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.

Riding Free From Controversy: Freedom of Speech Guarantee and Public Transit Systems

BACKGROUND

Before an advertisement is displayed on a public bus, it has likely undergone an extensive vetting process, where the transit authority has deemed it acceptable to occupy this space. Each locale often has varying policies regarding which advertisements it will choose to air. Both religious and non-religious groups alike have attempted to circumvent transit authority policies in order to run advertisements with their respective viewpoints.

The First Amendment prohibits government actors from taking action that would violate a citizen’s right to free speech. In the context of monitoring public transport advertising, these violations are often seen as censorship issues — meaning a government actor is attempting to censor certain speech by not allowing a potential ad to run. First Amendment censorship claims are broken down into two categories: content-based discrimination and viewpoint discrimination. Viewpoint discrimination will target a specific view taken by a speaker, rather than disavowing an entire subject. On the other hand, content-based discrimination policies tend to be more blanketed, banning entire subject areas. There are reasonable limits that can be imposed on one’s right to freedom of speech. Thus, courts will often uphold subject-matter regulations, despite limiting one’s free speech rights, because “even protected speech is not equally permissible in all places and at all times.” Archdiocese of Washington v. Washington Metro. Area Transit Authority (2018).

THE ISSUE

With respect to public transportation, is a ban on religious advertisements considered a permissible subject-matter regulation or an impermissible viewpoint regulation under the freedom of speech guarantee of the First Amendment?

THE SPLIT

The Third Circuit and the D.C. Circuit are split on the issue. The disagreement not only lies in how the circuits answered the question, but also in their reasoning. Ultimately, in Archdiocese of Washington v. Washington Metro. Area Transit Authority (2018), the D.C. Circuit held that public transit authorities could reasonably regulate speech on their properties because buses fall under a non-public forum. Whereas in Northeastern Pennsylvania Freethought Society v. City of Lackawanna Transit System (2019), the Third Circuit found that public transit authorities could not prohibit advertisements that discriminate on the basis of viewpoint.

In Archdiocese (2018), the D.C. Circuit addressed the First Amendment question using the forum analysis, assessing whether the restrictions are warranted based on the category of forum that the buses fall under. The court distinguished between public forums and non-public forums. Public forums are places that “have been devoted to assembly and debate, such as sidewalks or parks.” Here, the government’s ability to limit speech is minimal. In contrast, non-public forums are public properties where speech can be regulated if the regulation is reasonable and is not grounded in viewpoint discrimination. The D.C. Circuit reasons that “advertising space on public transit was properly treated as a non-public forum because a ‘bus is plainly not a park or sidewalk or other meeting place for discussion’ but rather ‘only a way to get to work or back home.’” Furthermore, it discussed that the Washington Metro Area Transit Authority’s exclusions were subject-matter discrimination, prohibiting religion as subject matter rather than religious viewpoint.

In Northeastern Pennsylvania (2019), the Third Circuit does not even consider the forum analysis because this would be “putting the cart before the horse.” Instead, the Court requires an assessment of the type of discrimination to take place first, seeing no rationale for addressing the forum if the discrimination is one regarding viewpoint. In the Court’s view, advertisement policies fall within viewpoint discrimination, and are thus impermissible under the First Amendment. Under this holding, the transit authority cannot exclude speech that it considers controversial because this would be an exclusion based on one particular view. Ultimately, the Third Circuit urges that other courts construe viewpoint discrimination broadly in the pursuit of “providing greater protection to private religious speech on public property” and not relegating religious speech to a “second-class status.”

LOOKING FORWARD

First Amendment claims, especially with regard to religious freedom, are rarely clear-cut issues for courts to tackle. However, if this circuit split is left unresolved, the gray area regarding permissible speech only expands. This uncertainty could very well expand past an advertisement on your morning commute, and could have longstanding impacts on how government actors limit speech in various public areas. To ensure that free speech rights are not infringed upon, the Supreme Court will need to address religious speech, determining the permissibility of certain expressions.

Professional Speech and the First Amendment

In an economy that is dominated by service professionals, one would logically assume that professionals (e.g. doctors, lawyers, psychiatrists, etc.) are vested with free speech rights under the First Amendment. If political speech, speech about public controversies, and the right to not salute the flag are protected under the First Amendment, it would seem natural that professionals would have this same protection when they give prospective clients and patients certain recommendations and advice. However, SCOTUS has not directly addressed this specific issue, resulting in circuit courts being split on the best way to handle professional speech and the protection it should be given under the First Amendment.

Hines v. Alldredge

In Hines v. Alldredge (2015), the Fifth Circuit upheld a Texas licensing requirement against a First Amendment challenge. In this case, Hines, a retired veterinarian, had given advice via phone and email to specific pet owners without physically examining the animals. The state licensing requirement prohibited veterinarians from providing veterinary care unless they had physically examined the animal. Hines’ communications with specific pet owners were considered “care,” and the state fined him and suspended his license. Hines alleged that this was a violation of his free speech rights.

The Fifth Circuit upheld the licensing requirement as a constitutionally permissible restriction, applying a rational basis standard of review. Blurring the lines between conduct and speech, the court found that the restriction did not fall within the scope of the First Amendment, but instead was comfortably within the “broad power [of states] to establish standards for licensing practitioners and regulating the practice of professions.” Id. The state, according to the Fifth Circuit could restrict professional speech virtually without limit.

Hines appealed to the Supreme Court. Ultimately, the Supreme Court declined to hear the case, refusing to clarify the constitutional mess that has split the circuit courts, and leaving the following question open to the circuits’ contradictory interpretations: Does the licensing power of the states outweigh a professional’s freedom of speech?

The Split

Speech or Conduct?

The source of confusion partly stems from courts’ inability to determine whether the activity and practice of professionals should be considered “speech” or “conduct”. Different courts have upheld similar restrictions on professionals both as a regulation of conduct and also as a permissible regulation of speech.

The Third Circuit in King v. Governor of N.J. (2014) upheld a regulation prohibiting mental health providers from engaging in sexual orientation change efforts as a permissible regulation of speech, explaining, “Verbal or written communications, even those that function as vehicles for delivering professional services, are ‘speech’ for purposes of the First Amendment.” Id. The court applied a lesser form of scrutiny, opting for intermediate scrutiny instead of strict, but nonetheless deemed the treatment speech that implicates the First Amendment. “Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment,” the court held. Id.

The Ninth Circuit, on the other hand, in Pickup v. Brown (2013) upheld a very similar regulation on entirely different grounds. They found the treatment to be conduct, and regulation of conduct is outside the scope of the First Amendment, even though it may have an incidental effect on speech. The court said, “Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful … [T]he fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Id.

What Standard?

The next step is to determine the appropriate standard of review. Courts again disagree on the standard.

In very similar cases about regulation of fortune tellers, the Eighth Circuit and Fourth Circuit arrived at entirely different conclusions. Both agreed that the fortunetellers’ speech was not commercial speech (which would entitle it to intermediate scrutiny). However, the Eighth Circuit in Argello v. City of Lincoln (1998) subsequently found it was entitled to the full protection of the First Amendment. The Fourth Circuit, on the other hand, in Moore-King v. County of Chesterfield (2013) found that the regulation raised no First Amendment problem at all.

On the contrary, the Third Circuit has applied intermediate scrutiny. In King v. Governor of N.J. (2014), the Court applied intermediate scrutiny, emphasizing the similarities between professional speech and commercial speech, in direct contrast to the Eighth and Fourth Circuits. The Third Circuit explained the use of intermediate scrutiny in King:

We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because of the “informational function” it serves…. [P]rofessionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non-professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. Id.

In the case of the Fifth Circuit, the court has applied rational basis review in which the court asks whether the governmental regulation of the professional expression is rationally related to a legitimate government interest. Accordingly, nearly all licensing requirements are upheld under rational basis review, regardless of any speech implications.

The Ninth Circuit, in Pickup v. Brown (2013) laid out a system in which it would sometimes apply the full-strength strict scrutiny of the First Amendment and at other times only apply rational basis review. The system is far from clear, but the court explains:

At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment—just as any person is—even though the state has the power to regulate medicine. … At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. … At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. Id.

The Circuits are divided on whether the First Amendment should apply fully all the time, not at all, or only sometimes. Confusion exists both across the circuits and within circuits themselves. For instance, the Fourth Circuit upheld restrictions on fortunetellers’ speech, but struck down an abridgement of abortion providers’ free expression. Conversely, the Eighth Circuit struck down restrictions on fortuneteller’s speech, but upheld a regulation of abortion doctor’s speech. On different matters, the Fifth Circuit upheld laws restricting tour guide’s expression while the D.C. Circuit struck down similar tour guide regulations.

Looking Forward

Lawyers, doctors, and the like constitute a significant part of our society—much more now than ever before. They provide valuable services to society, and the Supreme Court, by ducking cases involving these matters and avoiding the chance to provide much needed clarity to lower courts, is adding to the confusion surrounding professional communications. Eventually, the high court will have to address whether the activities of professionals should be considered conduct or speech. If it is deemed to be speech, the Court must then determine the appropriate level of scrutiny.