SUPREME COURT WATCH

Evaluating Compelling Interests and Delineating Issues of Subject Matter Jurisdiction

By Lani L. Williams

Lani L. Williams is an associate counsel with the International Municipal Lawyers Association in Washington, D.C.

What Does the Court’s Latest Religion Case Mean for RLUIPA

The U.S. Supreme Court recently released its decision in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, No. 04-1084, 2006 WL 386374 (U.S. Feb 21, 2006). The Court held the government failed to demonstrate, at the preliminary injunction stage, a compelling interest in baring the church (O Centro Espirita Beneficente Uniao Do Vegetal, “UDV” ) from the sacramental use of hoasca, a tea brewed from plants unique to the Amazon rainforest. The tea at issue contains a hallucinogen, which is regulated in the Controlled Substance Act (CSA), 21 U.S.C. § 801 et seq. (2000). The church sued the federal government alleging a violation of the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb, for the government’s interference in the church’s attempt to import and make sacramental use of the tea.

Although the case involved the federal government, it is nonetheless instructive to state and local governments that face challenges to their actions under the Religious Land Use and Institutionalized Person’s Act (RLUIPA). 42 U.S.C. § 2000cc (2000) et seq. RLUIPA requires that government actions, which burden religious exercise, must further a compelling interest in the least restrictive manner. 42 U.S.C. § 2000cc (a)(1)(A) and (B). An understanding of the Court’s reasoning in this case should forewarn state and local government attorneys of what they can expect when litigating RLUIPA cases.

The federal government conceded that the application of the CSA substantially burdened the UDV’s exercise of religion. The government, however, argued that it had a compelling interest in the uniform enforcement of the CSA, as well as in protecting the health and safety of church members, preventing the diversion of the tea to nonchurch members, and complying with a United Nations treaty regarding the regulation of psychotropic substances. The Court rejected each of these contentions. While the Court’s reasoning in each instance is interesting, it is the broader treatment of the compelling interest requirement that is of greater interest to state and local government attorneys.

In reviewing the argument that the uniform enforcement of the CSA required that no exceptions be made to its application, the Court stated that “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person . . . .” Slip op. at 9. Referencing cases that predated RFRA and that RFRA codified, the Court noted that in those cases it had looked “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinized the asserted harm of granting specific exemptions to particular religious claimants.” Slip op. at 10; see also slip op. at 14 (citing various cases and noting that the cases scrutinized the asserted need for an exemption and explained why the exemption could not be accommodated).

Assuming that RLUIPA is constitutional in all applications, state and local government attorneys should take note that, applying the above principles, they will have to demonstrate the harm created by exempting a landowner or prisoner from a generally applicable law. For instance, a local government that denies a conditional use permit for locating a place of worship in an economically depressed commercial area may well have to come forward with more than general statements about how a place of worship does not further goals of economic revitalization and reduces tax revenues in an area that could benefit from an infusion of capital. The mere invocation of general characteristics cannot carry the day. See slip op. at 11. The Court, however, did acknowledge that it had no doubt “that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws. . . .” Slip op. at 15.

The Court also noted that the CSA allowed the Attorney General to waive certain aspects of the CSA and that an exception had been created allowing Native Americans to use peyote for religious exercise. The Court found it difficult to reconcile the exemption for the use of peyote by hundreds of thousands of Native Americans with the government’s argument that it had a compelling interest in preventing 130 members of the UDV from using hoasca.

Similarly, in reviewing the application of RLUIPA to local and state government decisions involving land use and institutionalized people, governments will have to be wary of instances when seemingly similar circumstances lead to different results. For instance, if theaters and social clubs were allowed in a particular district, what justifies excluding a place of worship? This is not to say that an exclusion could never be justified, but government attorneys will have to carefully think through and present evidence supporting the difference in treatment. “[T]he Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.” Slip op. at 14.

The Court’s opinion also reinforces that the courts are to engage in a case-by-case analysis when reviewing religious exemptions to generally applicable rules. The Court noted this last term in Cutter v. Wilkinson, 125 S. Ct. 2113 (2005), and reiterated it here.

Distinguishing Between Jurisdictional and Substantive Elements Under Title VII

On February 22, 2006, the Court released its opinion in Arbaugh v. Y & H Corp., No. 04–944, 2006 WL 397863 (U.S. Feb. 22, 2006), in which it held the definition of an “employer” as having fifteen or more employees did not affect subject matter jurisdiction for federal courts, but rather served merely as an element of the plaintiff’s case on the merits. The case underscored the need of defendants to raise objections and defenses based on failing to meet the definitional aspects of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, before or at trial. Although lack of subject matter jurisdiction can be raised even post-trial, a plaintiff’s inability to prove the numerical requirements of Title VII means he or she has failed to state a valid claim for relief; a challenge based on a failure to state a claim cannot be brought post-trial.

The Court conducted an in-depth review of its precedents related to “jurisdiction” in reaching the conclusion that the employee-numerosity requirement relates to the substantive adequacy of a Title VII claim. The Court noted that it, “no less than other courts, [had] sometimes been profligate in its use of the term,” slip op. at 8, and that it and lower courts had been “less than meticulous” in delineating the difference between subject matter jurisdiction and “ingredient-of-claim-for-relief.” Slip op. at 9.

Justice Ginsburg, writing for the Court, detailed the consequences of classifying the employee-numerosity requirement as either jurisdictional or substantive, noting the ability of courts to consider jurisdictional issues sua sponte as well as after trial and juxtaposing this with the requirement that a defense of “failure to state a claim” must procedurally be brought before or at trial. See slip op. at 12–13. While acknowledging that Congress could have made the employee-numerosity requirement jurisdictional, the Court held that until Congress directs otherwise, the sounder judicial course was for the Court to determine that the numerosity requirement concerned the merits of a claim.

Recent Grants of Certiorari

Brigham City, Utah v. Stuart , 122 P.3d 506 (Utah 2005), cert. granted, 74 U.S.L.W. 3389 (Jan. 6, 2006) (No. 05–502). The questions presented are: (1) does the “emergency aid exception” to the warrant requirement recognized in Mincey v. Arizona, 437 U.S. 385 (1978), turn on an officer’s subjective motivation for entering the home; and (2) was the gravity of the “emergency” or “exigency” sufficient to justify, under the Fourth Amendment, the officers’ entry into the home to stop the fight?

The Brigham City police responded to a complaint of a noise disturbance and underage drinking at a home. When they arrived they observed the underage drinking through windows and by peering into the backyard through a fence. They also heard the sounds of a struggle coming from the home and, after entering the backyard, observed several adults restraining a teenager in the home, who was able to break free and assault one of the adults. The officers loudly announced their presence before entering through the back door of the home to prevent further harm to the occupants, to quell the disturbance and the underage drinking, and to obtain evidence.

In state trial court proceedings, the defendants moved to suppress the evidence of alcohol consumption found inside the house on the ground that the police violated the Fourth Amendment by entering the house without a warrant. The trial court granted the defendants’ motion to suppress, holding that the conduct observed by the police did not fall within the exigent circumstances exception to the Fourth Amendment’s warrant requirement. The Utah Court of Appeals affirmed by a 2–1 vote, reasoning that the evidence did not establish that “the altercation posed an immediate serious threat or created a threat of escalating violence.” The dissenting judge argued that “[i]t is nonsensical to require officers, charged with keeping the peace, to witness this degree of violence and take no action until they see it escalate further.” The Utah Supreme Court also affirmed, by a 3–2 vote. The majority began by holding that the entry was not justified under the “emergency aid” exception recognized in Mincey v. Arizona, 437 U.S. 385 (1978) (the city did not raise this exception below).

The court then rejected the city’s contention that the entry was justified under the “exigent circumstances” exception to the warrant requirement. The court acknowledged that the officers’ observation of underage drinking and the altercation were sufficient to establish probable cause. The court, however, disagreed that these observations gave rise to a reasonable belief that their immediate entry was necessary to prevent physical harm and held that what the officers observed was simply not severe enough to be considered an exigent circumstance justifying entry.

The Utah Attorney General petitioned the U.S. Supreme Court for a writ of certiorari on behalf of Brigham City, noting that the Utah Supreme Court has imposed the most restrictive standard to the “emergency aid” exception to the warrant requirement, effectively permitting an emergency aid entry only for the protection of life. With respect to the “exigent circumstances” exception, the Attorney General argued that the officers would have been derelict in their duty had they not acted after observing an ongoing fight.

Cunningham v. California , No. A103501, 2005 WL 880983 ( Cal. Ct. App. Apr. 18, 2005)(unpublished), cert. granted, ___ U.S.L.W. ___ ( U.S. Feb. 21, 2006) (No. 05–6551). The specific question before the Supreme Court is whether California’s Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments.

Cunningham contends the trial court erroneously based the upper term of his sentence on aggravating factors not found by the jury, in violation of his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004). The California Court of Appeals rejected this contention. Under the California’s sentencing scheme, a judge may impose a sentence from one of three tiers. The appellate court determined the exercise of judicial discretion in selecting the upper term based on aggravating sentencing factors does not implicate the right to a jury determination because the upper term is within the authorized range of punishment. Relying on Blakely, the appellate court disagreed with Cunningham, specifically referencing the Court’s statement that “[i]n a system that says the judge may punish burglary with 10 to 40 years, every burglar knows he is risking 40 years in jail.” Blakely, 124 S. Ct. at 2537. Therefore, the court’s imposition of that maximum did not violate appellant’s rights to a jury trial or due process.