Litigating Religious Freedoms

8/7/2019 Litigating Religious Freedoms

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Litigating Religious Freedoms

Presentation by:

Akiva Shapiro

Gibson, Dunn & Crutcher LLPJanuary 19, 2011

From the Zoning Board

to the U.S. Supreme Court


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A Roadmap

1. What Do I Mean When I Say Litigating Religious

Freedoms?

2. The Building Blocks: First Amendment Text and Law

3. Here Come the Statutes:

RFRA, RLUIPA, Title VII & Section 1983

4. Advanced Strategy: Hybrid Claims, Attorney Fees and

What To Do When the Reporters Call

5. Hot Topics This Term (and Some Potential Pitfalls)


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What Do I Mean When I Say

Litigating ReligiousFreedoms?


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y Actions challenging the determination of a zoning official or board denyingor limiting use of property for religious purposes

y Prisoner actions seeking relief from deprivation of religious freedoms (e.g.,restrictions on access to religious texts, worship space, kosher or halal food)

y Establishment Clause challenges to, or defense of, government action (e.g.,placing a Ten Commandments monument in front of a county courthouse)

y Defense of right to express unpopular religious viewpoints

y Suits to obtain benefits for, or strike laws limiting benefits to, religiousorganizations and individuals (e.g., school vouchers for religious schools)

y Challenges to restrictions imposed on religious garb (e.g., police officer not

permitted to wear turban or cross)y Employment discrimination actions

y Suits asserting a right to pray, or a right to be free from coerced prayer

Common Religious Freedom Cases


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GDC Mixes it Up With the Best of Em

y Original Actions in Federal and State Court

y

Article 78-Type Proceedings

y Appeals on Behalf of Plaintiffs and Defendants

y

Amicus briefs on behalf of advocacyorganizations, religious umbrella groups and

defendant government bodies.


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The Building Blocks:The Building Blocks:

First Amendment Text and LawFirst Amendment Text and Law


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Sixteen words . . .

Congress shall make no law respecting an

establishment of religion, or prohibiting the freeexercise thereof...

U.S. Const., amend. I


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Distribution of religious literature (Cantwell v. Connecticut)

Compulsory education (Wisconsin v. Yoder)

Religious garb in the military (Goldman v. Weinberger)

Pledge of allegiance (West Virginia State Board of Education v. Barnette) Preservation of sacred space (Lyng v. Northwest Indian Cemetery)

Religious freedoms in prison (OLone v. Shabazz)

Bans on ritual practices (Church of Lukumi Babalu Aye v. City of Hialeah)

Facially neutral laws of general applicability (Employment Division v. Smith)

Access to scholarships for religious studies (Locke v. Davey)

. . . make a whole lot of law


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. . . and a whole lot more

Religious Displays (Van Orden v. Perry; McCreary County v.

ACLU of Kentucky)

Prayer in Schools (Santa Fe Independent School Dist. v. Doe)

Vouchers/Funding (Zelman v. Simmons-Harris; Lemon v.

Kurtzman)

Exemptions for Religious Organizations (Church of Jesus Christ of

Latter Day Saints v. Amos; Walz v. Tax Commission of City of New

York)

Taxpayer Standing (Hein v. Freedom from Religion Foundation)


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Some General Principles

Free Exercise

AfterSmith, neutral laws of general applicability are permissible

Unless they are targeted discriminatorilyBut individualized determinations are still subject to strict scrutiny

Establishment Clause: Tradition and Neutrality are King(or, The End of Separation of Church and State?)

Check the State Constitution!


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Here Come the Statutes:

RLUIPA, RFRA, Title VII and

Section 1983

[plus some state-level religious freedom acts]


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The SCOTUS/CongressFour-Step

Employment Division v. Smith

The Religious freedomrestoration act (RFRA)

City of Boerne

v. Flores

The Religious land useand institutionalizedpersons act (RLUIPA)


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RLUIPA Protects:

Land Use Applicants

PrisonersCreates Substantial

Burden andDiscrimination Causes ofAction

Governs federal, stateand local governmentbodies and officials

RLUIPAon the Loose


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Religious Freedom Restoration Act (RFRA)

AfterCity of Boerne, only applies to the federalgovernment and federal officials

But not limited to land use and prison context

All about substantial burden

Title VII of the Civil Rights Act of 1964

No discrimination in employment on the basis of religion

Employer must reasonably accommodate religious practices (holidays,

religious garb)Exception where the practice will create an undue hardship on the

employer

State Religious Freedom Statutes

The little GuysFighting the good fight as best they can


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Finally, Section 1983:specially built to help The Constitution get

wherever it needs to go

Creates cause of action against federal, state

and local governments and officials for

violations of the ConstitutionMust be an official policy or sanctioned

act no liability for rogue actors

Money damages available, including

compensatory and punitive damages


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Advanced Strategy:

Hybrid Claims, Attorney Feesand What To Do When the

Reporters Call


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A Case Study

Teaneck, NJ

Land Use Map

(single-family

residential zones inmustard yellow,

parks in green)


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Show Me the Money

Attorney fees available under RLUIPA, RFRA, Title

VII and Section 1983 (42 U.S.C. 1988)

Often available even if there was no decision on the

merits of the religious freedom question


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Hot Topics This Term

(and Some Potential Pitfalls)


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Snyder v. Phelps: The Clash of Free Exercise, Free

Speech, Respect for the Funerals of Soldiers,Homophobia, and the Right to Be Left Alone

Sossamon v. Texas: The Clash of StateSovereignty and Congressional Power UnderRLUIPA

Hot Topics This Term


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Some Potential Pitfalls

(and how to swing past them if you can)

Standing

Taxpayer Standing

Limitations on MoneyDamagesState Sovereign Immunity

Prison Litigation Reform Act

Is There a ValidConstitutional Basis forthe Law?


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The End

Documents

Litigating Religious Freedoms