2019-08-23 17:18:31

As I wrote earlier this morning, a divided Eighth Circuit panel has just held that videographers have a Free Speech Clause right not to create same-sex wedding videos, notwithstanding any antidiscrimination law that requires them to treat same-sex weddings and opposite-sex weddings equally. But the videographers also raised a claim under the Free Exercise Clause.

The general Free Exercise Clause under the First Amendment: In Employment Division v. Smith (1990), the Supreme Court held that religious objectors are generally not entitled to an exemption from religion-neutral, generally applicable laws. The Minnesota antidiscrimination law would likely qualify as such a religion-neutral, generally applicable laws, because it applies to conduct whether it is religious or not, and because there’s no evidence that it was motivated by hostility to religion.

The “hybrid rights” exception: Smith, however, set forth an exception to its general rule. Two decades before SmithWisconsin v. Yoder (1972) held that the Amish were entitled to an exemption from a generally applicable law requiring children to attend schools (public or private) up to 16; and Smith did not overrule Yoder on this score. Rather, Smith dealt with Yoder—and some past cases that used the Free Exercise Clause to protect the rights of religious speakers—like this (most citations omitted):

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents, acknowledged in Pierce v. Society of Sisters (1925), to direct the education of their children, see Wisconsin v. Yoder (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). [Footnote: [Yoder] specifically adverted to the non-free-exercise principle involved … [by saying] that “the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”] Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion. And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.

The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls.

This is a mysterious, mystifying, and perhaps mystical passage. I think the Smith decision is correct, but even I think that its explanation of Yoder is pretty poor. And lower courts have understandably split on what it means.

Some have dismissed the “hybrid situation” analysis as dictum, and sufficiently unhelpful dictum that those courts have felt free to reject it.

Some have concluded that “hybrid situation” simply refers to a situation where the religious objectors have a winning claim on some other right, so that the religious objectors would win but not because of the Free Exercise Clause; under this approach, there would likewise be no right to religious exemptions from generally applicable laws even when another right is in play—only the other right would matter.

But some courts have held that the Free Exercise Clause does provide extra protection when the claimant can “make out a ‘colorable claim’ that a companion right has been violated—that is, a ‘fair probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.”

So if courts conclude that a “hybrid situation” under Smith is merely a situation where the religious claimant also has some other winning constitutional claim, then the Free Exercise Clause wouldn’t add anything to the analysis (see the general Free Exercise Clause discussion above): The religious claimants’ objection would stand or fall on their free speech claim.

But if courts accept the “colorable claim” theory, then they would have to decide whether the objectors’ free speech claim is “colorable” (whatever that might mean); and, if it is, then the standard of scrutiny would be elevated from that normally used for speech restrictions (which is sometimes strict scrutiny but sometimes, as for content-neutral restrictions, intermediate scrutiny), to the “strict scrutiny” used in cases such as Yoder—a religious exemption would have to be granted unless denying it would be “narrowly tailored” to a “compelling government interest.” In principle, this might mean that objectors to making same-sex wedding videos who are religiously motivated might win, even if objectors who lack a religious motivation would lose. (Most objections to providing goods and services for same-sex wedding ceremonies in the U.S. today seem to be religiously motivated, but in principle that needn’t be so. Indeed, back in the day, the officially atheistic Soviet Union banned and often punished same-sex sexual behavior—obviously, not a good reason for nonreligious people to do the same, but evidence that nonreligious people do indeed sometimes object to such behavior, and may similarly not want to be involved with same-sex weddings.)

The same-sex wedding video case: This issue arose in the Eighth Circuit case, though the argument seems to have bene superfluous in this particular context. Here’s the majority:

The basic premise of the Larsens’ free-exercise claim is that the MHRA, as interpreted by Minnesota, prevents them from freely exercising their religious beliefs. It does so, the Larsens say, because they will have to either show support for same-sex marriage, even though they object to it on religious grounds, or refrain from making wedding videos at all. This is not a typical free-exercise claim.

Those seeking relief under the Free Exercise Clause of the First Amendment will ordinarily argue that their religion requires them to engage in conduct that the government forbids or forbids certain conduct that the government requires. If the Larsens’ claim fell into one of those two categories, then we would simply apply the rule that neutral, generally applicable laws that incidentally burden “a particular religious practice” do not have to be “justified by a compelling governmental interest.”

But the Larsens have alleged that the MHRA burdens their religiously motivated speech, not their religious conduct. So their claim falls into the class of “hybrid situation[s]” in which “the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech,” can “bar[] application of a neutral, generally applicable law.” Because the Larsens’ free-exercise claim is “[]connected with [their] communicative activity,” in other words, the Larsens may use their “Free Exercise Clause concerns” to “reinforce[]” their free-speech claim.

Minnesota, the district court, and the dissent seem to think that we can simply ignore the hybrid-rights discussion from Smith because it was dicta…. [But to reach its conclusion upholding a “neutral, generally applicable law” that interfered with the sacramental use of peyote, Smith] had to grapple with a long line of cases that had treated the Free Exercise Clause as a shield against laws burdening  religious practices. Rather than overrule these decisions, the Court explained that they involved “hybrid situation[s]” in which a free-exercise challenge was intertwined with another constitutional right.

This means that Smith did more than simply speculate about how to treat a hybrid claim in some hypothetical future case. Rather, it described the operation of an existing doctrine, one that it then applied to the parties. See id. (highlighting that “[t]here [was] no contention that Oregon’s drug law represent[ed] an attempt to regulate … the communication of religious beliefs” (emphasis added)). Although the claimants did not prevail under the hybrid-rights doctrine in Smith, the Court’s discussion of it was far from dicta.

Of course, it is not at all clear that the hybrid-rights doctrine will make any real difference in the end. After all, the Larsen’s free-speech claim already requires the application of strict scrutiny. As a practical matter, then, the fact that the videos also have religious significance may not move the needle much. But because the Larsens have adequately alleged a hybrid-rights claim in their complaint, the district court must allow them to develop it on remand….

The dissent expressed doubt about the hybrid-rights doctrine generally, but concluded that it was irrelevant because—under the dissent’s view—”the Larsens do not have a valid free speech claim.” Neither side discussed what would happen had the Larsens’ claim been merely “colorable,” which is when the hybrid rights Free Exercise Clause theory could have potentially made a difference (rather than just being duplicative of the Free Speech Clause claim).

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