view it more as a disagreement over the role of the Bill of the Rights than the role of the courts like -- so to me, I think the Bill of Rights protects some things even against the majority. And I think the free exercise of religion is one of them. So I agree with you that when that happens and the legislature tries to force the nuns to give out contraception or whatever, and you've got to go court, that that's less than ideal, right.

      If society's working better, the majority in the legislature ought to say c'mon, you don't need to do that to the nuns. So like when things are working better, I agree with you like it would be better if people worked out their problems that way. But I think the point of the Bill of the Rights, to the way the court talked about it in Barnett is to pull things, some things, some particularly important things, out of the ordinary back and forth of legislative politics and protect them for the minority even if the majority wants to make them salute the flag or something like that.

      And so I understand the point. I just, ultimately, to me, I think the Bill of Rights says there are certain things that even if the majority won't give you, you're entitled to. And that's what I think applies to that.

Stephen Casey:  Okay. Thank you.

Mark Rienzi:  Thank you.

Nick Marr:  So we have one caller in the queue right now, and before we go to our next caller, Mark, you can take this or just go to our next caller, but this is a follow up on Mr. Casey's question. I think he was making the argument that Joseph Scalia made at the end of the important Division v. Smith and it might be worth talking briefly about the pros and cons of the legislative accommodation approach, which Scalia seemed to be advocating, versus the judicial accommodation approach.

Mark Rienzi:  Yeah. Ultimately, again, my main response on that is I think it's a place where the Constitution already struck the balance for us. And the Constitution says but there is some things that even if the legislature won't grant, you're entitled to.

      Joseph Scalia says, at the end of Smith, that he recognizes, in other words, I don't think his head was in the sand, he recognizes that minorities will have a harder time when you consign them to the legislative process. He just thought that was better than having judges decide it. And while I love and respect Justice Scalia a great deal, he was just wrong. I think he was just wrong about that particular point, and I think he was wrong about how the First Amendment was supposed to function there.

      I think the First Amendment actually says no, when it comes to something as central to who you are as your religious exercise, it's not enough to just say well, you're the minority and tough luck. That's better than having the judges decide it. In fact, the First Amendment gives you some affirmative protection.

      So and I agree with the point of the question that that seems to be what the fight's about. I agree. I think that's what the fight's about.

Nick Marr:  Okay, fair enough. We'll go to our next couple audience questions.

Caller 5:  Yeah, thanks. Just curious about the impact of some of the comments in Justice Gorsuch's decision in, I think it was Bostock, about how -- it seemed as though they were trying to define the holding there fairly narrowly, but I've heard a lot of people say well, that's clearly dicta given how Holy came out and what the impact of that might be on any of these cases in the scope of religious objections generally.

Mark Rienzi:  I agree that the Court wasn't actually—and the Court said this—that they weren't actually deciding any religious claims in Bostock, so that's true. But I think it's also true and I think it's important that you had six justices, including Gorsuch, the Chief, and the four justices generally considered to be on the more liberal side of the Court, you had those six justices saying that the free exercise of religion lies at the heart of our pluralistic society.

      It would be kind of weird, it would be kind of strange, if what lies at the heart of our pluralistic society is just the rule of Smith that says well, as long as they do it to everybody, well, you're out of luck, and go convince the legislature. I don't think that view of free exercise maps up very well with what the six of them just said there. And I also think the dissenters in Bostock are people who are pretty serious about religious liberty.

      So to me, I agree. They weren't actually deciding the religion claims there. But I think it is important that where they were deciding the Title VII claims, you essentially, I think, you had unanimity from the Court that there will be significant religious protections here and you had strong voice on the Court, left, right, and center, if you choose categorize justices that way, you had strong views across the spectrum embracing a strong idea of religious liberty as a way to protect pluralism.

      If you think religious liberty protects pluralism, which is what they said, I don't think it could protect it. And if you think the Free Exercise Clause protects pluralism, I don't think it could really protect it if it was just well, it protects it if they single you out and target you but that's it. That's not the heart of anything. That's pretty weak sauce.

      So to me, I think it's a useful indicator and it's important that the six of them did that. That said, people need to go collect and make sure that they follow through on that. And Fulton, to me, is an important opportunity to do that. And I will say, Fulton is also an opportunity for them to follow through on some of the good language they had in a case like Obergefell and some of the stuff they did in Masterpiece.

      The justices, and again, this has been across the spectrum. The justices, in the same-sex marriage line of cases, have been quite reasonable and fair and open-minded toward people with religious objections, and they have said good things. And in Masterpiece when the time came, the seven justices voted to protect the cake baker.

      And I think Fulton is another opportunity for them to follow through on that, if they really view these things as deeply important questions on which people are allowed to disagree, right? That was the basis of Obergefell was sex and marriage are really important, and the government shouldn't cram one definition down everybody's throat and people ought to be able to figure out their own answers and live by them. That was the majority's view on Obergefell.

      If that's really true, then of course it also applies to the Catholic Church, even if they come up with a view of marriage that the city government doesn't hold. So I think this case might be the coming together of those strands that have been left dangling over the last few years but quite consistently left out there and repeatedly said by the justices in what I think is a good way.

Nick Marr:  Bill, do you have anything to add?

Prof. William Saunders:  No, not really. I do think we may get in this term some follow up cases on the ministerial exemption. But that's the only other issue that I can think of that we haven't talked about in much detail.

Nick Marr:  Okay. We'll go on the next question here.

Caller 6:  Hello. I just want to preface that if it gets too much into the argument strategy of the Catholic charity's case, that's fine, but since SCOTUS has agreed to rehear this next question, I was just wondering if there was an alternative proposition that you all will be making if Smith does get overturned or what you imagine the landscape could look at with it overturning just 30 years of cases that have followed that test.

I just, in terms of -- because I'm sure the Court's going to be a little apprehensive of completely overturning it since it has had such an impact. So I just didn't know if you think the RFRA would be expanded or where will the religious liberty laurels rest in future cases where it's tested?

Mark Rienzi:  Sure. It's a great question, and it's not going too much into strategy because we've already submitted the briefs. So we've told the justices what we think. We have argued for a standard like the Sherbert v. Verner strict scrutiny standard, saying that if the government's going to restrict religious liberty, they at least need to be able to prove they've got a very good reason to do it.

      I'll point out that the Supreme Court itself doesn't have a 30-year record of relying on Smith. In fact, they have very rarely used Smith at all since it was decided. In the Espinoza case, just to take one example, big free exercise case decided last term, they didn't mention Smith at all. And so I don't think they've really relied on it a lot. I do think it's been influential in the lower courts.

      I don't think it would be a dramatic big deal that the courts couldn't handle. They were able to handle the shift when Congress enacted RFRA and lower and state courts have handled the state RFRAs. So I don't think it would be the kind of thing they couldn't handle. It's actually the kind of thing courts do as a statutory matter quite a bit. And so I think of situations where they overturn something, this is one where I think there's every reason to think the courts can handle it just fine.

      Also because it is the standard they're used to applying in other constitutional areas. It's not really different from something they do all the time in other constitutional areas. So between the fact that they do it under a lot of statutes and they do it under other constitutional areas, I don't think it will strike them as something the courts can't handle.

Caller 6:  So just as a follow up, so since SCOTUS hasn't actually used it and they didn't use it in Espinoza, do you think there's maybe a higher chance in this case of it being overturned or no?

Mark Rienzi:  You know, over the 30 years since Smith, there's been either 10 or 11 different justices who have commented negatively about Smith. It's a decision that the entire or most of the scholarly community at the time of Smith, I shouldn’t' say the entire but much of the scholarly community, much of the political community, much of the religious community at the time of Smith said this is obviously bad and wrong.

      So, yeah, I think it's been known that it's a tenuous decision for some time. It's been subject to a lot of criticism. To me, I think that does mean it's one that they -- they're at least open to reconsidering. Again, they granted cert on the question. They didn't have to. They were separate questions. They could have only just looked at the merits of this case. They agreed to grant cert on the Smith question too. So I think they're certainly open to it.

Caller 6:  Okay. Thank you so much.

Mark Rienzi:  Thank you.

Nick Marr:  We don't have any callers in the queue right now. And we are coming up on the end here, so I guess, Bill, I'll give you a chance. I feel like we haven't talked a whole lot about those extra cases that might be coming. Do you want to give a little bit of a brief around those? You mentioned just a couple minutes ago that there might be some more ministerial exception cases. Will you just give a little bit of a brief with those?

Prof. William Saunders:  Yeah. I can mention a few, but as Mark was saying, we have no idea what's going to happen at the mega-conference. They may not end up not taking any of these cases. And he did mention two, Arlene's Flowers and Ricks v. Idaho, which is still pending. But there's -- and I think Mark also mentioned, I'm not sure, Puri v. Khalsa, which is, I think, a ministerial exception case that's an issue of a control of a Sikh religious corporation. I'm not sure which organizations are on the brief, but that could raise -- it seems to be raising ministerial exception cases. So that would be a question of how that follows on or is distinguished from Our Lady of Guadalupe.

      I mean, the justices in Our Lady of Guadalupe all seem to be united that if you had a minister or someone who was teaching the faith, that questions about hiring and firing were to be left to the religious organization. Even the two dissenters on that case, I think, agreed on that proposition, but they just didn't think on the facts of the case they met them. So I think development in ministerial exception in subsequent cases will be important. I don't know, Mark, if you have any thoughts on that.      

Mark Rienzi:  I don’t have additional thoughts beyond what we've hit already other than, obviously, there's a lot of stuff out there so certainly you can see other things added to the term as we go.

Prof. William Saunders:  Yeah. There's lots of cases that are pending. Another one I'm aware of has to do with a rabbinical college. The state -- what's called RLUIPA, which we haven't talked about on this call, but it's a statute that protects land use decision making. So we'll see what the court does. There's quite a number of interesting cases pending, but we can't really predict what they'll take.

Nick Marr:  Okay. We don't have any more audience questions. I'll offer a chance for any closing remarks, either Mark or Bill, that you might have.

Mark Rienzi:  I've heard me talk plenty by now, so I pit all the points that I can think of that would be useful.

Prof. William Saunders:  Yeah. I don't have anything either. I do think, it's safe to say, that I think the Fulton decision will be very significant. I don't know how the Court will rule, but Employment Division v. Smith has been controversial from the beginning so it's significant that the court granted cert on that point among other points.

      Also, Nick, I might take one minute while we have people on the call, if it's okay, just to mention that religious liberty issues and some of these issues of exceptions from generally applicable laws are going to be part of our convention, which the first panel of which is on November the 9th at 11:00, and it's the panel sponsored by this practice group, the Religious Liberties Practice Group. And it opens the convention The Federalist Society, which will be online and is open to the public. So those who are interested in further analysis of these kind of issues and exceptions to generally applicable laws, etc., that'll be something you don’t want to miss.

Nick Marr:  Yeah. Thanks, Bill, and to our audience who are still on the call, keep checking our website for more information about that. It will be a virtual convention and open to the public. And we actually have gotten a question in this time. We've still got some time, so I think we'll go to it now.

Caller 7:  Thank you. Just a question procedurally, I guess, almost. So if -- I don’t know whether by the time the briefing and/or argument occurs, whether or not there is a new justice confirmed or seated or whatever. Just curious if there are any potential implications or permutations that might be relevant based on those possibilities, if you gentlemen have any guesses.

Mark Rienzi:  Yeah. The short answer for me is I would just be guessing, that I can see the newspapers as well as you can or -- newspapers, what an old thing to say. I can read my computer screen and my phone as well as you can in terms of the likely timing. And I think whether they go ahead, when they go ahead, with whom they go ahead, and then when somebody gets seated is at least beyond me to have any useful guessing on.

So when they get somebody seated, he or she will show up and until then, I think they'll proceed with eight, which is what they've typically done in the past. So I'm eager to find out. I'm eager to find out what'll happen and when it happens and when they get back to a full complement but couldn't really guess exactly the details on when it'll happen and how it'll happen.

Caller 7:  Mark, I'll just ask you. So Fulton is scheduled for oral argument on November the 4th. If we still have eight justices and we don't have nine, we have eight, you would just expect the oral argument would just go ahead as scheduled, right?

Mark Rienzi:  That is at least how they have proceeded in the past when they only have eight justices, is they have just gone ahead and heard cases. And one thing that I'll just point out at least as to the religious liberty cases is that for the most part, in recent years, religious liberty has not been a nail-biter 5-4 kind of issue. But there have been a good number of 9-0's, quite a lot of 7-2 type decisions.

So it's not necessarily the kind of case where you absolutely need a ninth vote. We, of course, happily welcome nine votes on the Court, but most of the cases have not been really razor thin 5-4 types decision where very vote is critical. They've been ones where the justices have actually been able to, to their credit or might mind, been able to see, kind of, take a broad-minded position on religious liberty and recognize that it ought to be protected for people with a wide variety of beliefs and that hasn't just been a five vote proposition. So we'll have to see, but we're ready to go however it is.

Nick Marr:  Okay, great. I think we'll close out today and thank you both for joining us. And on behalf of The Federalist society, I want to thank you for being here today. I want to thank our audience for calling in. For the audience, we welcome listener feedback by email at [email protected]. And as usual, be checking your emails and keep an eye on our website for announcements about upcoming Teleforum calls.

We've got one coming up here actually pretty soon in about a half hour. We'll be discussing local patent rules with Judge Alan Albright and a couple other panelists. So thank you all for joining us today. We look forward to the new term, and we are adjourned.

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.