Justice Kavanaugh on Strict Scrutiny

In many areas of constitutional law, the Court allows a constitutional right to be overcome when a restriction passes “strict scrutiny”—i.e. If the government can demonstrate that restricting the right serves a compelling government interest, it is considered to be “least restrictive”.

Some fields like free speech and race classifications are “strictly theoretical but not in practice.” [almost]It is not fatal, in fact. Very few restrictions fail the test. But in other areas, such as religious exemptions governed by RFRAs or RLUIPA (statutes that borrow the strict scrutiny test from constitutional law), a lot of restrictions must pass—no Justice thinks, for instance, that people should get religious exemptions from laws banning homicide or theft or vandalism or trespass, or for that matter from most tax laws and other important regulatory regimes. But, there should be many other exceptions. While the Court does have a number of precedents that apply strict scrutiny to cases, there are many key questions, such as “how can one tell if an interest is compelling?”

The subject interests me since a very young age (see my critique of strict scrutiny in 1996). Freedom of Speech, Permissible Tailing, and Transcending StriginyPart II, my Common-Law Method for Religious ExemptionsThis is why I was so interested to see Justice Kavanaugh concur in the discussion on this matter today. Ramirez v. Collier:

[T]This Court ruling poses significant questions regarding how the Court determines whether an asserted State interest is sufficiently compelling and whether it can be satisfied by less restrictive methods. The Court’s case highlights both the complexity of these inquiries as well the importance that state practice and history often play in this analysis.

The compelling interest standard of RLUIPA—like the compelling interest standard that the Court employs when applying strict scrutiny to examine state limitations on certain constitutional rights—necessarily operates as a balancing test. It is a strong presumption that a state law infringes a constitutional or statutory right. If the State can demonstrate a compelling interest, then state infringing on that right is allowed by Court.

However, what is “compelling”? And how does the Court know when the State’s interests rise to this level? The Court must then decide if there are any less restrictive ways to satisfy the State’s interest. These are great questions. There is no easy answer. Sometimes the Court will look to commonsense and policy-based arguments from a State. In order to help inform its inquiries, the Court will often look at history and modern state practice.

{To justify the imposition of a burden on some constitutional rights, the strict scrutiny requirement requires that the government prove a “compelling” interest. In certain First Amendment cases from the 1960s and 1950s, this test was applied for the first time by this Court. It is difficult to use because the test arguably allows and requires judges to engage in recurrently only minimally structured assessments of the importance of competing interests or values in many cases. In RLUIPA, Congress used the term “compelling” interest without further defining it.}

The State claims that the security and solemnity in the execution chamber is a fundamental right. The State sought to limit the amount of persons and their activities in order to further these interests. At oral argument the United States stated that disruptions or interferences could cause “catastrophic” damage. A public hospital operating room would be unfit for a religious adviser during an emergency. Why should one allow someone to enter the execution room?

It is not difficult for the Court to reach the conclusion of commonsense that the State has an imperative interest in maintaining safety and security in execution rooms. But the more challenging question is how much interference and disruption the State must tolerate to allow the inmate to claim religious liberty under RLUIPA.

According to the Court, even though audible prayer or physical touching may be allowed, it is possible for the State to still adequately ensure security, safety and solemnity within the execution room. According to the Court, disruption and interference are conjectures that can be dealt with in other ways. In the event that the religious advisor deliberately or inadvertently disrupts or interferes, security officers could intervene immediately.

However, it’s undisputed that the outside in executing rooms and touching is a bad idea. Increasing The RiskThe possibility of an issue occurring such as intentional or accidental disruption or interference with execution. Why can’t the state choose not to take any further risk or interfere with execution, given the potential for catastrophic damage if such disruptions or interferences actually occur?

It is difficult to answer that question, I believe. Problem is, the State’s logical goal to avoid greater risk of great harm doesn’t easily fit into the compelling interest/least restrictive methods standards. In particular, it is difficult for a court applying those standards to know where to draw the line—that is, how much additional risk of great harm is too much for a court to order the State to bear.

If the Court had only responded to the State with its own policy assessment of the State being able to tolerate additional risk, then I could have concluded that either the State could ban religious advisors or limit their activities within the execution chamber, and that physical touch was not allowed.

However, it is important to note that the Court does more than simply point to the State’s policy decision about how high the State should tolerate execution room risk. In part, the Court relies on historical data regarding executions by religious advisors. Although the Court admits some errors in the historical record, it acknowledges the fact that executions have been performed at outdoor hangings. In these cases, religious advisors could not pose as much risk to security or safety as they would in an execution room. Some of the history also involved state-employed Chaplains who, arguably, do not pose the same dangers to safety, security and solemnity that outsiders present in execution rooms. The history shows, however that often religious advisors are present at executions.

Even more pertinent, both the Federal Government of some States and the Federal Government have allowed religious advisors to enter the execution rooms. These religious advisers are allowed to touch and pray with the inmates, but not in any way that causes problems. According to the Court, it is the experience that matters when deciding whether restrictive alternatives are still possible to fulfill the State’s compelling interests.

{“Of course, the government does not have to wait until the floods occur before it builds the levee. The Court points out that the Court can still use the experience of other States to help determine if the State has an adequate compelling interest. It also helps identify whether it has used the most restrictive measures possible to avoid disruptions or interference from religious advisors. When relying upon state practice, judges must still be cautious. States do not have to adopt the same restrictive policies as other States when it comes to a race to the top or bottom. States’ practices can change over time as they approach a particular issue. In any event, other States’ practices nonetheless have sometimes informed judicial evaluation of whether a State’s interest rises to the level of “compelling,” and whether a State has employed the least restrictive means of achieving that interest.}

Justice Scalia has some thoughts related to the topic, but they are not identical. See his concurrence FCC: Sable Communications (1989), which dissolved a ban against dial-a-porn. The government argued that the ban was the least restrictive means of serving a compelling interest in shielding minors from potentially psychologically damaging pornography, but the Court held that less restrictive means—such as requiring credit card payment, special access codes issued only after age screening, or scrambling with descramblers available only to adults—would be adequate to serve that interest. Justice Scalia also agreed but said:

Not to be overlooked is the fact that our opinion gives value judgements regarding the indecency section of the statute. This is the conclusion of Part IV.

“For all we know from this record, the FCC’s technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. If this is the case, it seems to us that § 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages.”

It would have been possible to say:

The record shows that FCC’s technology approach to restrict dial-a porn messages to adults would fail to meet the needs of some disobedient, enterprising young people who would still be able to access such messages. Since this is the case, it seems to us that § 223(b) is a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages.”

Because I agree with the Court’s decision, I believe it is correct that an adult ban on indecent speech can’t be implemented because of the FCC alternate proposal. However, as little children as evidence suggests, this could make the alternative suggestion work. But where a reasonable person draws the line in this balancing process—that is, how few children render the risk unacceptable—depends in part upon what mere “indecency” (as opposed to “obscenity”) includes. It is more sensible to demand greater protection from minors if the definition of “obscene” is narrower. While the Court agrees with Part IV’s reasoning, I don’t think it can be unanimous about the assumptions that underlie this reasoning. For example, I don’t believe that sexual activity that is portrayed over telephone lines will be exempted from the obscenity section of the statute we uphold and the indecency part that we strike down as long as it appeals to normal, healthy sexual desires, not shameful or morbid ones.

You can have different opinions about how important it is to protect minors from pornography. Justice Scalia’s comment on the more restrictive methods inquiry I find valuable.