Religious Liberty and the Court: Looking Ahead to the 2024-2025 Term

Marco Lloyd: Hello everyone and welcome to this Federalist Society virtual event. Today we'll be discussing the state of religious liberty in the court in the upcoming term with Mark Rienzi and William Saunders. My name is Marco Lloyd and I'm an Assistant Director of Practice Groups with the Federalist Society. In the interest of time, I'll only briefly introduce our moderator or with the full and extensive bios for both of our speakers can be found on our website. William  Saunders is the co-director of the Center for Religious Liberty at Columbus School of Law and Professor focusing on human rights, religious liberty and bioethics at the Catholic University of America. Additionally, at CUA, he's a law fellow with the Institute for Human Ecology and Director of the Center of Human Rights, a graduate of the Harvard Law School. He's also Chair Emeritus of the Religious Liberties Practice Group here at the Federal Society. If you have a question at any point in today's program, please enter into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that as always, the federal society takes no position on particular legal or public policy issues and all expressions of opinion are those of the speakers. With that Professor Saunders, thank you for joining us today and the floor is yours.

Prof. William L. Saunders: Thank you Marco. Welcome everybody. It's my pleasure to introduce my co-director at the Center for Religious Liberty at the Columbus School of Law at the Catholic University of America, Mark Rienzi. Mark is a graduate also of the Harvard Law School. He's a professor at the Columbus School of Law and he is the president of the Beckett Fund. I mentioned to Marco a couple minutes ago that he is also the busiest human being I know. So we're very happy to have him with us today. I'm sure you all will enjoy having the opportunity to get his views on various things this Supreme Court term. I do want to, I think I'll tee this up, let's get us started with a somewhat amusing softball to mark, which is what are the most outstanding cases on the Supreme Court docket this term

Prof. Mark L. Rienzi: For religious liberty? So far it's none. Now I get the joke. So far it's none, and that's really the story of last term two, which is a change, right? We've come off a dozen years or so where the court was taking one, two or three religious liberty cases a year. Last term they had none. They had a lot of cases that were of course really important. Some of them like Loper Bright that I think will be really important for religion and religious liberty because the administrative state often bumps into religion and religious liberty. But last term and so far this term, they actually don't have any religious liberty cases on the docket.

Prof. William L. Saunders: So what we're going to do on this podcast is we're going to talk about some cases that are seeking grant of cert to the court or maybe one or two that we think may work their way up through the court. So Mark, we talked about this. There are several cases that you, we can talk about. I don't know if what you would like to start with. There have been perhaps just let me ask you. There are a couple of cases that where as I understand it, the Supreme Court's not found a significant burden on religion, which is I understand Apache Stronghold is one of those. Do you want to start with that and move?

Prof. Mark L. Rienzi: Yeah. Happy to start with the Native Americans. So the Apache Stronghold case comes out of the Ninth Circuit Court of Appeals. This is one where the Apaches who the state, the obvious we're here before the United States was a country. There's a spot in Arizona that is sacred to the Apaches called Oak Flat. It's at least what it's called in English. It's called Oak Flat, and they've been worshiping there and they believe it has special spiritual significance and they've been worshiping there for many, many years longer than anyone can remember. For a long time. The federal government actually did a good thing, which is the federal government recognized that that was special land to this group of Native Americans and it protected the land and that was in federal regulations and so forth since at least like the Eisenhower administration. But at some point 10-ish or so years ago, someone discovered that way down a couple miles under the sacred site there was a lot of copper.

And so in a midnight rider attached to a must-pass defense authorization bill a decade or so ago, it was slipped in to sell that piece of land to a foreign mining company called Rio Tinto. And the question in the case is whether it imposes a substantial burden on the Apache's religious exercise to transfer the land to a mining company who says they're going to blow it up and they're actually going to, it's end up with a crater two miles wide in place of what used to be their sacred site. And on the way up, the lower courts have so far found that this is no burden at all on the Native Americans religious exercise. So it's federal land, so RFRA, the Religious Freedom Restoration Act applies to the federal government's actions. Congress said that applies anywhere the federal government is acting in any way.

So RFRA applies the lower courts. So far, the trial court and then a panel of the ninth Circuit and then a very closely divided banc panel of the Ninth Circuit have said, this is actually not a burden on your religious exercise at all. They said it would be a burden if we put up a fence and kept you from going into that spot. That would be a burden, but it's not a burden to destroy the sacred site forever. That was a 6-5 decision by the Ninth Circuit. There had been a previous opinion in which one other judge had said he was in favor of the Native Americans here. So of the Ninth Circuit judges who've decided on it, actually they've split six to six, but because of the way the panel broke out, it was a six five loss. We've got that cert petition up. Needless to say, the federal government's opposing it. The mining companies are opposing it, and that's one of the many on which I think we'll find out by January or so whether the court wants to hear it or not.

Prof. William L. Saunders: So that's a reference and we don't get to the heightened scrutiny analysis because there's no burden. Right.

Prof. Mark L. Rienzi: It is not as if the federal government won that below by saying, copper's really valuable or I need to be able to get it. They want it by the court saying, RFRA, there's no burden. We haven't passed the threshold issue that there's a burden on your religion yet. Which of course if they blew up St. Patrick's Cathedral or Mount Sinai or something else, it'd be pretty easy to recognize why of course it is a religious burden if someone makes your sacred site untenable again.

Prof. William L. Saunders: Yeah, I understand that the argument's being made that there's other comparable land within the vicinity. I don't know within how many miles or half miles or what that means, but I understand that's part of the government's argument that you can have your sacred site over here, but you can't.

Prof. Mark L. Rienzi: Yeah, that's just not the way religion works for the Apaches in this case or for most other religious people that the government could just tell you to do it over there and it's just as good.

Prof. William L. Saunders: Another case that I believe so far has been found not to have a burden. Is this Mahmoud v. Taylor case? Am I correct on that? Is that a Religious Freedom Restoration Act case?

Prof. Mark L. Rienzi: It's not a RFRA case. That one's the First Amendment case, but you're right that there are both cases where in honestly kind of bizarre ways, the lower courts have said there's no burden. So that's probably the one thing those two cases have in common, but happy to tell you about Mahmoud and I should say both Apache and Mahmoud are Beckett Fund cases. Mahmoud is one where Montgomery County, Maryland, Montgomery County School District to institute a pride curriculum of books that they would read to kids as young as pre-K. And so this is the three and four year olds in pre-kindergarten in Montgomery County schools by Maryland law, parents are supposed to be able to opt their kids out of any instruction that violates their religion. These are books that come with instruction guides to the teachers telling the teachers that they are supposed to disrupt the children's either or thinking about sex and gender telling the teachers that they are supposed to, the children should learn that when you were born, the doctor only guessed whether you were a boy or a girl, but you really know best.

In other words, encourage the three and the four year olds to question their sexuality and gender to the extent they understand those terms at all. Under Maryland law, you can opt your kid out of any instruction that violates your religion. And then the one thing that Montgomery County decided you could not opt your child out of was this pride curriculum. You can actually opt your high schooler out of sex ed in Montgomery County, but you can't opt your three-year-old out of sex ed in Montgomery County. Remarkably, the lower courts said there is no burden on the parents, at least not yet. So they said if you show that they're actually specifically instructing your child in a certain way, maybe you can come back. But the fact that the school has announced these are the books that will be taught. The school has told parents, "We won't tell you when they're going to be taught and we won't let you opt out."

The lower courts, it was a two to one decision in the Fourth Circuit, but in a two to one decision, the lower court said, "That's not yet a burden on your religion. Come back to me if something happens and we'll see." That's just not the way burden works. The idea that you have to put your child in that circumstance and hope to be able to unring the bell after they put those ideas in your child's minds, that doesn't make any sense. As a practical matter, of course, many people don't have much choice but to put their kids in those public schools. So that's one where it's only under the First amendment. It's not a RFRA claim, it's a First Amendment claim, but the lower courts have said it's just not a burden if the public school says, this is what we're going to teach your child, but no, we won't tell you when we're going to, no, we won't let you opt your child out. And the courts have said basically, well wait until they've done some harm and then come back to me.

Prof. William L. Saunders: How about Landor v. Louisiana Department of Corrections, which has to do I believe with prisoners, so it's not a RFRA case, right? It's an RLUIPA case?

Prof. Mark L. Rienzi: It is an RLUIPA case, correct.

Prof. William L. Saunders: You might want to say what RLUIPA is in case somebody listening isn't familiar with it.

Prof. Mark L. Rienzi: No, I think everybody in the audience probably had to take a test to get on and they know RLUIPA is the Religious Land Use and Institutionalized Persons Act. It's called RLUIPA because that's easier to say. So RLUIPA governs among other things how state prison systems treat prisoners in their care who want to exercise religion. Landor is a case about a Rastafarian prisoner who had dreadlocks and Fifth Circuit law is really clear actually that he ought to be allowed to keep the dreadlocks that he's got for religious reasons, that there are ways to work around any claimed safety issues and so forth. And so Mr. Landor was being transferred to a different prison within Louisiana and actually walked in with the copy of the decision in hand saying that "You are not allowed to make me shave off my dreadlocks." The prison authorities took the decision, threw it in the garbage and shaved the man's head, and so he has a claim under RLUIPA for damages.

He's saying, well, RLUIPA says when the government violates my rights, I can get appropriate damages. Interestingly, the Supreme Court addressed this question under RFRA, the Religious Freedom Restoration Act a couple terms ago in Tanzin v. Tanvir in which they unanimously said, of course, appropriate relief can include money damages. So this is the RLUIPA version of the same question they answered under RFRA and just a week or two ago, the Supreme Court had the petition and entered a CVSG order. They called for the views of the Solicitor General. So that basically puts the petition on ice for a little bit while the Solicitor General's office answers the court's invitation to say what the United States government thinks is the right answer to this question. So I assume sometimes there's a flurry of CVSG answers that come in before the end of the calendar year. Sometimes they take till the end of the term. There's no real deadline on the SG's office to answer that request, but at some point the SG's office will say what the United States government thinks is the right answer here, and then I assume the court will take that into account in deciding whether to grant cert. On the merits, after the RFRA decision from a couple of years ago. It's very similar language. It seems like there's a really good argument that the guy's supposed to get damages.

Prof. William L. Saunders: There's another case I wanted to ask you about this Diocese of Albany case?

Prof. Mark L. Rienzi: Yeah, Diocese of Albany, which is another Beckett case that we're doing with Noel Francisco and the team at Jones Day. This one is one that has been to the court once before. It's actually been around for almost a decade now. If you remember the contraceptive mandate fight where the federal government was trying to force the Little Sisters of the Poor and others to buy contraceptives for their employees and the feds said, "We'll exempt some religious employers, but they've got to be people who only preach and teach the faith and only do it for people of their own faith. You can't serve anybody else." So that whole contraceptive mandate fight happened to the federal government over the last decade. New York being New York, decided they should one up the feds and instead of doing it as a contraceptive mandate, they're doing it as a full on surgical abortion mandate that they will force you to buy surgical abortions for your employees.

Like the feds before them, they've got a really narrow religious exemption, but they don't think it applies to anybody who takes care of anybody of another faith. So if you serve the poor of some other faith, if you serve the poor without preaching to them or trying to convert them, you're just trying to take care of their physical needs, New York State says you don't get an exemption. This case was at the Supreme Court at the same time as Fulton v. Philadelphia back in 2021. It was sort of sitting on hold while the court decided Fulton, the New York courts at that point had said, you have no right to religious exemption applying the Employment Division v. Smith case. So they'd said, you have no rights here. The court had that on hold was waiting while it decided Fulton after the nine-zero decision in Fulton, three of the justices would've heard Diocese of Albany right then, that's Alito, Gorsuch, and Thomas, but you need four to grant cert.

And so the rest of the court just entered a GVR order. They granted, they vacated the decision in light of Fulton and they sent it down to the lower court to reconsider in light of Fulton. Three years later, the New York courts say, "Well, I've thought really hard about Fulton and you still lose and Smith still controls." So Diocese of Albany is an important case in its own right. Think it's also important because it gives the court a chance to get back to that question of should we change the Employment Division v. Smith case from 1990? Should we overrule that and replace it with a better standard? The New York decision in the New York courts, the way they apply Smith is certainly a good demonstration of the bad effects of leaving Smith in place. So that's back up on a cert petition again. Again, there were three votes to grant cert three years ago and the question is just can we pick up a fourth?

Prof. William L. Saunders: So you anticipate that if that's granted, Smith will be considered, is Smith raised?

Prof. Mark L. Rienzi: Yeah, Smith is raised in the petition like Fulton, like many of these other cases. There are also ways to say you can rule for me without overruling Smith and so as in Fulton, it would be a case where the justices would have the opportunity to figure out if they want to fix the mistake of Smith. I will say in Fulton, six justices indicated in openness to overruling Smith. So I think they know full well that it's wrong and I think they're just waiting for the case that really presents it well, this one does. So we're hopeful we can get the court to bite.

Prof. William L. Saunders: Yeah, I was going to say it's surprising what New York did in light of Fulton.

Prof. Mark L. Rienzi: They're not listening to Fulton. Right, to the extent the point was, well, Fulton should tell you to resolve this the right way. The New York courts didn't get that message. Fulton's had a much broader effect than people often think about it, but a willful state that wants to ignore it and just say religious people always, always lose because of Smith is going to keep doing that until the court fixes Smith.

Prof. William L. Saunders: Can I ask how would you fix Smith?

Prof. Mark L. Rienzi: Sure, I would overrule Smith. I think in some places it should be replaced with something that for historical reasons, the way you see in Hosanna-Tabor ends up with no scrutiny being applied at all. There are just certain things governments can't do to religious groups, but I think strict scrutiny or something very much like strict scrutiny can often be the right test to apply. So I think the Sherbert versus Vernor test is often a very good test. One of the things I think the Rfra and Ruppa era have taught us is whatever Justice Scalia thought in 1990 would be the effect of applying strict scrutiny just hasn't come to pass, right? He feared it would create anarchy. He feared courts couldn't do it. Congress now let us run that experiment for the last 30 years under RFRA courts can do it. It's actually a good test. It does a good job of forcing the government to mostly not burden people's religion, and so I think that's a very workable test to bring back.

Prof. William L. Saunders: Another case I want to mention is this Catholic Charities v. Wisconsin case, which anyway, tell us about it.

Prof. Mark L. Rienzi: Yeah, yeah, so Catholic Charities v. Wisconsin, so it's another state court case, this one coming out of Wisconsin and it concerns something that isn't terribly exciting to some at least, which is the state's unemployment insurance regulations. But in a nutshell, under Wisconsin law, you can either participate in the state's unemployment insurance program or if you're a religious entity and you have your own pool of money that helps you deal with unemployment insurance, you can do it through your own system. And Catholic charities in Wisconsin has that. They actually have a more generous system than the state does. They would be entitled to an exemption under Wisconsin law if Catholic Charities is religious, but bizarrely in a hotly divided four-three decision, the Supreme Court of Wisconsin decided that Catholic charities is not religious and the reason they decided Catholic Charities is not religious is they said, "Well, the work that you do giving clothes and food and water to the poor and the hungry, you don't need to believe in God to do that."

Some people who are completely secular atheists can feed the hungry and clothe the naked and so forth. So they said basically 'You're doing stuff that non-religious people do and you're not doing it in the way that we think religious people would normally do it, namely, you're not doing it only for your religious group." The Catholics are helping homeless people without checking baptismal certificates and you're also not proselytizing when you do it. You're just helping people, but you're not trying to convert them while you do it. And what the Wisconsin State Government Authority said is that just doesn't look religious to me. And so bizarrely, they decided that Catholic Charities of the Diocese of Superior Wisconsin, which is a very religious Catholic group, they said, you are not a religious employer. There are parallels to this that go on in other states. It's a split. Actually, the court 40 years ago took a case to resolve and ended up not having to resolve because Congress changed something. But it's a longstanding split. It does come up from time to time in the states where they try to decide who counts as religious, and I think it presents some really useful opportunities for the court to address church autonomy, law and sort of the ability of governments to tell you who's religious.

Prof. William L. Saunders: I mean, does this get into the issue of defining what is religion?

Prof. Mark L. Rienzi: Not directly? So in other words, it's not like the question of, well, I've got this group that's got deep philosophical beliefs but doesn't believe in a transcendent power. It's not that kind of line. It's more you say you're religious and you say you're doing this because Jesus tells you to, but you're not behaving in the way that we expect religious organizations to behave. To put it another way, the question of what is or is not religious at some level does have to be answered to have a free exercise of religion clause. So you need to be able to do that. But what Wisconsin's doing is not that It is saying, well, there are behaviors and limitations that we think religious people ought to impose when they're handing out cups of water and you don't impose them so you're not the right kind of religious group. I think clearly forbidden and I don't think it's a very close question honestly.

Prof. William L. Saunders: Well, let me just circle back for one second to the Diocese of Albany, it seems like there's a similar issue in that case, I think you said there was a very narrow exemption, but why don't you say something about the plaintiffs there who's seeking the exemption and are found not to fall within the narrow New York exemption?

Prof. Mark L. Rienzi: Yeah, it's just as preposterous as the Catholic Charities case and just as preposterous as the Little Sisters of the Poor case at the Supreme Court a decade ago. It's the Catholic Diocese of Albany. It's an order of Anglican nuns. It's people who are, it's several different plaintiffs, but it's people who are obviously religious and I don't think the government really denies that they are religious. They've just defined the religious exemption super narrowly in a way that excludes these people. So again, similar to telling the Little Sisters of the Poor, the way the Obama administration told them that you don't count as a religious employer, no one really doubted that the little sisters were religious. They just said, you're not within the group of religious people that we are willing to bend the law for and give an exception to, and so we won't. That's going on in Albany. And yeah, those two cases I guess have that similarity of overbearing state governments who purport to be able to declare who's really religious and who's not. Again, those are really just ways for the government to say, we don't feel like respecting your religion or your religious exercise.

Prof. William L. Saunders: There's another petition that was actually denied, but I think it raises an issue which will come up and people listening as we get closer to say Christmas season, the issue very well may arise wherever they live and it's arisen in here in the Washington area before, which is the presentation of, I suppose you would call it religious advertising or something, public transportation. I think it was the Young Israel case. I might have the case name wrong - of Tampa. It was denied, but I think the issue could very well come up again, say something about that?

Prof. Mark L. Rienzi: Yeah, sure. And it certainly did came up in DC back in 2018, so the Young Israel case, which the court did deny recently, but it concerned one of these public transit laws that say you can advertise on the public buses and the public trains, but there's certain things you can't say and they sometimes lump religion with things like porn or graphic violence. They put it on the naughty list of things that you're not allowed to say if it's religion. In the Young Israel case, the government went - so Young Israel wanted to host an event called Hanukkah on Ice. They wanted have ice skating for Hanukkah, and the transit authority actually said, "Well, you got to take away this Menorah, take that out of the ad and you got to not say Hanukkah, but if you do that, you can put up an ad advertising this winter skating thing." That's clearly wrong, that clearly violates the First Amendment.

The 11th Circuit found that it violated the First Amendment, but the 11th Circuit had left open the possibility that there might be some lawful way to do that. I don't think there's any lawful way to do it, but the court did deny cert and Bill, the case you're referencing I think is the WMATA case from just before Justice Kavanaugh took the court where the Catholic, the Archdiocese of Washington wanted to run ads that said "Come home for Christmas" or something like that and had a lantern on in the church and the state wouldn't let them do it. The transit authority would not let them do it, but you could have a Christmas sale, so you could advertise the Christmas sale at Macy's. That's okay. But advertising coming to Mass on Christmas was against the rules. That's clearly a violation of the free exercise and the free speech clause, and surely it will eventually get rejected by the court, but there is a circuit split among circuits as to whether that's allowed or not.

Prof. William L. Saunders: Also Mark, I think there's a charter school case out of Oklahoma?

Prof. Mark L. Rienzi: Yeah, there are two charter school cases out of Oklahoma. One is from ADF, one is from the Notre Dame Religious Liberty initiative. They're both over - so Oklahoma for a long time banned religious schools or religious sponsors from sponsoring charter schools. And then Oklahoma changed the law and Oklahoma, some Catholic groups in Oklahoma applied to launch a charter school that was a Catholic school under Oklahoma law and they argued that they ought to have the right to do that. Oklahoma law allowed it, but then the Attorney General said he thought that law was illegal, and so the issue went all the way to the Oklahoma Supreme Court and Oklahoma Supreme Court said, under our law, we don't think you can, it's okay to exclude everybody else can charter a school if you want, but not religious groups. And so the religious groups are saying this seems a lot like Espinoza and Trinity Lutheran and Carson v. Macon, where the government is saying, "Anybody can sign up for this except religious schools. Except religious groups. You can't." And that if you do sign up to be a public charter school that any actions you take are actually state action, so therefore if you want to put a cross on the wall, well that's going to be a problem because that's the state putting a cross on the wall and so forth. I think these are very interesting cases.

What a charter school is, I think varies a little bit in different places. You could think of a charter school as the charter is this is the government's school or the charter is more like I'm giving you a law license and you can go practice law and you can go practice law and you can go practice law. I don't think most states really think that everything that happens at every charter school is state action. I don't think they actually think of them as the same as schools run by the Board of Ed. I think they're actually different, and if they are actually different then the argument that the state has any valid reason to exclude the religious folks becomes a pretty weak argument. So those petitions were filed in I think earlier this month, just this month. So a little later this year we'll see what the responses are.

Prof. William L. Saunders: And I think one last case that we're going to mention is this Mississippi District Council Assemblies of God v. Beachy case. Tell us about that one.

Prof. Mark L. Rienzi: Yeah, this is an interesting case that the court will, I think conference in early November, but it is a church schism case a little bit. It's a fight between a denomination. So a denomination tries to put in a new pastor at a church and the church doesn't want the new pastor, so the denomination on high sends them a new pastor. The church says, I don't want that new pastor and therefore I disaffiliate from this denomination. I'm no longer part of that denomination. Well, the denomination sued, but the Mississippi Supreme Court said it didn't have jurisdiction because this was essentially an ecclesiastical dispute. I will say that church schism cases, these types of fights where churches want to break away from one another. There have been many of these over the past couple of decades that really raise the question of how and whether can courts get involved in these types of questions. In other words like who owns the church building? Is it the local church or is it the denomination and how do we figure that out? Those are complicated questions. There's definitely a lot of splits in the state Supreme Courts and the lower courts on how to do it. The Supreme Courts so far has not bitten on any of those splits, but I think this is another opportunity if they want to get into that question for them to get into it.

Prof. William L. Saunders: Excuse me. How would explain a little more how this though is a religious liberty case. I mean I see how, so it's a question of whether the, I don't know, the hierarchical body within the religion gets to decide of how to dispose of property or the congregations do and whether that should be left to the religion somehow to work out or whether it's a property issue, regular property issue for the courts.

Prof. Mark L. Rienzi: Yeah, you've got it. Right. So it is a church autonomy question in that it's a question of what are the limits of the court's ability to resolve certain disputes, right? Anytime you have a church schism case, you invariably end up with part of the church, either the denomination or the actual parish church or whatever the church it itself is. One of the two will say, I want to go into court and have the court resolve this dispute. And they will often say, and I have some neutral document, I have a deed, I have a contract, I have something else that you should enforce to say I win. And the other side of that, whichever is the other side will say, no way courts can't decide these questions. That's beyond the reach of the courts, but they are frequently very messy disputes to resolve. The courts have kind of been all over the place and how they do it, the courts don't agree on the right way to do it. And again, so far the Supremes have not shown an appetite for waiting in and trying to untangle that situation.

Prof. William L. Saunders: So folks, it's open up Q&A, submit your questions. You can ask about any of these cases. It's quite an array of different kinds of religious liberty cases that we've been talking about and as I said, we don't know which the court will grant, but in fact, maybe I'll just ask Mark, I mean in light of previous court terms, previous decisions in your personal crystal ball, do you have any guesses on what, I mean obviously Beckett has some petitions pending and other groups do, and we all hope that the court would grant those petitions which have been thought through very closely by the lawyers as to why they should be taken. Is there any trend within the court or anything where you see they have more of an appetite? I mean, for instance, it seems to me that the next case after Fulton pretty much cries out for further action by the court. But I don't know if you have any thoughts.

Prof. Mark L. Rienzi: So as you say, I have a rooting interest, right? So I've got four that I really want. But look, I think the court knows this is a really important area of the law and they know getting it right really matters. And I think one thing that they're probably seeing is that the lower courts, if the lower courts have these off-ramps, if they can just say if either the states can say these are the people who aren't religious or the lower courts can gin up fairly weak arguments to say there is no burden. Those just become different ways the courts can get out of applying the Supreme Court's recent precedents and that really weakens the Supreme Court's ability to do its job. So my assumption is that the court will be pretty interested in reigning that in and trying to get the doctrine. Obviously over the past 12 years or so, the court has been working hard to get the doctrine related to the free exercise clause related to church autonomy related to RFRA, right? They've been trying to get that done right. I do think they will be sensitive to states that are flouting it or lower courts that are throwing burdens up and barriers to not apply the tests the Supreme Court has told 'em to do. If you're the Supreme Court to be able to do your job, you need lower courts and state governments to actually go ahead and do what you told 'em to do. So I suspect the court will want to continue straightening that out. Bill, I do see on my screen that a couple of things have come in in the Q&A tab at the bottom. Do you have the same one? I do or I can just read those.

Prof. William L. Saunders: Go ahead.

Prof. Mark L. Rienzi: Great. So one question says it seems as though the courts and legislatures are searching for a limiting principle on what is and isn't a legitimate religious belief. Well, SCOTUS eventually have to create a test for determining what is and isn't a legitimate religious belief for purposes of not burdening religion and or statutory religious exemptions. I don't think they'll do it at least in quite those terms. And I don't think the valid thing for the governments to be figuring out is what is a legitimate religious belief. I think they ought to be looking for sincere religious beliefs and courts can absolutely test whether somebody sincerely believes what they say they believe. I don't think in any of the cases that we're talking about though the courts or the lower courts or the governments actually doubt whether these people sincerely believe what they believe. So sincerity comes up in go back 50 years draft cases during Vietnam where people have an awful lot to gain from lying about whether they have a religious objection.

Sure, there might be some people with insincere religious objections. It's really not all that plausible in most of the modern cases, right? The cake baker is not faking his religious belief. He really just doesn't think God wants him to bake the cake, and that's true for Hobby Lobby and for all the plaintiffs in these other cases. So I don't think there's really much doubt about whether these are sincere religious beliefs as to whether they are legitimate. I don't think the government or the courts view themselves as the right arbiters of what are legitimate religious beliefs. But I think in all these cases there are different variations of lower courts and state governments deciding kind of, well, what's the scope of religious beliefs that I'm willing to accept and work around? And I think frankly, they're all doing it in a way that is far too narrow to avoid applying the straightforward and obvious constitutional law.

You can imagine a court that really wants to wrestle with the question of how good is the government's argument that it needs to blow up this piece of land and get the copper? Maybe they don't want to wrestle with that, but I think Congress told them they have to and these sort of weak arguments that say, gosh, it's just no burden on you are just ways not to do the homework. At some point, I assume courts will have to figure out what counts as religious versus not religious. In other words, is some philosophical thing religious enough to count as religion, but somebody once wrote, I forget who said this, that there are a hundred law review articles wrestling with that question for every real case where it comes up. And that actually sounds a little bit too generous to me. It is an interesting theoretical question, but in practice it's almost never really the thing that is in doubt. And I think that's true of all these cases too. No one really doubts these are religious people, these are religious beliefs. It's just really the question, do we want to respect them or not?

Prof. William L. Saunders: You want to take the next one?

Prof. Mark L. Rienzi: Yeah. So next one, assuming I'm seeing the same list you are now with the recent inclusion of Justice Barrett, Kavanaugh Gorsuch, are there any predictions or changes to how the court would rule on religious liberty? I wouldn't call 'em changes. I think it's kind of more of the same. If you look back over the arc of the last dozen years or so, it really hasn't been a consistently left right thing. In other words, there are a lot of cases where we've gotten votes from Justices Ginsburg before she passed and Justices Kagan and Sotomayor and so forth. So I don't think it's something where you say, oh, Trump put a bunch of judges on now religious liberty is going to win. Hosanna-Tabor was nine-nothing back when Trump was just a game show host. So I don't think it's going to be a dramatic change. I do think all three of those justices are serious about religion and religious liberty. I think they're serious about the role of the court and I think they all recognize, as they said in Fulton, that Smith probably isn't really the best way to interpret the free exercise clause. So I expect they will continue down that path of figuring out how to go about replacing Smith because Smith really is a bad rule that causes a lot of trouble, and I think those justices among several others have recognized it now.

Prof. William L. Saunders: And I think we might want to just remind people again, and we may have folks on the call who are not religious liberty lawyers or who maybe even aren't lawyers that the court recently got rid of the lemon test and have done, there have been other developments, which to me anyway indicate a more proper balancing of religious freedoms, or not balancing, but a more proper recognition of the strength of religious liberties, a constitutional right where there should be more accommodation of it, not hostility, not limiting, not extreme. I mean the limit test for those who don't know basically made it was essentially made any government action would be establishment of religion, therefore a created problems. But I don't know, do you have any thoughts on that, mark?

Prof. Mark L. Rienzi: No, I put it this way. I agree with your thoughts on it and I've just been looking, we've now got a flurry of questions, so I'm going to try to string a few of them together so we can get to all of them, at least in part one question is whether the court is not taking religious freedom cases because of progressive criticism of the court or proposed legislation to impact the court's autonomy? My own instinct is I doubt it, but I think there's only nine or maybe five people who really know. I don't think that's it. I think the court's been taking plenty of religion cases over the past dozen years. I think they actually know how to do it when they do it. They often do it in ways that get nine nothing rulings and actually can bring the court together. Not all the time, but often.

So I doubt that is cowing them. I think they know these are things to resolve. One question you asked if there are any school voucher cases on the horizon, we've got a bunch that are of that category and actually somebody else asked about the, lemme combine these. So once there's any school voucher cases on the horizon and one says, can you talk a little bit more about how the Coach Kennedy case and the overturning of Lemon has put the question about direct funding for religious schools in a new light there? I would say a bunch of cases in the lower courts. We have some, I'm sure other people have some too, that really tee up the question of, okay, how should schools, public school programs deal with lemon no longer being the law and Carson v. Macon and Espinoza and Trinity Lutheran being the law.

And those cases generally say we're not going to exclude religious groups from equal participation in our programs, but the truth is the Lemon v. Kurtzman way of thinking about religion that basically treated religion like it was asbestos, right? We can't go near that stuff. We got to always keep religion out. That's pretty deeply embedded in the way many lower government, many state and local government entities act, and it's going to take a long time to kind of beat that out of 'em over time. So a lot of school systems just have it baked in that they exclude religious people and religious actors from their programs. So we have a case in California for Orthodox Jewish parents of special needs kids, for example, and they can't get access to the funding they're supposed to get for their special needs kids because their kids are in a religious school.

If you put 'em in a private school that declared there is no God, that would be fine, but California won't send the money to these Orthodox Jews because the kids are in religious schools. Even if it's money, they're entitled to other federal law. There's versions of that going on in Colorado, in Maine and Minnesota and I'm sure in many other places, and I do think that's something the Supreme Court's going to take up. I don't know if any of them will get to the court this term. They might be something for next term. Why does the Diocese of Albany case tee up the overruling of Smith better than previous petitions? I, I'm not sure it teases it up better than previous petitions, I would say. It clearly shows that even after Fulton and the Covid case, Tandon and Diocese of Brooklyn, even after Fulton and Tandon state courts that want to just read Smith as meaning the religious parties going to lose, they can and will do it until the Supreme Court stops them, right?

So what the New York case to me quite clearly drives home is the Supreme Court can say whatever it wants about this is how a law is not neutral and generally applicable and they can do it in the Covid cases, they can do it in Fulton, they can think they're speaking quite clearly, but with Smith on the books, states that are hostile to religion like the New York State government and state court system have been here are just going to keep using Smith to say the religious person loses even in something that I think frankly is a nine nothing winner at the Supreme Court. It should not be a very close question whether New York can force nuns to buy people abortions. That ought to be easy, but it's because of Smith that it lives. Can you play devil's advocate and explain what the Ninth Circuit majority was thinking? This must be in the Apache Stronghold case. There were some judges on that Enok panel who value religious freedom. Sure. In a nutshell, what they're saying is that the federal government owns the land and since it's the federal government's land, we're going to be pretty hesitant to say that Rfra applies to what they do there and we're going to give them a pretty broad scope of what they can do.

I understand the thinking, I just think it's wrong in really important respects. One of them chiefly is that Congress said in Rfra that this applies to all federal, all parts of the federal government, any place they're acting, they didn't make a federal land exception. It actually would've been pretty weird in Rfra to make a federal land exception, and it's pretty strange to say it's not a burden on religion. I think there's some slippery slope concerns, right? Maybe some people say, well, some of the judges in the Ninth Circuit said this, "If I rule for you, then someone's going to claim everything is sacred." I think that's pretty overblown and I don't think it's a very good reason to refuse to do what Congress told you to do in RFRA. It's overblown because this is not a “made it up last week”  religious belief. This is something that's documented and known for at least a hundred years, and I think more so it's not as if somebody's claiming "All of the United States is my sacred land. You can't do anything." Of course, there'd be a compelling interest to override that, right? There's this particular spot that we've worshiped that the federal government has recognized for a long time. That's not every spot. That's actually not in most spots, so I don't think the slope is nearly as slippery as some folks think.

What limiting principle might appropriately preserve the spirit and letter of religious liberty under the First Amendment in the face of somebody opening a brothel and claiming they're reviving the worship of Aphrodite. Ten points for creativity, I like it. I don't think that one's that hard though. the government's got really good, I would say compelling reasons to outlaw brothels. They do it all the time or at least most of the time in most states, and I don't think saying, "Well, my religion tells me to" gets you out of that any more than there are these religious abortion cases where somebody makes up a group. Curiously, right after Dobbs, right after Dobbs, the religious people, some religious people found - or I think more accurately - some pro-abortion people found religion and they said, "Well, I've got a religious reason that I need to be able to go get abortions." One, those claims are frankly, often insincere. There were no such cases in the 50 years between Roe and Dobbs, even though a lot of abortions were outlawed.

I think they're often insincere because to the extent there are some valid religious claims where people say, "My religion really tells me, God tells me I must kill that baby", most of the time, those are pretty extreme situations where the life and health of the mother are at risk, which is then exempted under most state laws. So it's pretty hard to run those religious beliefs into an actual conflict with state law. If you did have a conflict the way religious liberty law works, in those cases, it would get you a one-off exemption. One thing. It wouldn't kill the whole law, but then in the end of it, does the government have a compelling interest in protecting life and stopping you from killing another human being? Again, if my religious belief was I wanted to sacrifice my children to malic, I'd lose that, right? And so in all these cases, strict scrutiny is a good backend principle. I think governments would have an awfully strong argument to outlaw the brothel and also to say, I don't really think you're sincere that you're opening your brothel and you're actually worshiping Aphrodite. I think you're full of it. The way the "Church of Marijuana" or the way a lot of prisoner claims are making stuff up, courts are fully able to say, "We don't think you're sincere", and they often do.

Prof. William L. Saunders: Do you want to say a word before you go on about how it is not, some people claim it's an establishment of religion for a state to prohibit abortion? Do you want to say a word about that too?

Prof. Mark L. Rienzi: Sure. It's just not is the short answer.

Prof. William L. Saunders: The reason I raise it is because a lot of people say the free exercise, my religion requires me to have an abortion. You just dealt with that. But some people also claim that if a state that prohibits religion, I mean prohibits abortion as an establishment of religion. I mean, I think like you say, the obvious answer is it's not based on religious doctrine, it's based on biological facts of embryology and it's protecting the life of a human being.

Prof. Mark L. Rienzi: Yeah. I mean, the short answer is the establishment clause doesn't say you can, I mean one for the reasons you say, right? Imagine God didn't exist, but we wouldn't be here to imagine it. But imagine it. Imagine God didn't exist. It's all fake. You could make purely scientific arguments not to kill human beings in the womb who are undoubtedly alive. Go look at an ultrasound. It's not really debatable. They grow, they develop, they digest food. They're living their heart beat, so you can defend it on totally grounds that have nothing to do with God, but the fact that any position is also supported by religious beliefs does not make it an establishment of religion. Barack Obama said he was supporting same-sex marriage. He feels like he is supposed to, he is his brother's keeper, and he thinks God tells him to love his neighbor. That didn't make Obergefell an establishment of religion. It's nonsense to say so.

The fact that religious people for religious reasons support a particular policy, whether it's open borders, whether it's a ban on abortion, whether it's a ban on murder, right? Lots of people have religious beliefs that you can't kill or steal too. Those things are just not establishments of religion. One question I asked just to circle back, whether my answer on, I think this is what the connection is, whether things like the Church of Aphrodite shoves us right back into Smith? I don't think so at all. In other words, I think what I'm arguing for is a world where we say the government needs a compelling interest to outlaw your religious belief and your religious exercise. That's what I think the RFRA world and the better Post-Smith world require. And even under Fulton and Tandon, you can get there under Smith, but I don't think it's shoving us back to Smith to say, look, there are places where the government has a compelling interest. They should be rare. I think most of the time the government shouldn't get to force you to violate your religion, but I think where they exist, I don't think that's going back to Smith. Smith basically says rational basis applies to almost everything, and I think that's I that's problematic.

Prof. William L. Saunders: Any others here, Mark, or we hit 'em all?

Prof. Mark L. Rienzi: Somebody asked whether there are cases coming up about religious exemptions to mandatory vaccinations. I do think there are some cases like that in the pipeline. I confess I don't know the details of them. I do think, can you explain how this isn't a violation of religious liberty and should be challenged? For the most part, I think if someone's got a religious objection to taking a vaccine that is a violation of their religious liberty, the Covid vaccines were a great example. There might be some vaccines where the government's got a really good argument, right, and I would put it on a couple of axes. One is that the disease is really, really scary and we need to make everybody take this drug to protect the world from the disease, and two would be that the vaccine works really, really well to stop the transmission of the disease.

The Covid vaccines failed miserably on both those fronts, and we are seeing people win some Covid vaccine cases. Some people are winning large damages, judgements against employers who ignored their religious objections and forced them to get injected with those vaccines. The government's arguments are better where you've got a better vaccine, so if the polio vaccine actually stops polio and stops you from contracting it and stops you from spreading it, they've got a better argument. It's not a guarantee that they should win the argument, but they've got a better argument that they've got a compelling interest. But with the Covid vaccines, the government's arguments were they were pretty darn weak, and it's not a surprise that a lot of people are starting to lose those cases now to religious claims.

Prof. William L. Saunders: Have we addressed them all, Mark, or, let's see.

Prof. Mark L. Rienzi: I'm taking a look. There's one more. Assuming a RFRA plaintiff seeking an objection from the DEA Drug Enforcement Act, I'm not sure, and DEA demands the member and donor list. I apologize. This is too complicated a hypo for my brain to process live on the phone. I certainly think there are important First Amendment rights that stop the government from demanding your donor lists. The court decided that a few terms ago, I do think sometimes with Native American churches in peyote, there can be religious beliefs about drug use. I think there are an awful lot of cases where there are pretty obviously invented post hoc type religions built around smuggling cocaine or smoking marijuana that I think courts tend view as insincere, and I think that's right. I don't think the free exercise clause protects insincere exercises of religion, and so I think that's okay. I don't think I fully answered the question, but it's a little complicated.

Prof. William L. Saunders: Any last things you would like to say, Mark? We're almost at the end of the time.

Prof. Mark L. Rienzi: Yeah, no, I would just say thanks everybody. That was 55 minutes and that's probably enough for everybody, but appreciate everyone being on.

Marco Lloyd: Well, thank you both for that fantastic discussion. On behalf of the Federalist Society, I'd also like to thank you, our audience for joining us. We greatly appreciate all your participation. On that note, we are adjourned.