Foster Care and the First Amendment: What are the Requirements for Proving a Free Exercise Violation Under Smith?

BACKGROUND

The First Amendment prohibits Congress and other legislative bodies from enacting laws that violate the right to the free exercise of religion. At the most basic level, this means that laws that specifically target religion, whether it be attempting to regulate religious beliefs or conduct associated with those beliefs, are unconstitutional and cannot stand. Laws that do not specifically target religion but may have an incidental effect on religion are also subject to review and may potentially be found unconstitutional as well. While these laws are subject to review under a heightened scrutiny standard, they do not receive strict scrutiny review unless the free exercise claim is combined with another constitutional claim. 

This right to free exercise is not unlimited. In 1990, the Supreme Court held that an individual’s religious beliefs do not excuse them from compliance with an otherwise valid, generally-applicable, conduct-regulating law in Employment Division v. Smith (1990). In Smith, the Court found that a state could deny unemployment benefits to two drug counselors who had been fired for ingesting peyote as part of a religious ceremony with the Native American Church because the law involved did not specifically target religious practice, was “generally applicable”, and only incidentally burdened the free exercise of religion. Smith lowered the threshold for upholding an otherwise neutral law that had potential impacts on religious freedom to only rational basis scrutiny, meaning the State need only prove that a rational connection exists between the law and a legitimate state objective. This precedent was further clarified three years later in Church of Lukumi Babalu Aye v. City of Hialeah (1993), when the Court held that the general applicability requirement applies to the purpose of the law as well as to its application to all persons.

Following these decisions, many state legislatures and courts began to limit the reach of the Smith decision in a self-described attempt to protect religious freedom. This included Congress’ passing of the Religious Freedom Restoration Act (1993), which provided that whenever a (federal) law “substantially burdens” a religious practice, it may not be applied unless it satisfies strict scrutiny standards. Many individual states also created their own versions of religious freedom acts and interpreted their state constitutions to require strict scrutiny review for free exercise claims.

THE ISSUE

Given this increase in conflicting interpretations of the Free Exercise Clause and the requirements of a successful free exercise violation claim, the Courts of Appeal have become deeply divided. A majority of the circuits have found that individuals may use evidence that suggests a law is not neutral or generally applicable to prove their claim. However, two other circuits have directly contradicted this majority approach, arguing instead that individuals bringing a free exercise claim may only use a particular type of evidence to prove their claim: that the government would have allowed the same conduct by someone who did not hold the claimant’s religious views. A recent Third Circuit decision that ruled against the majority approach only served to deepen this divide among the sister circuits. This has ultimately led to a single question: what are the requirements for proving a free exercise violation under Smith?

THE SPLIT

            The Second, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits have all held that a free exercise plaintiff can rely upon multiple forms of evidence to prove that a law is not neutral or generally applicable, such as the fact that the government issues individualized exemptions or the law’s history indicates non-neutrality. One of the most recent decisions to support this outcome came in 2012 from the Sixth Circuit in Ward v. Polite (2012). In Ward, a graduate counseling student was removed (and later expelled) from her position at her state university counseling center for refusing to counsel LGBTQ+ patients, instead referring them to other counselors. The student argued that her Christian faith prohibited her from “affirming” or “validating” the “homosexual behavior” of her clients. As such, she claimed her free exercise rights were violated when the university refused to provide her an exemption from counseling LGBTQ+ patients. The Sixth Circuit ultimately agreed that the student’s First Amendment right had been violated as the university policy allowed for “secular exemptions, but not religious ones” from counseling patients, and the university had further failed to “apply the policy in an even-handed, much less faith-neutral, manner” to the plaintiff. In reaching this conclusion, the Sixth Circuit joined other appellate circuits in allowing the use of exemption-based evidence to support a free exercise violation claim.

Recently, the Third Circuit joined the Ninth Circuit in reaching the opposite conclusion. In Fulton v. City of Philadelphia (2019), the City of Philadelphia excluded Catholic Social Services, a private adoption agency associated with the Archdiocese of Philadelphia, from signing a foster-care contract with the city. Philadelphia rationalized this decision based on the adoption agency’s practice of refusing to work with married same-sex couples, who the agency viewed as unmarried. Therefore, the agency viewed placement with same-sex couples as against its practices of placing children in the homes of married or single foster parents, but not in the homes of “cohabitating unmarried couples.” The city argued that this practice violated the city’s anti-discrimination practices. Catholic Social Services sued, claiming that its free exercise rights had been violated by this exclusion. Employing the precedent established in Smith, the Third Circuit held that no free exercise violation had occurred, as the city’s non-discrimination policy was a “neutral, generally applicable law” and the religious views of the adoption agency “do not entitle it to an exception from the [anti-discrimination] policy.” Further, the Third Circuit reasoned that Catholic Social Services had failed to demonstrate a violation of its free exercise rights, as it had not provided any evidence that it had been treated differently because of its religious beliefs, nor had it demonstrated that it would have received different treatment had it been a secular organization in the same position. As such, the Third Circuit ruled in favor of the city of Philadelphia and joined the Ninth Circuit in furthering the divide among the Courts of Appeal over the requirements for proving a free exercise violation.

LOOKING FORWARD

            On February 24, 2020, the Court granted certiorari in the case of Fulton v. City of Philadelphia but has yet to set a date for oral arguments. The current 5-4 conservative majority may suggest that the Court will rule in favor of the adoption agency. The recent decisions in Our Lady of Guadalupe School v. Morrisey-Berru (2020) (holding that the “ministerial exception” under the First Amendment prohibits the adjudication of employment discrimination claims made by Catholic school teachers) and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020) (holding that federal agencies had authority under the Affordable Care Act to promulgate rules exempting employers with religious or moral objections from providing contraceptive coverage to their employees) appear to reaffirm this belief, as the Court sided with religious institutions in both cases. However, the recent decision in Bostock v. Clayton County (2020) (holding that Title VII applied to workplace discrimination against the LGBTQ+ community) may complicate this argument. While not specifically involving the First Amendment, Bostock saw both Chief Justice Roberts and Justice Gorsuch join the Court’s liberal justices in voting to protect the LGBTQ+ community from discrimination. Thus, how these Justices will choose to balance the competing interests of religious freedom and protection from discrimination remains to be seen.

For further reading, see: Trinity Lutheran Church v. Comer: An Unfortunate New Anti-Discrimination Principle (2017)by Edward Correia and Employment Division v. Smith and State Free Exercise Protections (2017) by Matthew Linnabary.

Right to Refrain: Do Abortion Providers Have a First Amendment Right to Free Speech Under Mandatory Narrated Ultrasound Laws?

Background

The First Amendment prohibits Congress or any other legislative body from enacting laws that abridge freedom of speech. The Supreme Court has distinguished between legislation that regulates the content of speech and legislation that regulates conduct associated with the speech. Content-based speech restrictions are generally presumed to be invalid and must face strict scrutiny before the courts. This requires the government to prove that the law is necessary to achieve a compelling state interest — a very high bar that often results in most content-based speech restrictions failing.

The First Amendment not only guarantees the right to speech, it also guarantees the right to refrain from speech. In Riley v. Nat’l Fed’n of the Blind (1988), the Supreme Court held that regulations that compel speech are inherently content-based restrictions, as they compel the speaker to speak when they would have otherwise remained silent. As such, regulations that compel speech must also generally face some form of strict or heightened scrutiny before the court.

In conjunction with the recent rise in abortion regulation, multiple states have passed legislation mandating that narrated ultrasounds be performed by physicians prior to abortion procedures. While specifics vary slightly between states, the laws have the same general premise: physicians are required to perform an ultrasound, display the sonogram, and describe the fetus to the patient. Under these laws, the physician must display and describe the ultrasound, even if the patient actively protests. Most states provide an exception only for emergency situations, although exceptions also vary by state. If a physician refuses to perform the ultrasound, he or she may be subject to multiple forms of punishment, including fines, referral to the state medical licensing board, and an inability to perform future abortions.

The Issue

Reproductive rights and other activist groups have recently joined forces to approach these regulations from a non-traditional vantage point. The groups are straying from the traditional approach of invalidating abortion legislation under Roe v. Wade (1973), where the Supreme Court found a Constitutional right to an abortion under the Fourteenth Amendment. Instead, the groups have turned their focus to the impact of these regulations on the physicians they are intended to regulate. These activist groups have argued that the mandatory narration laws are unconstitutional not because they prohibit access to abortion, but because they compel physicians to engage in speech from which they otherwise would refrain. This has ultimately led to a single question: what are abortion providers’ First Amendment rights under mandatory narrated ultrasound laws?

The Split

In Stuart v. Camnitz (2014), the Fourth Circuit held that North Carolina’s narrated ultrasound law violated physicians’ First Amendment right to refrain from speaking “beyond the extent permitted for reasonable regulation of the medical profession.” The Court noted that while “professionals may be subject to regulations by the state that restrict their First Amendment freedoms when acting in the course of their professions, professionals do not leave their speech rights at the office door.” The Court held that this regulation of speech and professional conduct warranted heightened intermediate scrutiny, under which the law failed. The Fourth Circuit stated that “while it is true that the words the state puts into the doctor’s mouth are factual, that does not divorce the speech from its moral or ideological implications,” emphasizing the fact that context matters. Because the speech that the state was attempting to compel in this case was so heavily content-specific and did not allow any room for physicians to exercise professional judgment, the Court held that the law unconstitutionally attempted to make physicians the “mouthpiece of the state” to promote their own “clear and conceded” pro-life position.

The Sixth Circuit recently reached the exact opposite conclusion in EMW Women’s Surgical Center P.S.C. v. Beshear (2019). The Court found that Kentucky’s mandatory narrated ultrasound law did not violate physicians’ First Amendment rights, noting that the law simply “requires the disclosure of truthful, non-misleading, and relevant information about an abortion.” Directly addressing the Fourth Circuit’s 2014 decision, the Court stated that “Stuart’s basis for applying heightened scrutiny is called into question by Supreme Court precedent.” The Court argued that the appropriate level of scrutiny was much lower than that called for by the Fourth Circuit and that, under this new lower level of scrutiny, the law survived. Further opposing the argument that the narrated ultrasound laws inappropriately interfere with the doctor-patient relationship, the Court found that the laws did not interfere “any more than other informed-consent laws,” despite the fact that they were regulating the controversial subject of abortion. Countering the Fourth Circuit’s opinion that the compelling of physicians to deliver the state’s message was unconstitutional, the Sixth Circuit held that “as a First Amendment matter, there is nothing suspect with a State’s requiring a doctor, before performing an abortion, to make truthful, non-misleading factual disclosures, relevant to informed consent, even if those disclosures relate to unborn life and have the effect of persuading the patient not to have an abortion.”

Looking Forward

 The future of this issue remains uncertain. The Court recently made headlines for accepting an admitting privileges case out of the Fifth Circuit, the first abortion-related case since the addition of conservative Justices Gorsuch and Kavanaugh. However, the Court has generally been hesitant to accept abortion-related cases and has already denied a previous appeal for this issue. In 2014, the Court denied North Carolina officials’ petition to appeal the Fourth Circuit’s decision. As of September 26, 2019, the American Civil Liberties Union has filed a petition for a writ of certiorari for the Supreme Court to hear its appeal from the Sixth Circuit’s decision. A response is due from the Secretary of the Kentucky Cabinet for Health and Family Services, Adam Meier, by the end of October before the Court will begin to consider the petition.

For further reading, see: Sex, Lies, and Ultrasound (2018) by Case Western University School of Law Associate Dean and Professor B. Jessie Hill and Professional Rights Speech (2016) by William & Mary Law School Professor Timothy Zick.