Religious Liberty and the Court - Looking Ahead to the Next Term

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Chayila Kleist:  Hello and welcome to this Federalist Society webinar call. Today, September 19, 2023, we’re excited to host a discussion titled, “Religious Liberty and the Court - Looking Ahead to the Next Term.” My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s program as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, we’ll keep our introductions of our guests today brief, but if you’d like to know more about either of our guests, you can access their impressive full bios at fedsoc.org.

 

Today, we are fortunate to have with us as our moderator, Professor William Saunders, who is a professor focusing on human rights, religious liberty, and bioethics as well as the Director of the Center of Human Rights at The Catholic University of America. Additionally, he is a Law Fellow with the Institute for Human Ecology and Professor and Director for the Program of Human Rights in the School of Arts & Sciences and Co-director of the Center for Religious Liberty at the Columbus School of Law.

 

I’ll leave it to him to introduce our other guest and give you the last note before I get off your screens that if you have any questions throughout the webinar, please submit them by the Question & Answer feature found at the bottom of your Zoom screens so that our speakers will have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Professor Saunders, the floor is yours.

 

Prof. William L. Saunders:  Thank you very much, Chayila. Welcome to this look ahead to the next term in the Supreme Court. We look forward to your questions at the end. First, let me introduce my friend, Mark Rienzi, graduate of the Harvard Law School, a professor of law at The Catholic University of America, Co-director of the Center for Religious Liberty — where I am the co-director, so we know each other — and also the president of Becket Fund for Religious Liberty. So Mark, welcome.

 

Prof. Mark L. Rienzi:  Happy to be here, Bill.

 

Prof. William L. Saunders:  So let’s start off, for those listening, before we look ahead to the new term, let’s glance back at the old term because that may tee up either issues or themes that we want to look to in the upcoming term. So what cases from what last term were really significant for religious liberty issues, and tell us what them.

 

Prof. Mark L. Rienzi:  Yeah. So there were two big ones: the Groff case, which was the first liberty case about the scope of Title VII protection for religious employees, and the 303 Creative case, which was the ADF case about the website designer who doesn’t make websites for same-sex weddings. It’s interesting. If you look at the cases, the Groff case is a statutory case, and there the Court was asked to revisit its precedent in TWA v. Hardison, which had given a very narrow reading — frankly, an implausibly narrow reading — to the protection that Congress had given to religious employees. In what may be a sign of the modern times, the Court, on one hand, didn’t actually go back and reverse Hardison but, on the other hand, kind of gave Hardison a brain transplant and read it completely differently than, I think, the courts have been reading it for the last 40 years and set forth a much more religion-protective standard for employees who need accommodation in the workplace. So that was a -- they didn’t go all the way and actually overrule it, but I think, functionally, they did. I’m not sure going forward anybody could rely on Hardison without citing the gloss that Groff puts on Hardison. So I think that’s a big advance.

 

The other one was 303 Creative, which, although it’s got religion aspects to it, the Court actually decided solely as a free speech case. And this is the one about the website designer in Colorado. By all rights, this case should have been a 9-0 decision. It should be quite easy for the Court to look at a website designer and decide that that’s really speech, and the government really can’t tell her she’s got to make websites for things she doesn’t want to make them for. That ended up just being a 6-3 decision. But the Court gave a strong endorsement for First Amendment protections as far as website -- I’m sorry -- wedding vendors, website providers, and others.

 

And it also gave some strong analysis on public accommodations laws, explaining how public accommodations laws are, of course, important but that they had been expanding and expanding and expanding and that, where a public accommodations law is being used to force somebody to say or write things that she disagrees with, of course, the First Amendment trumps. And so, the Court relied on some — what are now older cases, like Boy Scouts v. Dale and the Hurley case about the St. Patrick’s parade — the Court relied on those and sort of reupped those on the idea that the First Amendment does trump public accommodations laws.

 

So two strong decisions. Only one is actually a religious liberty decision, and neither of them is a constitutional religious liberty decision. So you could call it a year where there wasn’t quite as much action as there had been, like the year before when there were three. But still, obviously, really important things got done.

 

Prof. William L. Saunders:  Do you want to say anything before we move ahead about why there was a dissent in 303 -- not why there was, but kind of what was the dissent about in 303 because, as you said, many people would have expected it to be a 9-0.

 

Prof. Mark L. Rienzi:  Yeah. And I will say, as I always like to say when I talk about this, the Tenth Circuit’s decision in 303 Creative is one of the worst First Amendment opinions ever written. People should go back and reread that simply to learn how not to think about the First Amendment. The dissent didn’t take the arguments that the Tenth Circuit had taken. The dissent emphasized instead that they thought building a website was actually more conduct than speech and, therefore, should get treated under the O’Brien test, and the Court thought -- and the dissenters thought that this should pass it. I have great respect for those justices, but I don’t see how you say writing a website is more conduct than speech. It’s not. It’s very speech. But there were three justices who took that line in order to disagree with the majority.

 

Prof. William L. Saunders:  Yes. So I guess one thing to keep in mind is the possibility whether that disagreement will surface in the next term about what constitutes speech and what constitutes conduct and how relevant that distinction is. So one other thing about Groff, I -- for those who didn’t follow it, you said how -- about the Hardison case about how odd its interpretation of statutory language was. Could you just say another word or two for somebody who hasn’t read the case?

 

Prof. Mark L. Rienzi:  Yeah. Sure. Yeah. So in the Civil Rights Act of 1964 and, I think, in the amendments from 1972, Congress had taken specific steps to protect religious employees who need some sort of reasonable accommodation at work. And they had said -- Congress had said that employers should provide reasonable accommodations, unless it would be an undue hardship on the business to provide that accommodation. Courts, starting with TWA v. Hardison in the late ‘70s -- the Supreme Court gave that language a really narrow reading. They said, even though it says undue hardship, all it really means is that it’ll be more than a de minimis cost. So that anything that costs the employer more than a few pennies counts not only as a hardship, which is certainly not true for most employers -- it’s not a hardship to incur a few extra bucks of cost -- but an undue hardship, which is just -- what the Court did just doesn’t match the statutory language.

 

What the Supreme Court did last term in Groff is to kind of pick out some parts of the Hardison decision that looked better and reinterpret it to say, in fact, the employer has to show that there is some real significant burden on the business to accommodating a religious employee before denying that accommodation. Well, if they had said that 40 years ago, they’d have spared everybody a lot of grief and trouble and helped a lot of really minority religious employees who don’t have much bargaining power because those are the people who really lost under the old rule. But as far as I’m concerned, also very happy to see them correct their old errors and make the law better and certainly bring the law much closer to what Congress surely intended than the way they had interpreted it before.

 

Prof. William L. Saunders:  Yeah. And when you say minority hurt, you mean minority religious groups who have -- can’t -- have problems about, in this case, what days of the week they could work on and things like this, so they need an accommodation in order to be an employee because of their demands of their religion.

 

Prof. Mark L. Rienzi:  Yeah. And I would say, just in Groff, the guy didn’t want to work Sundays, and you would have thought taking a job as a letter carrier is about the best one you could for trying to live your life without working on Sundays, but then, the Post Office made a deal with Amazon  — that may be a theme in some of these things — but the Post Office made a deal with Amazon and tried to drag him into working at a time that he couldn’t work. So yeah, the point of Title VII is simply to say, “Most of the time, we ought to work around the religious obligations of our fellow workers, and most of the time, we can do that without unreasonable costs.”

 

Prof. William L. Saunders:  Okay. Well, let’s -- with that kind of as background from what happened in the last term, let’s look ahead to the next term. And do we have any big decisions blooming that you see?

 

Prof. Mark L. Rienzi:  Yeah. So the interesting thing about this Supreme Court term and religious liberty is, so far, there are no expressively religious liberty cases on the Court’s docket yet. So if you think we’ve had a lot of fat years over the past decade where we’ve got a lot of religious liberty -- and last year may have been maybe a little bit leaner in that there’s really only one that’s truly religious liberty, although there are two that are in that basket. And so far, now, we’ve got nothing on the docket. Maybe we’re in a lean year or two, in terms of getting religious liberty cases. I should say there are a couple things already on the docket -- a couple cases they’ve already granted that are, I would say, religious liberty adjacent. Right? So they are not cases that are going to be decided under the Free Exercise Clause or the Establishment Clause, but they are cases that certainly have a religious liberty angle to them.

 

So let me just name two of those. One is the Loper Bright case, and this is the case about the fishermen in Maine, which brings up the question of whether Chevron deference, sort of the extra deference that agencies get when interpreting laws, is right or wrong or good or bad. On one hand, you might say what does religion have to do with fishermen in Maine. And actually, as I say that, I think some religions have an awful lot to do with some fishermen. But the angle that really matters here for the religious liberty is that a lot of religious liberty conflicts actually end up getting caused by the administrative state.

 

So if you were to look at and map out over, say, the past 60, 70 years, where have the religious liberty conflicts come from? Do they come statutes passed by legislatures? Or do they come from the administrative state? Actually, more and more and more of them in recent days tend to come from the administrative state. And so, a case like Loper Bright, where the Court is thinking about the legality and the amount of deference that the administrative agencies get, there are important religious liberty aspects to it.

 

We actually filed a brief on behalf of the Little Sisters of the Poor, who -- we’re now in year ten of defending the Little Sisters of the Poor against the contraceptive mandate, which is found in statute any place -- well, the federal one’s not found in any statute. It’s completely a creature of the administrative state and, yet, has tied the Little Sisters up in court for now a decade. So there’s a lot of interest from religious liberty folks in a case like Loper Bright because it may give us a path to reduce some of the tensions by not creating those conflicts.

 

Prof. William L. Saunders:  So two things, Mark. First, can you just say two sentences about the facts in Loper Bright because, again, people may have never heard of the case.

 

Prof. Mark L. Rienzi:  Sure. Loper Bright is a case about some fishermen in Maine who have come up against what turns out to be a very burdensome regulation from the federal government on how they do their fishing, and I believe it actually requires them to have federal agents on their boat to look at the size of fish and things like that. So it’s Maine fishermen who are dealing with an intrusive federal regulation, and the Court is looking at what is the right amount of deference to give to administrative agencies when they’re trying to enforce federal law.

 

Prof. William L. Saunders:  Yeah. And as I understand the facts in that case, the fishermen are arguing that these kind of regulations are going to put them out of business because their margins on catching the fish is not sufficient to kind of accept increasing federal regulations. So the question is what’s legitimate and what’s not and whether the courts should deference to the agencies. But the other thing, and I think the listeners would probably have immediately thought of this, isn’t the Little Sisters of the Poor case been over for years? What are you talking about?

 

Prof. Mark L. Rienzi:  Well, I wish it was fully over. Unfortunately, it’s not over. It’s still going on, at least in Pennsylvania and California, because after the federal government, to their credit, eventually gave a religious exemption, twentysomething states have sued, saying that you’re not allowed to give a religious exemption to the Little Sisters of the Poor. So those cases are, unfortunately, still going.

 

I will point out that the Biden administration, in their most recent proposed rule on this, actually came around to the position that the religious parties were advocating back in 2012, which is, hey, federal government, if you want to get people contraceptives, you got a lot of different ways to do it without nuns. The Biden administration has said, actually, you know what? We can do it a different way. And so, the Biden administration’s proposal, right now — I don’t know if it’ll be in the final rule but in the proposed rule — actually keeps in place that religious exemption and acknowledges what I think has been obvious to every reasonable observer since this whole dumb fight started, which is, of course, the United States government can get people contraceptives without the help of nuns.

 

They give them to millions of people under Title X all the time. They run all these health insurance exchanges. This is not hard. The Biden administration actually seems almost ready to acknowledge that. Maybe that will put an end to it, but it’s a bad sign of the times that the Little Sisters of the Poor aren’t quite down yet.

 

Prof. William L. Saunders:  What level in the court system are some of these cases and the challenges against these state laws? Are they at state courts, federal courts? What level?

 

Prof. Mark L. Rienzi:  They’re both sitting basically on hold in the federal district courts because it’s states suing the federal government with the Little Sisters as co-defendants with the federal government, saying it’s illegal for the federal government to give a religious exemption of the Little Sisters of the Poor. Since Biden took over, the cases have been on ice with the Biden administration telling judges, well, we’re thinking about the new rule. We’re thinking about.  They’ve been thinking about it for a couple years now. Someday, they’ll stop thinking, and they’ll act.

 

Prof. William L. Saunders:  Okay. All right. And did you get to the second case you were going to mention?  One was the Loper Bright.

 

Prof. Mark L. Rienzi:  No. Yeah, the other religious liberty-adjacent cases, one that’s one the emergency docket that Justice Alito just issued an administrative stay in. This is the tech censorship case, Missouri v. Biden, that some attorneys general have, and, I think, New Civil Liberties is representing some private plaintiffs in this case. It’s about the government’s efforts to tell Twitter and Facebook who they should kick off, who they should censor, in terms of their discussions about COVID and COVID vaccines and things like that. The plaintiffs, Missouri and the private plaintiffs, have been very successful in the lower courts getting injunctions against the federal government’s interaction with Twitter and other tech companies to instruct or prod them to kick people off the system. The solicitor general just last week filed an emergency application on the emergency docket at the Supreme Court, asking the Supreme Court to stay the lower court injunctions for a while while the solicitor general can petition for cert.

 

And just this week, Justice Alito issued an administrative stay, essentially just saying the injunction is stayed at least through -- I think it’s Friday afternoon, so I suspect what that means is that the justices are giving serious thought to the application in front of them, and somebody will write something. We, of course, don’t know what -- which way it’s going to go, but it’s about -- and the religion angle — it’s probably obvious to everybody — is -- it’ll be no surprise to you that a whole lot of religious speakers have run into these types of issues dealing with Big Tech censorship in recent years. So it’s not -- again, it’s not a directly religious liberty case, but it’s one worth watching.

 

Prof. William L. Saunders:  Okay. And how about cert pending cases?

 

Prof. Mark L. Rienzi:  Yeah. So, again, they have not granted cert in any religion cases yet. Let me highlight three petitions that I’m aware of that are due to be considered this fall, some as early as the long conference in a week or so. One is Tingley v. Ferguson. This is the ADF case about the counseling law in Washington State, which makes it, one on hand, illegal to counsel anybody about some sexual orientation/gender identity issues but has an exception, if you want to affirm the idea of switching your gender.

 

So in other words, the government is making it illegal for licensed counselors -- Mr. Tingley is a Christian and believes in sort of -- what’d you’d expect as typically Christian beliefs about God’s order for the world and God’s views about sexuality and God’s views about biology and so forth, and he counsels people who share those views and wants somebody to talk to them and walk with them as they’re thinking through sexuality issues. He’s forbidden by the state of Washington from doing that from his religious point of view. If he would just turn around and say, yes, even though you’re biologically a boy, I agree with you. You’re a girl, or you’re a woman, and I can help you with that. That would be perfectly legal.

 

But what is illegal is sort of speaking against that and telling the client that, actually, you really are just biologically a boy, and that’s what you should go with. And so, you may think that’s an easy speech case, but it’s in the -- it was in the Ninth Circuit and got some bad rulings below, both at the trial level and at the circuit level, where the court said, actually, that kind of speech is just conduct, which is an odd way to think about speech. But they said that the speech of a licensed counselor is conduct, not speech, and therefore, by using some pretty bad Ninth Circuit professional speech regulation cases, the court said it’s fine to outlaw speaking on one side of this issue and allow it on the other side of this issue. There’s no free speech violation. They also said there’s no free exercise violation. So that’s teed up at the Supreme Court, I think, for them to consider in one of the upcoming conferences pretty soon.

 

Prof. William L. Saunders:  Okay. You said there’s several.

 

Prof. Mark L. Rienzi:  Yeah. Another one is -- well, let me do the one that I’m working on of these, Vitagliano v. Westchester County. This is a follow-on to Hill v. Colorado, if folks remember the Hill case from twenty-some years ago. It’s a case about an abortion clinic buffer zone, where the -- sometimes, jurisdictions pass these years. Some people call them, “Mother, May I,” laws that basically say on the public sidewalk outside an abortion clinic, you can’t approach within eight feet of another person to talk to them or to hold out your hand and offer them a leaflet unless before you get within eight feet, you first say, “May I please approach you?” So every place else you walk in your life, people can walk up and extend a hand and offer you something or speak to you, and that’s perfectly legal. But if you do it at an abortion clinic, you can go to prison if you haven’t first asked permission.

 

Hill v. Colorado, which is one of the Court’s all-time bad free speech decisions in 2000, said that was perfectly fine. They said it was neutral. They said it was necessary to protect women, and they upheld that, though the Vitagliano case is a case where I think there were any real problems at the abortion clinics in Westchester County. But after the Dobbs decision came down, and we’ve seen this in a lot of jurisdictions, after Dobbs came down, a lot of legislatures felt like, “We have to do something to show how in favor of abortion we are.” And one of the things Westchester County did was they said, well, that old Hill case is still good law. Let me write a carbon copy of that law. And so, they did. They wrote it into law.

 

And so now, it makes it much more dangerous for a counselor to even try to talk to people on those sidewalks and illegal to approach unless you first get consent. So we filed suit for Debra Vitagliano, who is a pro-lifer who wants to engage in this counseling. We lost at the District Court in the Second Circuit, pretty predictably, under Hill because the Supreme Court has never reversed Hill, even though I should say some recent decisions, like McCullen v. Coakley --

 

Prof. William L. Saunders:  Yeah, I wanted to ask you about McCullen.

 

Prof. Mark L. Rienzi:  Yeah. McCullen v. Coakley and Reed v. Gilbert are two cases from almost ten years ago now in which the Court got close to overruling Hill but never quite did, so McCullen said that you can’t have a 35-foot buffer zone, but all nine justices at that time were to agree that that was unconstitutional without needing to go think about Hill. And there may have been some compromises baked into that opinion, so they didn’t go all the way and get Hill. And then, in Reed v. Gilbert, the Court announced a way --

 

Prof. William L. Saunders:  Could you just say -- sorry. Maybe you were about to say this, but they -- so they allowed a bubble zone of -- smaller than the 35 feet. Wasn’t it about eight feet or something in McCullen?

 

Prof. Mark L. Rienzi:  Yeah. So McCullen was a 35-feet buffer zone. McCullen was a bigger restriction of speech. And what the Court basically said in McCullen is, “We can say that that’s unconstitutional without having to get to thinking about Hill and whether the eight-foot bubble would also be unconstitutional.

 

Prof. William L. Saunders:  Okay.

 

Prof. Mark L. Rienzi:  So they didn’t get -- they didn’t feel the need to reach it. And then, a year later in Reed v. Gilbert, which is a sign case that has nothing on its face to do with abortion, the Court explained how contact neutrality law works, and it cited the Hill dissents, and it didn’t rely on Hill, and it seemed to state the opposite rule of Hill. But since then, the Court has never gone back and reversed Hill. In the Dobbs opinion, the Court actually cites Hill as an example of the distortion of the First Amendment caused by Roe and Casey and our modern constitutional abortion regime until Dobbs. So we know at least five justices think it’s unconstitutional.

 

And here’s one interesting fact that isn’t in the papers yet but surely will be soon. I think the folks who like these buffer zones also know that at least five justices think this law is likely unconstitutional because they said so in Dobbs. When we were at the Second Circuit, Planned Parenthood and the other abortion clinics were telling the Second Circuit Court of Appeals last spring, “This law’s really necessary. It’s compellingly important. This has to be done to protect women.”

 

Once we got the decision from the Second Circuit that kind of teed up Hill, Planned Parenthood went back to the County Council and asked them to repeal the law. And they actually went in in a recorded meeting, and they said, “Actually, it’s not necessary at all,” which if it weren’t so terrible, it would actually be funny because the whole reason we have these laws in the first place is that the abortion clinics and Planned Parenthood used to swear up and down that they were necessary. And the only reason that Westchester County passed it in the first instance was because Planned Parenthood told them it was necessary. And that’s what they were saying in courts, just a few months ago.

 

I think it’s really an example of a cat-and-mouse game that we’re seeing now. They know that if that law gets to the Supreme Court, it’s likely to get overturned. And so now, they’re kind of scrambling and changing their story and telling the opposite of what they told all these courts, simply trying to protect that law from getting overturned. I hope the Supreme Court is as offended by that as they ought to be because that’s really sort of playing the Court for fools and playing a cat-and-mouse game with their laws. I don’t think that’s a good way to run a system, and I don’t think the Court should reward it.

 

Prof. William L. Saunders:  So just to -- again, for somebody who might be listening and hadn’t thought much about this, this is a ruling about approaching someone to say something or to hand them something, but there are plenty of laws that protect the person, the woman going into an abortion clinic from something else. This is only about speech. It’s not about mayhem or assault and battery or any of that. Right?

 

Prof. Mark L. Rienzi:  Yeah. And that’s why McCullen v. Coakley was a 9-0 decision, and Justices Ginsburg and Sotomayor were on the side of the pro-lifer there because they looked at the law, and they said, well, it’s already illegal to engage in violence, and it’s illegal to engage in obstruction, and it’s illegal to harass people, and it’s illegal to block people, and if you stand in front of the door, you go to federal prison for five years. Right? There’s no shortage of laws that make it illegal to engage in violence and obstruction at abortion clinics. And so, the government has all the tools it needs if it has problems. I don’t think Westchester had any problems, but if they did, they’ve got all the tools they need to actually go after people who engage in violence and obstruction.

 

But that’s not what this law’s about. In fact, if I approach somebody just to glare menacingly -- I don’t know if I can -- I’m not that menacing, but if I could glare menacingly and I approached, that would be perfectly legal. Or if I approached with a baseball bat on my shoulder, right, that would be perfectly legal. It’s actually the fact that I want to speak to somebody that makes it illegal on a public sidewalk. So that’s First Amendment nonsense. Any 1L would recognize it as such. And I think there’s a good chance the Court sees this as an important time to get the law right.

 

Let me say one other thing about Dobbs. One of the interesting aftereffects of Dobbs, with these kinds of laws, is more abortions, of course, are getting pushed to blue jurisdictions because pro-life places are outlawing abortion or limiting abortion in different ways. And then, many of these blue jurisdictions — like Westchester County, Colorado, and the city of Chicago, others — have these laws that make it harder to offer women help. And the truth is women don’t get abortions because they think is fun and awesome. They get abortions because they think they have no place else to turn and no help.

 

And so, what these counselors offer is some alternatives and some help. And many women actually say being offered that help at that moment is one of the best things to ever happen to them, and they go on and have their babies when they realize someone can help them and walk with them through the situation. So the irony post-Dobbs is that more abortions are going to these blue jurisdictions, and those blue jurisdictions are actually making it harder to offer women alternative help and alternative ideas.

 

Prof. William L. Saunders:  Okay. What’s the third? I think you mentioned there were three.

 

Prof. Mark L. Rienzi:  Yeah. So a third interesting one that already has a petition in is Missouri Department of Corrections v. Finney, and this is a case about the use of religion for peremptory strikes of jurors. So if you imagine, before a case is going to get heard, the lawyers -- if it’s a jury trial, the lawyers get to ask questions of the different jurors about their religion -- about -- not usually about their religious beliefs but just about their experiences, about whether they can be impartial. This is a case where one of the -- I think it was a contract dispute, and one of the parties was gay. And they basically said they wanted to know who was a Christian and who’s a conservative Christian, and then, they struck them from the jury, just based on the fact that they said they were conservative Christians, even though they also said they deeply believed that everybody ought to be treated fairly and so forth. And so --

 

Prof. William L. Saunders:  And Mark, I just want to say I imagine you’ve been on a jury. I’ve been on a jury. You’re always asked -- you’re asked various things, and then, they ask you could decide impartially and apply the law without prejudice. And so, these people, you’re saying, were struck, even though, presumably, they said they could apply the law fairly without prejudice.

 

Prof. Mark L. Rienzi:  Yeah. They said they could, and both the, I think, trial court and appeals judge both thought that they were being struck for their religious views or at least their religious status. But they were allowed to be struck anyway. And so, they’re actually -- the cert petition lays this out, and it’s too complicated for this phone call, but there are several different circuit splits that that implicates about how religion can be considered or cannot be considered in the making of a jury. And so, that’s another that the Court will have the opportunity to consider this term.

 

Prof. William L. Saunders:  Okay. Okay. So these are the ones that are pending, or I’m -- are they all pending, or --

 

[CROSSTALK]

 

Prof. Mark L. Rienzi:  Yeah. Those three already have cert petitions in front of the Court, so that -- those three are -- the justices will decide whether or not to take those in the coming months.

 

Prof. William L. Saunders:  Okay. Yeah. And again, since most of the people listening, I’m sure, are lawyers, they know all this. But I’ll just say it. That changes all the time, petition for cert to be filed right now. On another case, it’ll be the blockbuster that we don’t know about.

 

Prof. Mark L. Rienzi:  Yeah.

 

Prof. William L. Saunders:  But right now, that’s we know about. So what might be filed in the remainder of this term or might find its way to the Court?

 

Prof. Mark L. Rienzi:  Great. There’s probably a lot of stuff that we’re not going to think of or we don’t even know about yet because it’s early. Let me just --

 

Prof. William L. Saunders:  Listen. The questioners can feel to raise something if they wonder, “Is this likely to come up?” We can -- [Amar 00:31:34] can speculate. We can speculate. Go ahead.

 

Prof. Mark L. Rienzi:  Sure. Let me give two from the Ninth Circuit and two from the Fourth Circuit. So from the Ninth Circuit, the Ninth Circuit just decided a big student associational rights case called Fellowship of Christian Athletes v. San Jose School District. It was an en banc case that the court decided last week, and it’s a follow-on to CLS v. Martinez, if folks remember the case from 2010 in which the Court said it was fine for Berkeley’s Law School to tell the Christian Legal Society that they were getting kicked off campus because they insisted on having faithful Christians as their leaders.

 

The FCA case is a case where a high school kicked Fellowship of Christian Athletes off campus and really engage in some, probably predictably but still sadly, nasty behavior towards the religious kids for their religious beliefs about sex and marriage. That case had been kicking around the Ninth Circuit for a few years. It had come out in favor of the students about a year ago, and then, there was an en banc petition. It was argued en banc last March. Just last week, the court came out with a really strong religion-protective decision. I’ve been saying I think it might be the best free exercise case in the Ninth Circuit’s history.

 

That may be damning with faint praise, though, because the Ninth Circuit hasn’t always gotten stuff so right. But it’s a really strong endorsement of student religious groups’ rights. It’s a strong endorsement of a strong Free Exercise Clause, and it relies on cases that some people have tried to downplay, like Masterpiece and Fulton and Tandon and Diocese of Brooklyn. And it overrules some bad Ninth Circuit precedent. There’s an old case called Alpha Delta Chi, which was like CLS v. Martinez, only the Ninth Circuit decided to try to make it worse. So that case just got decided.

 

We don’t yet know whether the school district will petition for cert on that, but it’s a big Ninth Circuit en banc. Another that they heard the same week, but they still haven’t decided, is the Native American sacred lands case, the Apache Stronghold case. That was also heard en banc last March. And I would expect we get a decision any day. And --

 

Prof. William L. Saunders:  Could I ask you, before we talk about -- anymore about that one, just to go back to the Fellowship of Christian Athletes case or whatever? Is it -- anyway, is that FCS? Is that what it was?

 

Prof. Mark L. Rienzi:  FCA.

 

Prof. William L. Saunders:  FCA, Fellowship of Christian Athletes. Yeah. So say something about Martinez. How is it in Martinez that the Supreme Court allowed -- said it was constitutional to kick a Christian -- or I was going to say kick off campus -- but not to allow them to advertise their meetings and hold their meetings. What was it -- what was the rule that the Court put down in that case that justified that result?

 

Prof. Mark L. Rienzi:  Yeah. The Court said that when a college opens up its classrooms for student groups, it is a creating a limited public forum. And basically, as long as it applied what was called its all-commerce policy — which is every group has to welcome anybody who wants to be a leader, if they get elected, to be a leader — as long as the school was applying the all-commerce policy equally to everyone, then they were -- it’s totally fine if it gets used to kick the religious kids off campus.

 

The unfortunate truth in CLS v. Martinez is I don’t think the Law School had a true all-commerce policy, and one thing you will see as you litigate these cases is, it turns out, very, very few schools really do have a true all-commerce policy. They always have exceptions. They always have groups that they do allow to exclude people in one way or another. But that was CLS v. Martinez. That was clearly wrong. It was a 5-4 decision. I think the justices got that wrong, and it ought to get fixed sometime soon.

 

Prof. William L. Saunders:  But it was based on this idea of an all-commerce policy that you -- groups had to let anybody who wanted to be -- first of all, it had to be open to anybody, and their leadership had to be opened to anybody.

 

Prof. Mark L. Rienzi:  Yeah.

 

Prof. William L. Saunders:  So in that case, a Christian group had to allow non-Christians to be officers in the club. Right?

 

Prof. Mark L. Rienzi:  Exactly.

 

Prof. William L. Saunders:  So that was obviously quite controversial because, like you said, it was a 5-4 decision. And in this case you were talking about now in the Ninth Circuit, they have -- what have they said so far?  What’s the holding so far?

 

Prof. Mark L. Rienzi:  The en banc Ninth Circuit just ruled strongly in favor of the students in a really terrific First Amendment opinion, beginning to end, a great opinion.

 

Prof. William L. Saunders:  Did they discuss this all-commerce rule or anything?

 

Prof. Mark L. Rienzi:  Yeah. They did. They ended up giving CLS v. Martinez a pretty narrow reading. They had pointed out how more recent free exercise cases give some additional rules and that, under those clear rules from cases like Fulton and Diocese of Brooklyn, Tandon, and Masterpiece, it was clear that the school district’s policy was subject to strict scrutiny, which it could not pass. So they -- the Ninth Circuit, of course, can’t overrule CLS v. Martinez. Only the Supremes can do that.

 

Prof. William L. Saunders:  Right.

 

Prof. Mark L. Rienzi:  But they gave it a -- they also acknowledged the more recent precedent that makes CLS look more and more like an outlier, and they said under the more recent precedent, it’s clear that what the school district did here is not permissible.

 

Prof. William L. Saunders:  Because, I think, you mentioned there was a lot of hostility beyond the formal things expressed to those Christian students. They were mocked, and they were --

 

[CROSSTALK]

 

Prof. Mark L. Rienzi:  They were mocked. The teachers cursed about them and their religious beliefs in front of them and in front of their fellow students. The school authorized the creation of a Satan club, whose sole purpose seemed to be to go and harass the FCA students. It was really -- every year as you’d get close, there’d be pressure put on the students, trying to get them to quit the club. So it’s really -- it was pretty bad, nasty, poor behavior from grown-ups who are supposed to be looking out for the kids. So it was ugly stuff. It was bad.

 

Prof. William L. Saunders:  Okay. And another case, you have another case. You said another from the Ninth Circuit.

 

Prof. Mark L. Rienzi:  Yeah. So the other one from the Ninth Circuit is Apache Stronghold, which is also en banc and should be coming out any day. This is the fight over Native American sacred lands that, for generations, the federal government has protected and allowed the Native Americans to worship there and go for their sacred ceremonies. And it won’t surprise you to know that the United States got that land hundred-something years in pretty debatable circumstances, but to the government’s credit, for a long time, the government has allowed the Native Americans to go worship at that site. But it turns out there is also a lot of valuable copper a couple miles under the ground, and the government wants to sell that to a foreign mining company to let them blow a two-mile-wide hole in the sacred site so that they can get the copper underneath.

 

And the Ninth Circuit panel previously said there’s no even a burden on your religion if the government destroys your sacred site. It’s not a burden. It’s not a substantial burden. You have no right to any free exercise scrutiny or any RFRA scrutiny. It’s not your lands. You have no rights. The Ninth Circuit took that en banc, and the argument was last March. We’re still waiting to hear. But because for the Apaches, it’s deeply important religious significance, and to the mining companies, it’s deeply important money to be made. I think it’s pretty likely whoever loses in that case would look up to the Supreme Court and try to get that one up there.

 

And then, two cases, just to highlight them, from the Fourth Circuit. One’s being argued tomorrow, the Billard v. Diocese of Charlotte case. There are probably other examples of this, too, but this is an example of the sort of non-ministerial exception school employee case, which has been happening quite a bit in the lower courts where you’ve got somebody -- if the teacher works at the school and their job is teach religion, then under Hosanna-Tabor and Our Lady of Guadalupe, two cases from the past decade, it’s pretty clear they’re a minister, and they don’t get to sue the school for claims of discrimination. The next shoe to fall in that set of cases, though, is, well, what do you do with the employees who are not ministers? They’re not teaching religion to anybody. What types of rights does the school have or not have, in terms of the hiring and firing of those employees?

 

And the Billard case, which is getting argued tomorrow in the Fourth Circuit, is about a substitute drama teacher who the school acknowledged was not a minister — substitute drama is not teaching theology — but who the school stopped calling back because the teacher publicly announced he was in a same-sex marriage. And the school acknowledged this person is not a minister but asserts a whole range of other religious liberty defenses from Title VII and RFRA to the Free Exercise Clause about why they still have rights to choose who works for them and to hire and fire as they see fit. So that’s being argued at the Fourth Circuit.

 

There are probably others like it in the system where we’ve got these other kinds of employees. Our Lady of Guadalupe situated the ministerial exception within the broader umbrella category of church autonomy. The two church autonomy cases we’ve had over the past decade have both been ministerial exception cases, so we kind of know how that piece works. Billard is part of the buildout of the other pieces, so I could see that getting here later in the year.

 

And then, one other emergency docket case that could show up on the Court’s emergency docket is a case also from the Fourth Circuit, out of Montgomery County, just up the road here, called Mahmoud v. McKnight. And that’s a case where Muslim and Christian parents have sued the Montgomery County School District over the pride curriculum that they are teaching to kids as young as four -- the LGBT curriculum they’re teaching to kids as young as four. Under state law, Montgomery County is supposed to be providing an opt-out for parents who object to having their four year olds taught SOGI and gender ideology and things like that. But Montgomery County said, nope, too many people are opting out, so we’re taking away the opt-out right. And so, right now, there’s an emergency motion being heard by the Fourth Circuit on whether those parents can get opt-out rights reinstated at least while their kids are in school during the case. The Fourth Circuit’s had that for about a week or so, so I expect they’re going to decide that one any minute, and that’s another that I can imagine showing up on the emergency docket later this month or so, depending on how the Fourth Circuit rules.

 

Prof. William L. Saunders:  Okay, Mark. Thanks. I’m going to open it up. We’ve got a number of questions, and I’ll -- going to kind of pick and choose because we don’t have a whole lot of time. One question is, “Doesn’t Fulton require an all-commerce policy?”

 

Prof. Mark L. Rienzi:  So short answer is no. I don’t think Fulton requires an all-commerce policy. I may be misunderstanding the question, I guess, but I don’t think Fulton requires a religious organization to have an all-commerce policy. So in Fulton itself, the religious foster care agency said we can’t actually serve all-commerce. Right? We can -- we can’t say that a place with, for example, an unmarried mother and father is a good place to put children or that a same-sex couple is a good place to put children. So in Fulton, they didn’t have an all-commerce policy, and the Court, 9-0, said that was okay. Again, I’m wondering if there’s a missing word someplace in the question.

 

Prof. William L. Saunders:  Well, yeah.

 

Prof. Mark L. Rienzi:  Anyway, I don’t think Fulton requires an all-commerce policy. I think schools don’t have to try to force people to have all-commerce.

 

Prof. William L. Saunders:  Okay. Here’s another one. “Do you have -- or “Have you seen any developments at the courts below about the bounds of ‘history and tradition’ of the Establishment Clause?” Any developments about that -- that’s -- that has been used by the Supreme Court in a number of cases recently. Anything you’ve seen about the boundaries of that?

 

Prof. Mark L. Rienzi:  I only have peripheral knowledge of it. I have heard that, in some cases, courts are trying to do a better job. Typically, that’s the kind of thing that gets argued a lot at the Supreme Court and gets ignored in the lower courts, and I think one consequence of the Supreme Court’s recent cases has been that litigants are trying to tell that history and tradition story earlier in the case. I’m not aware of any clear splits or conflicts that have yet arisen over how to do that, but I think the questioner’s right in suggesting that -- you get a bunch of lower courts trying to figure that stuff out, surely some will think about it one way, and some will think about it another way. So eventually, I assume, there’ll be stuff there. But I’m not aware of conflicts over how to do that just yet.

 

Prof. William L. Saunders:  I’m just going to read a refinement of that question about Fulton. See if this is clearer. “Fulton, doesn’t the case require a university to have true all-commerce policy across the board if they’re going to impose such a policy on religious groups?” Answer that.

 

Prof. Mark L. Rienzi:  Yeah. Thank you for the clarification because I wasn’t fully understanding. I would say that it requires at least that, but I’m not -- I don’t think that’s good enough. In other words, I don’t think CLS v. Martinez is right, even if it was a true all-commerce policy, but if it’s not a true all-commerce policy, under Fulton, then it’s clear the school district would lose. Right? So it’s an easy one -- let me put it this way: Fulton makes it easy, if you’ve got something that’s not really an all-commerce policy.

 

If you don’t really treat them all the same, Fulton makes it very easy to say, okay, there’s government discretion here. You’re changing the rules. You’re favoring somebody. That easily gets strict scrutiny, and government’s going to lose. But even if you did have a true all-commerce policy, I do not think it’s the case that, under a proper understanding of the Free Exercise Clause, the government could force a religious group to have leaders it doesn’t want.

 

If you think about a case like Hosanna-Tabor, which was decided a couple of years after CLS v. Martinez, the idea that, in the CLS v. Martinez case, the government thought it could tell somebody who’s going to be the leader of a Christian group. The leader of a Christian group, among other things, leads them in prayer and Bible study. That’s a minister. That’s not something the government gets to control. And I see a friend chimed in in the comments to tell me that it wasn’t Berkeley Law School; it was UC Hastings Law School. My apologies for that. But it’s UC Hastings Law School in the Martinez case.

 

Prof. William L. Saunders:  Okay. So there is a question, which actually raises something we didn’t talk much about, but I think’s very relevant going forward, which is the vaccination cases. And it asks, “Are there any vaccine mandate cases coming up through the system, including those based on religious objections?” Maybe you could say a word of where you think the law is going into this term. I think there was a -- well, I won’t -- I’ll let you answer that. Go ahead.

 

Prof. Mark L. Rienzi:  Yeah. So short answer is I’m not aware of ones coming just yet, but I read the newspaper, so it’s not going to surprise me if we get more vaccine mandates and more litigation over this. In the last round of the vaccine mandate cases, at the Supreme Court, there were three votes for cert; Justices Alito, Gorsuch, and Thomas would have done, but there were only three, and you need four so couldn’t get to the Court just yet under the previous round. There have been cases where -- I think there may be one that the federal government is trying to moot so the federal government’s mandate for members of the military. That came up through the Sixth Circuit. But I don’t think that’s going to get there on the merits.

 

It’s really a question of the feds saying, well, now, I’ve changed the policy. Can you get rid of this terrible ruling against me? So they’re trying to moot out certain cases, but more broadly, it’s not going to surprise me — it shouldn’t surprise anybody — if we get more COVID vaccine fighting, if COVID kicks up again or if vaccine mandates become more popular again. Last time, I think they were pretty close to getting over the hump to get the Court to hear them. I do think it’s a -- it’s downright tragic how many people were forced out of their jobs and lost their careers and their pensions over it. So I think there’s a lot to be fixed. I’d love to see somebody ring up the government for a lot of damages on that because they should. But I’m not aware of something that’s getting to the Court just yet.

 

Prof. William L. Saunders:  There’s another question mark about what you might think was the most significant turn towards greater support for free exercise. Would it be Hosanna-Tabor because, if you look at Martinez as the low point -- one of the low points, is the significant towards respecting religious liberty Hosanna-Tabor? I don’t know if you have an opinion on that.

 

Prof. Mark L. Rienzi:  Yeah. I think it certainly starts with Hosanna-Tabor. Right? Hosanna-Tabor is the first big religious liberty win at the Court in a long time when it comes along in 2012. It makes clear that Smith is not going to control the whole universe. Right? You could have thought going in, well, maybe the Americans with Disabilities Act is a neutral and generally applicable law, so maybe the answer is the church loses in Hosanna-Tabor. Turns out, it’s a 9-0 win. Right? From Hosanna-Tabor to now, most religious liberty cases have won, and I don’t think it’s an accident.

 

I think the justices are taking religious liberty and religious pluralism seriously, and I think they’re saying that if we’re going to be serious about enforcing these things, most of the time we can work around people’s religious differences. So I think of CLA v. Martinez is kind of near-term low point and Hosanna-Tabor as the beginning of a strong turnaround. I don’t think we’ve fully turned it around. I think there’s still some problems in the doctrine that need to be fixed, but I think we’ve -- I think there’s been a lot of progress in the last decade to getting better protection for religious liberty.

 

And all of the threats and concerns and fears that you’ve heard about it -- I was just teaching Hobby Lobby today and thinking to myself, “It’s been nine years since the Hobby Lobby case,” and I could have sworn that I was told that if Hobby Lobby won, all anarchy would break loose and for-profit businesses would be claiming religious exemptions to paying the minimum wage. All the scary things that you got told never happened. So I think Hosanna-Tabor’s the start of a big turn, and I think the country really needs it to continue.

 

Prof. William L. Saunders:  Do you have a -- one of the questions alludes to circuit splits, so I was just wondering do you think -- do you see a kind of intense circuit split on a free exercise issue that is ripe for the Supreme Court?

 

Prof. Mark L. Rienzi:  Sure. There are a bunch out there. There are splits about how to do free exercise analysis after Fulton. Right? Some of those COVID vaccine mandates actually come up with different rules. So on all of these issues, there are circuit splits kicking around that could be presented to the justices. It’s really always like a timing question of do you have a case that arrives at the right time with a split that they’re interested in addressing at the same time for you to get the magic to get the grant.

 

Prof. William L. Saunders:  Okay. I think that takes care of the questions. Anything else you want to say, Mark, just looking ahead to this term?

 

Prof. Mark L. Rienzi:  No. I would just say I -- my best prediction is it ends up being an exciting religious liberty term after all. We just don’t really know what the details on that are going to be just yet.

 

Prof. William L. Saunders:  Actually, one last question, which I want you to comment on, and you’ll get the joke when I -- has the Lemon test effectively been overruled? And I ask you if it has been overruled, why won’t the Supreme Court say flat out the Lemon test is overruled?

 

Prof. Mark L. Rienzi:  Well, I kind of think they said that in the Coach Kennedy case in Kennedy v. Bremerton. The joke I’ve heard some smart people make is Kennedy v. Bremerton tells us Lemon is dead. We just don’t know the time of death.

 

Prof. William L. Saunders:  Yes, yes.

 

Prof. Mark L. Rienzi:  So I think Kennedy v. Bremerton really does kill Lemon. I think Lemon is dead. And I think the lower courts are going to treat it that way. I don’t think you can get away with pretending Lemon continues to live after that case. They were a little bit cagey about when it did actually die, but that doesn’t bother me that much. They got the right answer. They fixed the law. The lower courts now know the answer, and it’ll be a better system.

 

Prof. William L. Saunders:  Yeah. The Lemon test was, I think, in my opinion, was a disaster. And they did say in the Coach Kennedy case, it’s, as we have said before, it’s overruled. It’s not completely clear where they said that, but anyway, in that case, they said it, so it’s overruled.

 

Prof. Mark L. Rienzi:  Yeah. I think that’s how we need to treat it.

 

Prof. William L. Saunders:  Okay. Chayila, I’ll turn it back over to you.

 

Chayila Kleist:  Thank you so much. Really appreciate you both joining us today. On behalf of The Federalist Society and myself, thank you to our experts for joining and participating and giving us some of your afternoon. Really appreciate the gift of your valuable time. And thank you to our audience, as well, for joining and participating. We welcome listener feedback by email at info@fed-soc.org, and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We’re adjourned.

 

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