Sixth Circuit Declares Closure of Religious Schools in Toledo Violates Free Exercise Clause
On December 31, the Sixth Circuit decided another COVID-19 free exercise case on the appellate shadow docket. The panel (Kethledge, Bush, Nalbandian) answered the question that the Supreme Court skirted in Danville Christian Academy: can the government shut down religious schools while leaving secular businesses open? The panel said no in Monclova Christian Academy v. Toledo-Lucas County Health Department.
The Toledo-Lucas County Health Department in Ohio shut down “every school in the county—public, private, and more to the point here, parochial . . . to slow the spread of COVID-19.” However, the county allowed many secular businesses to remain open, including “gyms, tanning salons, office buildings, and a large casino.” Nine Christian schools challenged the constitutionality of this measure. The District Court found that the policy “was a neutral law of general application, as defined by the Supreme Court’s precedents.” The Sixth Circuit reversed, and granted an injunction pending appeal. This post will be a tad long, as the panel raises a number of important issues that are not fully developed.
As a threshold matter, the panel considered whether the order was “of general application.” The court stated, “A rule of general application, in this sense, is one that restricts religious conduct the same way that ‘analogous non-religious conduct'” is restricted.” Lukumi, 508 U.S. at 546. The reference to “analogous non-religious conduct” from Lukumi does not accurately capture the Court’s framework to determine general applicability.
Let’s consider the structure of Lukumi. Part II.A of the opinion concluded that the Hialeah ordinances targeted the Santeria faith. Based on this finding of targeting, Part II.B concluded that the law was not a “requirement of general applicability.” Part III, which begins on page 546, explains that a “law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Next, the court reviewed the ordinances with strict scrutiny. The strict scrutiny analysis in Part III began by discussing narrow tailoring. Here, the Court found that “all four ordinances are overbroad or underinclusive in substantial respects.” Specifically, “[t]he proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” (Here is the key language the Sixth Circuit panel cited). Justice Kennedy concluded, “the absence of narrow tailoring suffices to establish the invalidity of the ordinances.”
The Sixth Circuit panel plucked the phrase “analogous non-religious conduct” from the strict scrutiny analysis, and used it to determine whether strict scrutiny was warranted in the first place. The panel put the cart before the horse. The question of narrow tailoring becomes relevant only after the Court determines that the law is not one of general applicability. But the Sixth Circuit used the narrow tailoring analysis to find the law was not one of general applicability. Now Part II-B of Lukumi, which considered whether the ordinances were generally applicable, did consider underinlusivenes and overinclusiveness. Yet, that section lacked the magic words “analogous non-religious conduct.”
In any event, I think this citation was in error, and fails to account for the structure of Lukumi. Like with NFIB v. Sebelius, Supreme Court decisions must be read from top to bottom. It is risky to quote language from later in the opinion to support positions established earlier.
The Sixth Circuit finds further support for its position in Justice Gorsuch’s concurring opinion from Roman Catholic Diocese. The panel explains, “the Free Exercise Clause does not guarantee better treatment for religious actors than for secular ones; instead, the Clause ‘prohibits government offic
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