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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