Nahmod Law

The Establishment Clause

In Woodring v. Jackson County, Indiana, 986 F.3d 979 (7^th Cir. 2021), the Seventh Circuit, relying on the Supreme Court’s decision in American Legion, noted below, that emphasized “a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas,” upheld a nativity scene on government property against an Establishment Clause challenge. Judge Hamilton dissented, arguing that Supreme Court and Seventh Circuit precedent demanded a contrary result. 

Recall that in American Legion v. American Humanist Ass., 139 S. Ct. 2067 (2019), the Supreme Court upheld, as against an Establishment Clause challenge, a 32-foot Latin cross erected on government property in 1925 as a tribute to soldiers who died in the First World War. Justice Kagan joined parts of Justice Alito’s main opinion for the Court; Justice Gorsuch and Thomas agreed with parts of it, although they did not join any of it; and Justices Ginsburg and Sotomayor dissented.

The Free Exercise Clause 

In Carson as next friend of O.C. v. Makin, 979 F.3d 21 (1^st Cir. 2020), cert granted, 2021 WL 2742783 (U.S. 2021), the First Circuit rejected, among other claims, a Free Exercise Clause challenge to Maine’s requirement that a private school, in order to be approved to receive tuition assistance payments, must be a “nonsectarian school in accordance with the First Amendment of the United States Constitution.” It asserted that the Supreme Court’s decisions in Trinity Lutheran Church v. Comer, 137 S. Ct. 2012 (2017) and Espinoza v. Montana Dept. of Revenue, 140 S. Ct. 2246 (2020), did not call for a different result. Carson will be argued in the Court’s October 2021 Term.

The Second Circuit held that an executive order of New York’s governor, issued during the Covid-19 pandemic and limiting the maximum available occupancy in houses of worship in certain zones to 10 to 25 persons, while not restricting other businesses he considered “essential,” violated the Free Exercise Clause. Agudath Israel of America v. Cuomo, 983 F.3d 620 (2d Cir. 2020). The executive order was subject to strict scrutiny because it was not facially neutral and it imposed “greater restrictions on religious activities than on secular ones.” In addition, it did not survive strict scrutiny because it was not narrowly tailored to address the public health concern. See also Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 208 L. Ed. 2d 206 (2020), finding a “strong showing” that the plaintiffs were likely to prevail.

Comments

For related decisions of the Supreme Court, and for many more circuit court decisions, see §3:15 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition)(West).

For Free Exercise Clause fans, check out the various opinions in Fulton v. City of Philadelphia, 593 U.S. – (2021), which struck down under the Free Exercise Clause, and as applied to Catholic Social Services, a provision in Philadelphia’s contracts with foster care providers that said in part that “Provider shall not reject a child or family … based … upon … their sexual orientation.” I wonder how viable Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990), now is. Recall that the Court here held that government need not justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use.

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