NYSRPA v. Bruen: A Supreme Court Victory for the Right to Keep and Bear Arms—and a Strong Rebuke to “Inferior Courts” – Mark W. Smith

Posted by on Aug 22, 2022 in Per Curiam

NYSRPA v. Bruen: A Supreme Court Victory for the Right to Keep and Bear Arms—and a Strong Rebuke to “Inferior Courts” – Mark W. Smith
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NYSRPA v. Bruen: A Supreme Court Victory for the Right to Keep and Bear Arms—and a Strong Rebuke to “Inferior Courts”

Mark W. Smith[1]

On June 23, 2022, the U.S. Supreme Court decided its first Second Amendment firearms case in over a decade. Its decision is enormously consequential—and highly encouraging for those who wish to see the individual right to keep and bear arms enforced according to its text. Building on District of Columbia v. Heller[2] and McDonald v. Chicago,[3] the Court held in New York State Rifle & Pistol Association v. Bruen[4] that the Second Amendment’s protection of “the right to keep and bear arms”[5] extends to individual self-defense outside the home. While that may seem obvious and uncontroversial given the text of “to bear arms,” some lower courts provided limited constitutional protections to the right by effectively treating it as a privilege—the en banc Ninth Circuit even going so far as to hold that there is no right to carry arms outside the home at all.[6]

Bruen further held that an individual’s ability to obtain a carry license cannot be conditioned on her ability to convince a government official that she faces some “special need for armed self-defense” that is different from the defense needs of the general populace.[7] Six states, including New York, had denied the Second Amendment right to carry to the majority of their citizens—in some states nearly all citizens—by applying an amorphous, discretionary test requiring the applicant to show a special need to carry a firearm.[8] In contrast to these outlier regimes, the Court cited with approval the forty-three states that have “shall-issue” permitting regimes, in which carry licenses or permits must be issued to anyone who meets specific, objective criteria.[9]

These holdings alone would go far to overcome the Second Amendment’s treatment as a “disfavored right”[10] and “constitutional orphan”[11] by the lower courts. At a stroke, the Court invalidated the outlier “may-issue” approach in the six states and effectively required them to replace those restrictive regimes with “shall-issue” systems like those in the forty-three other states. As the Court noted, “these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’”[12] They are thus consistent with the Second Amendment, to the extent they “contain only ‘narrow, objective, and definite standards’ guiding licensing officials” rather than discretionary standards that require the “exercise of judgment” on the part of the licensing officer.[13]

However, several of the six restrictive states whose laws were effectively invalidated in Bruen, including New York itself, moved immediately to circumvent the decision and to deprive their citizens of any effective right to self-defense in public. New York has done this in two major ways. The first is to enormously expand the places in which a person with a valid license cannot carry a firearm for self-defense. In Heller, the Court stated that nothing in that opinion should be construed to cast doubt on “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.”[14] “Sensitive places” is a euphemism for government-created gun free zones. But in Bruen, the Court recognized that there were relatively few sensitive places during the 18th and 19th centuries where carry could be altogether prohibited. The Court pointed to only three specific, historically supported, government-related locations where firearms were restricted: “legislative assemblies, polling places, and courthouses.”[15] Yet New York has proposed to take things much further than the government-specific locations identified by the Court; New York has declared that “sensitive places” include, among many others:

  • any place of worship or religious observation;
  • libraries, public playgrounds, zoos, and public parks (which presumably would include New York City’s Central Park);
  • nursery schools, preschools, and summer camps;
  • any place used for performances, art, entertainment, gaming, or sporting events such as theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, licensed gaming facilities, and video lottery terminal facilities;
  • the location of any program licensed, regulated, certified, operated, or funded by any of five listed state offices and departments;
  • any place, conveyance, or vehicle used for public transportation or public transit, subway cars, train cars, buses, ferries, railroad, omnibus, marine or aviation transportation; or any facility used for or in connection with service in the transportation of passengers, airports, train stations, subway and rail stations, and bus terminals;
  • any establishment issued a license for on-premises consumption of alcohol or cannabis;
  • any gathering of individuals to collectively express their constitutional rights to protest or assemble;
  • the area commonly known as Times Square, as such area is determined and identified by the city of New York; and
  • any location providing health, behavioral health, or chemical dependence care or services.[16]

Possession of a firearm in these locations is now a felony, even for individuals holding a concealed carry license.[17] Tellingly, only one location was viewed by statute as a “sensitive place” before the ruling in Bruen. School grounds were the only place in which New York statutorily banned firearms[18]—even government buildings like the state capitol, the executive mansion, and state courthouses were considered sensitive places only by regulation.[19]

Under New York’s new statute, it is also now a felony for anyone who possesses a firearm to “enter[] into or remain[] on or in private property where such person knows or reasonably should know that the owner or lessee of such property has not permitted such possession by clear and conspicuous signage indicating that the carrying of firearms, rifles, or shotguns on their property is permitted or has otherwise given express consent.”[20] Unlike many states that allow businesses and other private venues to post signs prohibiting firearms (generally giving rise only to low-level trespass violations if ignored), New York law now makes it a felony for anyone, including individuals with valid carry licenses, to carry a firearm into a private business, or on any private property, where the owner or operator has not posted signage affirmatively allowing carry. New York thus took the ordinary rule about firearms on private property—a presumption in favor of allowing carriage—and transformed it into a new, draconian rule that creates a presumption against the right to bear arms.

This portion of New York’s new law is certainly unconstitutional under Bruen. In fact, the Court anticipated this move by New York[21] when it rejected the state’s argument that its “proper cause” law could be considered a “sensitive place” restriction. New York had proposed to define as a gun-free “sensitive place” any location “where people typically congregate and where law-enforcement and other public-safety professionals are presumptively available.”[22] The Bruen Court explained that New York’s conception of “sensitive places” was ahistorical and far too broad. The Court noted that to accept New York’s interpretation of “sensitive places” would “in effect exempt cities from the Second Amendment and would eviscerate the general right to publicly carry arms for self-defense. . . .”[23]  “Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a ‘sensitive place’ merely because it is crowded and protected generally by the New York City Police Department.”[24] Yet, apparently, New York has now decided to declare much of the Empire State a “sensitive place” in defiance of the Court. It has done this by drastically expanding the list of spaces where one cannot carry a firearm—now including, but not limited to, parks, libraries, places of worship, museums, public transit, and any business establishment that has not posted a sign saying concealed carriers are welcome.[25] When all the sensitive spaces are taken into account, a New Yorker’s exercise of Second Amendment rights is virtually restricted to the street.

The second way New York is attempting to evade Bruen’s invalidation of may-issue systems is by giving significantly more discretion to licensing officials in determining not the need for a carry license, but who is good enough to obtain a license. Existing law contained a “good moral character” requirement, but that was amended, following Bruen, to mean “having the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others.”[26] To determine whether that test is met, New York has implemented a new, expanded list of disqualifiers and now also requires the applicant to meet in person with the licensing officer for an interview. It requires the applicant to submit contact information for the applicant’s current spouse or domestic partner, adult children, and four other references for the licensing officer to contact.  It further demands a list of current and former social media accounts for the past three years, and “such other information required by the licensing officer that is reasonably necessary.”[27] In other words, New York has set up a new discretionary regime to determine “good moral character.”

The inherent vice in any discretionary scheme, whether based on special need, supposed lack of character, or any other factors that are not objective, is that it allows permits to be granted or denied because of favoritism, bribery, general dislike of gun owners, bias, hatred, politics, or other arbitrary, illegitimate reasons.  For example:

In January 1956, Martin Luther King’s house was bombed. Rev. King said he was receiving threats “continuously” when he sought permission for gun licenses from an Alabama sheriff for himself and two other clergymen helping to protect him and his family. On page 3B of the February 4, 1956 Montgomery Advertiser the headline read, “Negro Leader Fails to Get Pistol Permit.”[28]

Alabama’s then-may-issue regime, which gave discretion to officials to issue a license to carry a pistol if the applicant had “good reason to fear an injury” or “other proper reason,” left Reverend King defenseless in the face of the innumerable threats against him and his family.[29]

New Jersey and California, two of the outlier states expressly criticized by the Bruen Court, are working on similar laws to deny their law-abiding residents the constitutional right to carry.[30] These intentional circumventions of Bruen’s specific holding regarding “proper cause” are blatant affronts to the Supreme Court’s decision. These new, restrictive regimes should be struck down if the Court’s “text and history” test is honestly applied, and they will doubtless be a major focus of litigation immediately post-Bruen.

Justice Kavanaugh’s concurrence in Bruen, which was joined by Chief Justice Roberts, further demonstrates the Court’s clear disapproval of the freewheeling inquisitions that states like New York, New Jersey, and California now seek to launch. Justice Kavanaugh doubled down on the majority’s rejection of discretionary licensing regimes, writing that New York’s regime was “constitutionally problematic because it grants open-ended discretion to licensing officials and authorizes licenses only for those applicants who can show some special need apart from self-defense.”[31] Justice Kavanaugh deemed problematic—as did the majority opinion in an important footnote[32]any grant of “open-ended discretion to licensing officials,” regardless of its connection to a good-cause requirement. Justice Kavanaugh explained that “the 6 States including New York potentially affected by today’s decision may continue to require licenses for carrying handguns for self-defense so long as those States employ objective licensing requirements like those used by the 43 shall-issue States.”[33] He also kept the door wide open to as-applied challenges to state regimes that operate as anything but shall-issue in practice—regardless of how they look on paper. Where exorbitant costs of time and money are required to be expended by a concealed carry applicant, a shall-issue scheme would be ripe for an as-applied challenge.[34]

In disapproving of such discretionary approaches to a constitutional right, the Bruen Court in truth did nothing novel. It simply raised the right to keep and bear arms to the same pedestal that has long been occupied by every other fundamental right. In the context of voting rights, for example, even the slightest burden on the exercise of this right is presumed invalid. From a poll tax of $1.50 in Harper v. Virginia Board of Elections,[35] to redistricting that violated its “one person, one vote” standard in Reynolds v. Sims,[36] and in many later cases, the Court has been aggressive in finding voting rights abridgments unconstitutional. This is the standard to which the Second Amendment now will be held. Impediments such as fees, taxes, labor, and delay must be subjected to searching constitutional scrutiny, and any attempt to use these procedural maneuvers to burden the fundamental right to keep and bear arms must be struck down. Gun owners ask for nothing special—only that their rights under the Second Amendment be treated equally to their rights under every other constitutional provision.

Bruen’s impact, however, does not end with definitively establishing the right of ordinary Americans to carry firearms in public. For those who have long waited for the Supreme Court to return its attention to this key constitutional right, the most significant aspect of Bruen is its interpretive approach. Bruen resoundingly repudiated the “two-step analysis” widely embraced in the lower courts. Under that test, a court first considered whether text and history brought the challenged government conduct within the Second Amendment’s scope. If no, then the gun rights plaintiffs did not prevail, as one would expect. If yes, the lower courts gave the government defendants a second bite at the apple to allow them to violate the fundamental right to keep and bear arms.   That second step applied a means-end, interest-balancing scheme using a “tiers of scrutiny” approach.[37] Rejecting this two-step process as “one step too many,” the Bruen Court embraced a return to a simple textual and historical analysis. Under this text-and-history approach—first applied in Heller and now ratified beyond any dispute by Bruen—Second Amendment analysis is focused on studying relevant laws and practices, or analogues thereto, when the Second Amendment was ratified. This approach pointedly does not task judges with “mak[ing] difficult empirical judgments” and balancing the “costs and benefits” of firearms policies—enterprises far removed from their fields of expertise.[38] As the last decade of experience shows, the lower courts have in virtually every case used the two-part test to balance away Second Amendment rights.[39]

The text and history test requires instead that judges reason by analogy; that is, that they compare today’s challenged laws with any analogous laws at the time of the Founding.  Justice Clarence Thomas, author of the Bruen opinion, set forth the kind of analogical reasoning that should be employed in Second Amendment cases:

For instance, when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. Likewise, if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional. And if some jurisdictions actually attempted to enact analogous regulations during this timeframe, but those proposals were rejected on constitutional grounds, that rejection surely would provide some probative evidence of unconstitutionality.[40]

This kind of reasoning by analogy offers robust protection for the right to keep and bear arms because, contrary to what the opponents of that right sometimes pretend, there were very few limitations on firearms in the Founding period. For most of the restrictive laws in a handful of states today, there will be a “lack of a distinctly similar historical regulation,” which should lead to the invalidation of laws that trench upon Second Amendment rights.

One question left formally undecided by Bruen is whether the Second Amendment “text and history” test is limited to examining those bans and regulations that were widely accepted when the Bill of Rights was ratified in 1791 or includes those that were accepted as constitutional in 1868 when the Fourteenth Amendment (which applied the Second Amendment to the states) was ratified. Bruen did not require the resolution of this question because the evidence from 1791 and 1868 spoke with one voice in rejecting New York’s arguments. And the Court, at least formally, reserved the resolution of that question for a case in which the evidence of the two periods pointed in opposite directions.[41]

Bruen’s focus on history is doubly important: it not only is theoretically sound, but it also provides a clear interpretive command to the lower courts in future Second Amendment cases.  The Bruen test also forces the government to shoulder the burden of showing that its laws and regulations have close historical analogues.  As Bruen made clear at multiple points in the opinion, that burden is squarely on the government.[42] If there is no relevant analogy, or if the analogy is weak, the government loses and the law must be struck down. This is wonderful news for the right to keep and bear arms, which in the past has been systematically degraded by the lower “inferior” courts.

The impact of Bruen is to require that nearly all of the hundreds of lower court decisions since Heller and McDonald that upheld restrictions under a balancing test be re-litigated under the proper constitutional test. The string of lower federal-court cases that have—in the teeth of Heller’s instructions—blessed every type of gun control measure imaginable are no longer good law, and each of these issues must now be considered anew. From age-based restrictions on adults, to onerous storage requirements, and from bans on non-violent felons, to taxes and fees that single out gun and ammunition purchases, Bruen has remade the landscape of Second Amendment analysis.[43] The lower courts will now have to take a fresh look at all of these restrictions and more, under a test far more protective of the right to keep and bear arms.

Important issues that must be reconsidered under Bruen’s text-and-history test include so-called “assault weapon” and “large capacity” magazine bans. A case from Maryland regarding “assault weapons” was sent back by the Supreme Court to the Fourth Circuit for reconsideration in light of the Bruen decision.[44] Bruen’s embrace of the text-and-history test provides clear guideposts for how the constitutionality of these types of bans must now be assessed. In short, there is zero historical support from the Founding—or even the Reconstruction era—for banning commonly possessed arms; under the Bruen test, that is the end of the matter.

States that ban so-called “assault weapons” and “large capacity” magazines will undoubtedly quote the passage by Justice Thomas suggesting that “cases implicating unprecedented societal concerns or dramatic technological changes may require a more nuanced approach” to analogizing modern restrictions to historical ones.[45] They will argue that mass killings are “unprecedented societal concerns” and that semiautomatic firearms and the magazines they use are “dramatic technological changes.” These arguments are incorrect for several reasons. Most importantly, the Founders never imposed gun bans as a solution to a societal problem, no matter how serious. Instead, they affirmed in the Second Amendment an unrestricted right to possess arms. Gun bans of any kind are strictly a 20th and 21st century phenomenon. So, the Government’s burden to sustain state or local bans on commonly possessed semiautomatic rifles and magazines over (most frequently) ten rounds will prove an exceedingly heavy one, since outright bans on common arms have no basis whatsoever in the early history of the republic.

Instead, in the Founding period, there were laws requiring people to be armed with particular kinds of weapons. The Militia Acts of 1792 required every “free able-bodied white male citizen of the respective states” between eighteen and forty-five years of age to be enrolled in the state militias. Those men were required to provide themselves, at their own expense, very specific firearms, ammunition, and equipment. Each man had to:

provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . .”[46]

There was no tradition of banning particular weapons when the Bill of Rights was adopted (or during the Reconstruction Era). It goes without saying, then, that there was no tradition of banning weapons commonly possessed by the law-abiding for lawful purposes, which is the Heller test for Second Amendment protection. The laws at the Founding prescribed the firearms citizens had to have, not those they could not have.

The Founding generation’s solution for mass killings was not to deprive ordinary citizens of weapons needed for defense, but for armed citizens to have an active role in preventing, or minimizing the harm caused by, mass killings. Second Amendment scholar Stephen Halbrook explains that in 1775, “In a widely published message to the committees of safety, Richard Caswell, William Hooper, and Joseph Hewes, North Carolina’s members of the Continental Congress, stated ‘It is the Right of every English Subject to be prepared with Weapons for his Defense.’”[47] Halbrook continues: “Incidentally, the same issue of the North-Carolina Gazette which published the above also reported an incident in which ‘a Demoniac being left in a Room, in which were 18 loaded Muskets,’ shot three men and wounded another with a sword, ‘upon which the People present, without further Ceremony, shot him dead.’”[48]  He concludes: “For the Founders, the right of the subject to be armed for defense of self and the community was necessary to suppress such tragedies–they never imagined a world in which they would be disarmed for the supposed benefit of preventing access to weapons by madmen.”[49]

And even if the Founders could not foresee specific modern weapons, that is of no consequence in determining the scope of the Second Amendment’s protections. As the Bruen Court stated:

Fortunately, the Founders created a Constitution—and a Second Amendment—“intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819). . . . Although its meaning is fixed according to the understandings of those who ratified it, the Constitution can, and must, apply to circumstances beyond those the Founders specifically anticipated.[50]

That principle includes technological improvement.  The Heller opinion observed:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications . . . and the Fourth Amendment applies to modern forms of search . . . the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.[51]

There is every reason to believe that the Founders would have welcomed the continued development of more capable firearms. The development of firearms was then, as it remains now, focused on increasing the number of available shots and minimizing the pause while reloading. From hostile Native American tribesmen to roving bands of criminals, attackers were to be feared from every quarter—often with little warning or opportunity for preparation.[52] This prompted the continuous evolution of arms that could be fired quickly and accurately. As Justice Alito observed in his Bruen concurrence, “In 1791, when the Second Amendment was adopted, there were no police departments, and many families lived alone on isolated farms or on the frontiers. If these people were attacked, they were on their own.”[53] Or, as this author has previously written, “you are your own first responder.”[54] This is one more reason why the Founding generation prized private ownership of firearms for purposes of lawful self-defense.

The Bruen approach also vindicates the Constitution’s faith in the American people. There are many constitutional rights that are built on this faith. Indeed, the whole idea of a republican form of government rests on the presumption that the people ultimately are the source of authority and sovereignty in the Nation. And we have seen the practical wisdom of Americans in practice with respect to the right to arms specifically.

Weapons like muzzle-loading black powder cannons have existed for centuries, were unregulated at the Founding, and generally remain unregulated today. Crank-fired Gatling guns have been around for over a century and a half and remain legal at the federal level. Yet, we have not seen Americans rush to acquire or use these powerful weapons for improper purposes. They have acted with restraint. Our fellow law-abiding citizens best understand their needs for self-defense and have proven that they can be trusted to determine how best to protect themselves, their families, and their communities.

It has taken well over two centuries for the American people to see the Supreme Court fully induct the Second Amendment into the family of constitutional rights. Bruen’s clear and welcome injunction to the lower courts to faithfully apply the Constitution’s text and history should keep it there in the years to come. Bruen is not just a victory for the right to keep and bear arms.  It is a victory for originalism, constitutionalism, and the rule of law—and it should be recognized and celebrated as such.

[1] Mark W. Smith is a Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, University of Oxford; Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College; Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law. He also hosts the Four Boxes Diner YouTube Channel, which addresses Second Amendment scholarship, history, and issues.  See https://www.youtube.com/channel/UCryaem-nXjC27Yci0xTNfhQ.  He is the author of multiple books including First They Came for the Gun Owners: The Campaign to Disarm You and Take Your Freedoms (Bombardier Books 2019) and #Duped: How the Anti-gun Lobby Exploits the Parkland School Shooting—and How Gun Owners Can Fight Back (Post Hill Press 2018).

[2] 554 U.S. 570 (2008).

[3] 561 U.S. 742 (2010).

[4] 142 S. Ct. 2111 (2022).

[5] U.S. Const. amend. II.

[6] Young v. Hawaii, 992 F.3d 765, 813 (9th  Cir. 2021) (en banc) (holding that “we can find no general right to carry arms into the public square for self-defense”), cert. granted, vacated, and remanded Jun. 30, 2022; see also United States v. Masciandaro, 638 F.3d 458, 471 (4th  Cir. 2011) (holding that “outside the home, firearm rights have always been more limited”).

[7] Bruen, 141 S.Ct. at 2122.

[8] Id. at 2123 n.2.

[9] Id. at 2124 n.1.

[10] Silvester v. Becerra, 138 S.Ct. 945, 945 (2018) (Thomas, J., dissenting from denial of certiorari).

[11] Id. at 952.

[12] Bruen, 141 S.Ct. at 2138 n.9.

[13] Id.

[14] Heller, 554 U.S. at 626.

[15] Bruen, 141 S.Ct. at 2133.

[16] N.Y. Penal Law § 265.01-e.

[17] See id.

[18] N. Y. Penal Law § 265.01-a.

[19] 9 CRR-NY 300-3.1.

[20] N.Y. Penal Law § 265.01-d.

[21] The Court had every reason to be wary of New York’s litigation tactics.  In a previous case, a Second Amendment challenge had been brought against certain aspects of New York City’s rules regarding transportation of firearms by license holders.  New York State Rifle & Pistol Ass’n v. City of New York, 140 S.Ct. 1525 (2020). New York City insisted that the challenged provisions were crucial for public safety, and was successful through the Second Circuit.  As soon as certiorari was granted, New York City repealed or amended the provisions at issue, and the State of New York passed state laws to enable those changes, to attempt to moot the case.  When asked at oral argument whether people in New York City were less safe because of the changes, counsel replied “no, I don’t think so.”  New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280, Transcript of Oral Argument 52 (Dec. 2, 2019).  In a divided decision, the case was ultimately held to be moot.

[22] Bruen, 141 S.Ct. at 2133.

[23] Id. at 2133.

[24] Id. at 2134.

[25] N. Y. Penal Law § 265.01-e.

[26] N. Y. Penal Law § 400.00(1)(b).

[27] Id. § 400.00(1)(f).

[28] Stephen P. Halbrook, Supreme Court’s Latest Second Amendment Case Isn’t about Race, It’s about Rights, Independent Institute (Oct. 26, 2021), https://www.washingtontimes.com/news/2021/oct/25/supreme-courts-latest-second-amendment-case-isnt-a/ [https://perma.cc/A6W7-VAKK].

[29] Uniform Firearms Act, Acts 1936 Ala. Laws, Ex. Sess., No. 82, §§ 7, 51, 52.

[30] See, e.g., Brent Johnson, Murphy wants to ban guns at N.J. hospitals, public transit, bars, and more after Supreme Court ruling, NJ.com (Jun. 27, 2022), https://www.nj.com/politics/2022/06/murphy-wants-to-ban-guns-at-nj-hospitals-public-transit-bars-and-more-after-supreme-court-ruling.html [https://perma.cc/5RB2-7S82]; see also Senator Portantino’s & California’s Response to Supreme Court’s Concealed Weapon Decision Passes Assembly Public Safety Committee, Office of Senator Anthony J. Portantino (Jun. 28, 2022), https://sd25.senate.ca.gov/news/2022-06-28/senator-portantino%E2%80%99s-california%E2%80%99s-response-supreme-court%E2%80%99s-concealed-weapon-decision.

[31] Bruen, 142 S.Ct. at 2161 (Kavanaugh, J., concurring) (emphasis added).

[32] Id. at 2138 n.9.

[33] Id. at 2162 (Kavanaugh, J., concurring) (emphasis added).

[34] See also id. at 2138 n.9 (“[B]ecause any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”).

[35] 383 U.S. 663 (1966).

[36] 377 U.S. 533 (1964).

[37] Bruen, 142 S.Ct. at 2125–27; see also Joel Alicea & John D. Ohlendorf, Against the Tiers of Constitutional Scrutiny, 41 Nat’l Aff. 72 (2019).

[38] Id. at 2127.

[39] See, e.g., Worman v. Healy, 922 F.3d 26 (1st Cir. 2019); Libertarian Party of Erie Cty. v. Cuomo, 970 F. 3d 106 (2nd Cir. 2020); Association of N. J. Rifle & Pistol Clubs, Inc. v. Attorney General N. J., 910 F. 3d 106 (3rd Cir. 2018); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013); National Rifle Assn. of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F. 3d 185 (5th Cir. 2012); Stimmel v. Sessions, 879 F.3d 198 (6th Cir. 2018); Kanter v. Barr, 919 F. 3d 437 (7th Cir. 2019); Duncan v. Bonta, 19 F.4th 1087 (9th Cir. 2021), vacated, 142 S.Ct. 2895 (2022); United States v. Reese, 627 F. 3d 792 (10th Cir. 2010); Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011).

[40] Id. at 2131.

[41] Id. at 2138.

[42] Id. at 2129, 2135, and 2138.

[43] Id. at n.4.

[44] Bianchi v. Frosh, 142 S.Ct. 2898 (2022).

[45] Bruen, 142 S.Ct. at 2132.

[46] 1 Stat. 271 (1792).

[47] Stephen P. Halbrook, The Founders’ Second Amendment: Origins of the Right to Bear Arms 105 (2008) (citing North Carolina Gazette (Newbern), July 7, 1775, at 2, col. 3).

[48] Id. at 106 (citing North Carolina Gazette (Newbern), July 7, 1775, at 3, col. 1).

[49] Id. at 106.

[50] Bruen, 142 S.Ct. at 2132.

[51] Heller, 554 U.S. at 582 (citations omitted). That the Founders anticipated technological advancements in all facets of life is illustrated by their adoption of the Patents and Useful Arts Clause in Article I, Section 8, Clause 8 of the Constitution, which grants Congress the enumerated power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

[52] During oral argument in Heller v. District of Columbia, Justice Kennedy astutely recognized that the right to keep and bear arms concerned the need of “the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that.” Transcript of oral argument, District of Columbia v. Heller, No. 07-290, at 8 (Mar. 18, 2008).

[53] Bruen, 142 S.Ct. at 2161 (Alito, J., concurring).

[54] See, e.g., Mark W. Smith, “Assault Weapon” Bans: Unconstitutional Laws for a Made-Up Category of Firearms, 43 Harv. J.L. & Pub. Pol’y 357, 370 (2019).

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Implicit Rejection of Massachusetts v. EPA: The Prominence of the Major Questions Doctrine in Checks on EPA Power – Frances Williamson

Posted by on Aug 15, 2022 in Per Curiam

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Implicit Rejection of Massachusetts v. EPA: The Prominence of the Major Questions Doctrine in Checks on EPA Power

Frances Williamson*

Over the past four decades, many landmark administrative law cases have involved challenges to environmental agency action.[1] Environmental regulation exemplifies the tensions within the administrative state: unelected agencies tackle highly technical problems with pervasive nationwide effects that impact industries and individuals alike. The Court’s recent decision in West Virginia v. Environmental Protection Agency is one such example.[2] In West Virginia, the Court considered whether the EPA’s broader conception of its authority to regulate “outside-the-fence”[3] is within the power granted by the Clean Air Act (CAA). The 6-3 opinion, authored by Chief Justice Roberts, takes aim at broad assertions of agency power in the absence of clear congressional intent through the major questions doctrine (MQD), a tool of statutory interpretation typically used as an appendage of Chevron analysis that the Court now relies upon  as a standalone principle.[4] The prominence of the MQD in West Virginia signals the Court’s growing skepticism of broad agency power and its willingness to use the doctrine in statutory interpretation. In addition, the majority and concurrence in West Virginia suggest that the current Court would have decided Massachusetts v. EPA,[5] another landmark environmental case, differently.[6]

I. Background

Section 111(a) of the CAA grants the EPA the power to regulate power plants as stationary sources under a standard called the “best system of emission reduction” (BSER).[7] Under this framework, the EPA applies a system of reduction, determined “best” by the EPA Administrator, to emissions from new and existing plants.[8] In its 2015 Clean Power Plan Rule (CPP), the EPA set the BSER for existing coal and gas power plants in a way that “caused a shift toward wind, solar, and natural gas.”[9] This approach provided the EPA with significant flexibility in the demands it placed on power plants—“in translating the BSER into an operational emissions limit, EPA could choose whether to require anything from a little generation shifting to a great deal.”[10] The EPA then settled on a program that forced the States to implement generation-shifting practices.[11]

Shortly after the 2016 presidential election, the Trump Administration repealed the rule and replaced the CPP with the Affordable Clean Energy (ACE) Rule.[12] The ACE Rule was challenged in the D.C. Court of Appeals in 2020, which determined that, contrary to what the Trump EPA asserted in its repeal of the CPP, the EPA possessed the authority to force generation shifting.[13] Shortly after this decision, and the 2020 election, President Biden’s EPA requested a stay of the court’s mandate so that the CPP did not “immediately go back into effect.”[14] However, several states challenged the EPA’s authority to regulate emissions under the CPP, culminating in West Virginia.

II. Opinion

In West Virginia, the Court considered whether the EPA had the authority to “restructure the Nation’s overall mix of electricity generation. . . [as] the ‘best system of emission reduction’ within the meaning of Section 111.”[15] Writing for the Court, Chief Justice Roberts asserted that this is a “major questions case”[16] because it involved an agency “asserting highly consequential power beyond what Congress could reasonably be understood to have granted.”[17] The majority asserted that the EPA constructed a regulatory framework devoid of clear statutory roots; basing its “newfound power in the vague language” of §111(d) of the CAA, the EPA concluded that this vague language “allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.”[18] The Court stated that the EPA had never used a systematic approach like generation shifting that looked beyond individual source emissions reduction or technological standards, and Congress would not employ the “previously little-used backwater of Section 111(d)” to confer such authority on the EPA.[19] Essentially, the EPA’s interpretation of Section 111(d) gave the EPA unprecedented authority to demand “much greater reductions in emissions based on a very different kind of policy judgment: that it would be ‘best’ if coal made up a much smaller share of national electricity generation.”[20] The majority also described how the Court could not ignore the fact that Congress “considered and rejected” such a course of action “multiple times.”[21] To the question of “whether the ‘best system of emission reduction’ identified by EPA in the [CPP] was within the authority granted to the Agency in Section 111(d),”[22] the Court employed the MQD and answered with a resounding “no.”

III. Concurrence and Dissent

Justice Gorsuch’s concurrence further bolstered the history behind the MQD and traced its roots to the separation of powers doctrine.[23]  Justice Gorsuch first outlined four questions that identify whether agency action is based on a valid, clear statement by Congress.[24]  Ultimately, he determined that the EPA’s assertion of power in the form of the CPP fit each category, and despite the dissent’s criticism, Justice Gorsuch concluded that the Court’s decision returned power to the “people’s elected representative[s]”;[25] agency power could not be used to circumvent constitutional design.

In her dissent, Justice Kagan criticized the majority and concurrence, claiming that the majority flouted “judicial modesty” in an attempt to constrain the EPA and alleging that the concurrence failed to rigorously analyze the statutory text.[26] Justice Kagan stated that Congress used “capacious” language[27]  to permit the EPA to address “new and big” problems.[28] Specifically targeting the majority’s use of the MQD, Justice Kagan argued that the MQD was inappropriate in the instant case because there was no “misfit” between agency action and statute; she emphasized that the CPP “fits perfectly” within the EPA’s wheelhouse. [29] Justice Kagan concluded that simply answering “major issues of public policy” did not expose an agency to judicial scrutiny.

IV. Implications for Massachusetts v. EPA and the Administrative State

As the nation’s approach to climate change continues to be litigated, environmental law will become increasingly salient. The impact of the majority’s use of the MQD in West Virginia is not limited to power plant regulation; this case signaled a shift in the Court’s view of agency power. In the past, the MQD appeared only as an interpretative device under the Chevron doctrine,[30] where judges used it in the “step one” analysis to determine whether a “statute [was] silent or ambiguous.”[31] In West Virginia, the doctrine appeared without mention of Chevron.

The MQD’s prominence in West Virginia implicitly rejected the logic used in past administrative and environmental decisions, notably Massachusetts v. EPA (2007).[32] In Massachusetts, the Court rejected the EPA’s argument that it lacked the statutory authority to regulate greenhouses gases on a principle similar to the MQD; Congress would have spoken clearly if it intended the EPA to regulate greenhouse gases because of their political and economic significance.[33] The EPA relied on the Court’s decision in Brown & Williamson,[34] and argued that “imposing emission limitations on greenhouse gases would have even greater economic and political repercussions than regulating tobacco.”[35] The Court, however, rejected these arguments and determined that the “EPA’s reliance” on Brown & Williamson was “misplaced.”[36] The majority stated that the analogy failed because 1) while it was “unlikely that Congress meant to ban tobacco products,” it was plausible Congress meant to allow the EPA to “only regulate emissions;”[37] and 2) in Brown & Williamson, the Court “pointed to an unbroken series of congressional enactments that made sense only if adopted ‘against the backdrop of the FDA’s consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco,’”[38] while the EPA had “not identified any congressional action that conflict[ed] with the regulation of greenhouse gases from new motor vehicles.”[39] For these reasons, the Court rejected the EPA’s reliance on Brown & Williamson and declared that the EPA had the authority to regulate greenhouse gases.

The result of West Virginia runs counter to the 2007 decision in Massachusetts, suggesting that today’s Court would decide Massachusetts differently. In West Virginia, the Court rejected its reasoning in Massachusetts; it construed EPA regulation of emissions as a major question and interpreted congressional silence as a limit rather than an authorization. First, the West Virginia Court departed from Massachusetts by holding that the EPA’s CPP posed a major question because it did not “only regulate emissions” but reconfigured the national landscape of power generation. Emphasizing that the EPA could demand “much greater reductions in emissions based on a very different kind of policy judgment” than that which Congress authorized, the Court diverged from its earlier reasoning in Massachusetts where it had rejected reliance on Brown & Williamson.[40] In Massachusetts, the Court wrote that there was nothing “counterintuitive to the notion that EPA can curtail the emission of substances” that were harming the climate, so a comparison with Brown & Williamson was unsuitable.[41] The Court highlighted that because there was no “mismatch” between regulating pollutants and emissions, unlike the FDA and tobacco, the EPA had not overreached its statutory authority.[42] The MQD as articulated by the West Virginia Court, however, did not rely on statutory “mismatch”;[43] despite Justice Kagan’s urging, the MQD weighed principles such as the separation of powers against agency interpretation.[44] While the Court of 2007 saw nothing incongruous between forcing the EPA to regulate an entirely new category of pollutants and Congressional ambiguity on the matter, the 2022 Court would view Congressional silence as a red flag; extreme authorizations of agency power require extremely clear language from Congress. Therefore, if faced with the same question the Court faced in Massachusetts, today’s Court would curb the EPA’s power in the absence of clear congressional authorization.

Second, in West Virginia, the Court departs from its reasoning in Massachusetts by interpreting congressional silence as a limit, rather than a blessing, on regulation. The West Virginia Court pointed to “an unbroken series of congressional enactments that made sense only if adopted ‘against the backdrop’” of the EPA’s inability to regulate beyond individual sources under Section 111(d) of the CAA;[45] the Court concluded that the petitioners had “identified . . . congressional action that conflicts with”[46] the CPP. The Court stated that the EPA did not succeed in its claim that the “vague language” of §111(d) of the CAA “allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself.”[47] The majority highlighted Congress’s reluctance to impose the kind of regulatory scheme outlined in the CPP as well as the absence of “outside-the-fence” regulation of power plants.[48] The Court did not ignore that Congress “considered and rejected” such a course of action “multiple times” and that a systematic approach like generation-shifting remains unprecedented under the CAA.[49] In Massachusetts, on the other hand, the Court seemed content to state that “the EPA ha[d] not identified any congressional action that conflict[ed] in any way with the regulation of greenhouse gases from new motor vehicles,” another reason why the petitioners should not have relied on Brown & Williamson, where Congress denied an agency the ability to regulate tobacco.[50] The Massachusetts Court saw the EPA’s failure to “disavow[] the authority to regulate greenhouse gases” as an open door through which additional regulatory power could enter.[51] The West Virginia Court took the opposite stance and recognized the similarities between the EPA’s actions and those of the FDA in Brown & Williamson; the West Virginia Court concluded that Congress’s failure to avow the agency’s authority to regulate never opened the door in the first place. The West Virginia Court would view the major policy implications and congressional silence in Massachusetts as a resounding “no” to regulation, not a “yes.”

The petitioners in West Virginia raised similar points as the petitioners in Massachusetts, but this time, the Court accepted the arguments and placed the Brown & Williamson decision at the forefront of a “series of significant cases” that address the “particular and recurring problem”[52] of agency aggrandizement of power. In doing so, the Court embraced Brown & Williamson as a limit on EPA power. While the Court did not name the MQD in its analysis in Massachusetts, the EPA employed the principles underlying the doctrine—the absence of explicit Congressional authorization and the unique political history of climate change.

V. Implications of Justice Gorsuch’s Concurrence for Massachusetts v. EPA and the Administrative State

Justice Gorsuch’s proposed analysis of the MQD differed from Chief Justice Roberts’s two-step analysis by forcing a more rigorous examination of the potential ambiguity in the statutory text. In West Virginia, Chief Justice Roberts performed (in the words of Justice Kagan) a two-step MQD analysis, first asking if the agency action qualifies as an “extraordinary case” and then asking where the agency finds its “clear congressional authorization” for its action.[53] It was unclear which method the Court adopted in Massachusetts; Justice Kagan remained convinced that past Courts only used a “common sense” approach that analyzed “the fit between the power claimed, the agency claiming it, and the broader statutory design.”[54] Despite Justice Kagan’s assertion, Chief Justice Roberts’s two-step approach mapped onto the Court’s analysis in Massachusetts; the difference is that the Massachusetts Court stopped at step one: the question of whether the issue of greenhouse gas regulation was an “extraordinary case.” Because there was no “mismatch” between the EPA’s authority and the agency action at-issue, the Massachusetts Court did not view the question as “extraordinary” and stopped at the first step of Chief Justice Roberts’s major questions analysis.[55] Although the Court addressed congressional authorization, it did so only by pointing to the absence of congressional disapproval. The Massachusetts Court did not rigorously analyze the second element (whether Congress expressly authorized the agency action) after they determined that the issue was not extraordinary.

Justice Gorsuch proposed four questions that courts must ask when performing major questions analysis:

  • Is the language in the legislative provision “oblique” or obscure?[56]
  • Does the “age and focus of the statute the agency invokes” align with the “problem the agency seeks to address”?[57]
  • Does the desired interpretation match the agency’s “past interpretations of the relevant statute”?[58]
  • Is there is a “mismatch” between the “agency’s challenged action and its congressionally assigned mission and expertise”?[59]

Justice Gorsuch inverted the framework used by Chief Justice Roberts and the Massachusetts Court by grounding the question of congressional authority in the first step, not the second. Instead of simply asking whether there is a congressional authorization after the determination of “extraordinariness,” Justice Gorsuch made the inquiry the threshold question—if the language was “oblique,” then the Court must become skeptical of whether there was legitimate congressional delegation. The second, third, and fourth questions of Justice Gorsuch’s framework tackled the traditional first question—answering whether the agency action was “extraordinary” by analyzing its history, past interpretations, and alignment with the agency’s purpose.

If the Court analyzed Massachusetts under Justice Gorsuch’s framework, it would likely reach a different result than that reached in 2007.

First, under Justice Gorsuch’s framework the Massachusetts Court would probably consider the language used in the legislative provision at issue in Massachusetts as “oblique”;[60] indeed, in its 2007 opinion the Massachusetts Court acknowledged that the CAA provided a “capacious definition of ‘air pollutant.’”[61] The use of the word “capacious” indicated that the 2007 Court knew that Congress did not speak with sharp clarity when defining “air pollutant” in the CAA. Therefore, analyzing Massachusetts under the first factor of Justice Gorsuch’s framework, the Court would likely view the CAA’s language as “oblique.”

Second, the Court would probably reason that the “age and focus of the statute the agency invokes” does not align with the “problem the agency seeks to address.”[62] The Massachusetts Court stated that “the Congresses that drafted §202(a)(1) might not have appreciated the possibility [of] global warming,” and thus Congress had made an “intentional effort to confer the flexibility necessary to forestall such obsolescence.”[63] Justice Gorsuch’s third factor, however, would likely highlight such a lack of foreseeability as evidence that the age of the statute does not align with the agency’s attempted use of the statute. In West Virginia, Justice Gorsuch used the example of the forty-year gap between the adoption of OSHA provisions and the COVID-19 pandemic as illustrative of a statute that does not align with the problem it seeks to address.[64] Similarly, in Massachusetts, the provision of the CAA the Court cited was first passed in 1977 and amended in 1990, decades before the climate change issue addressed in the case arose. Therefore, the age of the statute did not align with the problem the EPA sought to address, failing Justice Gorsuch’s second factor.

Third, under Justice Gorsuch’s framework the Court would probably conclude that the EPA’s desired statutory interpretation in Massachusetts did not match the agency’s “past interpretations.”[65] After debating this point, the Massachusetts Court concluded that the “EPA had never disavowed the authority to regulate greenhouse gases, and in 1998 it in fact affirmed that it had such authority.”[66] The EPA’s one-time 1998 affirmation of this regulatory authority, however, contrasted starkly with the EPA’s interpretation that it definitely lacked the authority to do so. Thus, the Massachusetts EPA seemed to fail Justice Gorsuch’s third factor of matching agency “past interpretations.”[67]

Fourth, under Justice Gorsuch’s framework, the Court would probably conclude that there was a “mismatch” between the Massachusetts EPA’s “challenged action and its congressionally assigned mission and expertise.”[68] The 2007 Court determined that the CAA’s definition of “air pollutant” “embrace[d] all airborne compounds of whatever stripe,” a determination that granted the EPA broad authority to regulate emissions across almost any industry.[69] While Justice Kagan would likely agree with the Massachusetts Court that there was no “mismatch” between EPA authority and the regulation of emissions from (essentially) the entire automotive industry,[70] today’s Court disagreed: the majority saw the economic and industrial significance of generation-shifting as outside the EPA’s wheelhouse—they lacked the expertise necessary to redefine how the entire nation receives energy.[71] As in Massachusetts, the EPA in West Virginia was tasked with regulation that involved policymaking tools they traditionally did not use.[72] Under Justice Gorsuch’s fourth factor, today’s Court would see this break from tradition as a sign that the EPA acted in a way that did not match its statutory authority.

Thus, Justice Gorsuch’s MQD framework strongly suggests that today’s Court would rule differently in Massachusetts. Justice Gorsuch’s framework also indicates that today’s Court is focused on the more demanding threshold question of congressional ambiguity rather than the abstract idea of agency-statute “mismatch.” Justice Gorsuch’s concurrence revealed the intensified rigor of the major questions analysis, and it signaled that pervasive assertions of agency authority would be met with pervasive skepticism.


West Virginia “announce[d] the arrival” of the major questions doctrine as a standalone doctrine in power plant regulation, environmental law, and administrative law.[73] Advocates should look to this case as foreshadowing the Court’s approach to non-delegation and agency authority. Some may say this opinion came as no surprise; some of the Justices have expressed skepticism about expansive delegation in the past.[74] However, the birth of the MQD as an independent tool of statutory interpretation does not simply mark a shift in environmental jurisprudence. Instead, it undermines regulatory precedent by chipping away at the logic of Massachusetts, provides a new tactic for opponents of the administrative state, and signals that today’s Court is willing to tackle the problem that broad delegation poses to foundational constitutional principles.

* Harvard Law School Class of 2023.

[1] See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984); Massachusetts v. EPA, 549 U. S. 497 (2007); Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).

[2] West Virginia v. EPA, 142 S.Ct. 2587 (2022).

[3] Transcript of Oral Argument at 12, West Virginia v. EPA, 142 S.Ct. 2587 (2022) (No. 20-1530). The phrase “outside the fence” essentially references regulation of power plant emissions that goes beyond the plant itself—i.e., the regulation does not impact the infrastructure within the fence-line of the single power plant.

[4] The MQD has appeared, in different forms, in recent cases before the Court. In the per curiam opinion Alabama Association of Realtors v. Department of Health and Human Services, the Court based its decision, in part, on the principle that Congress did not clearly authorize the Centers for Disease Control and Prevention (CDC) to exercise such significant, broad power. 141 S.Ct. 2485 (2021) (per curiam). The Court wrote “[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance.’” Alabama Ass’n of Realtors, 141 S.Ct. 2485, 2489 (2021) (per curiam) (citing Utility Air Regulatory Group, 573 U.S. at 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000))) (internal quotations omitted). Even if the statute had been ambiguous (the Court determined it was not), because Congress did not explicitly grant the CDC the power it claimed, the CDC could not exercise the “breathtaking amount of authority” to regulate landlord-tenant relationships across the nation. Id. Although not named, the MQD accompanied the Court’s statutory analysis and bolstered the conclusion that the CDC exceeded its authority.

Within six months, the Court issued another per curiam opinion in January 2022, National Federation of Independent Business v. Department of Labor, Occupational Safety & Health Administration, where it determined that the Occupational Health and Safety Administration (OSHA) exceeded its statutory authority in issuing a vaccine mandate for all who work for an employer with 100 or more employees. 141 S.Ct. 661 (2022) (per curiam). The opinion only referenced the MQD. Id. at 667. However, Justice Gorsuch’s concurrence named the MQD as the animating principle behind the decision and distinguished the major questions doctrine from the closely related nondelegation doctrine. Id. at 669 (“The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.”). Justice Gorsuch connected the MQD with the separation of powers, writing that the federal government must “properly invoke a constitutionally enumerated source of authority to regulate in this area or any other” and “act consistently with the Constitution’s separation of powers.” Id. at 667.

[5] 549 U.S. 497 (2007).

[6] Chief Justice Roberts, Justices Thomas, Alito, and Breyer were all on the Court at the time Massachusetts v. EPA was decided. Chief Justice Roberts authored a dissenting opinion that argued that the plaintiffs lacked standing; he was joined by Justices Thomas, Alito, and Scalia.

[7] 42 U.S.C. §7411(a)(1) (“The term ‘standard of performance’ means a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”).

[8] See 42 U.S.C. §7411(b)(1); 42 U. S. C. §7411(b)(1).

[9] West Virginia, 142 S.Ct. at 2601.

[10] Id.

[11] Id. at 2604.

[12] 84 Fed. Reg. 32,520 (July 8, 2019) (since vacated). The Court in West Virginia describes that the CPP was repealed on the grounds that it exceeded its statutory authority. 142 S.Ct. at 2604. The subsequent ACE Rule determined that the BSER only required minor, source-specific facility upgrades. Id.

[13] West Virginia, 142 S.Ct. at 2605. The MQD was cited by the Trump Administration EPA as a reason for the repeal of the CPP. 84 Fed. Reg. 32,520 at 32,529 (July 8, 2019).

[14] West Virginia, 142 S.Ct.. at 2606 (“The court’s decision, handed down on January 19, 2021, was quickly followed by another change in Presidential administrations. One month later, EPA moved the Court of Appeals to partially stay the issuance of its mandate as it pertained to the Clean Power Plan.”). The EPA chose to stay the reimplementation of the CPP because they were reconsidering promulgating a new §111(d) of the CAA. Id. The “EPA believed that such a result would not make sense while it was in the process of considering whether to promulgate a new Section 111(d) rule.” Id.

[15] Id. at 2606. The Court also addressed the issue of standing. The Court first held that the states had standing because they were injured by the Court of Appeals’ judgment which vacated the ACE Rule and seemed to reinstate the CPP: “to the extent the Clean Power Plan harms the States, the D.C. Circuit’s judgment inflicts the same injury.” Id. The Court did not find the government’s mootness argument persuasive—the case was not mooted just because the EPA voluntarily decided not to enforce the CPP, partially because the EPA actively defended the “legality of [the CPP’s] approach.” Id. at 2607.

[16] Chief Justice Roberts defended the major questions “thread” from attack by the dissent, claiming that cases like FDA v. Brown & Williamson, 529 U.S. 120 (2000) (a case comparison the Court rejected in Massachusetts v. EPA, 549 U.S. 497 (2007)), Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014), and the recent case NFIB v. OSHA, 142 S.Ct. 661 (2022), support the relevance and validity of major questions analysis in the space of agency authority.

[17] West Virginia, 142 S.Ct. at 2609.

[18] Id. at 2610.

[19] Id. at 2613.

[20] Id. at 2612.

[21] Id. at 2614 (citing Brown & Williamson, 529 U.S. at 144).

[22] Id. at 2616.

[23] Id. at 2616 (2022) (Gorsuch, J., concurring). Justice Gorsuch specifically emphasized the importance of the major questions doctrine with the rise of the administrative state in the 1970s, writing that the “constitutional lines at stake here are surely no less important than those this Court has long held sufficient to justify parallel clear-statement rules.” Id. at 2620.

[24] Id. at 2622.

[25] Id. at 2624.

[26] West Virginia, 142 S.Ct. at 2633 (Kagan, J., dissenting); see also id. at 2641 n.8 (“Nowhere will you find the concurrence ask: What does the phrase ‘best system of emission reduction’ mean? §7411(a)(1). So much for ‘begin[ning], as we must, with a careful examination of the statutory text.’”) (citing Henson v. Santander Consumer USA Inc., 137 S.Ct. 1718 (2017)).

[27] Id. at 2632.

[28] Id. at 2628.

[29] Id. at 2633.

[30] The majority does not employ the Chevron doctrine, or mention the case, in the opinion. See West Virginia, 142 S.Ct. 2599.

[31] Chevron, 467 U.S. at 843. This language may conjure images of other notable doctrines and axioms of interpretation—notably, the nondelegation doctrine and the assertion that Congress does not “hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001).

[32] 549 U.S. 497. Only Justice Kagan referenced the case in her dissent; the majority did not mention the case, even in reference.

[33] 549 U.S. at 512.

[34] 529 U.S. at 120.

[35] Massachusetts, 549 U.S. at 512.

[36] Id. at 530.

[37] Id. at 531.

[38] Id. (internal citation omitted).

[39] Id.

[40] West Virginia, 142 S.Ct. at 2612.

[41] Massachusetts, 549 U.S. at 531.

[42] West Virginia, 142 S.Ct. at 2624 (Gorsuch, J., concurring).

[43] Id.

[44] West Virginia, 142 S.Ct. at 2637 (Kagan, J., dissenting) (“It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”).

[45] Massachusetts, 127 S.Ct. at 1461 (internal citation omitted).

[46] Id.

[47] West Virginia, 142 S.Ct. at 2595.

[48] Transcript of Oral Argument at 12, West Virginia v. EPA, 142 S.Ct. 2587 (2022) (No. 20-1530).

[49] West Virginia, 142 S.Ct. at 2614 (internal citation omitted).

[50] Massachusetts, 127 S.Ct. at 1461.

[51] Id.

[52] West Virginia, 142 S.Ct. at 2609.

[53] Id. at 2608–10 (internal quotations omitted).

[54] West Virginia, 142 S.Ct. at 2634 (Kagan, J., dissenting).

[55] The Massachusetts Court held that “there [was] nothing counterintuitive to the notion that EPA [could] curtail the emission of substances that [were] putting the global climate out of kilter,” Massachusetts, 127 S.Ct. at 1461, and then succinctly determined that “[t]here [was] no reason . . . to accept EPA’s invitation to read ambiguity into a clear statute.” Id.

[56] West Virginia, 142 S.Ct. at 2620 (Gorsuch, J., concurring).

[57] Id. at 2623. (Gorsuch, J., concurring).

[58] Id.

[59] Id.

[60] West Virginia, 142 S.Ct. at 2620 (Gorsuch, J., concurring).

[61] Massachusetts, 127 S.Ct. at 1462.

[62] West Virginia, 142 S.Ct. at 2623 (Gorsuch, J., concurring).

[63] Massachusetts, 127 S.Ct. at 1462.

[64] West Virginia, 142 S.Ct. at 2623 (Gorsuch, J., concurring).

[65] Id.

[66] Massachusetts, 127 S.Ct. at 1461.

[67] West Virginia, 142 S.Ct. at 2623 (Gorsuch, J., concurring).

[68] Id. at 2623 (Gorsuch, J., concurring).

[69] Massachusetts, 127 S.Ct. at 1443. In addition, the 2007 Court disregarded the EPA’s argument that its actions impeded on authority traditionally reserved for the Department of Transportation by writing that the obligations of the two agencies “may overlap, but there is no reason to think [they] cannot both administer their obligations and yet avoid inconsistency.” Id. at 1462.

[70] West Virginia, 142 S.Ct. at 2637 (Kagan, J., dissenting) (“the ‘how’ of generation shifting creates no mis-match with EPA’s expertise.”).

[71] Justice Gorsuch referenced the majority’s phrasing: “requires technical and policy expertise not traditionally needed in [the] EPA’s regulatory development.” Id. at 2624 (Gorsuch, J., concurring).

[72] Id.

[73] 142 S.Ct. at 2633 (2022) (Kagan, J., dissenting).

[74] See, e.g., Gundy v. United States, 139 S.Ct. 2116 (2019) (Gorsuch, J., dissenting, joined by Roberts, C.J., and Thomas, J.).

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Berger v. North Carolina State Conference of the NAACP: A Victory for Federalism and State Autonomy – David Thompson

Posted by on Aug 11, 2022 in Per Curiam

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Berger v. North Carolina State Conference of the NAACP: A Victory for Federalism and State Autonomy

David Thompson[1]

In a term defined by landmark opinions and culture war fodder, an eight to one Supreme Court opinion concerning a state legislature’s right to intervene may seem unremarkable. Indeed, in comparison to Dobbs,[2] Bruen,[3] and West Virginia,[4] the opinion in Berger[5] received little attention. The commentariat did not, this time, clutch their pearls and breathlessly wail about the demise of democracy. But for those who care about foundational principles of federalism, the Berger opinion is far from picayune or uninteresting. It is worthy of careful study and consideration.

The case stems from the decision of the people of North Carolina to require “[v]oters offering to vote in person” to “present photographic identification.”[6] North Carolinians voted to add this language to the state constitution in November 2018, additionally providing that “[t]he General Assembly shall enact general laws governing the requirements of such photographic identification, which may include exceptions.”[7] Acting in accordance with this charge, the General Assembly approved Senate Bill 824 (S.B. 824), effectuating the constitutional demand for a voter ID law.[8]

A pitched political battle ensued. The North Carolina Governor, Roy Cooper, a Democrat elected in 2016, vetoed the bill. The Republican-controlled General Assembly rebuffed him, overriding the veto and allowing the law to take effect on December 19, 2018. Not wasting any time, the North Carolina Chapter of the National Association for the Advancement of Colored People (NAACP) sued the very next day. The NAACP named the Governor and the members of the State Board of Elections (the Board) as defendants and alleged that S.B. 824 violated the Federal Constitution.[9]

The Attorney General, a former Democratic State Senator with a public history of opposing voter ID legislation and undermining a defense of the prior law, stepped in claiming an intent to defend the Board. The Board was, in turn, populated with appointees of the Governor. As this suit unfolded in the midst of a chaotic 2020 election cycle, the Board understandably had an overwhelming interest in seeking clarity about whether it should apply the state’s voter ID law. Its stated interest was to lend stability and clarity to the Board’s task of election administration rather than to vigorously defend the law itself.[10]

Seeking to defend their handiwork, the Speaker of the State House of Representatives and the President pro tempore of the State Senate (the legislative leaders) moved to intervene. Their primary interest was simple: they wanted to win. Despite this divergence of interests among state officials, applying a presumption that the Attorney General and the Board adequately represented the legislative leaders’ interests, the District Court denied the legislative leaders’ motion to intervene. As a result, the state’s most important interest—vindicating its laws—went without representation.[11] All this, despite North Carolina law explicitly permitting the two legislative houses to participate in the State’s defense.[12]

For those needing a refresher in civil procedure, the relevant language can be found in Federal Rule of Civil Procedure 24(a)(2). The district court “must permit anyone to intervene who” can show “an interest relating to . . . the subject of the action,” and who “is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.”[13] The question of adequate representation in this context had split the Circuit Courts. In Berger, the District Court and, later, the Fourth Circuit, applied a strong presumption that the Attorney General adequately represented the State’s interests, thus keeping the legislative leaders out of the case. The Seventh Circuit applied an even stronger presumption of adequate representation when faced with a claim of intervention of right by state officials under similar circumstances, embracing a presumption that was only surmountable in instances of “gross negligence or bad faith.”[14] Elsewhere, the Sixth Circuit applies no such presumption—instead requiring only a minimal showing of inadequacy for a state official to intervene in circumstances similar to those here.[15]

The District Court and the Fourth Circuit erred grievously in finding that the Attorney General, on behalf of the Board, adequately represented the legislative leaders’ interests. These courts operated on the assumption that the Attorney General represented the State’s interest and thus the interests that the legislative leaders sought to vindicate. They assumed, wrongly, that the Board and the legislative leaders’ interests overlapped “fully.”[16] But these two groups  represented two distinct state interests: an interest in election administration and an interest in defending the law of the state, respectively.

North Carolina law recognizes that a tension often exists between legislative interests and administrative interests, the latter of which inherently rests with the Executive Branch. To ameliorate this tension, the State grants the legislative leaders “standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution.”[17] The lower courts were wrong to ignore this directive of North Carolina law and assume that the Attorney General provided adequate representation of the legislative interest. North Carolina explicitly contemplates that the State’s interests may be best represented by multiple branches of government. To reject this understanding evinces a limited respect for the virtues of federalism and system of government with co-equal branches attending to different state interests.

Fortunately, the Supreme Court stood as a bulwark against this infringement on North Carolina’s ability to choose how it will be represented in court. The Court, in an 18-page opinion penned by Justice Gorsuch, agreed that the legislature “had claimed an interest” in the lawsuit “that may be practically impaired or impeded without their participation.”[18] The majority held that “when a State chooses to allocate authority among different officials who do not answer to one another, different interests and perspectives, all important to the administration of state government, may emerge.”[19] The Attorney General may, in circumstances like that here, represent an interest that diverges in some vital way from that of the legislature. As such, the Court recognized that, were it not allowed intervention of right, the legislature’s interest in defending its law could be seriously impaired.

After dispensing with this question, the Court had only to determine that the legislature was not adequately represented in the action. Such a finding flowed easily from the holding that the legislators and the Attorney General may seek to vindicate competing interests. The Court noted that “a State’s chosen representatives should be greeted in federal court with respect, not adverse presumptions.”[20] The lower courts had improperly relied on a presumption that the Board adequately represented the legislative leaders’ interests—and had found that the legislative leaders could not overcome this presumption. Setting aside this “adverse presumption,” the Court held that, “when a duly authorized state agent seeks to intervene to defend a state law,” the “presumption of adequate representation is inappropriate.”[21]

This ruling, though unlikely to be the subject of any campaign ads, confirms a basic tenet of our federal constitutional system: “[w]ithin wide constitutional bounds, States are free to structure themselves as they wish.”[22] Where state law, as here, clearly contemplates separate representation of the state’s competing interests, the courts would “do much violence to our system of cooperative federalism” were they to override the state’s selection of representatives.[23] The Court instead chose to give great deference to the choices a state has made in structuring its government. Here, each different state “agent” is expected to represent distinct interests that the State has: defense of the law and administration of the law. The Court, evincing the appropriate respect for federalism, agreed that the duly authorized agents should have their day in court.

Berger was not the only time last term when the Court championed this principle of federalism in a case involving intervention by state officials. Earlier in the term, in Cameron v. EMW Women’s Surgical Center,[24] the Court reversed a Sixth Circuit ruling that barred the Kentucky Attorney General from intervening in defense of an abortion law that the state Health Secretary had declined to defend on appeal. In the ruling, the Court acknowledged that a State may “empower multiple officials to defend its sovereign interests in federal court.”[25] The Court further noted that a state “clearly has a legitimate interest in the continued enforceability of its own statutes . . . and a State’s opportunity to defend its laws in federal court should not be lightly cut off.”[26] Finding that the lower court’s decision to keep the Attorney General from intervening improperly hampered the State’s ability to defend its interests in the manner which it had designed for itself, the Court permitted the Attorney General to intervene

Viewed in this light, Berger and Cameron are birds of a feather. In both cases, the Supreme Court effectuated a desire to respect the governmental structure the respective states have chosen for themselves. These decisions represent not just an important victory for federalism, but also an opportunity to have more views aired in federal litigation on key constitutional questions. In an age of divided government and political polarization, these rulings have significant implications. Where state law permits it, we may see an increase in the number of Rule 24(a)(2) motions on the part of legislatures – which, in many cases, have their own perspective on how best to vindicate vital state interests in litigation.

[1] Managing Partner, Cooper & Kirk, PLLC. Lead counsel for the Petitioner in Berger.

[2] Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022).

[3] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111 (2022).

[4] W. Virginia v. Env’t Prot. Agency, 142 S.Ct. 2587 (2022).

[5] Berger v. N. Carolina State Conf. of the NAACP, 142 S.Ct. 2191 (2022).

[6] N.C. Const. art. VI., § 2(4).

[7] Id.; Berger, 142 S.Ct. at 2197.

[8] Berger, 142 S.Ct. at 2197.

[9] Id. at 2197–98.

[10] Id. at 5, 16.

[11] Id. at 5–8.

[12] N.C. Gen. Stat. Ann. § 1-72.2 (2021).

[13] Fed. R. Civ. P. 24(a)(2) (emphasis added).

[14] Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793, 799 (7th Cir. 2019).

[15] N.E. Ohio Coal. for Homeless v. Blackwell, 467 F.3d 999, 1007–08 (6th Cir. 2006); The Sixth Circuit is arguably closest to Supreme Court precedent in this area, as Trbovich v. Mine Workers established a minimal burden and promised intervention even where interests may overlap, but not fully. See Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972).

[16] Berger, 142 S.Ct. at 2197–98.

[17] N.C. Gen. Stat. Ann. § 1-72.2 (2021).

[18] Berger, 142 S.Ct at 2201.

[19] Id.

[20] Id. at 2205.

[21] Id. at 2204.

[22] Id. at 2197.

[23] Id. at 2214.

[24] Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S.Ct. 1002 (2022).

[25] Id. at 1004.

[26] Id. at 1011.

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Kennedy v. Bremerton School District: The Final Demise of Lemon and the Future of the Establishment Clause – Daniel L. Chen

Posted by on Aug 8, 2022 in Per Curiam

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Kennedy v. Bremerton School District: The Final Demise of Lemon and the Future of the Establishment Clause

Daniel L. Chen[1]

Nearly three decades ago, Justice Scalia famously lamented that the much-maligned test from Lemon v. Kurtzman[2] remained binding precedent: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence.”[3] This past June, in Kennedy v. Bremerton School District, the Supreme Court finally interred Lemon once and for all, declaring that “this Court long ago abandoned Lemon and its endorsement test offshoot.”[4] Though the precise time of death is indeterminate, all nine members of the Court now agree that Lemon no longer governs.[5]

In place of Lemon’s “ambitious, abstract, and ahistorical approach,” the Court returned to “original meaning and history,” concluding that “the Establishment Clause must be interpreted by reference to historical practices and understandings.”[6] This nuanced historical approach not only offers the best way forward for resolving Establishment Clause controversies, but will also prove largely consistent with existing Supreme Court precedent.

I.   The Lemon Test and the Departure from History

Modern Establishment Clause jurisprudence began in 1947 with Everson v. Board of Education of Ewing, when the Supreme Court for the first time incorporated the Establishment Clause against the States.[7] From that time onwards, the Court looked primarily to historical practice to guide its Establishment Clause analyses. In Everson, although the majority and dissent disagreed about what precisely constituted a religious establishment, both sides agreed that history served as the touchstone for their inquiries.[8] This historical method dominated the Court’s Establishment Clause jurisprudence for decades.[9]

In 1971, in Lemon v. Kurtzman, the Court departed from this historical inquiry.[10] The case concerned an Establishment Clause challenge to Pennsylvania’s and Rhode Island’s statutes providing aid to nonpublic schools.[11] The Pennsylvania statute provided financial reimbursements to private schools for secular educational services including teachers’ salaries, textbooks, and educational materials.[12] The Rhode Island statute supplemented the salaries of teachers of secular subjects in private schools provided the teacher did not inculcate religion in his or her classes.[13] The Court held, in an 8-1 decision, that both laws violated the Establishment Clause because private parochial schools were able to obtain funding on equal footing with private secular schools.[14]

The Court began its analysis by stating “[t]he language of the Religion Clauses of the First Amendment is at best opaque,” and that it could “only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.”[15] But instead of even attempting the type of textual or historical inquiry long demanded by its precedents, the Court assessed “cumulative criteria developed by the Court” and “gleaned” a novel three-part test to govern all Establishment Clause cases.[16] The so-called Lemon test prohibited any government action that (1) lacks a secular purpose, (2) has the primary effect of advancing or inhibiting religion, or (3) excessively entangles the government in religion.[17] The Court held that Pennsylvania’s and Rhode Island’s statutes ran afoul of the third prong and invalidated both statutes.[18]

Before long, the Lemon test became the subject of withering criticism by commentators and jurists alike.[19] The test was inherently malleable: what was meant by “secular purpose,” what was the baseline to compare whether religion was advanced or inhibited, and what kinds of “entanglement” were permitted or prohibited? This baked-in indeterminacy led to unpredictability in results and conflicting (or nonexistent) guidance to lower courts. And the criticism came across the ideological spectrum. For example, Professor Jesse Choper summarized the Court’s early applications of Lemon thusly:[20]

[A] provision for therapeutic and diagnostic health services to parochial school pupils by public employees is invalid if provided in the parochial school,[21] but not if offered at a neutral site, even if in a mobile unit adjacent to the parochial school.[22] Reimbursement to parochial schools for the expense of administering teacher-prepared tests required by state law is invalid,[23] but the state may reimburse parochial schools for the expense of administering state-prepared tests.[24] The state may lend school textbooks to parochial school pupils because, the Court has explained, the books can be checked in advance for religious content and are “self-policing”;[25] but the state may not lend other seemingly self-policing instructional items such as tape recorders and maps.[26] The state may pay the cost of bus transportation to parochial schools,[27] which the Court has ruled are “permeated” with religion; but the state is forbidden to pay for field trip transportation visits “to governmental, industrial, cultural, and scientific centers designed to enrich the secular studies of students.[28]

The Court itself acknowledged this embarrassing jurisprudence but attempted to justify its decisions as “sacrific[ing] clarity and predictability for flexibility.”[29] But to many, this was but “a euphemism . . . for . . . the absence of any principled rationale.”[30] Indeed, over time, the Court was forced to overrule many of its early decisions based on Lemon.[31]

Given this state of affairs, the Court attempted to clarify its Establishment Clause jurisprudence by modifying Lemon’s “effects” prong, beginning with Justice O’Connor 1984 concurrence in Lynch v. Donnelly.[32] This new “endorsement” test asked whether a “reasonable observer” would consider the challenged government action to endorse religion. But this test fared no better.

Utilizing the endorsement test, the Court held, for instance, that a single crèche, surrounded by a “fence-and-floral frame,” bearing a plaque stating a private organization donated the display, and located in the “most public” part of a county courthouse was unconstitutional.[33] But what about a crèche located in the “heart of the shopping district” that displayed a banner reading “SEASONS GREETINGS” along with miniature and life-sized figures of Jesus, Mary, Joseph, angels, shepherds, kings, and animals—all surrounded by a Santa Claus house, reindeer, candy-striped poles, a Christmas tree, carolers, a clown, an elephant, a teddy bear, and hundreds of colored lights?[34] Constitutional, of course.[35]

Just like Lemon, the endorsement test relied on “little more than intuition and a tape measure,”[36] “unguided examination of marginalia,” and an “Establishment Clause geometry of crooked lines and wavering shapes.”[37] This was a jurisprudence in which “a judge [could] do little but announce his gestalt.”[38]

Given these shortcomings, the Court began departing from Lemon and the endorsement test, “repeatedly emphasiz[ing] [its] unwillingness to be confined to any single test or criterion in this sensitive area,”[39] and that Lemon’s three elements were “no more than helpful signposts.”[40] In fact, the Court has not applied Lemon in Establishment Clause cases in almost two decades, and in recent years, it has come back to focus on history.

II. The Return to History

The push to refocus on history first occurred in Marsh v. Chambers.[41] There, the Court upheld the practice of opening a state legislature session with a prayer by a chaplain paid with public funds, explaining that such practices were “deeply embedded in the history and tradition of this country,” such that “[f]rom colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.”[42] Interestingly, Marsh was decided only twelve years after Lemon, but the Court did not mention Lemon, leading Justice Brennan to state in dissent that the Court was merely “carving out an exception to the Establishment Clause, rather than reshaping” it.[43]

Town of Greece v. Galloway came three decades later.[44] The decision expressly relied on Marsh to conclude that a municipality’s decision to open its monthly board meetings with a prayer did not violate the Establishment Clause.[45] To begin, the Court rejected the notion that it “carv[ed] out an exception” in Marsh and instead held that “Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.”[46] “Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.”[47] In short, “the Establishment Clause must be interpreted by reference to historical practices and understandings.”[48]

Most recently, in American Legion v. American Humanist Association, a plurality of the Court explained that “the Lemon court ambitiously attempted to find a grand unified theory of the Establishment Clause,” but later cases had “taken a more modest approach that focuses on the particular issue at hand and looks to history for guidance.”[49] Notably, six members of the Court agreed Lemon did not govern, and the dissent never once invoked Lemon to justify its reasoning.[50]

III. Kennedy v. Bremerton School District

The Court’s decision in Kennedy thus enters the scene at a time when the Supreme Court had effectively overruled Lemon, yet lower courts had repeatedly failed to heed that instruction. The lower court opinion in Kennedy was a prime example of this.[51]

Joseph Kennedy, a high school football coach at Bremerton High School, made it his practice to quietly pray and give thanks at the conclusion of football games.[52] After shaking hands with players and coaches, Kennedy would take a knee at the 50-yard line and give a brief, quiet prayer.[53] Sometimes, Kennedy prayed on his own; other times, players would voluntarily join him; still other times, opposing players would join.[54] Separately, Kennedy would give motivational speeches with religious imagery and pray in the locker room with his players.[55]

The District eventually learned about Kennedy’s locker-room prayers and religious speeches and asked him to cease those practices.[56] Kennedy complied with the District’s request, but also felt pressure to abandon his own private practice of quiet, on-field post-game prayers.[57] Kennedy asked the District to allow him to continue this private religious expression, but the District refused.[58] Although it noted that Kennedy had complied with its previous request, it forbade him from engaging in any “overt actions that could appear to a reasonable observer to endorse prayer.”[59] Kennedy refused to cease his practices, and the District placed him on administrative leave.[60]

Kennedy sued under the Free Exercise Clause and the Free Speech Clause.[61] Kennedy sought a preliminary injunction but lost in the lower courts. The Supreme Court denied certiorari, but four Justices explained that their votes were based on the preliminary posture of the case and that the denial of certiorari should not be interpreted as agreement with the lower courts’ reasoning.[62]

The case went back down, and the Ninth Circuit again ruled against Kennedy.[63] First, the panel again rejected his Free Speech claim because it found that his expression qualified as government speech since it occurred on the field during his time as a government employee.[64] The Ninth Circuit also noted that even if Kennedy’s practices were private speech, the District had an “adequate justification” for its disciplinary measures: an “objective observer” would conclude that the District had “endorsed” his religious activity by refusing to censor it, thereby violating the Establishment Clause.[65] As to Kennedy’s Free Exercise claim, the District conceded that it targeted Kennedy specifically because his conduct was religious.[66] Nonetheless, the Ninth Circuit, applying the endorsement test, upheld the District’s actions.[67] It concluded that the District had satisfied strict scrutiny because had it failed to discipline Kennedy, the District would have violated the Establishment Clause.[68]

The Ninth Circuit denied a petition for rehearing en banc, but eleven judges dissented. Notably, Judge Nelson explained that “the Supreme Court ha[d] effectively killed Lemon,” so the panel’s reliance on that decision was misguided.[69]

The Supreme Court began its analysis with the Free Exercise Clause.[70] The majority explained that because the District restricted Kennedy’s activities “because of their religious character,” its actions were by definition not neutral.[71] Nor were the District’s actions generally applicable.[72] The District created a “bespoke requirement” that only applied to Kennedy’s religious exercise and then pretextually claimed that he had failed to supervise students after games, even though other coaching staff were not required to do so.[73]

What’s important here is that even amidst ongoing discussions about the state of Free Exercise law, how to analyze neutrality and general applicability,[74] and whether Employment Division v. Smith[75] should be overruled,[76] all members of the Court—including those in dissent—agreed that the District’s actions did not fall under Smith’s lenient standard.[77] Indeed, the District had to concede that its policies were not neutral or generally applicable.[78]

The Court then addressed Kennedy’s Free Speech claim.[79] The Court analyzed Kennedy’s situation under the Pickering-Garcetti framework, which sets a different, more lenient standard for restricting the speech rights of government employees.[80] It concluded that Kennedy’s prayers were his own private speech because they were not “‘ordinarily within the scope’ of his duties as a coach.”[81] Moreover, Kennedy would pray at times when other coaches were permitted to attend to personal matters, including checking sports scores on their phones and greeting friends in the stands.[82]

What’s interesting about the Court’s Free Speech analysis is that the Court was not as unified as on the Free Exercise analysis. To begin, Justice Kavanaugh did not join the Court’s opinion as to the Free Speech Clause at all.[83] This is significant: the Court’s Free Speech analysis explains in a footnote that because the prayer was private speech and could not be credited to the District, the Court did “not decide whether the Free Exercise Clause may sometimes demand a different analysis” under the Pickering-Garcetti framework.[84] Justice Kavanaugh’s refusal to join this part of the opinion raises the question whether he would subject Free Exercise claims to Pickering-Garcetti at all—which could mean that he believes religious expression is entitled to greater protection. This would align with his earlier stated views that government actions violating “the bedrock principle of religious equality” are unconstitutional and wholly distinguishable from cases “where the government itself is engaging in religious speech.”[85]

Justice Thomas’s concurrence is similar. Justice Thomas reiterated that the Court’s decision does not decide whether or how government employees’ Free Exercise rights may be different from those belonging to the general public.[86] But in so doing, he cited to a concurrence from Justice Scalia in Borough of Duryea, Pa. v. Guarnieri, which cautioned against importing a doctrine from the Free Speech Clause into the Petition Clause.[87] Justice Scalia’s concurrence states, and Justice Thomas quotes, that any limitations on a constitutional provision must be justified by the provision’s “history” and “tradition.”[88] And to top it off, Justice Thomas noted that “the Court has never before applied Pickering balancing to a claim brought under the Free Exercise Clause,” strongly indicating that he would not apply Pickering in such cases.[89]

Justice Alito’s one-paragraph concurrence is of a piece, clarifying his view of the free speech issue. Justice Alito stated that the speech at issue was “unlike that in any of our prior cases” and agreed that the Court did not decide what standard applied under the Free Speech Clause, instead holding that the District’s actions could not be justified by any standard.[90] That may indicate, consistent with Justice Kavanaugh and Justice Thomas, that religious exercise issues may be categorically different from free speech issues. And this may be the case because unlike free speech—where almost anything goes—religious exercise must be both religious and sincere,[91] meaning the types of actions protected by the Free Exercise Clause are far more limited than those protected by the Free Speech Clause.

This brings us to the Court’s Establishment Clause holding, arguably the most important part of the case. Because the Court found that the Free Exercise Clause and the Free Speech Clause protected Kennedy’s religious expression, the Court had to assess whether the Establishment Clause provided any justification for the District’s actions. The Court held it did not because there was “only the ‘mere shadow’ of a conflict” based on “a misconstruction of the Establishment Clause.”[92]

That “misconstruction” was the District’s and the Ninth Circuit’s reliance on Lemon and the endorsement test.[93] The Court reiterated that “the ‘shortcomings’ associated” with Lemon’s “ambitious, abstract, and ahistorical approach to the Establishment Clause became so apparent that this Court long ago abandoned Lemon and its endorsement test offshoot.”[94] Citing Town of Greece and American Legion, the Court stated that Lemon and the endorsement test had been supplanted by a test based on “historical practices and understandings.”[95]

The Court, however, did not explain precisely how the historical analysis cashes out. To be sure, the Court held that “a historically sensitive understanding of the Establishment Clause” must take “coercion” into account because “coercion . . . was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”[96] And it concluded that on the facts here, the District had not demonstrated that Kennedy’s private, post-game prayers coerced any students into praying.[97] Indeed, the Court took pains to explain that “[t]he exercise in question involves . . . giving ‘thanks through prayer’ briefly and by himself ‘on the playing field’ at the conclusion of each game he coaches” and “does not involve leading prayers with the team or before any other captive audience.”[98]

But at first glance, the Kennedy opinion itself offers little more about the “hallmarks of religious establishments,” leading the dissent to claim that the majority’s “test offers essentially no guidance for school administrators.”[99] A closer examination of the opinion, however, strongly suggests the path forward for future Establishment Clause cases.

IV. So what is an Establishment of Religion?

In a section explaining that the Establishment Clause prohibits government coercion of religious exercise, Kennedy states that “[n]o doubt, too, coercion along these lines was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”[100] Then, curiously, the opinion includes a footnote at the end of that sentence that includes four notable citations.[101] That footnote, footnote 5, is a cipher for interpreting how the Court interprets the Establishment Clause by reference to history and tradition.

The first citation is to a specific portion of Justice Scalia’s dissent in Lee v. Weisman, where he explains that “one of the hallmarks of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”[102] Another citation concerns James Madison’s statements during the ratification debates, where he explained that Establishment Clause prohibited Congress from “establish[ing] a religion to which they would compel others to conform.”[103]

The remaining two sources are where things get really interesting. Those sources are Justice Gorsuch’s concurrence in Shurtleff v. City of Boston,[104] a case decided earlier this Term, and well-known scholarship authored by Professor Michael McConnell,[105] perhaps the leading law and religion scholar in the country.

In Shurtleff, the City of Boston created a public forum by permitting private groups to raise their own flags at City Hall.[106] Boston permitted all types of speakers to host their events and raise flags, never rejecting a single request until a religious group sought to raise a flag that included religious imagery.[107] Boston refused access to the religious group, asserting that permitting the group’s speech would endorse religion.[108] The Court rejected that argument, holding that Boston could not exclude speech based on the speech’s religious viewpoint.[109]

Though the majority opinion did not mention Lemon, Justice Gorsuch’s Shurtleff concurrence explained that Lemon was the root of the problem but had long been overruled, and in its place, courts must consult history.[110] Importantly, his concurrence stated that “our constitutional history contains some helpful hallmarks that localities and lower courts can rely on.”[111]

Citing to Professor McConnell’s scholarship and adopting that position in whole, Justice Gorsuch concluded that historical establishments “often bore certain other telling traits”: (1) “the government exerted control over the doctrine and personnel of the established church,” (2) “the government mandated attendance in the established church and punished people for failing to participate,” (3) “the government punished dissenting churches and individuals for their religious exercise,” (4) “the government restricted political participation by dissenters,” (5) “the government provided financial support for the established church, often in a way that preferred the established denomination over other churches,” and (6) “the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.”

Indeed, we know that the Kennedy opinion adopts these six hallmarks as the touchstone for future Establishment Clause challenges because it cites not just broadly to Justice Gorsuch’s concurrence, but specifically to the very pages containing this analysis.[113] And if there were any remaining doubt, footnote 5 refers specifically to Professor McConnell’s original scholarship laying out these six categories.[114] Thus, by incorporating the Shurtleff concurrence and Professor McConnell’s work, Kennedy makes clear that government conduct violates the Establishment Clause only when that conduct exhibits these historical characteristics of a religious establishment.[115]

Some commentators have claimed that any historical approach is lacking and would allow for religious indoctrination by public schools.[116] But the Kennedy opinion itself refutes this premise, explaining that the case concerned only Kennedy’s private prayers, not his locker-room sermons.[117] Indeed, the opinion strongly indicated that such cases would come out differently due to concerns about “a captive audience” and “compell[ing] attendance and participation in a religious exercise.”[118]

This makes sense under the historical approach. Professor McConnell has explained that “[t]he historical approach is consistent with the vast majority of the Court’s existing precedent, and indeed provides a better explanation for most of the cases.”[119] This includes Torcaso v. Watkins[120] because with test oaths, the government restricts political participation by dissenters.[121] It includes Larkin v. Grendel’s Den[122] because granting churches veto power over liquor licenses assigns civil authority to religious groups.[123] And it also includes Engel v. Vitale[124] because in school prayer, the government controls religious doctrine by composing an official prayer.[125]

It is important to note, then, that the historical approach will not be as disruptive as some claim.[126] And in its favor, the historical approach provides objectivity and predictability to the Establishment Clause analysis. Rather than “assume a baseline of complete secularism in government affairs,” which “is ahistoric, produces hostility toward religion, and impoverishes public culture,” “[a] more objective baseline consists of the body of historical practices that have been widely accepted throughout the nation’s history and are consistent with the historical meaning of the Establishment Clause.”[127]

To be sure, important questions remain unanswered. Most notably, is sharing a single characteristic of a historical religious establishment enough to render government conduct unconstitutional? The examples from Torcaso, Grendel’s Den, and Engel suggest that at least in some circumstances, yes, a single hallmark is enough. But that leads to additional questions: does it depend on the specific historical establishment? Are some hallmarks more important than others? And if more than a single hallmark is necessary, should a “sliding scale” approach apply whereby stronger showings on some hallmarks make up for weaker showings on others?

Kennedy doesn’t answer these questions, but that isn’t unusual. Often, when the Court announces a new rule of constitutional law, it provides a general principle that requires future elaboration. For example, even in the religious liberty context, lawyers need only look back ten years to Hosanna-Tabor Lutheran Church v. EEOC,[128] where the Supreme Court recognized the existence of the ministerial exception. There, the Court determined that the plaintiff’s formal title, the substance reflected in that title, the plaintiff’s own use of that title, and the important religious functions performed by the plaintiff all weighed in favor of concluding that she was a minister.[129]

Though the Court looked at these four factors, it did not fully explain whether all four were necessary or how they might relate to each other.[130] But it didn’t have to, as the case was easily resolved because the plaintiff fulfilled all four of them.[131] Over time, however, the lower courts applied and refined the factors and concluded that the fourth factor—the important religious functions performed by an employee—was the most important.[132] And before long, the Supreme Court confirmed this by holding that “the significance of th[e] factors” in Hosanna-Tabor “did not mean that they must be met—or even that they are necessarily important—in all other cases.”[133] Instead, “[w]hat matters, at bottom, is what an employee does.”[134]

Kennedy utilizes this same approach. This does create a measure of ambiguity, but it can also be considered “a commendable example of judicial minimalism” whereby “the Court decides this case, and states a general principle, but does not try to work out all its implications in advance, in the abstract.”[135] Instead, Establishment Clause jurisprudence will be decided in future cases with concrete facts, and it will require additional legal scholarship to further elaborate the contours of historical religious establishments.

[1] Daniel Chen is counsel at the Becket Fund for Religious Liberty. Becket filed an amicus brief in the case discussed in this article, but the views expressed here do not necessarily reflect the views of Becket or its clients. The author thanks his colleagues Lori Windham, Becky Ricketts, Eric Rassbach, and Hari Asuri for their thoughts and contributions. John Heo and Ari Spitzer provided excellent editorial assistance. Any errors are his own.

[2] 403 U.S. 602 (1971).

[3] Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).

[4] 142 S. Ct. 2407, 2427 (2022); see also id. at 2449 (Sotomayor, J., dissenting) (“The Court now goes much further, overruling Lemon entirely and in all contexts.”).

[5] See id.

[6] Id. at 2428 (quoting Town of Greece, N.Y. v. Galloway, 572 U.S. 565, 576 (2014)).

[7] 330 U.S. 1 (1947).

[8] Compare id. at 9–15 (surveying history of religious establishments in England and the colonies) with id. at 33 (Rutledge, J., dissenting) (“No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.”).

[9] See, e.g., McGowan v. Maryland, 366 U.S. 420, 437–40 (1961) (examining “the place of Sunday Closing Laws in the First Amendment’s history”); Torcaso v. Watkins, 367 U.S. 488, 490 (1961) (invalidating religious test oaths because they were one of the elements of “the formal or practical” religious establishments that “many of the early colonists left Europe and came here hoping to” escape); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring) (“[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers”); Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664, 680 (1970) (upholding tax exemptions for churches based on “more than a century of our history and uninterrupted practice”); see also Shurtleff v. City of Boston, 142 S. Ct. 1583, 1606 n.6 (2022) (Gorsuch, J., concurring) (collecting these cases).

[10] 403 U.S. 602 (1971).

[11] Id. at 607–610.

[12] Id.

[13] Id.

[14] Id. at 625.

[15] Id. at 612.

[16] Id.

[17] Id.

[18] Id. at 614–22.

[19] See, e.g., Mark V. Tushnet, Reflections on the Role of Purpose in the Jurisprudence of the Religion Clauses, 27 Wm. & Mary L. Rev. 997, 1004 (1986) (explaining that cases involving “‘deeply ingrained practices’” as “not readily susceptible to analysis under the ordinary Lemon approach”); Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1380–88 (1981) (criticizing the “unstructured expansiveness of the entanglement notion” and the potential that certain constructions of the effects prong may result in “the establishment clause threaten[ing] to swallow the free exercise clause”); Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673, 680–81 (1980); Lamb’s Chapel v. Ctr. Moriches Union Free School Dist., 508 U.S. 384, 398–99 (Scalia, J., concurring) (“[As of 1993], no fewer than five of the currently sitting Justices have” called for Lemon to be overruled, “and a sixth has joined an opinion doing so.” (collecting cases)).

[20] Choper, supra note 19, at 680–81.

[21] Meek v. Pittenger, 421 U.S. 349 (1975).

[22] Wolman v. Walter, 433 U.S. 229 (1977).

[23] Levitt v. Comm. for Pub. Educ., 413 U.S. 472 (1973).

[24] Comm. for Pub. Educ. v. Regan, 444 U.S. 646 (1980).

[25] Board of Educ. v. Allen, 392 U.S. 236 (1968).

[26] Meek, 421 U.S. 349.

[27] Everson v. Board of Educ., 330 U.S. 1 (1947).

[28] Wolman v. Walter, 433 U.S. 229, 252 (1977).

[29] Regan, 444. U.S. at 662.

[30] Choper, supra note 19, at 681.

[31] Michael W. McConnell, No More (Old) Symbol Cases, 2019 Cato Sup. Ct. Rev. 91, 104 (2019) (citing Agostini v. Felton, 521 U.S. 203 (1997) (overruling Sch. Dist. v. Ball, 473 U.S. 373 (1985) and Aguilar v. Felton, 473 U.S. 402 (1985)); Mitchell v. Helms, 530 U.S. 793 (2000) (plurality) (overruling Wolman v. Walter, 433 U.S. 229 (1977), and Meek v. Pittenger, 421 U.S. 349 (1975)).

[32] 465 U.S. 668, 688 (1984) (O’Connor, J., concurring); see, e.g., County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989); Allegheny, 492 U.S. at 630 (O’Connor, J., concurring in part and concurring in judgment).

[33] Allegheny, 492 U.S. at 579–81.

[34] Lynch, 465 U.S. at 671.

[35] Id.

[36] Allegheny, 492 U.S. at 675–76 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part).

[37] Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 399 (1993) (Scalia, J., concurring).

[38] Am. Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir. 1987) (Easterbrook, J., dissenting); see also Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 132 S. Ct. 13, 14–15, 17, 19, 21–22 & n.3 (2011) (Thomas, J., dissenting from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” and a “mess.”).

[39] Lynch v. Donnelly, 465 U.S. 668, 679 (1984).

[40] Van Order v. Perry, 545 U.S. 677, 686 (2005) (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)).

[41] 463 U.S. 783 (1983).

[42] Id. at 786.

[43] Id. at 796 (Brennan, J., dissenting).

[44] 572 U.S. 565 (2014).

[45] Id. at 575.

[46] Id. at 575, 577.

[47] 572 U.S. at 577.

[48] Id. at 576 (emphasis added).

[49] Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019).

[50] 139 S. Ct. at 2103–13 (Ginsburg, J., dissenting).

[51] See Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021).

[52] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2416 (2022).

[53] Id.

[54] Id.

[55] Id. The dissent asserted that these facts should have played a part in the majority’s reasoning. But at the time of its decision, the District only justified its actions based on Kennedy’s private post-game prayers. As the Court explained, “[g]overnment ‘justification[s]’ for interfering with First Amendment rights ‘must be genuine, not hypothesized or invented post hoc in response to litigation.’” Id. at 2432 (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)).

[56] Id. at 2416.

[57] Id. at 2417.

[58] Id.

[59] Id. at 2418.

[60] Id. at 2418–19.

[61] Id. at 2419.

[62] 139 S. Ct. 643 (2019).

[63] 991 F.3d 1004 (9th Cir. 2021).

[64] Id. at 1014–16.

[65] Id. at 1018–19.

[66] Id. at 1020.

[67] Id. at 1020–21.

[68] Id.

[69] 4 F.4th 910, 945–46 (9th Cir. 2021) (Nelson, J., dissenting from the denial of rehearing en banc).

[70] 142 S. Ct.  at 2421.

[71] Id. at 2422.

[72] Id.

[73] Id. at 2423.

[74] See, e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020); Tandon v. Newsom, 141 S. Ct. 1294 (2021).

[75] 494 U.S. 872 (1990).

[76] Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1883 (Alito, J., concurring).

[77] See Kennedy, 142 S. Ct. at 2426 n.3; id. at 2446 (Sotomayor, J., dissenting).

[78] Id. at 2422.

[79] Id. at 2423.

[80] Id.

[81] Id. at 2424.

[82] Id. at 2425.

[83] Id. at 2411.

[84] Id. at 2425 n.2.

[85] Morris Cty Bd. of Chosen Freeholders v. Freedom from Religion Found., 139 S. Ct. 909 (2019) (Kavanaugh, J., respecting the denial of certiorari); Shurtleff v. City of Boston, 142 S. Ct. 1583, 1594–95 (2022) (Kavanaugh, J., concurring).

[86] Kennedy, 142 S. Ct. at 2433 (Thomas, J., concurring).

[87] Id. (citing Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379. 405–06 (2011) (Scalia, J., concurring in part)).

[88] Kennedy, 142 S. Ct. at 2433 (Thomas, J., concurring).

[89] Id.

[90] Id. at 2433–34 (Alito, J., concurring).

[91] See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 235 (1972) (“The Amish in this case have convincingly demonstrated the sincerity of their religious beliefs[.]”); id. at 216 (belief that is “philosophical and personal rather than religious . . . does not rise to the demands of the Religion Clauses.”).

[92] Kennedy, 142 S. Ct. at 2432.

[93] Id.

[94] Id. at 2427.

[95] Id. at 2428.

[96] Id. at 2429.

[97] Id.

[98] Id. at 2416; see also id. at 2432 n.7.

[99] Id. at 2450 (Sotomayor, J., dissenting).

[100] Id. at 2429.

[101] Id. at 2429 n.5.

[102] 505 U.S. 577, 640–42 (1992) (Scalia, J., concurring) (emphasis in original).

[103] 1 Annals of Cong. 730–31 (1789).

[104] 142 S. Ct. 1583, 1609 (Gorsuch, J., concurring).

[105] Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003).

[106] Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

[107] Id. at 1588.

[108] Id.

[109] Id. at 1593.

[110] Id. at 1604 (Gorsuch, J., concurring).

[111] Id. at 1609.

[112] Id. (citing McConnell, supra note 105, at 2131–81).

[113] Kennedy, 142 S. Ct. at 2429 n.5 (citing Shurtleff, 142 S. Ct. at 1609–10 (Gorsuch, J., concurring).

[114] Id. at 2429 n.5.

[115] Shurtleff, 142 S. Ct. at 1609–10 (Gorsuch, J., concurring); McConnell, supra note 105 at 2115–30 (explaining different hallmarks of establishment present in various degrees among the colonies).

[116] See, e.g., Mark Joseph Stern, Supreme Court Lets Public Schools Coerce Students Into Practicing Christianity, Slate (June 27, 2022, 4:19 PM), https://slate.com/news-and-politics/2022/06/coach-kennedy-bremerton-prayer-football-public-school.html.

[117] Kennedy, 142 S. Ct. at 2422.

[118] Id. at 2431–32 (cleaned up).

[119] Michael W. McConnell, The Supreme Court And The Cross, Hoover Institution (Mar. 1, 2019), https://www.hoover.org/research/supreme-court-and-cross.

[120] 367 U.S. 488 (1961).

[121] McConnell, supra note 119.

[122] 459 U.S. 116 (1982).

[123] McConnell, supra note 119.

[124] 370 U.S. 421 (1962).

[125] McConnell, supra note 119. See also Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring).

[126] Indeed, Lemon has already been overruled in its original context of assessing whether religious organizations can be included in public-benefit programs. The Court now determines whether the government program grants benefits based on “neutral, secular criteria” and whether there exists a “historic and substantial” tradition against including religious organizations. Zelman v. Simmons-Harris, 536 U.S. 639, 653 (2002); Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2258 (2020).

[127] McConnell, supra note 119.

[128] 565 U.S. 171 (2012).

[129] Id. at 192.

[130] Id. at 190 (“We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.”).

[131] Id. at 190 (“It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”).

[132] See, e.g., Temple Emanuel of Newton v. Mass. Comm’n Against Discrimination, 463 Mass. 472, 486, 975 N.E.2d 433, 443 (2012) (“Therefore, the ministerial exception applies to the school’s employment decision regardless whether a religious teacher is called a minister or holds any title of clergy.”); Cannata v. Cath. Diocese of Austin, 700 F.3d 169, 177 (5th Cir. 2012) (“Application of the exception, however, does not depend on a finding that Cannata satisfies the same considerations that motivated the Court to find that Perich was a minister within the meaning of the exception. Rather, it is enough to note that there is no genuine dispute that Cannata played an integral role in the celebration of Mass and that by playing the piano during services, Cannata furthered the mission of the church and helped convey its message to the congregants.”); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 835 (6th Cir. 2015) (“[W]e . . . hold that where both factors—formal title and religious function—are present, the ministerial exception clearly applies.”); Fratello v. Archdiocese of N.Y., 863 F.3d 190, 205 (2d Cir. 2017) (“Where, as here, the four considerations are relevant in a particular case, ‘courts should focus’ primarily ‘on the function[s] performed by persons who work for religious bodies.’” (citation omitted)); Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655, 658 (7th Cir. 2018) (“[O]ther courts of appeals have explained that the same four considerations need not be present in every case involving the exception.”).

[133] Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063, 207 L. Ed. 2d 870 (2020).

[134] Id. at 2064.

[135] Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harv. J. L. & Pub. Pol’y 821, 835 (2012).


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Carson v. Makin and the Relativity of Religious Neutrality – Lael Weinberger

Posted by on Aug 4, 2022 in Per Curiam

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Carson v. Makin and the Relativity of Religious Neutrality

Lael Weinberger[1]

For years, religious education has produced controversies about law and religion. On the one hand, government support for or endorsement of religious education was the paradigm case for Establishment Clause violations in the mid-twentieth century.[2] On the other hand, government discrimination against religious believers on the basis of their faith has long been a paradigm case for a Free Exercise violation.[3] The Supreme Court has taken many cases in which these two principles are in apparent tension. Throughout this long line of cases, the idea of “neutrality” appears repeatedly. In the latest decision in this line, Carson v. Makin,[4] the majority and the dissent both claim to defend the true tradition of neutrality. But what each thinks neutrality means is quite different. The disagreement reveals the limits of neutrality as a guiding principle for Religion Clause jurisprudence.

I.               The Case

Over the years, school funding programs have created many opportunities to test the limits of the Religion Clauses. Carson v. Makin presents some of those familiar issues with a twist: the necessity of a school choice was, in a sense, forced upon parents. The case arose in Maine. A large percentage of the state is rural and sparsely inhabited. This creates challenges for the state’s “school administrative units.”[5] Less than half of these “school administrative units” have a secondary school (high school) of their own.[6]

To help parents navigate the challenge of not having a local high school, the state of Maine offers tuition funds to parents to cover the expenses of enrolling their children in private high schools of the parents’ choice.[7]

But Maine’s high school funding program excluded “sectarian” schools from eligibility under the program.[8] Parents who wanted to enroll their high-school-age children in religious high schools couldn’t receive any of the state funding—funding that would have been provided freely had the students been enrolled in nonreligious schools.

The plaintiffs in Carson v. Makin were two couples, both parents of high school students, who wanted to enroll their children in religious schools.[9] They sued the state, arguing that Maine was engaged in religious discrimination by refusing to make the tuition awards available to them simply on the ground that their children were attending religious schools.[10]

Presented this way, the case appeared to be an easy one. In 2017, the Supreme Court held in Trinity Lutheran that the Free Exercise Clause prohibited the state of Missouri from discriminating against religious schools when it made funding grants to improve school playgrounds available to private schools generally.[11] And in 2020, the Supreme Court held in Espinoza that the state of Montana’s prohibition on using scholarship funds to pay for education at religious schools violated Free Exercise Clause.[12] Surely Maine’s prohibition on using the tuition funds for religious schools of the parents’ own choosing would also violate the Free Exercise Clause.

But the First Circuit thought otherwise. It looked to Locke v. Davey, a 2004 case in which the Supreme Court held that the government could exclude students “pursuing a degree in devotional theology” from an otherwise generally-available state scholarship program.[13] There is potential for “tension” between the Religion Clauses, the Court opined, and there is also “play in the joints” in which states could address the tension in different ways.[14] It was fine—and not a Free Exercise problem—for a state to avoid an Establishment Clause problem by excluding this kind of exclusion of religious programs.[15] The First Circuit thought that Locke provided the right framework for evaluating the Maine program. It noted with approval that the Maine legislature had rested its policy “on its ‘interest in maintaining a religiously neutral public education system in which religious preference is not a factor.’”[16] It distinguished Trinity Lutheran and Espinoza on the ground that those cases prohibited discrimination on the basis of religious status but permitted limits on funds going to religious uses.[17] The religious school in Trinity Lutheran couldn’t be excluded from funding because it was religious, but the government could limit funding from supporting training in ministry, as in Locke. The First Circuit reasoned that the Maine program was more like Locke.[18]

Yet for the six-justice majority at the Supreme Court, the right frame of reference was Trinity Lutheran and Espinoza. According to Chief Justice Roberts, writing for the majority, Maine was not being neutral when it singled out religion as the characteristic that would disqualify a school from being eligible to receive public funds.[19] Writing for the dissent, Justice Breyer took the opposite tack with the same concept, neutrality. The state, he argued, would be best able to maintain a stance of neutrality, of being above or beyond the fray of religious sectarianism, if it is permitted to exclude religious educational institutions from public funding programs.[20]

Of course, each side had to do a bit of finagling the precedent, since neither urged any overruling. The majority managed to preserve Locke by insisting that it wasn’t an exclusion from a generally applicable grant program on the basis of religion, but was just a permissible decision by the state not to fund certain vocations. The dissent tried to reconcile its analysis with prior nondiscrimination cases by insisting that the Maine program was different in that it guaranteed a public education, which was effectively the same as guaranteeing a secular education.

II.             The Relativity of Neutrality

For decades, “neutrality” has been one of the recurring touchstones of Religion Clause jurisprudence and scholarship.[21] “In the relationship between man and religion, the State is firmly committed to a position of neutrality,” the Supreme Court proclaimed in 1963.[22] But neutrality has been a protean concept, having been used both as a justification for strict separation and as a critique of religion-excluding policies.

Neutrality’s protean character is on display again in Carson. The rhetoric of neutrality is powerful. Courts are deeply enmeshed in a tradition in which law is “neutral” in the sense of being impartial, unbiased, evenhanded, and fair. Courts are not supposed to prejudge issues. More broadly, a kind of evenhandedness is a fundamental component of rule of law norms. Laws that favor special interests are automatically suspect in the eyes of the public (even if the level of scrutiny to which they are constitutionally subjected has varied over time!). General applicability is a norm of lawmaking Constitution prohibits laws that prospectively target individuals rather than being generally applicable (e.g., bills of attainder).

In short, no position in American law benefits from being characterized as non-neutral. The position that seems to have the better claim on neutrality effectively seizes the rhetorical high ground.[23]

Both scholars and judges have argued (or at least assumed) that neutrality has special purchase in the domain of the Religion Clauses. The story told here is simple but compelling: governments have created social discord whenever they take sides in religious disputes. They have enforced conformity with a dominant religion and suppressed and persecuted dissent. In doing so, they have made religion into a point of political division, a motivation for political contestation and even unrest. The Religion Clauses of the First Amendment prohibit government establishment and guarantee free exercise. In light of this assumed background to the Religion Clauses, the argument goes, the framers had decided to take religion off the table of politics, thereby sparing the American polity from the divisiveness of religion as a flashpoint of controversy.[24]

But while this narrative is rhetorically compelling, it is simplistic. For one thing, it is not at all clear that the major concern among the founders was avoiding (say) something like the European wars of religion of the sixteenth and seventeenth centuries. And even if it was, it is not at all clear how to flesh out a guarantee of government neutrality in concrete terms.

Neutrality, it turns out, is a relative term rather than an absolute term, at least when it comes to religion. Consider ideas that circulated in the early republic. Supreme Court Justice Joseph Story famously expounded the First Amendment as requiring government neutrality only among Christian sects: “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an [sic] hierarchy the exclusive patronage of the national government.”[25]

Maybe Story was too narrow in his outlook. Maybe it wasn’t quite right to limit the matter to Christian sects. Maybe theistic sects would have been the better frame of reference. Many state constitutions required officeholders to affirm the existence of a divine being, but only one—South Carolina—explicitly established Christianity and required officeholders to specifically affirm the validity of the Christian Bible.[26]

One group widely presumed to not have much in the way of religious liberty protection was atheists, who were subject to various disabilities because they were presumed incapable of taking oaths. The rationale was that oath-taking was necessary for certain civic responsibilities, such as serving on a jury; but an oath was only credible if the oath taker actually believed in some system of divine retribution for violations of oaths.[27]

For many in the early republic, any religious liberty guarantee of neutrality was at best a neutrality among theistic believers.

By the mid-twentieth century, limiting religious liberty to theists was of course out of the question. This was the time, of course, when the Supreme Court incorporated the First Amendment against the states and began developing a jurisprudence of the Religion Clauses in earnest. Now the idea gained currency that the Religion Clauses prohibited the government from favoring, not only one religion over another, but religion over irreligion.[28] Neutrality now went a step further.

The problem that emerged over the twentieth century was that religion, like politics, gradually became visible everywhere. The personal became political. It also became religious, in this sense: religion and religious commitments have a way of coloring virtually every area of life if one looks hard enough.[29] Americans in the founding period or early republic were not likely to look very hard. They lived in a relatively homogeneous religious setting and were able to take a lot for granted—that their society was mostly not just theistic, but protestant; that public religious expressions were commonplace, among other things. But as America’s religious landscape became more diverse, less and less could be taken for granted.

For instance, most Americans at the turn of the nineteenth century were theists and found it unsurprising to have prayer in school or exhortations to religious duties in the curriculum. Noah Webster’s widely used spelling book, for instance, contained admonitions in its reading lessons such as:

  • “Rest in the Lord, and mind his word.”[30]
  • “No man may put off the law of God: My joy is in his law all the day.”[31]
  • “When they are at church they will sit, kneel, or stand still; and when they are at home, will read some good book, that God may bless them.”[32]

Of course there were religious minorities in America even in the early nineteenth century. A number of Americans did not attend church, and some theologically orthodox Christians may have objected on theological grounds to the moralistic message that (for instance) God will bless those who have proper posture at church. But the number of Americans who were offended by these exhortations was relatively small.

That number of dissenters would be larger by the mid twentieth century. Jewish Americans were still numerically a small minority, but they had become enough a part of the society’s consciousness that the term “Judeo-Christian” gained currency, and sociologist Will Herberg argued for a tripartite coalition of American religion consisting of (as the title of his influential book put it) Protestant – Catholic – Jew.[33]  The idea of public schools instructing children that church was normative became open to question in a way that it would not have been a generation earlier.

But one of the oddities that often was overlooked in the mid twentieth century was that religious choices besides traditional religion could still be religious choices. Instead, the assumption was that one could have a category of religion for one subset of issues in life, and another category of secularity that is separate and other from religion. Yet as the courts have recognized in some contexts, absence of traditional religious commitments is itself a religious decision.[34] Atheism (for instance) is a religious choice. Conversely, many traditional religions make ethical and devotional demands on adherents throughout the day and affect adherents’ views on a wide range of topics. Decisions to not pray publicly in the course of a day, or to not evaluate a public policy issue in light of a religiously-infused ethical analysis, are religiously-freighted decisions.

Religion can also affect conduct in areas less directly connected to religious devotions. In the late eighteenth century, for instance, how one defined marriage was not generally seen as an activity deeply shaped by religious commitments. In the early twenty-first century, by contrast, one might look back at the assumptions about marriage in the eighteenth century and find them deeply shaped by the broadly Christian religious culture of the time.

The more one recognizes religious diversity, and the breadth of decisions one can make about religious commitments and observances, the more one must recognize the impossibility of absolute neutrality. Indeed, some theologians and philosophers have argued that religion is virtually omnipresent in its influence and effect on the life, outlook, and conduct of individuals.[35] The more one watches for it, the more one can find religious relevance in decisions across the range of human activity—and, yes, of government activity.

The government inevitably will make decisions affecting religion when it engages in such an all-encompassing project as education.[36] Secular education is not really neutral as between religion and irreligion. To many religious adherents, it is an education that sides with irreligion insofar as it assumes that one can go through daily life without reference to religion.

III.           Locating Relative Neutrality in School Funding Policy

Justice Breyer’s dissent in Carson takes the common, and understandable, position that a secular education is a religiously neutral education. He believes that by funding religious education, the government violates its neutrality. But this reflects a simplistic interpretation of what constitutes religion. A secular education is religiously neutral only if one knows that a secular education does not take a position on any issue upon which a religious adherent might disagree. But we know that there are people of faith who believe that it is religiously deficient to educate children without reference to God; to go through a day without prayer or acknowledgment of God by the educators tasked with developing young minds; or to teach about the natural world without expressing gratitude to the creator. Secular education is not neutral to these observers.[37]

Chief Justice Roberts’ majority opinion can also be faulted for lacking self-awareness about the limits of neutrality. Insisting that equal funding for religious educational institutions is the path to neutrality is not being neutral toward those religiously committed to not supporting traditional religion in any form. The majority’s conclusion is also bound to be non-neutral in its effects.[38] If tax dollars for scholarship grants are available only to schools in which children are enrolled, this will naturally select for religious groups that have a certain minimum number of adherents in a given community. There are more Christian schools in America than Jewish schools for the simple reason that there are more adherents to Christianity. And in many communities, there are not sufficient numbers of Jews to make it feasible to start a school. Minority religions will need critical mass to be able to take advantage of these kinds of equal-access policies. The result will be that the distribution of these funds will be “lumpy” rather than an even distribution across religious perspectives. (One way to reduce the lumpiness would be to make grants available for home education. But I suspect few judges or legal scholars would be interested in extrapolating the religious neutrality position into an argument for home education funding.)

Neither the majority nor the dissent in Carson is neutral in an absolute sense. Such absolute neutrality is impossible to achieve. Religious neutrality is a myth.

Yet if the courts are to use the language of neutrality—and for now they give no indication of wishing to abandon it—then the majority’s position is the easiest to defend in the terms I have argued for here—that of a relative neutrality. The law of religious freedom is neutral not in an absolute sense but in a relative sense—relative to a particular set of background conditions. Here, the state has already established a secular education. The state is not neutral as between religion and irreligion in education; it already has a default setting in favor of non-religious education. But when the state gives parents grant money to fund education for their children when a public school is unavailable, the relatively religiously-neutral method of choosing who can and cannot get that money is to let the parents decide. The government’s thumb on the scales in favor of a particular religious outlook is then made less strong, less intrusive. The Court’s solution in Carson is to require the state to adopt a relatively religiously-neutral decision mechanism for allocating government funding for education. That approach can be critiqued for its effects or its lack of commitment to a secular education as such. But these are not critiques from a stable and objective point; they are themselves religiously non-neutral critiques. Allowing parental choice as the baseline condition, though, provides a kind of limited and relative neutrality.[39]


Neutrality is a temptingly simple way of talking about the relationship between the state and religion in America. But it only takes a bit of poking at this paradigm to realize that it is far from stable. For starters, religion has wide-ranging implications, and it is virtually impossible for the government to avoid taking a position on education that is not offensive to one or another religious perspective. In Carson, both majority and dissent tried to stake a claim to neutrality. But neither tried to define and delineate the meaning of religious neutrality in a rigorous way. If neutrality is to be defensible at all, it must be in a limited and relative form. And in that sense, the Carson majority has articulated a sensible, and relatively neutral, path for states funding education to follow when navigating the relationship between the Religion Clauses: let the parents choose. It may not be absolutely neutral, but that is unremarkable. Nothing is.



[1] Olin-Searle-Smith Fellow and Lecturer, Harvard Law School. Thanks to Charlie Capps, Owen Gallogly, Zalman Rothschild, Peter Salib, and Sarah Weinberger for feedback that made this paper better.

[2] See, e.g., Engel v. Vitale, 370 U.S. 421 (1962) (holding that school-sponsored prayer in public schools violated the First Amendment); School Dist. Of Abington v. Schempp, 374 U.S. 203 (1963) (holding unconstitutional school-sponsored Bible reading before class).

[3] See, e.g., Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).

[4] 142 S.Ct. 1987 (2022).

[5] Carson, 142 S.Ct. at 1993.

[6] Id.

[7] Id.

[8] Id. at 1994.

[9] Id.

[10] Id. at 1996.

[11] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).

[12] Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246 (2020).

[13] Locke v. Davey, 540 U.S. 712, 715 (2004).

[14] Id. at 718–19.

[15] Id. at 724.

[16] Carson ex rel. O.C. v. Makin, 979 F.3d 21, 42 (1st Cir. 2020).

[17] Id. at 33–35.

[18] Id. at 44–46.

[19] Carson ex rel. O.C. v. Makin, 142 S. Ct. 1987, 1998 (2022).

[20] Id. at 2010 (Breyer, J., dissenting).

[21] For samples from an extensive literature and caselaw, see, e.g., John Witte, Jr., Religion and the American Constitutional Experiment 289 (2005); Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 NW. U. L. Rev. 1097, 1099–1101 (2006); R. George Wright, Can We Make Sense of “Neutrality” in the Religion Clause Cases?: Seven Rescue Attempts and A Viable Alternative, 65 SMU L. Rev. 877, 882 (2012); Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669–70 (1970); Epperson v. Arkansas, 393 U.S. 97, 104 (1968) (summarizing the First Amendment as requiring “governmental neutrality between religion and religion, and between religion and nonreligion”); Wallace v. Jaffree, 472 U.S. 38, 60 (1985) (“the government must pursue a course of complete neutrality toward religion”).

[22] Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 226 (1963).

[23] For another critical account of neutrality in the Religion Clauses, see generally Frederick Mark Gedicks, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence (1995).

[24] See, e.g., Carson v. Makin, 142 S. Ct. 1987, 2004–05 (2022) (Breyer, J., dissenting); Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2284 (2020) (Breyer, J., dissenting).

[25] 3 Joseph Story, Commentaries on the Constitution 728 (§ 1871) (1833).

[26] South Carolina Const. Art. XXXVIII (1778). See also Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1436 (1990); Vincent Phillip Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585, 639 (2006); Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B.Y.U. L. Rev. 1385, 1491–94 (2004).

[27] See Jud Campbell, Testimonial Exclusions and Religious Freedom in Early America, 37 Law & Hist. Rev. 431 (2019).

[28] See Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

[29] See Roy A. Clouser, The Myth of Religious Neutrality (2d ed. 2005); David S. Caudill, Law and Belief: Critical Legal Studies and Philosophy of the Law-Idea, in Christian Perspectives on Legal Thought 109 (Michael W. McConnell, Robert F. Cochran, Jr., & Angela C. Carmella eds., 2001); Lael D. Weinberger, Religion Undefined: Competing Frameworks for Understanding ‘Religion’ in the Establishment Clause, 86 U. Det. Mercy L. Rev. 735 (2009).

[30] Noah Webster, The American Spelling Book 43 (rev. ed. 1820).

[31] Id.

[32] Id. at 46.

[33] Will Herberg, Protestant—Catholic—Jew: An Essay in American Religious Sociology (1955).

[34] See, e.g., Wallace v. Jaffee, 472 U.S. 38, 38 (1985) (explaining that “the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all”); United States v. Seeger, 380 U.S. 163, 166 (1965) (finding that a “belief that is sincere and meaningful [and] occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God” counts as sufficiently religious for purposes of conscientious objector status); Welsh v. United States398 U.S. 333, 343–44 (1970) (beliefs of comparable “strength” to “more traditional religious convictions” could be sufficiently religious for conscientious objector status even where the individual specifically said the beliefs were not religious)

[35] See, e.g., Weinberger, supra note 29, at 744–47 (collecting sources).

[36] See, e.g., Rockne M. McCarthy & James W. Skillen, Disestablishment a Second Time: Genuine Pluralism for American Schools (1982); David G. Leitch, Note, The Myth of Religious Neutrality by Separation in Education, 71 Va. L. Rev. 127 (1985).

[37] See also Gabriël A. Moens, The Menace of Neutrality in Religion, 2004 B.Y.U. L. Rev. 535, 536 (2004).

[38] See also Alan E. Brownstein, Interpreting the Religion Clauses in Terms of Liberty, Equality, and Free Speech Values-A Critical Analysis of “Neutrality Theory” and Charitable Choice, 13 Notre Dame J.L. Ethics & Pub. Pol’y 243, 254 (1999).

[39] See also Michael W. McConnell, Neutrality Under the Religion Clauses, 81 Nw. U. L. Rev. 146, 149 (1986) (arguing that the best interpretation of neutrality is one in which a regime “leave[s] decisions about religious practice to the independent judgment of the people”); Carl H. Esbeck, A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 Emory L.J. 1 (1997).

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