Wake Forest Law Review
25Feb

Dunn v. Smith: Religious Liberties Do Not Cease at the Death Chamber Door

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By Sutton Travis 

In a decision that expanded religious liberties for prisoners on the verge of execution, the Supreme Court held in the late evening hours of Feb. 11 that Alabama prisoner Willie Smith could not be executed unless Alabama permitted Smith’s chaplain to accompany him into the execution chamber.[1]

Smith filed a complaint in the Middle District of Alabama on Dec. 14, 2020, alleging that the Alabama Department of Corrections’ policy of restricting all except the prison’s execution team from the execution chamber violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000[2] (“RLUIPA”).[3]  Smith sought an injunction against his execution scheduled for Feb.11, 2021, claiming that the policy violated RLUIPA by excluding his Christian minister from the execution chamber.[4]  Smith’s complaint explained that it was “integral to [his] faith” that his pastor “be physically present with him at the time of his execution.”[5]  The district court denied Smith’s request for an injunction,[6] relying on Alabama’s argument that allowing a chaplain into the execution chamber would undermine security measures.[7]  However, the Eleventh Circuit reversed and granted the injunction,[8] which the Supreme Court declined to vacate in Dunn v. Smith.[9]  

In her concurring opinion that elaborated on the Court’s one-sentence decision to uphold the injunction, Justice Kagan declared that “[t]he law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death.”[10]  Alleged violations of RLUIPA are analyzed under an “exceptionally demanding” strict scrutiny standard,[11] which mandates that a prison must employ “the least restrictive means of furthering [its] compelling governmental interest.”[12]  Although Kagan acknowledged that Alabama does have a “compelling state interest” in maintaining “prison security,”[13] Alabama’s policy failed to implement the least restrictive means available because “a prison may ensure security without barring all clergy members from the execution chamber.”[14]  Kagan admonished that she could find no example where “the presence of a clergy member . . . disturbed an execution.”[15]  As she recommended, the prison could perform background checks and interview the minister to ensure that the minister is fit to attend the execution.[16] 

Prior Case Law Development on Execution Litigation

Smith is the latest installment in a recent line of cases evaluating prisoners’ religious liberties in the context of executions.  In Dunn v. Ray,[17] the Supreme Court vacated the Eleventh Circuit’s stay of execution for Domineque Ray in an unsigned order on Feb. 7, 2019.[18]  Ray, a practicing Muslim and Alabama prisoner, had petitioned for a stay of execution because the prison refused to allow his imam to enter the execution chamber, even though Christian ministers were permitted in the chamber.[19]  The Court’s unsigned order did not elaborate on its decision to vacate the stay of execution, only citing Gomez v. United States District Court for the Northern District of California[20] for the proposition that a reviewing court can take into account the “last-minute nature of an application to stay execution.”[21]  Kagan vehemently dissented, stating that the Court’s decision was “profoundly wrong.”[22]  According to Kagan, the Court’s decision failed to recognize Ray’s “powerful claim that his religious rights will be violated.”[23]  Kagan further argued that Ray’s request was timely, as he filed his complaint only five days after Alabama denied his request to have his imam accompany him into the execution chamber.[24] 

Another execution-related religious liberty case came just a month later in Murphy v. Collier.[25] The Supreme Court blocked Patrick Murphy’s execution in March 2019 because Texas’s policy did not permit a Buddhist spiritual advisor to accompany Murphy into the execution chamber.[26]  At the time, Texas only allowed Christian or Muslim ministers to enter the execution chamber.[27]  In a brief paragraph, the Supreme Court explained that Murphy’s execution could not proceed until Texas permitted a Buddhist spiritual advisor to “accompany Murphy in the execution chamber.”[28]  Justice Kavanaugh, who concurred in the decision to grant the stay of execution, attempted to distinguish Murphy from the Court’s decision in Ray, emphasizing that Murphy submitted his request for a Buddhist minister an entire month before the date of his scheduled execution.[29]  Despite Kavanaugh’s explanation, the “disparate outcomes” of Ray and Murphy have been characterized as arbitrary.[30]

Five days after the Supreme Court granted the stay of execution in Murphy, Texas revised its policy to bar all religious ministers from the execution chamber.[31]  Although Kavanaugh wrote a concurring opinion in the Murphy case, he also released an additional statement, opining that Texas’s revised policy “solve[d] the equal-treatment constitutional issue” and “likely passe[d] muster under [RLUIPA].”[32]  In essence, Kavanaugh advised death penalty states to remedy religious discrimination concerns by simply barring all religious ministers from the execution chamber.[33]  Relying on Kavanaugh’s statement, Alabama amended its policy in April 2019 and joined Texas in excluding all religious officials from its execution chamber.[34]  

Shortly after Texas’s policy revision, prisoner Ruben Gutierrez challenged the new policy, arguing that it violated his religious liberties under RLUIPA by prohibiting his chaplain from accompanying him in the execution chamber.[35]  However, the Supreme Court did not weigh in on the merits of Gutierrez v. Saenz.[36]  Instead, the Court merely issued a one-paragraph remand, instructing the district court to consider “the merits” of Gutierrez’s claims based on the district court’s earlier findings that allowing a spiritual advisor into the execution chamber would not result in serious security problems.[37]  Thus, Smith was the first case where the Supreme Court’s decision actually indicated that barring religious ministers from the execution chamber could violate RLUIPA.  

Concerns About the Supreme Court’s Surreptitious Shadow Docket

Smith also marks one of the most recent decisions from the Supreme Court’s “shadow docket,” a term used to refer to emergency orders that are granted separately from the Court’s “normal merits docket.”[38]  Shadow docket decisions are viewed with some skepticism because they are decided without oral argument and are typically short, supported by minimal legal reasoning or explanations, and can be unsigned by individual justices.[39]  The shadow docket has recently received national attention because of the Trump administration’s high volume of requests for emergency relief in the form of shadow docket decisions,[40] as well as the heightened divisiveness on display in recent shadow docket rulings.[41]  In fact, these concerns led the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet to hold a hearing Feb. 18 to discuss the shadow docket.[42]  In his testimony before the subcommittee, University of Texas law professor Stephen Vladeck referenced the uncertainty about whether Justice Alito or Justice Gorsuch (or both) joined Kagan’s opinion in Smith to provide the fifth (or sixth) vote to block Smith’s execution.[43]  According to Vladeck, this anonymity in shadow docket decisions can “complicate[] efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”[44]  

In his own testimony, Amir H. Ali, Deputy Director of the Supreme Court and Appellate Program of the MacArthur Justice Center, criticized the “arbitrariness” and “disparate outcomes” of the Supreme Court’s recent shadow docket execution decisions.[45]  In order to combat the trend of unexplained, arbitrary decisions, Ali advised Congress to codify a standard of review for the Supreme Court to implement when reviewing shadow docket cases[46] and to also require the Court to supply reasonings for these decisions.[47] 

The Potential Impact of Smith

Despite the uncertainty surrounding shadow docket decisions, the Supreme Court’s stance in Smith will likely affect several of the other twenty-seven states that continue to recognize the death penalty.[48]  As Kavanaugh noted in his statement following Murphy,[49] Texas has explicitly barred religious ministers from the execution chamber since April 2019.[50]  Additionally, Idaho’s current execution protocol implies that religious ministers may not enter the execution chamber with the prisoner, as “a spiritual advisor of the offender’s choosing” is expected to witness the execution from the “condemned offender’s witness area.”[51] Similarly, North Carolina’s execution protocol also indicates that religious ministers cannot accompany the prisoner into the execution chamber, stating that religious ministers “will be seated in the first row of chairs” during the execution.[52] 

As of Feb. 24, none of these states appear to have publicly acknowledged Smith or addressed how it will impact their current policies.  Nevertheless, policy adjustments will likely be necessary to avoid an onslaught of litigation and, more importantly, to respect prisoners’ religious liberties.  As Ali testified to the House subcommittee, “[w]hen it comes to the death penalty, the importance of getting things right is at its zenith: there is no do-over.”[53]

[1] Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021); see also Amy Howe, Court Won’t Allow Alabama Execution Without a Pastor, SCOTUSblog (Feb. 12, 2021, 2:35 AM), https://www.scotusblog.com/2021/02/court-wont-allow-alabama-execution-without-a-pastor/ (explaining that the Court released its decision “around midnight eastern time”).

[2] 42 U.S.C. § 2000cc­­–1.

[3] Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *1 (M.D. Ala. Feb. 2, 2021), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Smith, 2021 WL 517473, at *1.

[4] Id.

[5] Id. at *6.

[6] Id. at *22.

[7] See id. at *9–10.

[8] Smith, 2021 WL 490283, at *1, aff’d Smith, 2021 WL 517473, at *1.

[9] 2021 WL 517473, at *1.

[10] Id. at *2 (Kagan, J., concurring).

[11] Id. at *1 (quoting Holt v. Hobbs, 574 U.S. 352, 364 (2015)).

[12] 42 U.S.C. § 2000cc–1(a)(2).

[13] Smith, 2021 WL 517473, at *1 (Kagan, J., concurring).

[14] Id.

[15] Id.

[16] Id. at *2.

[17] 139 S. Ct. 661 (2019) (mem.).

[18] Id. at 661.

[19] See id. at 661–62 (Kagan, J., dissenting).

[20] 503 U.S. 653, 654 (1992).

[21] Ray, 139 S. Ct. at 661 (quoting Gomez, 503 U.S. at 654).

[22] Id. at 661 (Kagan, J., dissenting).

[23] Id. at 662.

[24] Id.

[25] 139 S. Ct. 1475 (2019) (mem.).

[26] See id. at 1475.

[27] Id. (Kavanaugh, J., concurring) (“[T]he relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.”).

[28] Id. (majority opinion).  

[29] Id. at 1477 (Kavanaugh, J., supplementary statement).

[30] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4 (2021) (statement of Amir H. Ali, Deputy Director, Supreme Court & Appellate Program of the MacArthur Justice Center) [hereinafter Ali Hearing Statement] (“The disparate outcomes of these cases demonstrate the arbitrariness of present Shadow Docket practice in terms of who dies without this basic dignity.”).

[31] Murphy, 139 S. Ct. at 1476 (Kavanaugh, J., supplementary statement) (“Texas now allows all religious ministers only in the viewing room and not in the execution room.”).

[32] Id.

[33] See Howe, supra note 1 (describing Kavanaugh’s supplementary statement in Murphy as “suggesting” the “solution” of excluding all religious ministers from the execution chamber).

[34] See Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *2 (M.D. Ala. Feb. 2, 2021) (explaining that following “litigation in both Alabama in Texas,” Alabama revised its execution policy in April 2019 to restrict all religious ministers from the execution chamber), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).

[35] See Juan A. Lozano, U.S. Supreme Court Halts Texas Execution Over Clergy Question, AP News (June 16, 2020), https://apnews.com/article/4e9159f5a14395d6aaad24a7d545e738.

[36] No. 19-8695, 2021 WL 231538, at *1 (U.S. Jan. 25, 2021) (mem.).

[37] Id. at *1.  An earlier grant from the Supreme Court to issue a stay for the execution (while Gutierrez’s petition for certiorari was still pending) had instructed the District Court to evaluate “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”  Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (mem.); see also Smith, 2021 WL 358374, at *3 (noting that the district court in Gutierrez had found that “no serious security problems would result” from the presence of spiritual advisors in the execution chamber (citing Gutierrez v. Saenz, No. 19-cv-185 (S.D. Tex. 2019), Doc. 124, p.2))).

[38] Debra Cassens Weiss, House Panel Considers Reforms to Deal with Supreme Court’s Shadow Docket, ABA J. (Feb. 19, 2021, 9:38 AM), https://www.abajournal.com/news/article/house-panel-considers-reforms-to-deal-with-supreme-courts-shadow-docket-more-transparent.

[39] See id.; see also Hon. Trevor McFadden & Vetan Kapoor, Symposium: The Precedential Effects of Shadow Docket Stays, SCOTUSblog (Oct. 28, 2020, 9:18 AM), https://www.scotusblog.com/2020/10/symposium-the-precedential-effects-of-shadow-docket-stays/; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM), https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html.

[40] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4–5 (2021) (statement of Stephen Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law) [hereinafter Vladeck Hearing Statement] (explaining that over four years, the Trump administration filed forty-one applications with the Supreme Court for emergency relief, which was “more than twenty times” the number of applications prior administrations submitted between January 2001 and January 2017).  The Supreme Court granted twenty-four of these applications “in full and four in part.” Id. at 5.

[41] Id. at 5 (“[D]uring the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”).

[42] The Supreme Court’ Shadow Docket, House Comm. on Judiciary, https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4371 (last visited Feb. 24, 2021).  This link contains a recording of the virtual hearing.

[43] Vladeck Hearing Statement, supra note 40, at 6.  Justices Breyer, Sotomayor, and Barrett joined Justice Kagan’s opinion in Smith, Justice Kavanaugh’s dissent was joined by Chief Justice Roberts, and the opening sentences of the decision note that Justice Thomas would have vacated the injunction.  Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).  The decisions of Justices Gorsuch and Alito remain unknown, leading to speculation about which of the two joined the majority decision.  See, e.g., Jonathan H. Adler, SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote), Reason: Volokh Conspiracy (Feb. 18, 2021, 1:46 PM), https://reason.com/volokh/2021/02/13/scotus-refuses-to-let-alabama-execute-willie-smith-without-his-pastor-present-without-noting-who-cast-the-fifth-vote/ (“If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court’s injunction in place.”).

[44] Vladeck Hearing Statement, supra note 40, at 6. 

[45] Ali Hearing Statement, supra note 30, at 4. 

[46] See id. at 5.  In particular, Ali recommended adopting the standard currently used for overturning certain state court decisions concerning prisoners, which requires that the Supreme Court should disturb “a lower court’s request for additional time to consider the lawfulness of an execution” only when “it is apparent to the Supreme Court that the lower court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or rested on ‘an unreasonable determination of the facts in light of the evidence presented.’”  Id. at 6 (quoting 28 U.S.C. § 2254(d)).

[47] See id. at 6.

[48] State by State, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited Feb. 18, 2021) (listing twenty-eight states that still recognize the death penalty).  However, three of these states (California, Oregon, and Pennsylvania) currently have a governor-imposed moratorium on executions.  Id.  An additional nine death penalty states have not carried out executions in at least ten years.  Executions Overview: States with No Recent Executions, Death Penalty Info. Ctr. (July 14, 2020), https://deathpenaltyinfo.org/executions/executions-overview/states-with-no-recent-executions. Virginia also appears to be on the brink of abolishing its death penalty. See Dean Mirshahi, With Northam’s Signature, Virginia Will Become First Southern State to Abolish the Death Penalty, ABC News (Feb. 23, 2021 12:48 PM), https://www.wric.com/news/politics/capitol-connection/with-northams-signature-virginia-will-become-first-southern-state-to-abolish-the-death-penalty/ (noting that both the Virginia House and Senate have approved a bill abolishing the death penalty, and Governor Northam “seems poised to sign the legislation”).

[49] See Murphy v. Collier, 139 S. Ct. 1475, 1476 (2019) (Kavanaugh, J., supplementary statement).

[50] See Execution Procedure, Tex. Dep’t Crim. Just. Corr. Insts. Div. 8 (Apr. 2, 2019), https://files.deathpenaltyinfo.org/legacy/files/pdf/TX%20Execution%20Procedure%2004.02.2019.pdf (“[Texas Department of Criminal Justice] Chaplains and Ministers/Spiritual Advisors designated by the offender may observe the execution only from the witness room.”).

[51] Execution Procedures, Idaho Dep’t Corr. 16 (Jan. 6, 2012), https://files.deathpenaltyinfo.org/legacy/files/pdf/ExecutionProtocols/IdahoProtocol01.06.2012.pdf.

[52] Execution Procedure Manual for Single Drug Protocol (Pentobarbital), N.C. Dep’t Pub. Safety 7 (Oct. 24, 2013), https://www.ncdps.gov/document/execution-procedure-manual-single-drug-protocol-pentobarbital.  The protocols also provide that the religious minister should remain with the prisoner in the Preparation Room “until orders are given to move the condemned prisoner into the Death Chamber.”  Id. at 16.

[53] Ali Hearing Statement, supra note 30, at 5. 

Post Image by Nathan Dumalo on Unsplash.

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14Jan

Religion in a Pandemic: The Supreme Court’s Free Exercise Jurisprudence in the COVID-19 Era

Categories: Current Issues Blog
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christianity, cross, gold, heritage, orthodox, building, architecture, religion, outdoors, church

Blake Davis

The COVID-19 pandemic has upended the way Americans engage in their weekly religious practices.[1]  As with every other area of American life, religious organizations have become accustomed to providing socially distanced services and complying with both federal and state guidelines for safe worship experiences.[2]  As churches, synagogues, and mosques have transitioned to servicing their parishioners in the COVID-19 era, some religious organizations have faced restrictions that they allege are inconsistent with restrictions imposed on their non-religious counterparts down the street.[3]  These alleged inconsistent applications of law have led religious organizations to file lawsuits, challenging the alleged inconsistencies as improper violations of the Free Exercise Clause.[4]  The United States Supreme Court has become more open to these claims the longer the pandemic has gone on.  Both the Court’s initial government-friendly approach to addressing these cases and the Court’s recent religious organization-friendly approach to addressing these cases are each addressed, in turn, below.

Towards the beginning of the pandemic, the Supreme Court seemed to ascribe great weight to the extraordinary circumstances caused by the COVID-19 crisis and thus imposed a more restrictive standard on religious organizations, who sought to challenge COVID-related restrictions.  For example, in the May 2020 decision of South Bay United Pentecostal Church v. Newsom,[5] the Supreme Court denied an application for injunctive relief, arising from a COVID-related restriction on houses of worship in California.[6]  Four Justices noted their dissent from the case, meaning that South Bay was decided on a narrow 5-4 basis.[7]  In a solo concurrence, Chief Justice John Roberts provided the only recorded commentary supporting the majority’s decision.[8]

Chief Justice Roberts explained that California’s COVID restrictions “appear consistent with the Free Exercise Clause of the First Amendment” because California’s restrictions “treat[] more leniently only dissimilar activities . . . in which people neither congregate in large groups nor remain in close proximity for extended periods.”[9]  Because the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter,” Chief Justice Roberts concluded that the discretion afforded to state officials should be “especially broad.”[10] 

The dissenting Justices disagreed with the Chief Justice’s analysis.[11]  Justice Brett Kavanaugh, in a dissent joined by Justice Clarence Thomas and Justice Neil Gorsuch, argued that an injunction should have been granted because “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses.”[12]  The dissenting Justices argued that California failed the balancing test for Free Exercise cases articulated in Church of Lukumi Babalu Aye, Inc. v. Hialeah,[13] which provides that the government must establish a “compelling government interest” for a regulation, treating religious organizations in a discriminatory manner, and that the government must ensure that such a regulation is “narrowly tailored to advance that interest.”[14]  According to the dissenting Justices, California’s imposition of an occupancy cap on religious services discriminated against religious organizations because California imposed no such occupancy cap on a “litany of other secular businesses.”[15] As such, the dissenting Justices determined that the religious organization merited injunctive relief.[16]

The Court continued to apply its more government-friendly approach to COVID-19 related restrictions on religious organizations in Calvary Chapel Dayton Valley v. Sisolak.[17]  In Calvary Chapel, the Court denied injunctive relief to a church, which alleged that Nevada’s COVI-19 related occupancy requirements unconstitutionally discriminated against religious organizations, like Calvary Chapel, in favor of non-religious organizations, like casinos.[18]  The denial of the application for injunctive relief featured no concurrences or commentary, explaining the majority’s position.[19]

However, the same four Justices who dissented in South Bay also dissented in Calvary Chapel.[20]  In a solo dissent, Justice Gorsuch argued that Nevada’s regulations permitting casinos to admit “hundreds at once” while “churches, synagogues, and mosques are banned from admitting more than 50 worshippers” unconstitutionally violated the Free Exercise Clause.[21]  While acknowledging that the “world we inhabit today, with a pandemic upon us, poses unusual challenges,” Justice Gorsuch summarized his argument by stating “there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”[22]  Justice Samuel Alito dissented separately in an opinion joined by Justice Thomas and Justice Kavanaugh.[23]  These three Justices reached the same conclusion that the dissenters had reached in South Bay.  In the dissenting Justices’ view, the restrictions failed the Lukumi balancing test for Free Exercise Clause cases.[24]  The dissenters acknowledged that “[i]n times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations” and that “the opening days of the COVID–19 outbreak plainly qualify” as an exigency, entitling public officials to significant discretion in crafting regulations.[25]  However, since the Calvary Chapel case was being considered more than four months after Nevada declared a state of emergency, the dissenting Justices concluded that “the problem is no longer one of exigency, but of considered yet discriminatory treatment of places of worship.”[26]

In a notable shift from the South Bay and Calvary Chapel decisions, the Court adopted its more religious organization-friendly approach to these COVID-related restriction claims, when the Court granted injunctive relief for a church and a synagogue in Roman Catholic Diocese of Brooklyn v. Cuomo.[27]  In Roman Catholic Diocese, the Court had its first chance to address a religious organization’s application for injunctive relief from a COVID-related restriction since Justice Amy Coney Barrett joined the Court.[28]  Both a synagogue and a church challenged New York’s COVID-related business capacity requirements, which allowed some businesses to admit “as many people as they wish” while prohibiting the synagogue and church from “admit[ting] more than 10 persons” to their worship services.[29]  Five Justices—the four dissenting Justices from South Bay and Calvary Chapel along with Justice Barrett—adopted the position taken by the dissenters in South Bay and Calvary Chapel.[30]  These Justices held that the plaintiffs were entitled to injunctive relief because New York had failed to pass the Lukumi balancing test.[31]

Three dissenting Justices—Justice Stephen Breyer, Justice Elena Kagan, and Justice Sonia Sotomayor—argued that the plaintiffs in Roman Catholic Diocese no more merited injunctive relief than the plaintiffs in South Bay and Calvary Chapel, who had previously not merited injunctive relief.[32]  These three Justices argued that the plaintiffs had failed to establish that New York’s business occupancy requirements unconstitutionally discriminated against religious organizations in violation of the Free Exercise Clause.[33]  As such, the dissenting Justices argued that the injunction should not have been granted.[34]  Chief Justice Roberts also dissented on separate grounds, arguing that the case should have been dismissed as moot because the challenged regulations had been rescinded by New York during the case’s appeal.[35]

In the wake of Roman Catholic Diocese, the federal circuit courts have begun applying the Supreme Court’s less restrictive approach to analyzing COVID regulations that impact religious organizations.  For example, the Ninth Circuit, addressing the merits of the Calvary Chapel case rather than the request for injunctive relief pending appeal that was previously addressed by the Supreme Court, applied the Supreme Court’s analysis in the Roman Catholic Diocese decision to the facts of Calvary Chapel.[36]  A unanimous panel for the Ninth Circuit held that the Lukumi balancing test should be applied to the facts of the Calvary Chapel case.[37]  The Court further held that Nevada failed the Lukumi balancing test because the regulations were not narrowly tailored.[38]  The panel thus reversed the decision of the district court and remanded the case with instructions for the district court to issue a preliminary injunction, prohibiting Nevada from enforcing the occupancy regulations against the church or other religious organization.[39]

Because the Supreme Court has applied this more religious organization-friendly approach to COVID-19 related regulations, the lower federal courts are beginning to follow suit, as the panel opinion in Calvary Chapel demonstrates.  As the COVID-19 pandemic continues and vaccine distribution becomes more widespread, it is quite possible that this religious organization-friendly approach to COVID-19 related regulations will become even more commonplace across the federal courts.

 

 

[1] Frank Newport, Religion and the COVID-19 Virus in the U.S., Gallup.com (Apr. 6, 2020), https://news.gallup.com/opinion/polling-matters/307619/religion-covid-virus.aspx. 

[2] See, e.g., Considerations for Communities of Faith, CDC, https://www.cdc.gov/coronavirus/2019-ncov/community/faith-based.html (Dec. 30, 2020). 

[3] See, e.g., Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603 (2020); S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020). 

[4] See, e.g., Calvary Chapel, 140 S. Ct. at 2603; S. Bay United Pentecostal Church, 140 S. Ct. at 1613. 

[5] 140 S. Ct. 1613 (2020). 

[6] Id. 

[7] Id. 

[8] Id. (Roberts, C.J., concurring). 

[9] Id. 

[10] Id. at 1613–14 (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)) (internal quotation mark omitted). 

[11] Id. at 1614 (Kavanaugh, J., dissenting).  

[12] Id. 

[13] 508 U.S. 520 (1993). 

[14] S. Bay United Pentecostal Church, 140 S. Ct. at 1614–15 (Kavanaugh, J., dissenting) (quoting Lukumi, 508 U.S. at 531–32).  

[15] Id. at 1615.  

[16] Id. at 1614. 

[17] 140 S. Ct. 2603 (2020). 

[18] Id. at 2604–05 (Alito, J., dissenting) (describing the facts of the case). 

[19] Id. at 2603 (opinion of the Court). 

[20] Id. at 2603 (Alito, J., dissenting); id. at 2609 (Gorsuch, J., dissenting). 

[21] Id. at 2609 (Gorsuch, J., dissenting). 

[22] Id. 

[23] Id. at 2603 (Alito, J., dissenting). 

[24] Id. at 2605–07 (Alito, J., dissenting).  

[25] Id. at 2605. 

[26] Id. 

[27] 141 S. Ct. 63, 65 (2020). 

[28] Jess Bravin, Supreme Court Blocks Covid-19 Restrictions on Religious Services in New York, Wall Street Journal, https://www.wsj.com/articles/supreme-court-blocks-covid-19-restrictions-on-church-attendance-in-new-york-11606369004 (Nov. 26, 2020, 9:04 PM). 

[29] Roman Catholic Diocese, 141 S. Ct. at 66 (per curiam opinion). 

[30] Id. at 66–67; id. 69–70 (Gorsuch, J., concurring); id. at 73 (Kavanaugh, J., concurring).  

[31] Id. at 66–67; id. 69–70 (Gorsuch, J., concurring); id. at 73 (Kavanaugh, J., concurring).  

[32] Id. at 76–78 (Breyer, J., dissenting). 

[33] Id. at 77. 

[34] Id. 

[35] Id. at 75 (Roberts, C.J., dissenting). 

[36] Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169, 2020 WL 7350247, at *1, *3–4 (9th Cir. Dec. 15, 2020). 

[37] Id. at *4.  

[38] Id. 

[39] Id. at *4–5. 

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9Apr

4th Circuit: Lessons on Islam Don’t Violate Christian Student’s Rights

Categories: 4th Cir. Blog Civil Cases Issues in the 4th Circuit
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By Caroline Hamilton and Alex Prunka

During the 2014­–15 school year, Caleigh Wood was an eleventh grade student at La Plata High School in Charles County, Maryland.[1]  Wood was required to take a world history course as a part of the school’s curriculum, featuring a small, five-day unit entitled “The Muslim World.”[2]  This unit was designed to “explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.”[3]  Wood took issue with two aspects of the Muslim World unit: (1) the PowerPoint slide which stated “most Muslim’s [sic] faith is stronger than the average Christian [sic]” and (2) a worksheet summarizing the lesson that required her to complete certain information about the Islamic faith.[4]

Wood sued the defendants Evelyn Arnold, Shannon Davis, the Board of Education of Charles County, and the Charles County Public Schools.  In Wood v. Arnold,[5] she asserted two claims: (1) the defendants violated the Establishment Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion;” and (2) that defendants violated the Free Speech Clause of the First Amendment by requiring her to complete the shahada assignment thereby depriving her “of the right to be free from government compelled speech.”[6]  The United States District Court for the District of Maryland granted summary judgment to the defendants on all claims, and Wood appealed.

Plaintiff’s Arguments

Wood’s first claim was based on the Establishment Clause. She argued that the defendants endorsed a view of Islam over Christianity, which violates the Establishment Clause[7] based on the comparative faith statement that read “Most Muslim’s faith is stronger than the average Christian.”[8]  Wood also believed that the assignment which required to fill in the blanks regarding the lesson plan impermissibly advanced Islam and compelled Wood to deny the existence of her God.[9]  Wood argued that the religious endorsement could not be overcome by the secular purposes alleged by the defendants.[10]

Regarding Wood’s Free Speech Clause challenge, she contended that the defendants violated her right to free speech by requiring her to fill in the sentence “There is no god but Allah and Muhammad is the messenger of Allah”[11] on the after lesson worksheet.  From her position, Wood believed that this worksheet forced her to confess, by written word and deed, her faith in Allah.[12]  Having been raised in a strong Christian household, Wood took offense to what she and her parents perceived as forced proclamation of Islamic beliefs.[13]

Defendant’s Arguments

In response to Wood’s Establishment Clause claim, defendants argued the unit satisfied the first prong of the Lemon test because the purpose of the Muslim unit was primarily secular and that the single statement made on the power point rose to a level of promoting Islam.[14]  In regards to the second prong of the Lemon test, the defendants emphasized the importance of analyzing whether the school was acting to promote a particular religion from an objective standpoint and that the District Court was correct in not taking into account specific, subjective statements made by certain school officials.[15]  Finally, the defendants patently rejected the theory that the comparative faith statement and the fill in the blank worksheet could lead a reasonable juror to find excessive entanglement between the school and religion.[16]  It simply does not rise to the level of requiring Wood to profess Islam or denounce Christianity, nor does it in any way bear resemblance to a statement made by an evangelical.

In response to Wood’s Free Speech Clause challenge, the defendants argue that the classroom is not a public forum worthy of the full battery of First Amendment protections.[17]  Additionally, defendants argue that Wood was never asked to profess her belief in Islam but rather, was asked to showcase her understanding of the Islamic religion in the context of a world history class.  Thus, the forum of the classroom in conjunction with the type of “compelled” speech indicate that the fill in the blank worksheet does not violated her First Amendment rights.[18]

The Court’s Opinion

The Court affirmed the District Court’s granting of summary judgement in favor of the defendants on both counts.  The court acknowledged that the proper analysis for an Establishment Clause issue is the Lemon test,[19] which asks (1) whether the challenged material has some secular purpose; (2) whether the principal effect of government action is to suggest government preference for a particular religious view or for religion in general; and (3) whether the government action created an excessive entanglement between government and religion.[20]  However, the court first had to decide the relevant scope of inquiry—whether the challenged materials should be considered in isolation or whether they should be considered within the broader context of the world history class.  Following circuit court precedent, the court held that it was proper to consider the challenged content in the context of the world history class.[21]  Here, the court found that the challenged religious content did not offend any of the three Lemon test prongs.

The first prong imposes a “fairly low hurdle,” merely requiring the government to show that it had a plausibly secular purpose.[22]  So long as the proffered secular purpose is genuine and not a sham, the purpose will satisfy the first prong of the Lemon test.  Here, the court determined that the purpose of the two pieces of challenged content did have a primarily secular purpose.  The court noted that the Supreme Court has recognized the value in studying religion on a comparative basis.[23]  Neither the comparative faith statement being challenged or the shahada worksheet indicate a religious purpose; rather, the school had a predominantly secular purpose in teaching world history, and the subsequent shahada worksheet was in line with the academic work to be expected after a lesson plan.[24]  Thus, the court was quickly satisfied that the school was acting with a predominantly secular purpose.

Turning to the second prong of the Lemon test, the court asked whether a reasonable, informed observer would conclude that by its actions, the government has endorsed a particular religion.[25]  In analyzing this prong, courts assume that the reasonable observer is aware of the context surrounding the government action.  The court found that neither of the challenged statements indicated that the school endorsed Islam or that the school was forcing its students to endorse and participate in Islamic practices.  It distinguished the challenged content from a situation in which a school forces students to pray, which would offend the Lemon test.[26]  In fact, the challenged content was integrated into the secular curriculum and only constituted a minor part of the Muslim unit, which was only a minor part of the world history class.  Thus, the court concluded that “common sense” indicates that the school was not endorsing any religious beliefs through either of the challenged content.[27]

In dealing with the third prong, the court examined whether the government action led to an excessive entanglement between government and religion.  The court determined that they “need not dwell long on the entanglement prong” because the comparative faith statement and shahada assignment neither advanced nor inhibited religion.[28]  The secular nature of the content, in conjunction with the minor role it played in the context of the world history class, led the court to quickly find there was no entanglement issues caused by the comparative faith statement or the shahada assignment. 

The court then turned to Wood’s Free Speech Clause challenge.  Although the court acknowledged that compelled speech usually gets rigorous scrutiny,[29] this presumption needs to be balanced with the reality that students’ rights in public schools are not “automatically coextensive with the rights of adults in other settings.”[30]  The court here agreed with the Third Circuit’s approach, which stated that, in the educational context, students sometimes are forced to speak when they would rather not and that does not offend the First Amendment.[31]  From this basis, the court went on to find that the shahada assignment did not require Wood to profess or accept the tenants of Islam or take part in any devotion practice related to Islam.  Therefore, Wood’s right against compelled speech was not violated.

Conclusion

The Court of Appeals for the Fourth Circuit, in a relatively short opinion, affirmed the granting of summary judgment in favor of the defendants.  The court did not find merit on either of Wood’s assertions that the comparative faith statement or the shahada worksheet violated the Establishment Clause or the Free Speech Clause.  The content in question was a minor part of a small unit about the Muslim world in the context of a world history class.  The purpose for this content is clearly secular in nature and would not have led a reasonable juror to find that Wood’s rights were violated.

[1] Wood v. Arnold, 915 F.3d 308, 312 (4th Cir. 2019).

[2] Id.

[3] Id.

[4] Id. at 312–13.

[5] 915 F.3d 308 (4th Cir. 2019).

[6] Id. at 313.

[7] The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I, cl. 1.

[8] Wood, 919 F.3d at 313.

[9] Id.

[10] Id.

[11] Id. at 318.

[12] Id. at 319.

[13] Plaintiff’s Amended Complaint ¶¶ 34–40, Wood v. Arnold, (No. 8:16-cv-00239-GJH), 2016 WL 6136525 (D. Md. Oct. 11, 2016).

[14] Corrected Brief for Defendants-Appellants at 13, Wood v. Arnold, 915 F.3d 308 (No. 18-1430) (4th Cir. 2019).

[15] Id. at 19–21.

[16] Id. at 22–24.

[17] Id. at 25–26.

[18] See id. at 31.

[19] Wood v. Arnold, 915 F.3d 308, 314 (4th Cir. 2019).

[20] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[21] Wood, 915 F.3d at 314–15 (citingLambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 271 (4th Cir. 2005)). 

[22] Id. at 315 (citing Glassman v. Arlington Cty., 628 F. 3d 140, 146 (4th Cir. 2010)).  

[23] Id. at 315 (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255 (1963)).

[24] Id. at 317.

[25] Id. at 316 (citing Cty. of Alleghany v. ACLU, 492 U.S. 573, 592–94 (1989)).

[26] Id. at 317 (citingLee v. Weisman, 505 U.S. 577, 598–99 (1992)).

[27] Id. at 317–18.

[28] Id. at 318.

[29] Id. at 319 (citingGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 879 F. 3d 101, 107 (4th Cir. 2018)).

[30] Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

[31] Id. (citing C.N. v. Ridgewood Bd. of Educ., 430 F. 3d 159, 187 (3d Cir. 2005)).

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21Nov

Fourth Circuit Grants Hearing On New Presidential Proclamation Limiting Immigration

Categories: 4th Cir. Blog Issues in the 4th Circuit
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By Hailey Cleek & Raquel Macgregor

On November 6th, the Fourth Circuit granted a hearing en banc to review President Trump’s third Executive Order iteration on immigration. The new Presidential Proclamation (“Proclamation”), like its predecessors, restricts immigration from several Muslim-majority countries. The case was appealed to the Fourth Circuit after the District Court of Maryland granted in part a preliminary injunction blocking the new Proclamation.[1] Given the past Fourth Circuit and Supreme Court rulings blocking President Trump’s first two Executive Orders, the Fourth Circuit is likely to affirm the injunction in part.

The Fourth Circuit Struck Down the Previous Executive Order

In March of 2017, the Fourth Circuit largely upheld the Maryland District Court’s ruling blocking implementation of an Executive Order signed by President Donald Trump.[2] In the Executive Order, the Trump Administration had temporarily suspended new visas for travelers from six Muslim-majority countries for ninety days and the admission of new refugees into the United States for 120 days.[3] The Fourth Circuit held that the Executive Order violated the Establishment Clause because it was motivated by a discriminatory animus toward Muslims.[4] The Supreme Court then granted certiorari and partially stayed the injunction. Furthermore, because the Fourth Circuit Order had expired by “its own terms” on September 24, 2017, the Supreme Court vacated the judgment, as the appeal no longer presented a “live case or controversy.”[5]

The New Presidential Proclamation

On September 27, 2017, President Trump issued a new Presidential Proclamation. This Proclamation keeps restrictions on five of the six original countries (Iran, Libya, Somalia, Syria, and Yemen), lifts restrictions on visitors from the Sudan, and adds new restrictions on visitors and immigrants from Chad, North Korea, and Venezuela.[6] In both previous executive orders, all banned countries were majority Muslim. However, the Proclamation now includes two non-majority Muslim countries: North Korea and Venezuela.[7]

The new restrictions vary by country. Immigrants and nonimmigrants from Chad, Libya, and Yemen are barred from entry into the United States, on business, tourism, or through business-tourist visas.[8] Likewise, Iranian citizens are barred from entry with an exception for students, provided that they receive extra screening.[9] The Proclamation also bars immigrants and nonimmigrants from North Korea and Syria as well as immigration by citizens of Somalia.[10] Yet, the restrictions placed on Venezuela only impacts Venezuelan government officials and their families.[11]

Despite the changes to the immigration order, the Maryland District Court enjoined Section 2 of the Proclamation. In order to obtain a preliminary injunction, plaintiffs must show that: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in their favor, and (4) the injunction is in the public interest.”[12] The district court ultimately found that Plaintiffs were likely to succeed on their Establishment Clause claim and that the Proclamation likely violates §1152(a) of the Immigration and Nationality Act (“INA”) which prohibits discrimination based on nationality in issuing immigrant visas. Yet, the court found that the balance of equities only allowed enjoining the Proclamation on behalf of “individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”[13] Thus, the injunction bars the Proclamation’s impact on individuals with immediate family members in the United States. Moreover, the injunction does not apply to individuals traveling from Venezuela or North Korea as Plaintiffs have not demonstrated how individuals from those countries with a bona fide relationship with the United States will be harmed.

Arguments for Upholding the Presidential Proclamation

In the appellant’s opening brief, the government argues that the district court abused its discretion in granting a preliminary injunction because the President’s actions are not subject to judicial review and the elements required to grant a preliminary injunction are not satisfied. Regarding justiciability, the government contends that a denial of a visa is not subject to judicial review.[14] Yet, this argument blatantly ignores that the Supreme Court allowed judicial review of the past two executive orders.[15]

However, the government focuses its brief on its likelihood of success on the merits under both the plaintiff’s statutory and constitutional claims. First, the government argues that the Proclamation is consistent with the INA because the President has broad discretion to suspend entry of aliens whenever they “would be detrimental to the interests of the United States” under 8 U.S.C. §1182(f).[16] The government contends that 8 U.S.C. §1152(a)(1)(A), which prohibits discrimination of nationality in the issuance of immigrant visas, does not in fact conflict with the President’s broad discretion.[17] Instead, the government dubiously claims that the prohibition against nationality discrimination only applies after the President has full discretion to “limit the universe of individuals eligible to receive visas,”[18] which would effectively render §1152(a)(1)(A) meaningless.

The largest hurdle President Trump will face is convincing the court that the purpose of this Proclamation differs from his previous executive orders. In response to plaintiff’s establishment claim, the government claims that because the ban no longer targets only Muslim-majority countries (given the addition of North Korea and Venezuela), the purpose behind the Proclamation is to protect the United States from terrorism. The Proclamation asserts that it has singled out Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia after a “global review” by the Department of Homeland Security (“DHS”) and Department of State which identified these countries as having “inadequate practices or otherwise present heightened risks.”[19] Thus, by relying on the DHS review, the Proclamation has distinguished itself from previous travel limitation executive orders. Yet, this argument will likely face significant criticism given that the Proclamation included Somalia, a majority Muslim country, in its list of restricted countries even though the DHS report deemed the country to have adequate information-sharing practices.[20]

Arguments against the Presidential Proclamation

Plaintiffs assert that the Proclamation violates various provisions of the INA.[21] Primarily, plaintiffs argue that the Proclamation violates § 1152(a) of the INA,[22] which bars discrimination on the basis of nationality in the issuance of immigrant visas. Specifically, §1152(a) provides that, with certain exceptions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]”[23] The Maryland District Court already considered the “interplay” between § 1182(f) and § 1152(a) and concluded that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas.[24] While the government could argue that the suspension of entry is not analogous to the issuance of visas, Judge Thacker of the 4th Circuit has already suggested that this argument will not be successful.[25] Here, unlike previous travel limitations used by both Presidents Reagan and Carter, the Proclamation has no end date and no requirement of renewal.[26] This creates a permanent ban on immigration from the Designated Countries, thus stopping the issuance of immigrant visas indefinitely. Thus, the bar on entry is equivalent to a ban on issuing immigrant visas based on nationality. Moreover, the Ninth Circuit found that the executive order violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.[27] Consequently, plaintiffs are likely to succeed on their claim that the Proclamation violates § 1152(a) non-discrimination.

Plaintiffs argue that the Proclamation violates the Establishment Clause. Citing Larson v. Valente, the plaintiffs contend that the “primary effect” of the Proclamation “burden[s] . . . [a] selected religious denomination” through its immigration restrictions which overwhelmingly impact Muslims.[28] Moreover, under the Lemon v. Kurtzman[29] framework, to withstand an Establishment Clause challenge: (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’”[30] Challengers argue that this new Proclamation, similar to the last two executive orders, is primarily motivated by religious intolerance. Despite the “changed nomenclature” and selective inclusions of agency recommendations, the very first line of the order identifies the Proclamation as an “outgrowth” of the previous Executive Order attempts to limit travel.[31] Moreover, the Trump administration’s public statements about the new Proclamation indicate that it is the same in substance to the previous executive orders and that changes are “mostly minor technical differences.”[32] Plaintiffs in the Fourth Circuit highlight that “contours of the ban” still reflect a “religious ‘gerrymander.’”[33] Thus, Plaintiffs will argue that the Proclamation is still animated by the desire to ban Muslims, violating the Establishment Clause’s commend that the Government not target or disfavor people based on their religion.

Lastly, the government’s own delay in implementing the Proclamation spurs skepticism. The Trump administration has repeatedly emphasized the need for immediate action in crafting the travel bans.[34] The Proclamation details that the President “act[s] to protect the security and interests of the United States and its people.”[35] Yet, despite the government’s claims for urgency in halting travel, the Executive Order deferred implementation of the bulk of its restrictions for almost a month.[36] Thus, the government has undermined its own claims of urgency by delaying implementation while still not correcting deficiencies that made prior orders unlawful.

Conclusion

The Fourth Circuit is likely to side with Plaintiffs in granting an injunction in part given both the district court’s preliminary injunction as well as the Fourth Circuit and Supreme Court’s past partial injunctions. While the newest rendition of the ban attempts to distance itself from the religious animus that motivated the first two Executive Orders, the new Proclamation is largely still motivated by a non-secular purpose. Following the language of the Supreme Court, the Fourth Circuit’s decision will likely center on whether individuals from the Designated Countries have a “credible claim of a bona fide relationship with a person or entity in the United States.”[37] Thus, the Fourth Circuit will likely enjoin the Proclamation from barring entry to individuals that have immediate family members in the United States.

_______________

[1] Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017).

[2] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017), vacated No. 16-1436, 2017 WL 4518553.

[3]  Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 9, 2017).

[4] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017).

[5] See Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553, at *1 (Oct. 10, 2017).

[6] Pete Williams, Trump Restricts Visas From Eight Countries as Travel Order Expires, NBC News (Sept. 25, 2017, 8:35 AM), https://www.nbcnews.com/politics/immigration/trump-restricts-visas-eight-countries-travel-order-expires-n804366.

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *40 (D. Md. Oct. 17, 2017).

[13] Id. at *88; see Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

[14] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[15] See generally Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

[16] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

[20] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *78 (D. Md. Oct. 17, 2017).

[21] First Cross-Appeal Brief for Appellees at 23, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

[24] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *20 (D. Md. Oct. 17, 2017).

[25] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 637 (4th Cir. 2017), (Thacker, J., concurring) (“Here, the ultimate effect of what EO–2 actually does is require executive agencies to deny visas based on nationality.”).

[26] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017).

[27] Hawaii v. Trump, 859 F.3d 741, 774, 779 (9th Cir. 2017).

[28] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Larson v. Valente, 456 U.S. 228, 255 (1982).

[29] 403 U.S. 602 (1971).

[30] Id. at 612–13.

[31] See Appellee’s Opposition to Motion to Stay at 4, Hawaii v. Trump, (9th Cir. 2017) (No. 17-17168); see Proclamation, supra note 1.

[32] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *70 (D. Md. Oct. 17, 2017).

[33] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–35, 538 (1993)).

[34] See Donald Trump (@realDonaldTrump), Twitter (June 3, 2017, 7:17 P.M.), https://twitter.com/realDonaldTrump/status/871143765473406976 (“We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”); Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time (June 6, 2017), http://time.com/4808270/sean-spicer-donald-trump-twitter-statements (Former Press Secretary Sean Spicer has previously stated that the President’s tweets should be considered official statements).

[35] Proclamation, supra note 1.

[36] See id. (The Proclamation was announced on September 27th, yet many of the restrictions were not set to take effect until October 18th.).

[37] Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

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2Nov

Establishment Clause: Government Maintained Latin Cross Unconstitutional

Categories: 4th Cir. Blog Weekly Roundup
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WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST. BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

By: Robert Tucci

On Wednesday, October 18, 2017, the Fourth Circuit issued a published opinion in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Several residents of Prince George’s County, Maryland, along with the American Humanist Association (“AHA”) – a non-profit organization dedicated to upholding the founding principle of separation of church and state – brought suit against a Maryland government agency, claiming that the government’s maintenance of a 40-foot tall World War I Latin Cross monument violated the Establishment Clause. The district court granted summary judgment for the government, and the plaintiffs appealed. The Fourth Circuit reversed and remanded the decision of the lower court, finding that the Cross violated the second and third prongs of the Lemon test.

Facts and Procedural History

On September 28, 1919, several private organizers held a groundbreaking ceremony on land owned by the city of Bladensburg, Maryland, to begin erecting a giant 40-foot Latin Cross memorial. The Cross was built next to a pre-existing plaque which was placed to honor 49 World War I United States soldiers. To fund the construction of the Cross, the private organizers obtained funding from private donors. The donors were required to sign a pledge sheet, which recognized the existence of “one god” (text of pledge sheet above).

The private organizers ran out of money in 1922 to continue funding the project. As a result, a local post of the American Legion stepped in to continue fundraising and construction of the Cross. Several of the Legion’s fundraising and memorial services concerning the Cross, both before and after construction was completed, contained exclusively sectarian Christian activities. Such activities included prayers at invocations and benedictions, Sunday worship service, speaker-led prayers, and singing Christian hymns. The Legion completed construction in 1925, and placed the four-story tall Latin Cross in the median of a three-way highway intersection in Bladensburg.

On March 1, 1961, the Maryland-National Capital Park and Planning Commission (“Commission”), a Maryland government agency, obtained title to the Cross and the land beneath it. The Commission claimed it acquired the Cross for safety reasons due to the proximity of the Cross to a busy highway. Since 1961, the Commission has spent $117,000 to maintain and repair the Cross, with an additional $100,000 set aside in 2008 for future repairs.

The Cross is part of the Bladensburg Veterans Memorial Park. All other monuments in the park are ten feet tall or shorter, devoid of religious iconography, and located at least 200 feet from the Cross. The Legion’s symbol (a small star inscribed with “U.S.”) is attached near the top of the Cross, and an American flag resides near the Cross. The plaque honoring the 49 soldiers sits on an obscured corner on the Cross’s rectangular base, and has been weathered to the point of being illegible.

The AHA and several non-Christian residents of Prince George’s County, who faced multiple instances of unwelcome contact with the Cross while driving, filed suit against the Commission, claiming that the Cross amounts to government affiliation with Christianity. The AHA and residents sought a declaratory judgment that the Commission’s conduct violates the Establishment Clause and the plaintiffs’ constitutional rights, an injunction enjoining the Commission from displaying the Cross on public property, nominal damages, and attorney’s fees and costs.

Both sides filed cross-motions for summary judgment, with the district court granting summary judgment to the Commission. The district court found that the Commission and Cross satisfied the three prong test set out in Lemon v. Kurtzman. The plaintiffs subsequently appealed to the Fourth Circuit.

Do Plaintiffs Have Standing to Sue?

The Court first analyzed the Commission’s argument that the plaintiffs lack standing to bring suit. The Commission contended that the plaintiffs had not “forgone any legal rights” as a result of the Commission’s conduct. The Court rejected this argument, stating that “[a]n Establishment Clause claim is justiciable even when plaintiffs claim noneconomic or intangible injury.” Specifically, the Court found that the non-AHA plaintiffs have standing due to their alleged unwelcome direct contact with the Cross, and that the AHA has standing to sue because an association can sue on behalf of its members if the members would also have standing to sue on their own.

Does Van Orden Control?

The Court then turned to the Commission’s argument that the holding in Van Orden v. Perry, rather than the Lemon test, should control. Van Orden dealt with a similar issue of whether a monument displaying the Ten Commandments on government property violated the Establishment Clause. The Court acknowledged that the plurality opinion in Van Orden is favorable to the Commission, but declined to follow it due to Justice Breyer’s controlling (and limiting) concurrence.

In his concurrence, Justice Breyer lays out several non-exhaustive factors for evaluating monuments eliciting both a secular and non-secular purpose, including: (1) the circumstances surrounding the monument’s placement; (2) its physical setting; and (3) the length of time it remains unchallenged. However, the Court noted that Justice Breyer reaffirmed Lemon by saying that it is a “useful guidepost[],” and remains a “more formal Establishment Clause test[].” Thus, the Court chose to apply the Lemon test, while giving due consideration to the Van Orden factors.

Does the Bladensburg Cross Satisfy the Lemon Test?

Next, the Court analyzed whether the Bladensburg Cross is constitutional under the Lemon test. A government display is constitutional under the Lemon test if it satisfies three prongs: (1) the display has a secular purpose; (2) the display does not have a “principle or primary effect” that advances, inhibits, or endorses religion; and (3) the display does not foster “an excessive entanglement between government and religion.” If the display violates even one prong, it is unconstitutional.

Secular Purpose

The Court held that the Cross satisfied the first prong of the Lemon test. The Court acknowledged that it is a fairly low burden to establish a secular purpose for a government display, because even if the display has “dual legitimate purposes” (one secular and one sectarian), it still satisfies the first prong of the Lemon test. The Commission articulated several secular reasons for displaying and maintaining the Cross, including ensuring safety near a busy highway, and the preservation of a significant war memorial. The Court found these to be legitimate secular reasons, thus finding that the Cross satisfied the first prong of the Lemon test.

Primary Effect

Next, the Court held the Cross violated the second prong of the Lemon test. The Court found the relevant question under the second prong to be “does the practice under review in fact convey a message of endorsement or disapproval of religion?” The Court stated that this question must be answered from the perspective of a “reasonable observer” – someone who “must be deemed aware of the history and context of the community and forum in which the religious speech takes place.” Therefore, the Court found that a detailed factual analysis of the Cross’ meaning, history, and secularizing elements was required to determine its primary effect.

Under the “meaning” inquiry, the Court concluded that the Latin cross is the “preeminent symbol of Christianity,” one that is not a symbol of any other religion. The court went on to say that even the Latin cross’ supposed secular symbology of death and memorialization is tied to the Christian sectarian teaching of Jesus Christ’s death and resurrection. Further, the Court found the Latin cross differed from other religious monuments, like the Ten Commandments, as it is not tied to the United States’ history and government.

Turning to the “history” inquiry, the Court found that, while the history of Latin Cross’ in general favors the plaintiffs, the history of the Bladensburg cross does not favor either party over the other. The Court centered its analysis around the fact that the Cross has a “semisecular” history, as it has been the object of both sectarian Christian activities – including Christian prayers, Sunday services, and fundraising using the donor’s pledge above – and secular Veterans-focused ceremonies.

Finally, the Court determined that, while the Cross does contain a few secular elements, they are easily overshadowed by the sectarian ones. In coming to its conclusion, the Court cited the fact that the Cross is much larger than the rest of the monuments in the Bladensburg Veterans Memorial Park, is 200 feet or more from any of the other monument, and that the “immense size and prominence of the Cross necessarily ‘evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones'” (referencing the Latin crosses in Arlington Cemetery).  Additionally, the Court emphasized the fact that the Christian iconography of the Cross was clearly visible to observers, while the secular symbols were hidden or obscured.

Ultimately, the Court concluded that a reasonable observer would “fairly understand the Cross to have the primary effect of endorsing religion,” as the factors above “collectively weigh in favor of concluding that the Cross endorses Christianity – not only above all other faiths, but also to their exclusion.” Thus, the Court held that the Cross violated the second prong of the Lemon test.

Excessive Entanglement

Lastly, the Court held that the Cross violated the third prong of the Lemon test. In coming to this determination, the Court said that excessive entanglement with religion “is a question of kind and degree,” and may include “pervasive monitoring or other maintenance by public authorities.” The Court found the Cross excessively entangles the government with religion for two reasons: (1) the Commission owns and maintains the Cross and the property it is displayed on, and (2) the Commission is displaying the “hallmark symbol of Christianity” in a very dominant and visible fashion that excludes all other religious iconography and tenants.

Conclusion

The Forth Circuit held that the Commission’s ownership and maintenance of the Bladensburg Cross violates the second and third prong of the Lemon test, and is an unconstitutional government endorsement of religion under the Establishment Clause. The Court reversed the decision of the district court and remanded the case for further proceedings.

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23Oct

Religion: Friend or Foe to the IEP?

Categories: 4th Cir. Blog Issues in the 4th Circuit Uncategorized
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Overview

M.L. was born in 2003 with Down Syndrome and lives with his family in an Orthodox Jewish community in Maryland.[1]  M.L’s faith governs almost every aspect of his life, including how he dresses, eats, and works.[2]  In 2009, M.L. enrolled in a private special education program that was tailored to his religious needs.[3]  In 2012, M.L.’s parents met with the Montgomery County Board of Education (“MCPS”) to create an individualized education program (“IEP”) as part of his public school education, but his parents rejected the IEP, complaining that it did not offer instruction on preparing for life in an Orthodox Jewish community.[4]  MCPS replied that an IEP meeting the standards of M.L.’s parents would be too specific, too religious, and not part of the public school curriculum.[5]

M.L. filed a due process claim against the School Board with the Maryland Office of Administrative Hearings, arguing a violation of the Individuals with Disabilities Education Act (“IDEA”).[6]  The administrative law judge (“ALJ”) ruled that the IDEA does not require a public school to offer specialized religious instruction in an IEP because the IDEA only requires “access [to] the general curriculum.”[7]  M.L. then filed a claim in the United States District Court for the District of Maryland where summary judgment was granted to the School Board. M.L. appealed to the Fourth Circuit Court of Appeals.[8]

Arguments for Tailoring an IEP to Religious Needs

The National Jewish Commission on Law and Public Affairs (“COLPA”) argued in its amicus brief that directing certain IDEA benefits toward “the non-practice of religion is coercive.”[9]  In support of their argument, COLPA cited the Supreme Court’s firmly established precedent that the “Free Exercise Clause bars government action aimed at suppressing religious belief or practice.”[10]  While the Court previously noted “a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability,”[11] the Court recently held that a policy that makes practicing one’s religion more expensive “imposes a burden on the exercise of religion.”[12]  Thus, COLPA raised a valid question as to whether the IEP, as written, violated the Free Exercise Clause.

M.L. argued that “a student’s religious, cultural, or other individual circumstances are relevant to the fashioning of an appropriate special education program for that student.”[13]  Specifically, the appellants observed that, because M.L. was unable to distinguish home and school settings, his religious background is part of his “unique needs.”[14]  Thus, the IEP should have accounted for “[l]earning Hebrew, recognizing kosher signs and impurities in foods, and telling time according to [M.L.’s] dietary restrictions.”[15]

Arguments against Tailoring an IEP to Religious Needs

In brief, the School Board suggested that pursuing the goals and objectives that M.L. requested would itself violate the Establishment Clause due to their religious nature.[16]  However, despite both parties’ Establishment Clause arguments, both the ALJ and the district court quickly dismissed any Establishment Clause considerations by resolving the relevant issues using only the IDEA and Maryland state law.  The School Board argued that neither the IDEA nor Maryland state law requires it to provide M.L. with IEP goals and objectives that incorporate his religious practices.[17]

M.L. also asserted that requests that his religious practices be developed through his IEP were simply requests for accommodation of his religious practices.  In response, the School Board countered by asserting that M.L. was clearly seeking “affirmative IEP goals and objectives” that were designed to incorporate M.L.’s religion into his IEP.  The School Board’s counterargument effectively diverted the court’s analysis of M.L.’s claims from a focus on accommodation toward a focus on affirmative IEP goals.[18]  In brief, the School Board reminded the court that, religious concerns aside, M.L. previously and consistently agreed that the IEP was otherwise adequate to meet M.L.’s educational needs.[19]

Conclusion

The Fourth Circuit Court of Appeals held that the appellants had been mistaken in reading “other education needs” as “all other educational needs.”  The court observed that the IDEA is not so comprehensive—not every limitation a disabled student may possess needs to be addressed.[20]  The court further elaborated that the IDEA does not ensure a specific scholastic result and therefore does not address a disabled student’s ability to practice his chosen religion.[21]  Relying on the reasoning in Rowley, the court emphasized the function of the IDEA, not as a guarantee for providing certain levels of education to disabled students, but as a way to “open the door of public education to handicapped children on appropriate terms.”[22]  Similarly, the court emphasized that Free Appropriate Public Education (“FAPE”) requires only that a child receives an educational benefit that is slightly more than trivial from the special instruction and services provided.[23]  The court declined to address COLPA’s Free Exercise Clause arguments because the appellants did not raise a Free Exercise argument in their opening brief.[24]

By finding for the School Board in this case, the court made clear that the IDEA does not require a school board to provide a religious or cultural curriculum to a disabled student.[25]  Under the IDEA, disable students do not need a religious curriculum in order to have equal access to education.[26]

By Mike Garrigan & Mary Kate Gladstone

_______________

[1] M.L. by Leiman v. Smith, 867 F.3d 487, 490 (4th Cir. 2017).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. at 492.

[8] Id.

[9] Brief for National Jewish Commission on Law and Public Affairs as Amicus Curiae Supporting Appellants at 11, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[10] See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 559 (1993).

[11] See Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).

[12] See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2770 (2014).

[13] Brief for Appellants at 19, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[14] Id.

[15] Id. at 34.

[16] Brief for Appellees at 14, M.L. by Leiman v. Smith, 867 F.3d 487 (4th Cir. 2017).

[17] Id.

[18] Brief of Appellants, supra note 13, at 14–15.

[19] Id. at 21.

[20] M.L. v. Smith, 867 F.3d 487, 498–99 (4th Cir. 2017).

[21] Id. at 499.

[22] Id. at 498.

[23] Id. at 495.

[24] Id. at 499

[25] Id. at 499.

[26] Id.

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9Feb

Fourth Circuit Affirms 12(b)(6) Dismissal of Religious Land Use Claim

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By Kayleigh Butterfield

On February 9, 2016, the Fourth Circuit issued its published opinion in the civil case Andon LLC v. City of Newport News. In this case, Andon, LLC, and Reconciling People Together in Faith Ministries, LLC (collectively, Plaintiffs) filed a complaint against the City of Newport News, Virginia (the City). Plaintiffs’ complaint alleged that the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying Plaintiffs’ variance request that would permit them to use a specific property as a religious facility. The Fourth Circuit affirmed the district court’s dismissal for failure to state a claim, and its denial of Plaintiffs’ request to amend their complaint.

Church Faces Setback

Walter T. Terry Jr. formed Reconciling People Together in Faith Ministries, LLC (the congregation) in 2012. Terry began looking for a building for the congregation to use and eventually found a property for “lease or sale” by Andon, LLC. The City’s zoning ordinance for commercial properties, such as the one at issue, provided four conditions for properties to be used for a church or place of worship. One of the factors stated that no building may be “located within 100 feet of any side or rear property line which is zoned single-family residential.”

Knowing that the property did not meet the ordinance’s setback requirement, Plaintiff’s filed a request for a variance from the Board of Zoning Appeals (BZA). BZA ultimately denied the variance request. Plaintiffs then brought action under RLUIPA claiming that the denial imposed a substantial burden on Plaintiffs’ exercise of religion.

Dismissal Under 12(b)(6)

Reviewing the district court’s decision de novo, the Fourth Circuit relied heavily on its previous decision in Bethel World Outreach Ministries v. Montgomery County Council. In that case, the Fourth Circuit concluded that the plaintiffs successfully brought a substantial burden claim under RLUIPA, because the regulations at issue substantially pressured the plaintiffs to modify and then abandon their pre-existing plan to construct a church building. The Fourth Circuit distinguished Plaintiffs’ claim from Bethel by noting that Plaintiffs had no reasonable expectation that they could use the property for religious purposes. Rather, Plaintiffs knew that the City had an ordinance in place prohibiting such use. Thus, Plaintiffs assumed the risk when they entered into the lease agreement and applied for a variance instead of continuing to search for a usable property. The Fourth Circuit reasoned that Plaintiffs could not show any facts indicating that the burdens were not self-imposed.

Affirmed

Accordingly, the Fourth Circuit affirmed the district court’s decision to dismiss with prejudice, along with the denial of Plaintiffs’ request to amend their complaint.

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27Feb

The Fourth Circuit Affirmed that Religious Group is a Prison Gang

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By David Darr

Today, in the civil rights case Infinite Allah v. Virginia, the Fourth Circuit affirmed in an unpublished per curiam opinion the decision of the District Court for the Western District of Virginia granting judgment in favor of Virginia on the plaintiff’s Religious Land Use and Institutionalized Persons Act (“RLUIPA”) claim.

Plaintiff Contended the District Court Erred in Concluding Virginia’s Policies Are the Least Restrictive Means to Further a Compelling Government Interest

On appeal, the plaintiff contended two issues: (1) the District Court erred in concluding that Virginia’s prison policies were the least restrict means of furthering a compelling government interest; and (2) the District Court incorrectly found that the plaintiff’s religious group, the Nation of Gods and Earths (“NGE”), was a prison gang. The plaintiff also asked the court to definitively rule on three issues that the District Court assumed to be in the plaintiff’s favor.

Plaintiff Claimed that Virginia Was Substantially Burdening His Religious Exercise

Infinite Allah, a prisoner, brought a claim against the Virginia Department of Corrections for substantially burdening his religious exercise in violation the RLUIPA. Infinite Allah claimed that Virginia burdened his religion, NGE, by classifying NGE as a gang, by restricting NGE members from meeting communally, by prohibiting the plaintiff from wearing NGE clothing and accessories, by not providing meals that complied with a NGE diet, and by preventing NGE members from access to NGE publications. The District Court held a three-day bench trial to decide the case. The District Court found that NGE asserted racist teachings, NGE acted as a prison gang that posed a threat to the safety and security of the prison, NGE members posed a heightened risk of violence when they met, NGE accessories served as a gang identifier and served recruitment, the prison allowed Infinite Allah to have meals in general accordance with his religious accommodations, and NGE materials contained prison codes for passing messages and racist and violent sentiments.

For the sake of the argument, the District Court assumed that the NGE was a religion, the plaintiff’s beliefs were sincerely held, and that Virginia’s policies substantially burdened the plaintiff. With these three prongs of the RLUIPA assumed, the burden switched to Virginia to show that its policies were the least restrictive means in furtherance of a compelling government interest. The District Court decided that prison safety is a compelling government interest. The District Court also ruled that each of the measures Virginia took was the least restrictive means to further the compelling government interest of prison safety and that the plaintiff’s diet in prison was not substantially burdened. The plaintiff appealed.

Is There Reversible Error in District Court Decision?

The Fourth Circuit examines all findings by the District Court on factual issues on the clearly erroneous standard. It is also an affirmative defense to a RLUIPA claim for a governmental entity to claim that a challenged policy used the least restrictive means in furtherance of a substantial governmental interest.

The Fourth Circuit Adopted the Reasoning of the District Court

The Fourth Circuit commended the District Court on its “well-crafted” opinion, and decided to adopt the same reasoning as the District Court did. The Fourth Circuit gave appropriate deference to the District Court’s finding of fact that NGE was a prison gang in ruling that the District Court’s findings were not clearly erroneous. The Fourth Circuit also agreed with the District Court’s reasoning on whether Virginia’s policies were the least restrictive means to a compelling governmental interest. The Fourth Circuit also refused to rule on the three elements of the RLUIPA that the District Court assumed were satisfied.

The Fourth Circuit Affirmed

The Fourth Circuit affirmed, holding that Virginia’s prison policies were the least restrict means of furthering a compelling government interest and that the District Court did not err as to any findings of fact.

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