July/August 2021 Issue

Also in this issue: Wisconsin Supreme Court Holds DNR’s Broad Statutes Provide “Explicit” Authority to Take Challenged Actions; Dissent Decries “Calamitous Decision”     |     PSC Dismisses Complaint Challenging Extraterritorial Sewer Service “License Fee”

Supreme Court Signals that Government Agencies Should Be Very Wary of Denying Exceptions to Regulatory, Licensing and Contracting Requirements that Burden the Free Exercise of Religion

Richard L. Bolton | 07.23.21

The United States Supreme Court has made clear in two recent decisions that government agencies that regulate, license, or contract may not readily deny exceptions to their requirements that burden the free exercise of religion. Such requirements are subject to strict scrutiny. Under this standard of review, government agencies bear the burden of proving both that their regulations serve a compelling governmental interest and that their regulations are narrowly tailored. This is a very demanding standard. 

In Fulton, et al v. City of Philadelphia, et al (June 17, 2021) (Fulton), the Supreme Court held that the City’s refusal to contract with a catholic foster care provider unless the provider certified same-sex couples as foster parents violated the Free Exercise Clause of the First Amendment to the United States Constitution. The Court rendered its decision on June 17, 2021, followed two weeks later by its decision in Amos Mast, et al v. Fillmore County, Minnesota, et al (July 2, 2021) (Mast). In Mast, the Court reversed a decision of the Court of Appeals of Minnesota that had upheld Fillmore County’s right to require an Amish community to install modern septic systems for the disposal of water used in dishwashing, laundry, and the like. The Supreme Court did not substantively rule on the merits in Mast, but remanded to the Minnesota Court of Appeals for reconsideration of its earlier decision in light of the Supreme Court’s decision in Fulton. The clear implication of the Court’s remand, made clear in Justice Gorsuch’s concurrence, is that the Minnesota Court did not appropriately consider the free exercise issue involved.

The Free Exercise Clause of the First Amendment prohibits government action that substantially burdens the free exercise of religion. The foster care provider in Fulton argued that its religious exercise was burdened by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs. The Supreme Court agreed with this analysis and proceeded to determine whether Philadelphia’s same-sex regulation violated the Constitution. In the final analysis, the Court unanimously concluded that Philadelphia’s requirement did not serve a compelling governmental interest and that its certification requirement was not narrowly tailored, i.e., the least restrictive means of furthering a compelling governmental interest.

The Supreme Court’s subsequent decision in Mast remanded with direction to the Minnesota Court of Appeals to reconsider its decision requiring religious objectors to install modern septic systems. The Supreme Court did not expressly direct the Minnesota Court of Appeals to change its earlier opinion, but the concurrence by Justice Gorsuch outlines a path of analysis strongly suggesting that the Amish group should not be required to install septic systems contrary to their religious views regarding modern technologies.

In the first place, according to Justice Gorsuch, the County’s general interest in sanitation regulations should not be deemed compelling without reference to the specific application of those rules to the specific religious community. As deduced from Fulton, courts should not rely on broadly formulated governmental interests, but must scrutinize the asserted harm of granting specific exceptions to particular religious claimants. Accordingly, the relevant question is deemed not to be whether the County has a compelling interest in enforcing its septic system requirement generally, but whether it has such an interest in denying an exception to the specific Amish community at issue.

Justice Gorsuch’s concurrence in Mast also emphasizes that courts should carefully consider exemptions available to others. As the Court stated in Fulton, the government must offer a compelling reason why it has a particular interest in denying an exception to a religious claimant while making exceptions available to others.

Justice Gorsuch also advises that government bodies must give consideration and weight to rules of other jurisdictions that militate against the government’s claimed compelling interest in a prescribed regulation. Justice Gorsuch states that it is the government’s burden to show that alternatives won’t work; it is not the religious claimant’s burden to show that an alternative will work. If the government can achieve its interest in a manner that does not burden religion, it must do so, according to the Supreme Court. This means, according to Justice Gorsuch, that government agencies must prove with evidence, rather than supposition, that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate. In Mast, the Amish community proposed to use mulch basins, which the County now has the burden to prove will not work on the particular farms of the particular Amish families involved.

Several cautionary generalizations can be derived from the Supreme Court’s recent decisions. First, government regulatory, licensing, and contracting requirements that impact the free exercise of religion, including by requiring implicit endorsements contrary to religious belief, will be reviewed with disfavor by courts. Second, if exceptions to government requirements are allowed in the discretion of an agency decision-maker, the government’s requirements will be deemed to not be neutral and of general applicability. Third, the denial of exceptions to religious claimants will be rigorously reviewed in comparison to other exemptions when addressing the question of compelling governmental interest and narrowly tailored fit. Finally, when considering alternatives proposed by religious claimants, the government has the burden to disprove the effectiveness of alternatives to accomplish the government’s interest.

The provision for exceptions to agency regulatory, licensing or contractual requirements is emphasized by the Supreme Court as a door opener to religious claimants, but may not be practically avoidable. In such cases, the refusal to accommodate specific religious exceptions will be strictly scrutinized with disfavor. Such situations should be considered by government bodies with reference to the specific circumstances of the religious claimant. A generalized concern, moreover, about opening the flood gates to exceptions will not support the government body’s position.