Litigating Religious Freedoms

From the Zoning Board

to the U.S. Supreme Court

Presentation by:
Akiva Shapiro

Gibson, Dunn & Crutcher LLP

January 19, 2011
 A Roadmap

1. What Do I Mean When I Say “Litigating Religious

Freedoms”?
2. The Building Blocks: First Amendment Text and Law
3. Here Come the Statutes:
RFRA, RLUIPA, Title VII & Section 1983
4. Advanced Strategy: Hybrid Claims, Attorney Fees and
What To Do When the Reporters Call
5. Hot Topics This Term (and Some Potential Pitfalls)

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What Do I Mean When I Say
“Litigating Religious
Freedoms”?

3
 Common Religious Freedom Cases
 Actions challenging the determination of a zoning official or board denying
or limiting use of property for religious purposes
 Prisoner actions seeking relief from deprivation of religious freedoms (e.g.,
restrictions on access to religious texts, worship space, kosher or halal
food)
 Establishment Clause challenges to, or defense of, government action (e.g.,
placing a Ten Commandments monument in front of a county courthouse)
 Defense of right to express unpopular religious viewpoints
 Suits to obtain benefits for, or strike laws limiting benefits to, religious
organizations and individuals (e.g., school vouchers for religious schools)
 Challenges to restrictions imposed on religious garb (e.g., police officer not
permitted to wear turban or cross)
 Employment discrimination actions
 Suits asserting a right to pray, or a right to be free from coerced prayer

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GDC Mixes it Up With the Best of ‘Em…

 Original Actions in Federal and State Court

 Article 78-Type Proceedings

 Appeals on Behalf of Plaintiffs and Defendants

 Amicus briefs on behalf of advocacy

organizations, religious umbrella groups and
defendant government bodies.

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 The Building Blocks:
First Amendment Text and Law

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 Sixteen words . . .

“Congress shall make no law respecting an

establishment of religion, or prohibiting the
free exercise thereof...”

U.S. Const., amend. I

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 . . . make a whole lot of law
• Distribution of religious literature (Cantwell v. Connecticut)
• Compulsory education (Wisconsin v. Yoder)
i s e
rc
•
e
Religious garb in the military (Goldman v. Weinberger)
x
• E of Education v. Barnette)
Pledge of allegiance (West Virginia State Board
e
• e
Preservation of sacred space (Lyng v. rNorthwest Indian Cemetery)
F
f v. Shabazz)
• o
Religious freedoms in prison (O’Lone
s of Lukumi Babalu Aye v. City of Hialeah)
• d
Bans on ritual practices (Church
n
• Facially neutral laws of K
i
general applicability (Employment Division v. Smith)
• m
Access to scholarships
e for religious studies (Locke v. Davey)
S o
s t s:
Ju ase
C

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 . . . and a whole lot more

e County v.
– Religious Displays (Van Orden v. Perry; McCreary
s
ACLU of Kentucky) lau C
– t
Prayer in Schools (Santa Fe IndependentnSchool Dist. v. Doe)
e
– hm
Vouchers/Funding (Zelman v. Simmons-Harris; Lemon v.
l i s
Kurtzman)
tab
– Es
Exemptions for Religious Organizations (Church of Jesus Christ
of Walz v. Tax Commission of City of
of Latter Day Saints v. Amos;
ds
New York)
i n
– Taxpayer Standinge K(Hein v. Freedom from Religion Foundation)
om
ts S s
Ju ase
C
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 Some General Principles

• Free Exercise
– After Smith, neutral laws of general applicability are permissible
– Unless they are targeted discriminatorily
– But individualized determinations are still subject to strict scrutiny

• Establishment Clause: Tradition and Neutrality are King

(or, The End of “Separation of Church and State”?)

• Check the State Constitution!

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 Here Come the Statutes:
RLUIPA, RFRA, Title VII and
Section 1983

[plus some state-level religious freedom acts]

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 The SCOTUS/Congress
Four-Step

Employment Division v. Smith

The Religious freedom

restoration act (RFRA)

City of Boerne v.
Flores
The Religious land use
and institutionalized
persons act (RLUIPA)

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 RLUIPA
on the Loose

– RLUIPA Protects:
• Land Use Applicants
• Prisoners
– Creates “Substantial
Burden” and
Discrimination Causes of
Action
– Governs federal, state
and local government
bodies and officials

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The little Guys
Fighting the good fight as best they can

• Religious Freedom Restoration Act (RFRA)

– After City of Boerne, only applies to the federal
government and federal officials
– But not limited to land use and prison context
– All about “substantial burden”

• Title VII of the Civil Rights Act of 1964

– No discrimination in employment on the basis of religion
– Employer must reasonably accommodate religious practices (holidays,
religious garb)
– Exception where the practice will create an undue hardship on the
employer

• State Religious Freedom Statutes

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 Finally, Section 1983:
specially built to help The Constitution get wherever it needs
to go

– Creates cause of action against federal, state

and local governments and officials for
violations of the Constitution
– Must be an official policy or sanctioned
act – no liability for rogue actors
– Money damages available, including
compensatory and punitive damages

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 Advanced Strategy:
Hybrid Claims, Attorney Fees and What To Do When the Reporters
Call

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A Case Study

Teaneck, NJ
Land Use Map

(single-family
residential zones in
mustard yellow,
parks in green)

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 Show Me the Money

– Attorney fees available under RLUIPA, RFRA, Title

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

– Often available even if there was no decision on the

merits of the religious freedom question

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Hot Topics This Term
(and Some Potential Pitfalls)

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Hot Topics This Term

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

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

• Sossamon v. Texas: The Clash of State

Sovereignty and Congressional Power Under
RLUIPA

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 … Some Potential Pitfalls
(and how to swing past them – if you can)

• Standing
– Taxpayer Standing

• Limitations on Money
Damages
– State Sovereign Immunity
– Prison Litigation Reform Act

• Is There a Valid
Constitutional Basis for
the Law?
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The End

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