Justice Kavanaugh Is Not Going Lay A Hand On Employment Division v. Smith

The Supreme Court made a decision on Thursday Ramirez v. Collier. Ramirez was a capital indictee and was to be executed. Texas refused to allow Ramirez’s priest to hold him up and pray audibly during his execution. Ramirez claimed that Texas’s policy was in violation of the Religious Land Use and Institutionalized Persons Act or RLUIPA, one my favorite acronyms. Arguments based upon the Free Exercise Clause were not preserved by the defendant. The Becket Fund requested oral argument in order to discuss First Amendment arguments.

Ramirez was ruled by the Supreme Court in an 8-1 vote. Chief Justice Roberts wrote the majority opinion. Justice Thomas was the sole dissenter.

Ramirez’s RLUIPA claim was most likely to be successful. The Court instructed the District Court to issue a preliminary injunction. It stated that the state should allow the pastor lay his hands on the victim and to engage in prayer during execution. However, there were certain limitations.

Ramirez will likely prevail on his RLUIPA claims. We also believe that relief is warranted by the preliminary injunctions. The District Court must enter the appropriate preliminary relief if Texas moves Ramirez’s execution forward and refuses to allow audible prayers or religious touching. This appeal is referred to the United States Court of Appeals, Fifth Circuit. 

The remedy could have an effect on the immune system. Marbury Problem: The Court was not content to review the lower court’s judgment. Instead, it denied an order granting a stay of execution. Both majority and dissident agree that this issue had already been decided. In fact, the stay of execution was dismantled so execution can continue with religious accommodations. Instead, the Court decided on a completely new type of relief. This injunction was not upheld by any lower court. Is the Court applying appellate or initial jurisdiction in this instance? Similar objections were made by the Solicitor General in OSHA’s vaccine litigation. Despite all of the protestations regarding the shadow docket and other insidious tactics, there may be an Article III issue. In a subsequent post, I will discuss this issue more. This is where I will discuss the merits analysis.

RLUIPA was enacted, just like RFRA. Smith v. Employment Division. Congress authorized the Courts through RLUIPA to examine federal laws affecting the freedom of religion and subject them to a similar scrutiny. Chief Justice Roberts described the requirements:

RLUIPA offers that the “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution”—including state prisoners—”even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest;The least restrictive way to advance a government’s compelling interest is (2). 42 U. S. C. §2000cc–1(a).

Chief Justice Roberts agreed with Texas’s compelling interests in large part.

It is not difficult to see that the prison authorities have an interest in the monitoring of executions and responding quickly during emergencies. . . .

The government is obligated to prevent disruptions and maintain solemnity in execution chamber. . . .

Three governmental goals are highlighted by the victims’ family: safety in execution chamber and prevention of unnecessary suffering. These three objectives are admirable. . . .

Texas, however, was unable to demonstrate that their policy was the most restrictive in furthering these compelling interests.

Justice Kavanaugh expressed concern about the RLUIPA “compelling Interest” prong in a concurrence.

SecondThis Court ruling raises significant questions regarding how the Court determines whether the State’s claimed interest is sufficiently compelling and whether it can be satisfied by less restrictive methods. This case highlights both the complexity of such inquiries and how important history and practice are in the analysis. . . .

How does the Court decide when the state’s interest is at this level and what exactly does that mean? The Court is then asked how it determines whether to use less restrictive measures in order to satisfy the State’s interest. These are great questions. There is no answer. 

Kavanaugh voiced concern about the court’s determination of which interests are most compelling.

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. B. Kavanaugh – Two Challenges for Judge and Umpire: Constitutional Exceptions and Statutory Ambiguity. 92 Notre Dame L. Rev. 1907, 1914– 1919 (2017).

Kavanaugh isn’t alone in his position. Kavanaugh’s self-citation actually points to his Notre Dame Law Review 2017 article. Kavanaugh goes on to explain that finding out whether an interest has compelling potential is inherently a common law inquiry.

Because judges don’t have an objective method of deciding whether an interested is compelling or important, they must make a decision about its desirability. . . . It appears that these tests are based on old-fashioned common law judging. It may seem inevitable, but I will show you why. However, we shouldn’t be surprised if this isn’t what happens when these tests are applied.

Kavanaugh explicitly cited RFRA, a statute that used the “compelling-interest” test. In the article, the compelling interests are discussed in relation to abortion, affirmative actions, and the Second Amendment. Kavanaugh refers specifically to the D.C. Circuit Heller II decision:

Since Heller, the litigation has focused on gun regulations that are constitutional or unconstitutional. This has resulted in a fight over strict scrutiny or intermediate scrutiny. Are regulations necessary to protect a vital or compelling interest? Like I said, I see much of this debate as an opportunity to address a pressing interest. smokescreenThis is basic common-law balance and the ability to decide what is reasonable or unreasonable, important or not. Heller has said that exceptions to the Second Amendment rights are not to be evaluated based only on intermediate or strict scrutiny. The exceptions should be compared to tradition and history.Although I published an opinion in this regard, I’m the only one to admit that many lower court judges disagree with me. This issue is not yet before the Supreme Court. It is still to be determined.

To be confirmed, indeed. NYS Rifle & Pistol remains pending.

This should not be surprising. The then-Judge Kavanaugh, unlike the current Supreme Court nominee gave much thought to his judicial philosophy. Kavanaugh doesn’t like the requirement for compelling interest and strict scrutiny. A test that is based on both text and historical data, Kavanaugh considers more conclusive.

Kavanaugh may have some insight into his past writings Fulton concurrence. Kavanaugh and Justice Barrett declined to overrule. Smith v. Employment Division. Barrett’s concurrence raised a phalanx of apparently-unanswered questions. Kavanaugh was not a separate party. His I believe RamirezHis concerns are directly addressed by concurrence: “If SmithIf the compelling interest test is ruled invalid, it would be (likely), restored to Free Exercise Clause Jurisprudence. Moreover, BoerneRFRA may be repealed and RFRA might apply to review state laws that prohibit the free exercise or worship of any religion. You can also get the smokescreen from SherbertAnd YoderIt would be reinstated. Justice Kavanaugh could favor a textual and historical approach to Free Exercise Clause. However, he would be opposed strict scrutiny of the exact framework used by Justices Alito Thomas, Thomas, Gorsuch. Fulton. Kavanaugh’s agreement links his analysis with the strict scrutiny debate.

For the strict scrutiny to be valid, the government must demonstrate “compelling interests” to justify imposition of a burden to certain constitutional rights. This test was used by the Court for certain First Amendment cases, in particular in late 1950s and early 60s. R. Fallon (Strict Judicial Scrutiny), 54 UCLA L. Rev. 1267, 1270–1271 (2007); S.Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 356–357 (2006). It can be challenging to pass the test as it “permits or even requires judges” to engage recurrently with minimally-structured appraisals of relevant values or interests in many instances. R. Fallon, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 66–67 (2019). Congress used “compelling” without further definitions in RLUIPA.

Guess what Fallon talked about on pages 1269 right before the pincite for 1270? Smith.

Read the Ramirez Concurrence made me recall Justice Scalia’s objections regarding the compelling interest prong. In SmithScalia said:

To be able to apply the “compelling curiosity” test, it has to be applied to all religiously mandated actions. Many laws won’t pass the “compelling interests” test if they are true to what they claim. Such a system could be adopted by any society. Anarchy is a possibilityHowever, the danger of a society with a diverse religious belief system and its inability to suppress or coerce any of it increases.

One would not want to be a court of anarchy. Kavanaugh instead would prefer a historical approach

As this case shows, both the compelling interest as well as the least restrictive means standards force the Court to render difficult judgements regarding the state’s strength and the possibility of achieving those interests in ways less restrictive of religious expression. The impreciseness of the least restrictive means and compelling interest standards is a problem. History and the state’s practiceThis can help to structure and direct the Court’s evaluation of the State’s arguments. 

Kavanaugh is more favorably than the approach of his predecessor. Justice Kennedy too rejected the layers of scrutiny but preferred to appeal to post-modern values, such as autonomy and dignity.

According to me, this concurrency means Justice Kavanaugh is not going to touch it. SmithFor the sake of a term, “if it means restoring compelling interest testing.” He doesn’t touch. Smith‘s foot. Advocates need to focus instead on historical practice that hinders the state’s ability to exercise its right of burden-free speech. The same goes for freedom of speech. This is a useful approach in 303 Create. Stay tuned.