It’s Time for Scalian Strict Scrutiny to “Strict Scrutiny” in RFRA, Zubik v. Burwell, and Elsewhere

I. Strict Scrutiny: As Coherent a Standard As Scalia Might Want?

     In this time of “March Madness”, the public may view Zubik v. Burwell and its consolidated cases (and its sort-of-companion-case, Whole Woman’s Health v. Hellerstedt) as part of a “March Madness” season for reproductive rights or religious rights. What’s also at stake, though, is what “strict scrutiny” truly means, which should concern anyone worried about how the Court’s highest barrier to government action actually works. (The present author has discussed this idea a little in his Zubik and Hellerstedt amicus briefs, but is here offering additional commentary.) The Court’s strict-scrutiny standard in “RFRA” (Religious Freedom Restoration Act of 1993) cases, and much of its jurisprudence, has ping-ponged all over the map, and needs much more strictness, if it wants to be worthy of its name. Or worthy of recently-deceased Justice Antonin Gregory Scalia’s name, if we see him as a defender of the “dead Constitution” and “black-letter law”, instead of “living Constitution” or “jazzy improvisation with what the law means”.

     As readers likely know, American law sifts government actions through the “sieve” of levels of scrutiny. Courts treat most issues, including economic, on a “rational basis”, letting any action not completely irrational pass through. Some higher levels of scrutiny are “undue burden” (used for, e.g., abortion regulations), and “intermediate scrutiny”, used for issues like gender. (Since men and women, as humans, are frequently the same despite some obvious differences, laws may need a substantial government interest substantially connected to what the law does, to pass muster.) And then there’s “strict scrutiny”, the ostensible highest test, applied to suspect classifications like race (since skin color isn’t supposed to matter), and violations of fundamental rights like free speech.
     Since it’s the highest, most rigorous test, strict scrutiny presumably shouldn’t wobble and mean different things at different times, as per some “Alice in Wonderland” world where a word means whatever you feel like. But that is what’s happened, notably in cases leading up to Zubik. Wikipedia, in its article Strict scrutiny, gives strict scrutiny three prongs: compelling state interest, narrow tailoring, and least-restrictive means. (The present author also remembers that definition from law school.) —But does the Court consistently use that constitutional fork, with all three tines?

II. Strict Scrutiny’s Teleporting Tines: Where Did They Go?

     Would it were so. It is so in, e.g., Ashcroft v. ACLU, 542 U.S. 656 (2004), where the Court standard disfavors legislation because it’s “not narrowly tailored to serve a compelling governmental interest and because less restrictive alternatives [a]re available”, id. at 661 (citing Reno v. ACLU, 521 U.S. 844 (1997)) (Kennedy, J.). So, all three prongs are there.

     However, we are not so fortunate in, say, Gonzales v. O Centro Espírita Beneficente União Do Vegetal, 546 U.S. 418 (2006), the drugs-and-religion case where the Court mentions “RFRA, and the strict scrutiny test it adopted”, id. at 430 (Roberts, C.J.), and “‘demonstrates that application of the burden to the person’ represents the least restrictive means of advancing a compelling interest.” Id. at 423 (citation omitted).
     The problem is that the words “narrow” and “tailor[ed, ing]” do not appear in the Court’s opinion. So, if Vegetal, supra, offers us two tines of the strict-scrutiny fork (compelling interest, least restrictive means), but one tine of the fork (narrow tailoring) is missing, how can you call that really strict scrutiny? The Court may have made a mistake in Vegetal.

     Then again, the Court may have made similar mistakes, repeatedly. Well-known religious-freedom case Employment Division v. Smith, 494 U.S. 872 (1990), uses “strict scrutiny” without per se defining the term, but mentions “a compelling state interest and . . . means narrowly tailored to achieve that interest”, id. at 894 (citations omitted) (O’Connor, J., concurring). Similarly, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), says, “the most rigorous of scrutiny[; the law] must advance ‘“interests of the highest order”’ and must be narrowly tailored in pursuit of those interests.” Id. at 546 (citations omitted) (Kennedy, J.).

     So now, from Smith and Babalu, supra, strict scrutiny means Tines 1 and 2 (“compelling”, “narrow”), without Tine 3 (“least restrictive”). But this is not what Vegetal, supra, said, since it used only Tines 1 and 3, dropping Tine 2. What happened? No one need accuse the Court of a deliberate “bait-and-switch”, when well-meaning confusion is a more likely explanation.

III. Further Confusion: Hobby Lobby’s Bobbing Between Definitions

     Things get “even better” in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). That opinion at least has the decency not to use the term “strict scrutiny” at all, see id. But the Hobby Lobby Court, while usually just mentioning “least restrictive means”, passim, then at 2775 n.30 mentions “narrowly tailored” (Alito, J.), not “least restrictive means”. The logical conclusion would be that “narrow tailoring” is identical to “least restrictive means”. But the case of Ward v. Rock Against Racism, 491 U.S. 781 (1989) explicitly differentiates those two terms: they’re not identical, see id. at 798. So the Hobby Lobby standard for RFRA is deeply confused. (As a matter of common sense, “least restrictive means” may still allow a law to be weak, underinclusive of proper targets, so that “narrow tailoring” can’t take place.) See Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny (1997) (re underinclusivity).

     To make things worse, Court practice has sometimes used one term to subsume another; see Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986):

Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be specifically and narrowly framed . . . . The term “narrowly tailored,” so frequently used in our cases, has acquired a secondary meaning[;] the term may be used to require consideration of whether lawful alternative and less restrictive means could have been used. . . .

Id. at 280 & n.6 (citation omitted) (emphasis added) (Powell, J.). Thus, see id., “narrowly tailored” more-or-less subsumes “least restrictive means” in Wygant, supra. The Wygant standard of strict scrutiny is thus stricter than the Vegetal standard, which lacks “narrow tailoring”. Once again, the Vegetal standard should not really have been called “strict scrutiny”. (Maybe “Sorta-Strict Scrutiny” at best.)

     So, strict scrutiny has meant, variously:

a) Tines 1, 2, & 3 (e.g., Ashcroft);

b) Tines 1 & 2 (e.g., Babalu);

c) Tines 1 & 3 (e.g., RFRA per Vegetal);

d) Tines 1 & 2-implying-3 (Wygant).

     People using the 4-sided die popular in the Dungeons & Dragons game could just roll that die any time “strict scrutiny” is mentioned, and get one of the four definitions above—and it would still work (?), from some case or other. Does that sound like a firm, consistent basis for strict scrutiny? (And from Hobby Lobby 2775 n.30, maybe Tine 2 = Tine 3!!)

IV. Zubik Petitioners’ Using All Three S.S. Tines—Maybe One More than Allowed

     So when Petitioners’ merits brief in 15-35 (East Texas Baptist University) et al. says, “Through RFRA, Congress guaranteed application of strict scrutiny”, id. at 6, that may not actually be true: it may not be genuine strict scrutiny, since it misses the prong of narrow tailoring. Psychological impact may be a factor here; just hearing the words “strict scrutiny” may subconsciously make people judge laws more harshly than the actual standard, which might not even be true strict scrutiny. (The present author wrote a brief in support of Petitioners; but a fair playing field is also important here. —Incidentally, that brief gives some careful scrutiny to RFRA’s language and suggests that not “substantial burdens”, but some non-substantial burdens, could be put onto Petitioners, in a way precluding undue burdening of their women employees/students, or taxpayers, see Br. passim: thus, nobody would suffer too much.)

     And Petitioners’ merits brief in 14-1418 (Zubik, per se) et al. mentions “the narrow tailoring that is required to survive strict scrutiny under RFRA”, id. at 59. But RFRA has no narrow tailoring requirement! An innocent mistake, doubtless, but again, Petitioners should not get the benefit of Tines 1, 2, and 3 of strict scrutiny, when RFRA has only Tines 1 and 3.

V. The Government’s Zubik Brief: Chill Out, It Was Tine 3 All Along. But see “Rashomon”

     But the Government’s (“Respondents’”) brief in Zubik doesn’t help either; instead of abandoning the term “strict scrutiny”, that brief uses it repeatedly (see, e.g., id. at 26), continuing the confusion. The brief, see id. at 81 n.33, hints the Court was wrong in City of Boerne v. Flores (521 U.S. 507 (1997)) and Hobby Lobby, to assert that RFRA toughened the post-Smith standard by adopting “least restrictive means” rather than “narrow tailoring”. Rather, the Government says, “least restrictive means” appeared as the standard in some pre-Smith cases,

[Hobby Lobby] at 2792-2793 (Ginsburg, J., dissenting); see, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) (“no less restrictive means”) . . . ; Thomas [v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)], at 718 (“least restrictive means”).

, Br. at 81 n.33; and says, see id., that RFRA was meant to preserve the pre-Smith status quo. But this leaves us with the same problem, that “strict scrutiny” is missing Tine 2, “narrow tailoring”. Unless the Government is asserting that Tine 2 equals Tine 3—but Rock Against Racism, supra, rules that out.

     There are other Government-side briefs that deal with strict scrutiny, e.g., Bobby Scott’s, authored by RFRA foe Marci Hamilton, contradicting the Government’s brief by saying that RFRA not only has Tine 3 at full strength but is a stricter test than there used to be, see Br. at 10. Finally, the religious scholars’ brief argues that RFRA strict scrutiny is less strict than in, say, content-based free-speech cases, see Br. at 13. Confused yet?

     On that note: the famed Akira Kurosawa film Rashomon (Daiei Film Co., Ltd. 1950) involves a story seen from four different perspectives, which not only tallies with the example supra of the 4-sided die roll re strict scrutiny, but also with the differing perspectives of Zubik petitioners, the Government, etc. Hopefully the Supreme Court can do better in the future than the present Rashomon-style confusion re strict scrutiny.

VI. Conclusion: Scalia’s Scales of Justice and the Need for Clarity on Strict Scrutiny and RFRA

     Scalia, who wrote the opinion in Smith which is the reason for RFRA in the first place, would likely not be too happy that the confusion continues. Whether you like him and his opinions or not, the late Justice did have a stated commitment to clarity. See, e.g., Dickerson v. United States, 530 U.S. 428 (2000),

The issue is whether, as mutated and modified, [court rules] must make sense. The requirement that they do so is the only thing that prevents this court from being some sort of nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy.

Id. at 455 (Scalia, J., dissenting).

     A “nine-headed Caesar”, id., is close to what the present lack of a firm strict-scrutiny standard is. One gift the remaining Members of the Court besides Scalia could give the law and the Nation, is, once and for all, to tell us exactly what “strict scrutiny” actually means, whether in Zubik, RFRA, or elsewhere. And if, somewhere on high, this newfound clarity on strict scrutiny makes Scalia’s sainted specter smile down on us, all the better.

(Cross-posted from Casetext)