1. law, govt and politics
2. government

No. 15-12
IN THE
Supreme Court of the State of East Ames
——————————————————
CHIC BOUTIQUE, LLC,
Appellant,
v.
MAURA PFEFFERMAN,
Appellee.
ON DIRECT APPEAL FROM THE
EAST AMES DISTRICT COURT,
LANGDELL COUNTY
——————————————————
BRIEF FOR THE APPELLEE
——————————————————
The John Doar Memorial Team
DECLAN CONROY
DANIEL NESSIM
Y. GLORIA PARK
SUSAN PELLETIER
ANDRES SALINAS
NATHAN SANDALS
March 26, 2015 – 6:15 pm
Ames Courtroom
Harvard Law School
Counsel for Appellee
Oral Argument
QUESTIONS PRESENTED
I.
The East Ames Religious Freedom Restoration Act (EARFRA)
grants relief when the State substantially burdens a person’s
religious exercise, unless the State can demonstrate that the
burden is warranted. Chic Boutique seeks to raise EARFRA as a
defense against a private litigant in a suit to which the State is
not a party. May Chic Boutique do so?
II.
EARFRA provides for exemptions from laws that substantially
burden a person’s free exercise of religion where the imposition of
the burden is not the least restrictive means of furthering a
compelling
government
interest.
Enacted
to
eliminate
discrimination, East Ames Civil Law Title 20 prohibits all places of
public accommodation from denying service to any person on the
basis of gender identity. Does EARFRA provide Chic Boutique, a
public accommodation, with an exemption from Title 20?
III.
Under the First Amendment to the U.S. Constitution, the State
may
not
compel
a
person
to
engage
in
conduct
that
communicates a particularized message that an audience is
likely to understand. Title 20’s antidiscrimination provision
forbids Chic Boutique from refusing to serve transgender
customers. Does this mandate interfere with sufficiently
expressive conduct to qualify as compelled speech?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED .................................................................. ii
TABLE OF CONTENTS........................................................................iii
TABLE OF CITED AUTHORITIES .................................................... vi
Cases .................................................................................................... vi
Constitutional Provisions .................................................................... x
East Ames Statutes ............................................................................. x
Other Statutes...................................................................................... x
Legislative Materials .......................................................................... xi
Other Materials................................................................................... xi
OPINION BELOW .................................................................................. 1
JURISDICTION ...................................................................................... 1
RELEVANT CONSTITUTIONAL AND
STATUTORY PROVISIONS ................................................................. 1
STATEMENT OF FACTS ...................................................................... 2
SUMMARY OF ARGUMENT ................................................................ 8
ARGUMENT .......................................................................................... 13
I. EARFRA DOES NOT APPLY IN PURELY
PRIVATE LAWSUITS ............................................................... 13
A. The text of EARFRA demonstrates that it
applies only in suits against the government ........................ 13
B. The sources of interpretive guidance that EARFRA
prescribes foreclose the district court’s conclusion ................ 17
iii
1. Federal courts limit the federal RFRA’s application
to cases where the government is a party ........................ 18
2. The federal RFRA’s legislative history establishes
that Congress did not intend for the law to apply
in suits between private parties ....................................... 20
3. State courts have interpreted their respective
RFRAs to preclude application in suits
between private parties ..................................................... 22
4. State legislative history contradicts Chic Boutique’s
interpretation ..................................................................... 23
C. The district court erroneously relied on the Governor’s
signing statement in determining
the intended scope of EARFRA .............................................. 24
D. Chic Boutique’s position would lead to grave practical
consequences ........................................................................... 26
1. Private parties typically lack the information and
authority necessary to prevail in Title 20 claims
against EARFRA defenses ................................................ 26
2. The government’s interest in Title 20 should not be
defeated in a suit to which it is not a party...................... 28
3. Chic Boutique has alternative avenues to assert its
free exercise claims ............................................................ 29
II. ENFORCEMENT OF TITLE 20 AGAINST CHIC
BOUTIQUE IS NONETHELESS CONSISTENT
WITH EARFRA .......................................................................... 30
A. Enforcement of Title 20 against Chic Boutique does not
substantially burden its religious exercise ............................ 31
B. Enforcement of Title 20 against Chic Boutique is
the least restrictive means of furthering
a compelling governmental interest ....................................... 36
1. East Ames has a compelling interest in enforcing
Title 20 against Chic Boutique ......................................... 36
iv
a. East Ames has compelling interests in
preventing gender-identity discrimination
and eliminating discrimination generally................... 37
b. East Ames’s compelling interests extend to
applying Title 20 to Chic Boutique specifically .......... 38
2. Enforcing Title 20 against Chic Boutique is the
least restrictive means of accomplishing
a compelling governmental interest ................................. 42
C. Interpreting EARFRA to allow exemptions that
would harm third parties raises serious
concerns under the Establishment Clause ............................ 46
III. ENFORCEMENT OF TITLE 20 AGAINST CHIC
BOUTIQUE IS CONSISTENT WITH
THE FIRST AMENDMENT...................................................... 48
A. The conduct that Title 20 regulates is non-expressive
and thus not protected by the First Amendment .................. 49
B. Even if serving transgender clients were expressive, it
does not amount to impermissible compelled speech ............ 51
CONCLUSION ....................................................................................... 56
APPENDIX ............................................................................................ A1
The First Amendment to the U.S. Constitution .............................. A1
East Ames Religious Freedom Restoration Act .............................. A2
East Ames Civil Law, Title 20.......................................................... A3
U.S. Religious Freedom Restoration Act ......................................... A6
v
TABLE OF CITED AUTHORITIES
Cases
Bell v. Stanfield,
34 E.A. 345 (2005) .............................................................................. 13
Bob Jones Univ. v. United States,
461 U.S. 474 (1983) ............................................................................ 36
Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751 (2014) ................................................................ passim
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ............................................................................ 55
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) ............................................................................ 41
City of Boerne v. Flores,
521 U.S. 507 (1997) .............................................................................. 5
Corley v. United States,
556 U.S. 303 (2009) ............................................................................ 20
Corp. of Presiding Bishop of Church of Jesus Christ of
Latter-Day Saints v. Amos,
483 U.S. 327 (1987) ............................................................................ 47
Cutter v. Wilkinson,
544 U.S. 709 (2005) ............................................................................ 47
Daniel v. Paul,
395 U.S. 298 (1969) ............................................................................ 39
Davis v. Mich. Dep’t of Treasury,
489 U.S. 803 (1989) ............................................................................ 14
Edwards v. South Carolina,
372 U.S. 229 (1963) ............................................................................ 49
Elane Photography, LLC v. Willock,
309 P.3d 53 (N.M. 2013) ............................................................ passim
vi
Emp’t Div. v. Smith,
494 U.S. 872 (1990) .............................................................................. 5
Estate of Thornton v. Caldor, Inc.,
472 U.S. 703 (1985) ...................................................................... 46, 47
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................................................ 14
Fullilove v. Klutznick,
448 U.S. 228 (1980) ............................................................................ 43
Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown Univ.,
536 A.2d 1 (D.C. 1987) ........................................................... 38, 39, 43
Gen. Conference Corp. of Seventh Day Adventists v. McGill,
617 F.3d 402 (6th Cir. 2010) ........................................................ 19, 20
Gonzales v. O Centro Espírita Beneficente União do Vegetal,
546 U.S. 418 (2006) ............................................................................ 36
Gustafson v. Alloyd Co.,
513 U.S. 561 (1995) ............................................................................ 15
Hamilton v. Schriro,
74 F.3d 1545 (8th Cir. 1996) .............................................................. 43
Hankins v. Lyght,
441 F.3d 96 (2d Cir. 2006) ..................................................... 15, 18, 19
Heart of Atlanta Motel v. United States,
379 U.S. 241 (1964) ............................................................................ 40
Hernandez v. Comm’r,
490 U.S. 680 (1989) ............................................................................ 45
Hobby Lobby Stores, Inc. v. Sebelius,
723 F.3d 1114 (10th Cir. 2013) ......................................................... 30
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,
132 S. Ct. 694 (2012) .............................................................. 16, 19, 47
Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Bos.,
515 U.S. 557, 572 (1995) ........................................................ 51, 52, 53
vii
In re Young,
141 F.3d 854 (8th Cir. 1998) .............................................................. 19
I.N.S. v. St. Cyr,
533 U.S. 289 (2001) ............................................................................ 48
Katzenbach v. McClung,
379 U.S. 294 (1964) ............................................................................ 39
Korte v. Sebelius,
735 F.3d 654 (7th Cir. 2013) .............................................................. 31
Kubala v. Hartford Roman Catholic Diocesan Corp.,
41 A.3d 351 (Conn. Super. Ct. 2011) ................................................. 23
Larkin v. Grendel’s Den, Inc.,
459 U.S. 116 (1982) ............................................................................ 47
Otten v. Balt. & O. R. Co.,
205 F.2d 58 (2d Cir. 1953) ................................................................. 47
Owens v. Feigin,
947 A.2d 653 (N.J. 2008) ................................................................... 25
Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc.,
819 F.2d 875 (9th Cir. 1987) ........................................................ 16, 17
Peace v. Peace, No. 1 CA-CV 13-0150,
2014 WL 1884868 (Ariz. Ct. App. May 8, 2014) ............................... 23
Prince v. Massachusetts,
321 U.S. 158 (1944) ............................................................................ 40
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ...................................................................... 41, 53
PruneYard Shopping Ctr. v. Robins,
447 U.S. 74 (1980) .............................................................................. 54
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984) ...................................................................... 36, 52
viii
Rumsfeld v. Forum for Academic and Institutional Rights,
547 U.S. 47 (2006) ...................................................................... passim
Rweyemamu v. Cote,
520 F.3d 198 (2d Cir. 2008) ............................................................... 18
Serbian E. Orthodox Dioceses for U.S. of America
and Canada v. Millvojevich,
426 U.S. 696 (1976) ............................................................................ 17
Sherbert v. Verner,
374 U.S. 398 (1963) .................................................................... passim
Smith v. Fair Emp’t & Hous. Comm’n,
913 P.2d 909 (Cal. 1996) .............................................................. 32, 36
Spence v. Washington,
418 U.S. 405 (1974) ............................................................................ 49
Sutton v. Providence Med. Ctr.,
192 F.3d 826 (9th Cir. 1999) .............................................................. 19
Swanner v. Anchorage Equal Rights Comm’n,
874 P.2d 274 (Alaska 1994) ............................................. 32, 39, 40, 43
Texas v. Johnson,
491 U.S. 397 (1989) ...................................................................... 49, 50
Texas Monthly, Inc. v. Bullock,
489 U.S. 1 (1989) ................................................................................ 46
Thomas v. Review Bd. of Ind. Emp’t Sec. Div.,
450 U.S. 707 (1981) ............................................................................ 32
Tomic v. Catholic Diocese of Peoria,
442 F.3d 1036 (7th Cir. 2006) ............................................................ 18
United States v. Lee,
455 U.S. 252 (1982) ............................................................................ 45
United States v. O’Brien,
391 U.S. 367 (1968) ...................................................................... 49, 52
ix
United States v. Wilgus,
638 F.3d 1274 (10th Cir. 2011) .......................................................... 43
Warner v. City of Boca Raton,
887 So. 2d 1023 (Fla. 2004) ............................................................... 31
Wisconsin v. Yoder,
406 U.S. 205 (1972) .................................................................. 5, 30, 33
Wooley v. Maynard,
430 U.S. 705 (1977) ...................................................................... 51, 53
Constitutional Provisions
N.J. Const. art. IV § 1, cl. 1
(eff. in East Ames under E.A. Const. art. 33) ................................... 25
N.J. Const. art. V § 1, cl. 14
(eff. in East Ames under E.A. Const. art. 33) ................................... 25
U.S. Const. amend. I ......................................................................... 46, 49
East Ames Statutes
East Ames Civil Law § 20-304 (2014) ................................................ 9, 50
East Ames Civil Law § 20-305 (2014) .............................................. 19, 27
East Ames Civil Law § 50-1001 (2000) .......................................... passim
East Ames Judiciary Law § 7-34(b) ...................................................... 1, 7
Other Statutes
11 U.S.C. § 701 (2012) ............................................................................. 20
11 U.S.C. § 704 (2012) ............................................................................. 20
31 U.S.C. §§ 3729–3733 (2012) ............................................................... 27
42 U.S.C. § 2000bb (2012) ............................................................... 5, 6, 18
Ariz. Rev. Stat. Ann. § 41-1493.01 (2011) ........................................ 18, 24
x
N.M. Stat. Ann. § 28-22-3 (West 2015) .................................................. 23
N.M. Stat. Ann. § 28-22-4 (West 2015) .................................................. 23
Legislative Materials
139 Cong. Rec. 4922–23 (1993) ............................................................... 21
139 Cong. Rec. 26,180 (1993) .................................................................. 35
H.B. 2453, 2014 Leg. Sess. (Kan. 2014) ................................................. 24
H.B. 427, 62d Leg., 2d Reg. Sess. (Idaho 2014) ..................................... 24
H.R. Rep. No. 103–88 (1993) ............................................................... 5, 20
Religious Freedom Restoration Act of 1990: Hearing on H.R. 5377
Before the Subcomm. on Civil and Constitutional Rights
of the H. Comm. on the Judiciary, 101st Cong. (1990) .................... 21
Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797
Before the Subcomm. on Civil and Constitutional Rights
of the H. Comm. on the Judiciary, 102d Cong. (1992) ..................... 22
S.B. 1062, 51st Leg., 2d Reg. Sess. (Ariz. 2014) .................................... 24
S.B. 916, 97th Gen. Assemb., 2d Reg. Sess. (Mo. 2014) ........................ 24
S. Rep. No. 103–111 (1993) ................................................................. 5, 20
S. Rep. No. 872 (1964) ............................................................................. 40
Other Materials
Defs.’ Reply in Supp. of Their Mot. to Dismiss,
Wheaton Coll. v. Sebelius,
887 F. Supp. 2d 102 (D.D.C. 2012) (No. 1:12-cv-01169) ................... 20
Federalist No. 10 (James Madison)
(Clinton Rossiter ed., 2003) ............................................................... 42
Gov. Jan Brewer, SB 1062 – Press Conference (Feb. 26, 2014) ............ 24
xi
Nat’l Center for Transgender Equal. and Nat’l Gay and Lesbian Task
Force, Injustice at Every Turn: A Report of the National
Transgender Discrimination Survey (2011) ..................................... 37
U.S. Dep’t of Justice, False Claims Act Cases: Government
Intervention in Qui Tam (Whistleblower) Suits ............................... 28
U.S. Dep’t of Justice, Fraud Statistics–Overview:
October 1, 1987–September 30, 2013 (Dec. 23, 2013) ....................... 28
xii
OPINION BELOW
The unreported opinion of the East Ames District Court is
reproduced at page 2 of the Record.
JURISDICTION
The judgment of the district court was entered on December 20,
2014. The notice of appeal to this Court was filed on January 6, 2015.
This Court assumed jurisdiction over this matter on January 25, 2015.
This Court has jurisdiction under East Ames Judiciary Law § 7-34(b).
RELEVANT COSTITUTIONAL AND STATUTORY PROVISIONS
Pertinent constitutional and statutory provisions are reproduced
in the Appendix.
1
STATEMENT OF FACTS
Maura Pfefferman
Maura Pfefferman is a seventy-two-year-old resident of East
Ames. She is a devoted parent to three children, R. at 5, and she
maintains a healthy relationship with her former spouse, R. at 17.
Although her children are now grown, the family reunites for dinner
every Sunday night. R. at 26. Pfefferman has been able to balance her
family life with a respected career in academia: she is a leading expert
on the history of the Arab-Israeli conflict and a tenured professor at
East Ames University. R. at 16–17.
Pfefferman was also born biologically male. R. at 16. From a
young age, she knew that her body did not match her gender identity,
and she yearned to be accepted as a woman. Id. She finally took her
first steps toward achieving this reality by attending retreats for
transgender women in her fifties. R. at 17. More than a decade later,
and after years in group therapy, Pfefferman courageously came out to
her family and friends. Id. Today she lives openly as a woman,
regularly wearing makeup, jewelry, wigs, and dresses to express her
identity. Id.
This transition, however, has not been easy for Pfefferman. Her
bravery has frequently been met with bigotry. Merely leaving her
home is a challenge, as she often faces derogatory remarks and rude
2
stares from strangers. Id. Simple courtesies most take for granted—
such as access to public restrooms—are denied to Pfefferman. The risk
of discrimination prevents her from traveling freely, be it to illiberal
countries or intolerant corner stores. See id.
Chic Boutique
Chic Boutique is a retail store in East Ames that is owned and
operated by Mary Bratton. In addition to selling women’s clothing,
Bratton offers makeover services, consulting with women on their
personalities, favorite designers, and general style aspirations before
revamping their appearances. R. at 33. She is passionate about her
business and describes providing makeovers as her “art.” Id. Bratton is
a Christian and strives to operate her business in accordance with her
religious beliefs. R. at 36. For this reason, she closes her store on
Sundays and refuses to serve young girls, who she believes should not
wear makeup. R. at 32, 34. Bratton also believes that gender
nonconformity is not in God’s plan. R. at 35.
Denial of Service
On June 2, 2014, Pfefferman saw an advertisement in which
Chic Boutique promised to “transform any woman into the woman of
her dreams.” R. at 18. She had just finished teaching for the semester
and was eager to reward herself with a “new look.” R. at 26. Excited
about the advertisement’s inclusive message and confident that the
3
store would welcome her business, Pfefferman visited Chic Boutique
that afternoon. R. at 18, 26–27.
When Pfefferman entered the store, she was one of only a
handful of patrons. R. at 27. Despite this fact, Bratton offered no
assistance while Pfefferman browsed the clothing. See id. After a few
minutes, Pfefferman approached Bratton to ask about the store’s
makeover services. Id. Bratton’s response to her inquiry was visibly
negative. Id. The storeowner’s “snide and dismissive” expression was
one that Pfefferman had seen before and knew all too well. Id. Bratton
curtly informed Pfefferman that as a “Christian business,” Chic
Boutique could not help “people like [her].” R. at 18. Confused by the
discrepancy between the advertisement’s promise and Bratton’s
attitude, Pfefferman asked if the store’s denial of service was because
she was transgender. R. at 28. Bratton refused to respond, choosing
instead to glare silently at Pfefferman. Id.
Rather than escalate the situation, Pfefferman elected to leave.
On her way out, she attempted to use the women’s restroom. R. at 29.
Bratton, however, forbade her from doing so, shouting from across the
room that Chic Boutique’s restrooms were exclusively for customers.
Id. Pfefferman grew increasingly embarrassed as surrounding
customers turned their attention to her. Id. Bratton asked her to leave.
R. at 7. Hurt and humiliated, Pfefferman complied. R. at 29.
4
Statutory Scheme
The U.S. Supreme Court held in Employment Division v. Smith,
494 U.S. 872 (1990), that “the right of free exercise [of religion] does
not relieve an individual of the obligation to comply with a valid and
neutral law of general applicability.” Id. at 879 (internal citations and
quotation mark omitted). In 1993, Congress responded by passing the
Religious Freedom Restoration Act (RFRA), which codified the
compelling interest test established in Sherbert v. Verner, 374 U.S. 398
(1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), as applied to all
free exercise claims against state or federal government action. See 42
U.S.C. § 2000bb(b)(1) (2012). Congress directed courts to “look to free
exercise cases decided prior to Smith for guidance” when applying the
test. S. Rep. No. 103–111, at 8 (1993); see also H.R. Rep. No. 103–88, at
6–7 (1993).
In City of Boerne v. Flores, 521 U.S. 507 (1997), however, the
Supreme Court ruled that the statute was unconstitutional as applied
to the states. See id. at 512. In Boerne’s aftermath, numerous states,
including East Ames, passed their own RFRA statutes. Effective
January 1, 2000, the East Ames Religious Freedom Restoration Act
(EARFRA) “codif[ies] the protections that Congress intended to extend
to the States in [the federal RFRA],” see East Ames Civil Law § 501001(e), and mirrors the language of the federal statute, compare 42
5
U.S.C. § 2000bb-1 with East Ames Civil Law § 50-1001(a)–(b). The text
of EARFRA explicitly directs courts to consult the federal RFRA,
relevant case law, and legislative history when adjudicating claims.
§ 50-1001(e).
On June 1, 2014, the Anti-Discrimination Amendments Act
went into effect in East Ames. R. at 41, 43. True to the State’s
progressive tradition, R. at 2, the legislation amended East Ames Civil
Law Title 20 and prohibited all public accommodations from
discriminating on the basis of “gender-related identity, appearance,
expression, or behavior of a person, regardless of the person’s assigned
sex at birth.” R. at 41. The statute provides a private right of action by
which an individual who experiences illegal discrimination may bring
suit against the place of public accommodation that violated the Act. R.
at 42. Information about this new law circulated widely, and both
Pfefferman and Bratton were aware of it on the day of the encounter.
See R. at 29, 38.
Proceedings Below
On June 9, 2014, Pfefferman filed suit against Chic Boutique in
East Ames District Court, alleging it had discriminated against her in
violation of Title 20. R. at 16–20. Chic Boutique answered, invoking
EARFRA as one of its defenses. R. at 23. Bratton claimed that serving
Pfefferman would violate her religion and that Title 20 could thus not
6
be applied to her because its mandate substantially burdened her
religious exercise. Id.
Both parties moved for summary judgment on July 31. R. at 25,
31. The district court granted judgment for Pfefferman and denied
Chic Boutique’s motion. R. at 15. Although the court ruled that EARFRA
could apply as a defense in a suit between private parties, it held that
Title 20’s application to Chic Boutique did not amount to a substantial
burden. R. at 12. The court further rejected Chic Boutique’s First
Amendment defenses, concluding that the statute’s application did not
run afoul of either the Free Exercise or Free Speech Clauses. R. at 13–
14. Chic Boutique appealed directly to the Supreme Court of East
Ames pursuant to East Ames Judiciary Law § 7-34(b). R. at 40.
7
SUMMARY OF ARGUMENT
It has taken decades for Maura Pfefferman to feel comfortable
living openly as the woman she is. While she sometimes faces scorn,
she is fortunate to live in East Ames, a state that values and
safeguards her gender identity. East Ames also recognizes citizens’
right to freely exercise their religion. But although protecting free
religious exercise is an important pursuit, it cannot come at the cost of
another person’s dignity. Neither EARFRA nor the First Amendment
enables Chic Boutique to demand that sacrifice. I.
Chic Boutique cannot raise EARFRA as a defense in Maura
Pfefferman’s discrimination suit. This conclusion preserves the
internal coherence and symmetry of EARFRA. The statute prohibits
only the government from burdening religion, entitles only the
government to demonstrate an exception to that prohibition, and
allows only the government to grant relief. See East Ames Civil Law
§§ 50-1001(a)–(c) (2000).
The
statute’s
specified
sources
of
interpretive
guidance
uniformly support an interpretation that limits its application to suits
to which the government is a party. The legislative history shows that
not one legislator suggested federal RFRA could be invoked as a
defense against a private party. And neither federal nor state case law
supports the statute’s application here.
8
Chic Boutique’s position requires private litigants to defend the
government’s policy. This interpretation results in unworkable
practical consequences in three ways. First, any exception to
EARFRA’s general prohibition requires a demonstration that a law
furthers a compelling governmental interest using the least restrictive
means. See § 50-1001(b). But private individuals are rarely equipped to
step into the government’s shoes and meet this stringent burden.
Second, applying EARFRA in this exclusively private suit
frustrates Title 20’s goals of uprooting gender-identity discrimination
and discrimination more broadly. See East Ames Civil Law § 20-304
(2014). Realizing that EARFRA challenges are more likely to succeed
as defenses against private individuals than as claims against the
State, discriminatory public accommodations may avoid bringing
affirmative claims for EARFRA exemptions against the government.
They might instead play the odds, waiting for private plaintiffs to
bring discrimination suits against them. This scenario forces the
government into a lose-lose situation: underenforcement of Title 20 or
intervention in every private lawsuit.
Finally, if Chic Boutique does not prevail on the question of
EARFRA’s applicability, it can challenge Title 20 directly. This is the
proper posture through which to decide EARFRA’s compelling interest
test—with the government defending its interests. Conversely, if this
9
Court allows Chic Boutique’s EARFRA defense here and if Pfefferman
is unable to defend Title 20, she will lose her only bite at the apple.
II.
Even if EARFRA were to apply as a defense in this suit,
application of Title 20 to Chic Boutique would not impermissibly
interfere with its religious exercise. Although Chic Boutique’s objection
is grounded in sincere beliefs, the law’s requirement that it serve
Pfefferman does not pose a substantial burden. Religion did not
motivate or mandate Bratton’s decision to enter the marketplace as a
public accommodation and in turn subject herself to the regulatory
scheme of which Title 20 is part. Any resulting encumbrance on that
choice thus fails to constitute a cognizable substantial burden on
religious exercise.
Moreover, the government has compelling interests in preventing gender-identity discrimination in particular and discrimination in
general. These interests extend to enforcement of Title 20 against Chic
Boutique specifically. These interests manifest in two forms: first, in
ensuring that each citizen has access to the marketplace irrespective of
personal characteristics, and second, in protecting individual dignity.
Regardless of whether Pfefferman could receive similar service at
another store, Chic Boutique’s actions irreparably harmed her dignity.
Each act of discrimination is detrimental to individuals and to a
10
society concerned with the equal protection of all. A single instance of
discrimination is one too many.
Enforcement of Title 20 against Chic Boutique is also the least
restrictive means of achieving these compelling interests. Allowing
exceptions to the antidiscrimination policy necessarily undercuts the
furtherance of the interests behind the policy. Chic Boutique’s
proposed “alternative referral scheme” fails because it does nothing to
remedy—and in fact likely exacerbates—the dignitary harm that
discrimination causes.
Finally, to grant Chic Boutique an exemption from Title 20
would raise significant Establishment Clause concerns because it
would read EARFRA to require religious exemptions that harm third
parties. Invoking the canon of constitutional avoidance, this Court
should find that Title 20 furthers a compelling state interest using the
least restrictive means, and thus is permissible as applied under
EARFRA.
III.
The First Amendment does not shield Chic Boutique’s conduct.
Because
only
conduct
that
is
inherently
expressive
receives
constitutional protection, the activity that Title 20 regulates—
specifically choice of clients—falls squarely outside the bounds of the
First Amendment. Underscoring this point is the fact that the general
public would not attribute larger meaning to Chic Boutique’s
11
compliance with the law because such compliance would not communicate a particularized message.
And even if the conduct necessary to comply with Title 20 was
inherently expressive, that conduct does not amount to compelled
speech. That statute’s effect on expression is purely incidental to East
Ames’s efforts to further an important interest unrelated to speech.
Title 20 does not interfere with Chic Boutique’s ability to express any
message it might wish to communicate about protected classes. Its
impact is thus consistent with the First Amendment.
12
ARGUMENT
This Court reviews the district court’s findings of fact for clear
error and its legal conclusions de novo. See Bell v. Stanfield, 34 E.A.
345, 348 (2005).
I.
EARFRA DOES
LAWSUITS
NOT
APPLY
IN
PURELY
PRIVATE
The district court erred when it allowed Chic Boutique to invoke
EARFRA as a defense in this private dispute. See R. at 10. The plain
text of the statute, the sources of interpretative guidance provided in
the statute, and practical considerations all support reversing the
district court’s interpretation.
A. The text of EARFRA demonstrates that it applies only
in suits against the government
EARFRA’s judicial relief section states: “A person whose
religious exercise has been burdened in violation of this section may
assert that violation as a claim or defense in a judicial proceeding and
obtain appropriate relief against the state or any political subdivision
of the state.” East Ames Civil Law § 50-1001(c) (2000). This text is
susceptible to two interpretations. “[A]gainst the state” could be read
to modify both “assert that violation as a claim or defense in a judicial
proceeding”
and
“obtain
appropriate
relief.”
Alternatively,
the
prepositional phrase could modify only the latter clause, “obtain
appropriate relief.” The first interpretation would restrict EARFRA to
13
suits in which the government is a party, while the second
interpretation specifies only that relief must come from the
government. In the context of the statutory scheme, however, the
provision is unambiguous: EARFRA cannot apply in suits between
private parties.
When interpreting an ambiguous statutory subsection, “a
reviewing court should not confine itself to examining [the] particular
statutory provision in isolation.” FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132 (2000). “It is a fundamental canon of statutory
construction that the words of a statute must be read in their context
and with a view to their place in the overall statutory scheme.” Davis
v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989). Subsection (c)
must thus be read in light of EARFRA’s other provisions to ensure a
consistent and coherent regulatory framework.
Because subsections (a) and (b) limit only government action,
parties seeking to enjoin actions that violate those provisions must do
so by challenging the government. Subsection (a) states that “[t]he
State or any political subdivision of the State shall not substantially
burden a person’s exercise of religion even if the burden results from a
rule of general applicability . . . .” § 50-1001(a). Subsection (b) makes
one exception for certain government-imposed burdens: the State “may
substantially burden a person’s exercise of religion only if it
14
demonstrates that application of the burden to the person” furthers a
“compelling governmental interest” using the “least restrictive means.”
§ 50-1001(b) (emphasis added).
Subsection (a) forbids exclusively the government, and no other
entities, from burdening religious exercise. Subsection (b) likewise
grants an exception only to the government: the subject of the sentence
is clearly defined as “[t]he state or any political subdivision of the
state.” Furthermore, in that subsection, the only noun to which the
pronoun “it” can refer is “the state” or “any political subdivision of the
state.” Neither encompasses private parties. After the unambiguous
statement in subsection (b) that only the State may make the requisite
showing under the compelling interest test, this Court should interpret
subsection (c) in that light. “[I]n conjunction with the rest of the
statute, . . . it becomes clear that this section reflects [the legislature’s]
understanding that RFRA claims and defenses would be raised only
against the government.” Hankins v. Lyght, 441 F.3d 96, 114 (2d Cir.
2006) (Sotomayor, J., dissenting) (examining analogous structure and
provisions of the federal RFRA). Interpreting the judicial relief
provision in subsection (c) as inapplicable to purely private lawsuits
preserves the “symmetr[y] and coheren[ce]” of the entire statute.
Gustafson v. Alloyd Co., 513 U.S. 561, 569 (1995).
15
Chic Boutique’s attempt to raise EARFRA as a defense here
ignores the implications that doing so would have on the operation of
subsection (b), which demands that the government justify the
application of the burden on religious exercise. Indeed, Chic Boutique’s
position leaves this Court with two untenable options. First, it can
apply the plain text of subsection (b), which would preclude Pfefferman
from defending the government’s actions. With no party authorized to
justify the burden, no such burden could ever survive. Second, the
Court could allow private plaintiffs to fill the role of the government
and make the relevant demonstration. This reading, however, is at
odds with the statute’s clear language.
Chic
Boutique
nonetheless
advocates
for
the
second
interpretation, citing the purpose of the federal RFRA to broaden
subsection (b) beyond its plain meaning. See Appellant Br. at 18–19. It
contends that its interpretation conforms with pre-Smith free exercise
jurisprudence, but it offers no relevant case in support. The case it does
invoke, Paul v. Watchtower Bible & Tract Soc’y of N.Y., Inc., 819 F.2d
875 (9th Cir. 1987), involved a dispute between church leadership and
a former congregant over a religious practice. Id. at 877. But for good
reason, courts have distinguished the religious exercise of churches
from that of individuals or other non-church entities. See, e.g.,
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.
16
Ct. 694, 707 (2012). In order to avoid secular courts entangling
themselves in the internal affairs of religious institutions, courts have
applied different standards when reviewing claims in this sphere. See
Serbian E. Orthodox Dioceses for U.S. of America and Canada v.
Millvojevich, 426 U.S. 696, 724 (1976) (“In short, the First and
Fourteenth Amendments permit hierarchical religious organizations to
establish their own rules and regulations for internal discipline and
government . . . .”). Indeed, the Paul court confined its decision to the particular
set of facts before it, which involved a religious organization, its
congregants, and its religious tenets. See Paul, 819 F.2d at 883. Chic
Boutique is not a church, Bratton is not a minister, and Pfefferman is
not a congregant. For these reasons, cases involving the internal
affairs of churches or church-run organizations shed no light on
whether EARFRA applies in this case.
Subsection (b) is clear: only the government can justify
substantial burdens. This Court should read subsection (c) in line with
its adjacent provision and limit EARFRA’s application to suits against
the government.
B.
The sources of interpretive guidance that EARFRA
prescribes foreclose the district court’s conclusion
EARFRA enumerates four sources of interpretive guidance for
resolving ambiguities: federal case law, federal legislative history,
17
state court decisions, and “other legal sources of this State and other
States with similar provisions.” § 50-1001(e). Courts look to these
sources when EARFRA’s language is “identical or substantially similar
to that used by Congress or another State.” Id. Here, EARFRA’s
judicial relief provision mirrors those in the federal RFRA and many
state counterparts. Compare East Ames Civil Law § 50-1001(c), with
42 U.S.C. § 2000bb-1(c) (2012), and, e.g., Ariz. Rev. Stat. Ann. § 411493.01(D) (2011). All four specified sources preclude the district
court’s conclusion.
1. Federal courts limit the federal RFRA’s application to
cases where the government is a party
The district court overstated the disagreement among federal
appellate courts on whether RFRA applies to suits between private
parties. See R. at 9. No circuit court decision squarely supports the
district court’s holding. While a Second Circuit panel suggested that
RFRA applies in suits between private parties, see Hankins, 441 F.3d
at 103, it did so over a forceful dissent by then-Judge Sotomayor, see
id. at 114–15 & n.8 (Sotomayor, J., dissenting). Just two years later, a
subsequent Second Circuit panel “doubt[ed]” the Hankins majority’s
reasoning and largely adopted the dissent. See Rweyemamu v. Cote,
520 F.3d 198, 203 (2d Cir. 2008). Every other circuit to address the
question has said that RFRA does not apply in suits between private
parties. See Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042
18
(7th Cir. 2006) (“[Hankins] is unsound. RFRA is applicable only to
suits to which the government is a party.”), abrogated on other grounds
by Hosanna-Tabor, 132 S. Ct. at 710; see also Gen. Conference Corp. of
Seventh Day Adventists v. McGill, 617 F.3d 402, 410 (6th Cir. 2010);
Sutton v. Providence Med. Ctr., 192 F.3d 826, 834 (9th Cir. 1999).
Even if this Court were to give credence to the majority in
Hankins, that opinion limited RFRA’s application to private suits
where a government entity could also have brought the claims. See 441
F.3d at 103. The Hankins court stressed that the “[Age Discrimination
Enforcement Act] is enforceable by the EEOC as well as private
plaintiffs.” Id. No such government agency is present here. By its
terms, Title 20 limits judicial relief to “any person” and does not
provide for government enforcement. See East Ames Civil Law § 20305(a). Chic Boutique does not contest this point. See Appellant Br. at
23. Without a state actor that could bring this action on Pfefferman’s
behalf, the Hankins majority holding has no bearing here, and Chic
Boutique has no federal RFRA decisions on which to rely.
Chic Boutique grasps for support in disparate court decisions
and filings, but none are compelling. For instance, In re Young, 141
F.3d 854 (8th Cir. 1998), did not apply the federal RFRA as a defense
against a private party, see Appellant Br. at 21, but rather against a
federal bankruptcy trustee, who is a government agent for the purp-
19
oses of that proceeding. See 11 U.S.C. §§ 701, 704(a)(9) (2012).
Similarly, Chic Boutique points to a federal district court filing to
claim that the U.S. Department of Justice conceded federal RFRA’s
application in suits between private parties. Appellant Br. at 21–22.
The Justice Department, however, suggested merely that a litigant
may be able to raise the federal RFRA in a suit between private
parties, but only if it joined the government. Defs.’ Reply in Supp. of
Their Mot. to Dismiss at 3–4 & n.4, Wheaton Coll. v. Sebelius, 887 F.
Supp. 2d 102 (D.D.C. 2012) (No. 1:12-cv-01169), ECF No. 19.
2. The federal RFRA’s legislative history establishes that
Congress did not intend for the law to apply in suits
between private parties
All three principal sources of legislative history—committee
reports,
sponsor
statements,
and
hearing
testimony—preclude
invoking the federal RFRA as a defense against a private party.
First, neither the House nor Senate Report accompanying the
bill suggests federal RFRA applies in exclusively private suits. See
McGill, 617 F.3d at 411 (citing S. Rep. No. 103–111; H.R. Rep. No.
103–88 (containing no mention of the statute’s applicability to
exclusively private suits)). Second, the sponsors of the federal RFRA—
whose statements before the full Senate carry “considerable weight” for
courts analyzing legislative history, Corley v. United States, 556 U.S.
303, 318 (2009)—did not envision the statute’s application to suits
20
between private parties. According to Senator Kennedy, federal
RFRA’s lead sponsor, the bill intended to restore pre-Smith
jurisprudence, particularly federal courts’ analysis of government
actions in the context of free exercise claims. See 139 Cong. Rec. 4922–
23 (1993) (statement of Sen. Kennedy). Indeed, in listing the horribles
he expected RFRA to prevent, none plausibly involved suits brought by
private plaintiffs. Id. at 4922. (noting that after Smith, government
could “ban the use of wine in communion services . . . [and] force
children to attend sex education classes contrary to their faith”).
Absent from these statements is any mention of federal RFRA
providing a defense against a private plaintiff.
Hearing testimony is the third and final piece of legislative
history that confirms that EARFRA does not apply here. At Congress’s
first hearing responding to Smith, Representative and witness
testimonies focused solely on scenarios directly involving the
government. See, e.g., Religious Freedom Restoration Act of 1990:
Hearing on H.R. 5377 Before the Subcomm. on Civil and Constitutional
Rights of the H. Comm. on the Judiciary, 101st Cong. 23 (1990)
(statement of Rep. Smith) (noting potential infringements such as
forcing Jewish government employees to work on Yom Kippur). At a
1992 hearing, a Subcommittee member spoke on the issue: “It is not an
individual against an individual, it is government action against an
21
individual.” See Religious Freedom Restoration Act of 1991: Hearings
on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights
of the H. Comm. on the Judiciary, 102d Cong. 58–59 (1992)
[hereinafter 1992 Hearing] (statement of Rep. Kopetski) (listing
examples
of
potential
applications
such
as
government-forced
autopsies and historical-landmark regulation).
Professor Douglas Laycock’s testimony at the 1992 Hearing—the
primary source of legislative history that Chic Boutique cites, see
Appellant Br. at 21—fails to speak to the question at hand. Each case
and hypothetical that Laycock discussed about RFRA’s potential
application involved either a state actor or a church-owned or churchrun institution. See 1992 Hearing at 361–71. Chic Boutique is neither.
As already established, cases involving the church do not serve as
applicable precedent for suits involving individuals, regardless of those
individuals’ religiosity.
3. State courts have interpreted their respective RFRAs to
preclude application in suits between private parties
The leading state court decision rejects use of RFRA as a defense
in a private antidiscrimination enforcement suit. See Elane Photography, LLC v. Willock, 309 P.3d 53, 77 (N.M. 2013), cert. denied, 134 S.
Ct. 1787 (2014). In a fact pattern strikingly similar to this case, a
public accommodation in New Mexico denied service to a customer on
the basis of her sexual orientation. Id. at 59–60. After the state Human
22
Rights Commission found that Elane Photography had wrongfully
discriminated against that customer, the business appealed, invoking,
inter alia, the New Mexico RFRA (NMRFRA) as a defense. Id. at 60.
Notably, Elane Photography had a stronger case than Chic Boutique
does here: although the remedial provisions in NMRFRA are
substantially similar to its counterpart in East Ames, NMRFRA does
not specify whether it is the government who must make the
compelling interest demonstration. Compare East Ames Civil Law
§§ 50-1001(b)–(c), with N.M. Stat. Ann. §§ 28-22-3 to 28-22-4 (West
2015). Nonetheless, the New Mexico Supreme Court held that
NMRFRA did not provide a claim or defense in disputes between
private parties. See Elane Photography, 309 P.3d at 77.
Chic Boutique does not point to a single state court decision
applying a state RFRA in an exclusively private dispute. The two state
court cases that come closest are inapposite because one involved state
action, see Peace v. Peace, No. 1 CA-CV 13-0150, 2014 WL 1884868, at
*3 (Ariz. Ct. App. May 8, 2014), while the other dismissed a tort claim
against a church, see Kubala v. Hartford Roman Catholic Diocesan
Corp., 41 A.3d 351, 363–66 (Conn. Super. Ct. 2011).
4. State legislative history contradicts Chic Boutique’s
interpretation
After Elane Photography, many state legislatures considered
bills to expand state RFRA protections to purely private disputes. See,
23
e.g., S.B. 1062, 51st Leg., 2d Reg. Sess. (Ariz. 2014); H.B. 427, 62d Leg.,
2d Reg. Sess. (Idaho 2014); S.B. 916, 97th Gen. Assemb., 2d Reg. Sess.
(Mo. 2014); H.B. 2453, 2014 Leg. Sess. (Kan. 2014). In each instance,
the proposed legislation aimed to codify RFRA’s application as a
defense against a private party, but none became law.
In particular, the Arizona Legislature tried to amend the
judicial remedy provision of its RFRA—which is identical to subsection
(c)—so that the statute would explicitly apply in suits between private
parties. See Ariz. Rev. Stat. Ann. § 41-1493.01(D) (2011); S.B. 1062,
51st Leg., 2d Reg. Sess. (Ariz. 2014) (inserting “regardless of whether
the government is a party to the proceeding”). Arizona’s governor
vetoed the legislation, citing possible “unintended and negative
consequences.” Gov. Jan Brewer, SB 1062 – Press Conference (Feb. 26,
2014) (transcript available at http://perma.cc/249Z-TKBA). That Arizona and so many state legislatures believed their respective RFRA
statutes did not already confer a private right undercuts Chic
Boutique’s argument and the district court’s conclusion.
C.
The district court erroneously relied on the
Governor’s signing statement in determining the
intended scope of EARFRA
Governor Barwin lacks the power to alter the meaning of duly
enacted legislation. The East Ames Constitution, adapted from the
New Jersey Constitution, vests all lawmaking power in the legislature.
24
See N.J. Const. art. IV, § 1, cl. 1 (eff. in East Ames under E.A. Const.
art. 33). It enumerates the executive branch’s limited role in the
legislative process: when both houses of the legislature pass and
present to the Governor a bill such as the antidiscrimination
amendments, she has the option of signing it, vetoing it, or acquiescing
to its enactment by not signing within forty-five days. See N.J. Const.
art. V, § 1, cl. 14 (eff. in East Ames under E.A. Const. art. 33). The
district court improperly ascribed legislative functions that the East
Ames Constitution withholds from the executive branch when it
considered Governor Barwin’s signing statement as informing the
meaning of EARFRA’s text and as “the thumb on the scale.” R. at 9. By
allowing Governor Barwin to both legislate and interpret, rather than
simply execute, the district court aggrandized the executive at the
expense of both the legislative and judicial branches.
Even if this Court were to consider Governor Barwin’s signing
statement in interpreting EARFRA, it lends little support to Chic
Boutique’s interpretation for three reasons. First, executive statements
carry minimal weight because they indicate executive understanding,
not legislative intent. The New Jersey Supreme Court’s analysis of
signing statements is particularly relevant: “In the hierarchy of
legislative history, signing statements do not carry the interpretive
force afforded to statements from the Legislature.” Owens v. Feigin,
25
947 A.2d 653, 655 n.3 (N.J. 2008). Second, the Governor’s statement
indicates a commitment to “balanc[ing],” but not once mentions suits
between private parties. R. at 43. Contrary to Chic Boutique’s
assertions, see Appellant Br. at 22, the Governor said nothing about
who can utilize EARFRA and when they may do so. Third, the
comments on Title 20 the Governor made in 2014 have no import or
relevance to the scope of EARFRA, enacted before 2000, R. at 44. The
Governor cannot change the meaning of a preexisting law every time a
new bill crosses her desk.
D.
Chic Boutique’s position
practical consequences
would
lead
to
grave
In light of the implications of Chic Boutique’s argument, it is no
surprise that a close analysis of the text and legislative history make
clear that EARFRA was not meant to provide a defense in suits
between private parties. For three reasons, the district court’s
EARFRA interpretation has broad and harmful consequences.
1. Private parties typically lack the information and
authority necessary to prevail in Title 20 claims against
EARFRA defenses
Even if a private plaintiff such as Pfefferman could, in
contravention of the plain text of § 50-1001(b), step into the
government’s shoes and defend Title 20, he or she would rarely be
prepared to assert a compelling government interest and defend the
law as the least restrictive means of accomplishing that interest.
26
Citizens are not privy to the government’s internal workings and thus
often cannot even define the relevant interest, much less accurately
describe why the law constitutes the least restrictive means of
achieving it. A private individual does not have the authority to
definitively say what is or is not feasible for the government to do, nor
whether a possible alternative would actually achieve a particular
interest. It is generally only the government, in consultation with the
various experts that formulate and effectuate policy, that can make
these determinations.
Moreover, given the difficulty of defending the government’s
interest, few private plaintiffs will be able to invest the resources
necessary to defeat an EARFRA defense, especially considering the
$5,000 cap on damages under Title 20. East Ames Civil Law § 20305(b). This damages provision stands in stark contrast to statutory
schemes in which the government intends private parties to represent
its interests. For example, under the False Claims Act (FCA), 31
U.S.C. §§ 3729–3733 (2012), when private relators bring qui tam
claims, they can receive up to thirty percent of the total damages if the
claim succeeds. See id. §§ 3730(d)(1)–(2). But even with significant
economic incentives, a lower burden than strict scrutiny, and the
informational advantages that flow from being whistleblowers with
inside knowledge, FCA relators find it nearly impossible to prevail in
27
qui tam actions without government intervention. Although more than
seventy-five percent of FCA claims proceed without government
intervention, they result in less than four percent of total awards the
government dispersed to relators. See Dep’t of Justice, False Claims
Act Cases: Government Intervention in Qui Tam (Whistleblower) Suits,
http://perma.cc/TC4T-WUTJ (last visited Mar. 2, 2015); Dep’t. of
Justice, Fraud Statistics–Overview: October 1, 1987–September 30,
2013 (Dec. 23, 2013), http://www.justice.gov/sites/default/files/civil/legacy
/2013/12/26/C-FRAUDS_FCA_Statistics.pdf. This example demonstrates how difficult it is for private actors to take the government’s place.
This Court cannot reasonably expect Title 20 to remedy discrimination
if private parties like Pfefferman must meet the government’s burden.
2. The government’s interest in Title 20 should not be
defeated in a suit to which it is not a party
The East Ames legislature has a long-standing commitment to
eradicating and preventing discrimination. R. at 2. Given that mission
and the fact that Title 20 has no government enforcement mechanism,
Chic Boutique’s interpretation is unfair to the State because it
interferes with the government’s ability to effectuate its intent and
interest. If EARFRA provides a private defense against Title 20 claims,
discriminatory public accommodations may never directly challenge
the law to seek exemptions. Instead, they may strategically elect to
face individual claimants like Pfefferman, as those plaintiffs will
28
always be less equipped than the government to satisfy the compelling
interest test. To avoid this outcome, the government will have to
intervene in every private suit in which EARFRA is raised as a
defense.
Therefore, the potential for underenforcement, not overenforcement, is the true concern here. Chic Boutique argues that Pfefferman’s
interpretation creates a “delegation loophole” in EARFRA, Appellant
Br. at 26, but, in fact, Chic Boutique can—at any time—bring a claim
against the government. Many similarly situated entities have done so
under the federal RFRA. See, e.g., Burwell v. Hobby Lobby Stores, Inc.,
134 S. Ct. 2751, 2766 (2014). Likewise, in the hypothetical that Chic
Boutique poses, see Appellant Br. at 26, the church could preemptively
challenge the strict liability law. Chic Boutique asks this Court for a
“shield” against burdens on its religion. Id. at 27. In the process, it
ignores the sword contained in subsection (c): the right to bring direct
claims against the government.
3. Chic Boutique has alternative avenues to assert its free
exercise claims
The district court asserted that it would defy common sense to
require a defendant facing a Title 20 discrimination claim to file a
separate EARFRA claim against the government. R. at 10. But that
logic results in a more counterintuitive scenario, where the private
plaintiff must successfully stand in for the government or forever lose
29
her case. If Chic Boutique loses on this question, it has further judicial
recourse: it can sue the government for an as-applied exemption from
Title 20. In contrast, this is Pfefferman’s only day in court. Surely,
suing the government to challenge a law is a more manageable—and
more common—burden than defending the government’s interests as a
private litigant.
II.
ENFORCEMENT OF TITLE 20 AGAINST CHIC BOUTIQUE
IS NONETHELESS CONSISTENT WITH EARFRA
Even if this Court were to determine that Chic Boutique can
raise EARFRA as a defense, enforcement of Title 20 would be justified.
EARFRA prohibits the State from “substantially burden[ing] a
person’s exercise of religion even if the burden results from a rule of
general applicability,” unless doing so “is in furtherance of a
compelling government interest” and “is the least restrictive means of
furthering that . . . interest.” §§ 50-1001(a)–(b). When undertaking this
inquiry,
the
Court
should
look
to
pre-Smith
free
exercise
jurisprudence. See § 50-1001(e) (referencing the federal RFRA, which
codifies the test established in Sherbert v. Verner, 374 U.S. 398 (1963),
and Wisconsin v. Yoder, 406 U.S. 205 (1972)).
To prevail on a RFRA claim, the religious adherent has the
initial burden of showing that the government has substantially
interfered with her sincere religious exercise. See Hobby Lobby Stores,
Inc. v. Sebelius, 723 F.3d 1114, 1125–26 (10th Cir. 2013) aff’d sub nom.
30
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Only after
the claimant crosses this threshold does the court inquire as to
whether the burden is justified under the statute. Here, Chic Boutique
has failed to clear the preliminary hurdle by establishing that
enforcement of Title 20 constitutes a substantial burden. And even if
Chic Boutique could make such a showing, enforcement would be
proper, as the scheme set forth in Title 20 is the least restrictive means
of furthering the government’s compelling interest in preventing
discrimination on the basis of gender identity.
A.
Enforcement of Title 20 against Chic Boutique does
not substantially burden its religious exercise
Because Bratton has chosen to operate a public accommodation,
thereby subjecting herself to Title 20, its enforcement does not
constitute a substantial burden. Federal and state courts have found a
“substantial burden” where a government regulation “compel[s] a
person to do an act his religion forbids, or punish[es] him for an act his
religion requires.” Korte v. Sebelius, 735 F.3d 654, 668 (7th Cir. 2013)
(citations omitted); see also Warner v. City of Boca Raton, 887 So. 2d
1023, 1033 (Fla. 2004) (interpreting state RFRA).
Bratton is not compelled to subject herself to Title 20 and is
therefore not compelled to comply with its mandate. She made the
voluntary choice—one not mandated or motivated by her religious
beliefs—to enter the market as a public accommodation. In so doing,
31
Bratton agreed to place herself within the purview of the myriad
applicable regulations. Any burden on her religious exercise is a result
of her own decision, and she is able to escape the conflict between Title
20 and her religious beliefs at any time. See Smith v. Fair Emp’t &
Hous. Comm’n, 913 P.2d 909, 928–29 (Cal. 1996) [hereinafter Smith
(Cal.)] (holding that the state ban on marital-status discrimination in
housing did not constitute a substantial burden under the federal
RFRA because the claimant’s “religion d[id] not require her to rent
apartments,” leaving her free to “avoid the burden on her religious
exercise without violating her beliefs”); Swanner v. Anchorage Equal
Rights Comm’n, 874 P.2d 274, 283 (Alaska 1994) (rejecting similar
claim after applying the Sherbert test to a state free exercise claim).
Indeed, that Bratton can avoid the burden makes this case
wholly different from Sherbert and Thomas v. Review Bd. of Ind. Emp’t
Sec. Div., 450 U.S. 707 (1981), on which Chic Boutique relies, see
Appellant Br. at 35–36. The Thomas Court concluded that, although
withholding unemployment benefits did not compel the claimant to
work in violation of his religious beliefs, it nonetheless puts sufficient
pressure on him to constitute a substantial burden. See Thomas, 450
U.S. at 717–18. Likewise, the claimant in Sherbert established that she
could not find non-Saturday work, see 374 U.S. at 399 n.2, so the
state’s denial of unemployment benefits “force[d] her to choose between
32
following the precepts of her religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of her religion in order to
accept work, on the other hand.” Id. at 404. Neither of these cases
involved an opt-in regulatory scheme like Title 20; the pressure in
those cases was accordingly of a different nature. In both Sherbert and
Thomas, the only two options available to the claimants were to accept
work in violation of their religion or forego unemployment benefits. See
also Yoder, 406 U.S. at 218 (stressing that the impact of the criminally
enforceable
compulsory
school-attendance
law
“on
respondents’
practice of the Amish religion is not only severe, but inescapable”)
(emphasis added).
In this case, Bratton may go her entire life without ever
performing a makeover on a transgender person. There is no
punishment imposed or benefit withheld as a result of her not doing so.
It is only when she makes the choice to subject herself to Title 20 by
operating a retail store that such pressure is inflicted. What the
scheme affects, then, is Bratton’s choice to open Chic Boutique and
operate it as a public accommodation. But because her faith did not
motivate that particular decision, see Appellant Br. at 3; R. at 34, it
was not religious exercise. The decision is therefore not protected
under EARFRA.
33
Admittedly, Hobby Lobby injects a degree of uncertainty into
this analysis. The opinion could be interpreted as directing courts’
inquiries to the burden on either the corporation or its individual
owners. The latter approach makes the most sense. Because courts
examine the beliefs of the individual owners when establishing
sincerity, see Hobby Lobby, 134 S. Ct. at 2764–66, the burden inquiry
should also focus on those individuals. The appropriate question here,
then, is not whether Chic Boutique is substantially burdened, but
whether Bratton’s free exercise of religion is. Because Chic Boutique
embraces this approach, see Appellant Br. at 34–37, the burden
analysis in this brief proceeds within the same framework.
Examining the burden on the individual owners in Hobby Lobby
shows that they faced a situation different from the one Bratton faces
here. There, the owners established that they were religiously
forbidden from facilitating access to certain contraceptives, see 134 S.
Ct. at 2775, and also that they were religiously obligated to provide
health insurance to their employees, see id. at 2776. Although the
government did not argue that the owners could have avoided the
burden by not offering health insurance, the Court indicated that their
being religiously obligated to provide it was significant.1 It rejected as
1 Similarly, the government did not raise the argument that the owners
could have chosen not to serve as employers in order to avoid the
34
an acceptable alternative the notion that the owners’ could avoid the
financial harm of fines by not providing insurance at all. Id. Since the
owners were unable to avoid the choice between financing the
contraceptives and paying the fines, their free exercise was
substantially burdened. See id. at 2776–77.
Here, by contrast, Bratton is not religiously obligated to provide
makeovers or sell clothes. The conflict between Title 20 and her
religious beliefs results from her decision to open this specific kind of
public accommodation. Having to decide between professionally
pursuing one’s “passion,” R. at 33, and exercising one’s religion is
undoubtedly a difficult choice, but it does not amount to a substantial
burden that EARFRA was intended to protect.
This conclusion is the most faithful not only to pre-Smith
jurisprudence but also to the intent of the legislature. Before Congress
passed the federal RFRA, it amended the statute to explicitly include
“substantial” so as “not [to] require the Government to justify every
action that has some effect on religious exercise.” See 139 Cong. Rec.
26,180 (1993) (statement of Sen. Hatch). Expanding “substantial
burden” to, in effect, include all burdens on religious exercise would
read “substantial” out of the statute. In this case, Bratton has
voluntarily decided to engage in a particular economic activity.
burden. The Court, therefore, did not address that argument. See
Hobby Lobby, 134 S. Ct. at 2775–76. 35
Because “she can avoid the burden on her religious exercise without
violating her beliefs,” Smith (Cal.), 913 P.2d at 929, the burden is not
substantial.
B.
Enforcement of Title 20 against Chic Boutique is the
least restrictive means of furthering a compelling
governmental interest
Even if the Court were to find that enforcing the antidiscrimination law against Chic Boutique constituted a substantial burden,
such enforcement would be justified under EARFRA because it
withstands strict scrutiny.
1. East Ames has a compelling interest in enforcing Title 20
against Chic Boutique
Courts have consistently recognized antidiscrimination laws as
serving a compelling government interest. See, e.g., Roberts v. U.S.
Jaycees, 468 U.S. 609, 623 (1984) (identifying compelling government
interest in preventing gender-based discrimination); Bob Jones Univ.
v. United States, 461 U.S. 574, 604 (1983) (finding “overriding interest”
in eradicating racial discrimination). East Ames has compelling
interests in preventing discrimination on the basis of gender identity
and, more broadly, in eliminating all forms of invidious discrimination
in the State. EARFRA further requires that the State demonstrate a
compelling interest in applying the law to the specific person
challenging it on religious exercise grounds. See, e.g., Gonzales v. O
Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 430–31
36
(2006). Here, East Ames’s interests extend to applying Title 20 to Chic
Boutique specifically.
a. East Ames has compelling interests in preventing
gender-identity discrimination and eliminating
discrimination generally
A recent study found that forty-four percent of transgender
respondents had been denied service or equal treatment in a place of
public accommodation. Nat’l Ctr. for Transgender Equal. and Nat’l Gay
and Lesbian Task Force, Injustice at Every Turn: A Report of the
National Transgender Discrimination Survey, at 124 (2011), http://
www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full
.pdf. Retail stores were the setting in which the most respondents had
received unequal and degrading treatment, ranging from denial of
service to verbal and even physical harassment. Id. at 131. As one
respondent explained, life as a transgender individual is “a lonely place
filled with seemingly endless scorn, ridicule and humiliation[,] and the
constant threat of violence.” Id. at 134. This abuse leads to social
marginalization and safety risks, discouraging transgender individuals
from living as their true selves. Id. at 135. Protecting East Ames
citizens from these grave harms is an interest of the highest order.
Doing so fosters “individual dignity, . . . creat[es] a climate and
environment in which each individual can utilize his or her potential to
contribute to and benefit from society, and [provides] equal protection.”
37
See Gay Rights Coal. of Georgetown Univ. Law Ctr. v. Georgetown
Univ., 536 A.2d 1, 37 (D.C. 1987) (finding a compelling interest in
eradicating sexual-orientation discrimination).
Eradicating gender-identity discrimination is also part and
parcel of achieving the State’s broader interest in ending disparate
treatment on the basis of irrelevant characteristics. Only by stamping
out discrimination based on gender identity—in addition to other
forms of discrimination predicated on traits unrelated to individual
merit—can East Ames “eliminate recurrent personal injustice and
build a society which encourages and expects the full contribution of
every member of the community in all their diversity and potential.”
Id. at 32.
b. East Ames’s compelling interests extend to applying
Title 20 to Chic Boutique specifically
East Ames must enforce Title 20 against Chic Boutique and
other like public accommodations to prevent exceptions from undermining the entire antidiscrimination initiative with respect to all
protected classes. The rationale behind Chic Boutique’s claim for an
exemption applies with equal force to a religiously motivated desire to
refuse service to African-American customers, homosexual customers,
or customers of a different religion. Reading EARFRA to require
exemptions
from
antidiscrimination
laws
would
permit
public
accommodations to freely discriminate against any protected class on
38
the basis of the owners’ religious beliefs. See Elane Photography, 309
P.3d at 72. And Chic Boutique offers no limiting principle to explain
why an exemption here would avoid this injurious result. Accordingly,
the requested exemption is diametrically opposed to the government’s
stated goal of eliminating discrimination in East Ames, the
accomplishment of which necessitates applying the law in all instances
and against all relevant establishments. See id.; Gay Rights Coal., 536
A.2d at 39.
Chic Boutique does not dispute that preventing discrimination is
a compelling interest. Appellant Br. at 39–40. Instead, it asserts that
there is no specific interest here because there are other stores at
which Pfefferman can purchase clothing or obtain a makeover. Id. at
41–42. But this argument fails for three principal reasons. First, it
evinces a misunderstanding of the full scope of the harm that Title 20
seeks to combat. Two distinct concerns inhere in the government’s
effort to prevent discrimination on the basis of gender identity: one in
ensuring that all individuals have access to goods and services in the
market, Katzenbach v. McClung, 379 U.S. 294, 299–300 (1964), and
another in protecting individuals from humiliation and dignitary harm
by preventing individual acts of discrimination, Daniel v. Paul, 395
U.S. 298, 307–08 (1969). See Swanner, 874 P.2d at 282.
39
Chic Boutique argues that the government could address the
first concern while allowing Bratton to refuse service to Pfefferman, so
long as other establishments in the market can accommodate her
needs. See Appellant Br. at 41. But this position improperly discounts
the State’s concern with preventing the dignitary harm that
accompanies each instance of discrimination. Governments view every
discrete act of discrimination as an independent social evil because
each instance “degrades individuals, affronts human dignity, and
limits one’s opportunities.” Swanner, 874 P.2d at 283. “Discrimination
is not simply dollars and cents, hamburgers and movies; it is the
humiliation, frustration, and embarrassment that a person must
surely feel when he is told that he is unacceptable as a member of the
public . . . .” Heart of Atlanta Motel v. United States, 379 U.S. 241, 292
(1964) (Goldberg, J., concurring) (quoting S. Rep. No. 872 at 16 (1964)).
Discrimination is detrimental not just in the aggregate but in each
instance in which it occurs. Where instance-specific concerns are
present, courts have consistently found that the government had a
compelling interest in applying the law to even those with sincere
religious objections, particularly where not doing so would cause thirdparty harms. See, e.g., Prince v. Massachusetts, 321 U.S. 158 (1944)
(refusing exemption to child labor laws because exploitation of children
was harmful every time it occurred).
40
Second, Chic Boutique misstates the relevant inquiry by contending that because East Ames is unable to eliminate all instances of
prejudice, the government cannot have a compelling interest in
protecting individual dignity. See Appellant Br. at 40. However, courts
are to determine whether the interest itself is of the highest order, not
whether it is feasible to accomplish completely. In Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), on
which Chic Boutique relies, the Court found that the government did
not have a compelling interest in preventing animal cruelty because
the law’s true purpose was to target the Santeria religion. The
determination was not based on the fact that the government could not
or did not try to eliminate animal cruelty in full. That the government
is unable to fully accomplish an objective does not mean it cannot serve
as a compelling interest.
Third, Chic Boutique argues that recognizing individual dignity
as a compelling government interest would influence First Amendment
protections on “hate speech, offensive literature, and group libel.” See
Appellant Br. at 41. This argument wrongly assumes that cases
striking down laws that restricted those types of speech were predicated on a finding that individual dignity did not constitute a
compelling interest. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377,
395–96 (1992) (acknowledging the government’s compelling interest in
41
protecting the “human rights of members of groups historically
subjected to discrimination,” but striking down hate-crimes ordinance
on least restrictive means grounds). Recognizing a compelling interest
in the protection of individual dignity here will not impact the
balancing of interests in those free speech contexts.
It is particularly incongruous for Chic Boutique to argue that
this antidiscrimination law does not further a compelling state interest
because preventing discrimination is at the root of religious exercise
protection. For the same reasons that the interests motivating
EARFRA are compelling, so too are those motivating Title 20. Whether
particular discrimination occurs on the basis of race, sex, gender
identity, or religion, it threatens the interests of equal protection under
the law, common respect, and societal cohesion. That the government
of East Ames has a compelling interest in remedying these evils cannot
be questioned: the protection of minorities is one of the essential goals
for which republican government exists. Federalist No. 10, at 75
(James Madison) (Clinton Rossiter ed., 2003).
2. Enforcing Title 20 against Chic Boutique is the least
restrictive means of accomplishing a compelling
governmental interest
Although Sherbert did not use the words “least restrictive
means,” it stated that, in order to survive the plaintiff’s claim, the
government needed to “demonstrate that no alternative forms of
42
regulation would [serve the compelling interest] without infringing
First Amendment rights.” 374 U.S. at 407. However, in order to
“ensure that scrutiny of laws under RFRA is not ‘strict in theory, but
fatal in fact,’” United States v. Wilgus, 638 F.3d 1274, 1289 (10th Cir.
2011) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Powell,
J., concurring)), the government is not required “to do the impossible—
refute each and every conceivable alternative regulation scheme,” id.;
see also Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996). The
government’s burden is instead twofold: “[I]t must support its choice of
regulation, and it must refute the alternative schemes offered by the
challenger.” Wilgus, 638 F.3d at 1289.
Pfefferman cannot speak for the government, but it is
nonetheless clear that the State’s choice of regulation here is the least
restrictive means of furthering its compelling interests. Applying Title
20 to all public accommodations is necessary to prevent genderidentity discrimination and eradicate discrimination in general. See
Gay Rights Coal., 536 A.2d at 39 (finding antidiscrimination law to be
the least restrictive means of accomplishing government’s interest in
eliminating sexual-orientation discrimination); Swanner, 874 P.2d at
280 n.9 (finding that “the most effective tool the state has for
combatting discrimination is to prohibit discrimination” and that
43
“consequently, [antidiscrimination laws] are narrowly tailored and
there is no less restrictive alternative”).
The only “alternative arrangement” Chic Boutique proffers
would fundamentally undermine East Ames’s compelling interests and
thus is not a viable less restrictive means. Chic Boutique suggests that
the government could further its interests in eliminating the harms
that discrimination causes by allowing religious adherents to turn
away transgender customers if the adherents arrange for alternative
provision of the goods and services sought. Appellant Br. at 44–
45. But adopting this scheme would sanction discrimination, and East
Ames cannot eradicate discrimination by condoning it. Further, it is
difficult to imagine a more humiliating and degrading experience for a
person than standing at a cash register while a store attendant calls
other establishments to ask whether there is anyone willing to provide
service to that person despite who he is. This proposed scheme fails to
achieve the State’s interest in preventing dignitary harm based on
discrimination, and in fact may exacerbate the evil that Title 20 was
intended to remedy.
Nor does Hobby Lobby change this calculus. Chic Boutique
contends that, because Title 20 includes some limited exceptions,
exempting it as well would constitute a less restrictive means of
achieving the government’s interests. Appellant Br. at 40, 43. In Hobby
44
Lobby, the Court found that the regulation’s goal would still be
preserved
if
for-profits
were
extended
the
exception
to
the
contraceptive mandate that churches and religious nonprofits already
received. 134 S. Ct. at 2780. Not so here. Chic Boutique’s argument
disregards that the government’s interests are undermined with every
exception and with each corresponding instance of discrimination. See
Appellant Br. at 45–47. And moreover, the Hobby Lobby Court itself
rejected the notion that its decision provides a “shield” for unlawful
discrimination. 134 S. Ct. at 2783 (“The Government has a compelling
interest in providing an equal opportunity . . . without regard to race,
and prohibitions on racial discrimination are precisely tailored to
achieve that critical goal.”).
Finally, contrary to Chic Boutique’s contention, see Appellant
Br. at 43, it is irrelevant that the government’s goal might be furthered
to a greater extent if there were no statutory exceptions, see Hernandez
v. Comm’r, 490 U.S. 680, 700 (1989). The government can have an
interest in the uniform application of a law even if the law itself allows
for some exceptions. See United States v. Lee, 455 U.S. 252, 260–61
(1982) (denying religion-based exemption from payment of taxes
despite existence of other exemptions in the tax code). EARFRA’s
inquiry is concerned not with whether the government employed the
most restrictive means of achieving its interests, but only with whether
45
it could accomplish its goals by restricting less. The answer here is
simply that it could not.
C. Interpreting EARFRA to allow exemptions that would
harm third parties raises serious concerns under the
Establishment Clause Were the Court to adopt Chic Boutique’s interpretation of
EARFRA, the statute would exceed the limitations that the
Establishment Clause of the First Amendment places on government.
Granting an exemption on religious grounds that will affirmatively
harm third parties is impermissible under the Constitution. Pursuant
to the canon of constitutional avoidance, this Court should reject an
interpretation of EARFRA that would run afoul of this restraint.
The Establishment Clause prohibits the government from
making any law “respecting an establishment of religion.” U.S. Const.
amend. I. The U.S. Supreme Court has interpreted this language to
forbid recognition of religious exemptions that would harm third
parties. See Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 709–10
(1985) (invalidating state statute requiring employers to accommodate
an employee’s Sabbath observance where it failed to take into account
the burden that the accommodation would impose on the employer and
other employees); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8
(1989) (plurality opinion) (finding that religion-based sales tax
exemption impermissibly “burden[ed] nonbeneficiaries by increasing
46
their tax bills”). A law may not bestow on any individual a “right to
insist that in pursuit of their own interests others must conform their
conduct to [that individual’s] religious necessities.” Caldor, 472 U.S. at
709 (quoting Otten v. Balt. & O. R. Co., 205 F.2d 58, 61 (2d Cir. 1953)).
As a result, in order to survive an Establishment Clause challenge, a
religious accommodation “must be measured so that it does not
override other significant interests.” Cutter v. Wilkinson, 544 U.S. 709,
722 (2005).2
Granting the relief sought by Chic Boutique would directly harm
third parties. As explained above, every instance of discrimination
causes dignitary harm. Gender-nonconforming individuals have
significant interests in receiving equal treatment and avoiding the
embarrassment and fear that accompany instances of discrimination.
Interpreting EARFRA to exempt public accommodations from Title
20’s demands directly interferes with those interests and, in effect,
grants an impermissible religious veto over transgender individuals’
statutorily granted rights. Cf. Larkin v. Grendel’s Den, Inc., 459 U.S.
116, 127 (1982) (striking down a law that vested religious
2 The only instances in which the Supreme Court has allowed religious
exemptions that may harm third parties is where doing so was
necessary to preserve religious associational rights. See, e.g., HosannaTabor, 132 S. Ct. 694; Corp. of Presiding Bishop of Church of Jesus
Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). This type of
interest is not present here.
47
organizations
with
authority
to
veto
nearby
establishments’
applications for liquor licenses).
“No tradition, and no prior decision under RFRA, allows a
religion-based exemption when the accommodation would be harmful
to others . . . .” Hobby Lobby, 134 S. Ct. at 2801 (Ginsburg, J.,
dissenting). Privileging Chic Boutique’s religious interest over
Pfefferman’s equality interest would place EARFRA at odds with this
principle. Because there is an alternative interpretation of the statute
that does not raise Establishment Clause concerns, this Court should
employ the canon of constitutional avoidance and construe the statute
to avoid such problems. See I.N.S. v. St. Cyr, 533 U.S. 289, 299–300
(2001).
III.
ENFORCEMENT OF TITLE 20 AGAINST CHIC BOUTIQUE
IS CONSISTENT WITH THE FIRST AMENDMENT
Chic Boutique further argues that Title 20’s effect on its conduct
amounts to compelled speech in violation of the First Amendment. Yet
because the conduct at issue is not inherently expressive, it is not
protected by the Constitution. Additionally, even if the affected
conduct were sufficiently expressive to trigger First Amendment
protection, the conduct is incidental to East Ames’s right to prohibit
discrimination and therefore cannot support a compelled speech claim.
48
A.
The conduct that Title 20 regulates is non-expressive
and thus not protected by the First Amendment
The First Amendment guarantees that “Congress shall make no
law . . . abridging the freedom of speech.” U.S. Const. amend. I. This
freedom is “protected by the Fourteenth Amendment from invasion by
the States.” Edwards v. South Carolina, 372 U.S. 229, 235 (1963). The
Supreme Court, however, has refused to “accept the view that an
apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to
express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968).
Only “inherently expressive” conduct receives First Amendment
protection. See Rumsfeld v. Forum for Academic and Institutional
Rights, 547 U.S. 47, 66 (2006). For conduct to merit such protection, an
“intent to convey a particularized message [must be] present . . . and
the likelihood [must be] great that the message would be understood
by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989)
(quoting Spence v. Washington, 418 U.S. 405, 410–11 (1974)) (internal
quotation mark omitted). In making this assessment, courts consider
“the context in which [the conduct] occurred.” See id. at 405.
Because Title 20 merely regulates Chic Boutique’s choice of
clients, the affected conduct is plainly non-expressive and beyond the
First Amendment’s purview. Section 20-304 is not directed at the
content of Chic Boutique’s makeovers, but seeks only to influence
49
certain aspects of the store’s business operations. See § 20-304. Indeed,
all the statute demands is that, should Chic Boutique continue to
operate as a public accommodation, it not discriminate against clients
based on their gender identity. A public accommodation’s choice of
clients is not inherently expressive. See Elane Photography, 309 P.3d
at 68 (finding that a “business decision not to offer . . . services to
protected classes of people” is non-expressive conduct); cf. Rumsfeld,
547 U.S. at 64 (finding that a law school’s decision not to allow
recruiters on campus is not inherently expressive). While Bratton has
occasionally turned down clients in the past, R. at 34, she did so to
avoid furthering conduct she disagrees with, not to convey a
“particularized message” to the world, see R. at 34–35.
Moreover, even if this Court were to determine Title 20 affects
Chic Boutique’s makeover services, performing those services also fails
to amount to inherently expressive conduct. The Supreme Court has
recognized that expressive conduct typically communicates a message
in both an “intentional” and “overwhelmingly apparent” way. See, e.g.,
Johnson, 491 U.S. at 406. By contrast, providing makeovers fails to
convey a message in such an overt manner, and it certainly does not
constitute “orthodox expression.” Appellant Br. at 53. And to the extent
that Chic Boutique’s makeover sessions do communicate some
“particularized message,” that message is largely controlled by the
50
client: the client expresses who she is, what she wants to look like, and
who her favorite designers are. See R. at 33.
Furthermore, neither the decision to serve a transgender client
nor the choice of how to make over that client would convey to an
audience that Chic Boutique has a specific view on gender
nonconformity. By the date of the encounter, the general public was
largely aware of the nascent antidiscrimination provision: both
Pfefferman and Bratton expressed knowledge of it, R. at 29, 38, and
information about the law had circulated broadly, R. at 29. Whatever
audience might have observed Chic Boutique providing services to
Pfefferman would therefore have been well aware that the new law
demanded the conduct. The risk of that conduct conveying some
unwanted message is thus negligible.
B. Even if serving transgender clients were expressive, it does
not amount to impermissible compelled speech
The First Amendment protects speakers from being compelled
by state action to speak or not to speak. See Wooley v. Maynard, 430
U.S. 705, 714 (1977). That said, public accommodations laws “do not,
as a general matter, violate the First or Fourteenth Amendments.”
Hurley v. Irish-Am. Gay, Lesbian and Bisexual Grp. of Bos., 515 U.S.
557, 572 (1995). Such laws are not aimed at regulating expression, see
Johnson, 491 U.S. at 403, and any impact on speech is merely
incidental. Therefore, when assessing public accommodation laws, the
51
standard announced in United States v. O’Brien applies. 391 U.S. at
377. O’Brien instructs that a law is justified in the face of a compelledspeech challenge so long as (1) the regulation is “within the
constitutional power of the Government;” (2) it “furthers an important
or substantial governmental interest;” (3) the interest is “unrelated to
the suppression of free expression;” and (4) “the incidental restriction
on alleged First Amendment freedoms is no greater than is essential to
the furtherance of that interest.” Id.
Title 20 regulates conduct. To the extent that it might restrict
expression, such restriction is purely incidental. See Rumsfeld, 547
U.S. at 62. The Rumsfeld Court found that “[c]ompelling a law school
that sends scheduling e-mails for other recruiters to send one for a
military recruiter” is “plainly incidental” to allowing military
recruiters access to a law school’s campus. Id. Likewise, any impact on
Bratton’s ability to communicate a message through her clientele is
incidental to East Ames’s decision to prohibit discrimination.
The law at issue here satisfies all four prongs of the O’Brien test.
First, East Ames took action “well within the State’s usual power to
enact when a legislature has reason to believe that a given group is the
target of discrimination,” Hurley, 515 U.S. at 572. Second, the
Supreme Court has consistently recognized the prevention of
discrimination to be a compelling interest. See Jaycees, 468 U.S. at
52
623. As for the third and fourth prongs, nowhere in its text does Title
20 target speech: the focal point of the law is prohibiting
discriminatory acts against transgender people or members of other
minority groups. Title 20 can thus be constitutionally enforced against
Chic Boutique. Indeed, the Supreme Court has explicitly stated that
incidental
restrictions
on
speech
caused
by
prohibition
of
discriminatory conduct do not violate the First Amendment. See
R.A.V., 505 U.S. at 389–90 (confirming that impacts on discriminatory
speech were incidental to Title VII’s ban on discrimination generally
and withstood First Amendment scrutiny).
Comparing Chic Boutique’s argument with successful compelledspeech cases underscores its shortcomings. The compelled-speech
jurisprudence is comprised of cases involving either the government
requiring a private actor to speak the government’s message, e.g.,
Wooley, 430 U.S. at 707, or requiring that actor to host or accommodate
another speaker’s message, e.g., Hurley, 515 U.S. at 573–74. By
contrast, Title 20 requires no affirmation of belief from the entities it
regulates. Like the law at issue in Rumsfeld, it “does not dictate the
content of the speech at all.” 547 U.S. at 62. To the extent that Bratton
might consider beauty consulting communicative art, R. at 33–34, Title
20 does not identify a specific ratio of blush to bronzer that need be
applied, it does not elevate Calvin Klein dresses over DKNY dresses,
53
and it does not decree that stylists outfit their clients with Prada
handbags. Bratton remains free to make whatever stylistic choices she
desires. See Elane Photography, 309 P.3d at 67 (noting the law did not
“interfere[]” with that company’s “editorial judgment”).
In providing these services, Chic Boutique can disassociate itself
from whatever message it believes it may communicate by serving
transgender people. Chic Boutique’s assertion that there are “no
feasible means to dissociate” is incorrect. Appellant Br. at 52. In
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74 (1980), the Supreme
Court dismissed a compelled-speech claim in part because the claimant
could “expressly disavow any connection with the message by simply
posting signs in the area where” the alleged compelled speech was
taking place. Id. at 86. Similarly, Bratton could display prominent
signs or speak with her clients to express her moral disapproval of
gender noncomformity or to clarify that her choice of clients is required
by law. Although Chic Boutique suggests otherwise, see id. at 53, there
is no legal basis to suggest that the store’s potential inability to control
others’ “gossip” transforms following the law into compelled speech.
Because any message communicated by Chic Boutique’s choice of
clients does not “sufficiently interfere” with the message the company
might wish to express, it is not compelled speech and is accordingly
consistent with the First Amendment. See Rumsfeld, 547 U.S. at 65
54
(noting that even “high school students can appreciate the difference
between speech a school sponsors and speech the school permits
because [it is] legally required to do so”).
Contrary to Chic Boutique’s contention, see Appellant Br. at 53,
“the right of free speech is not absolute.” Chaplinsky v. New
Hampshire, 315 U.S. 568, 571 (1942). It is a right that occasionally
must bend to certain noble interests, interests such as protecting each
citizen’s individual worth. Here, East Ames has asked Chic Boutique
not to adopt or announce a specific belief, but merely to conduct its
business in a way that properly respects the dignitary interests of all
people.
55
CONCLUSION
For the foregoing reasons, the judgment of the East Ames
District Court should be affirmed.
March 2, 2015
Respectfully submitted,
______________________________
Declan Conroy
______________________________
Daniel Nessim
______________________________
Y. Gloria Park
______________________________
Susan Pelletier
______________________________
Andres Salinas
______________________________
Nathan Sandals
The John Doar Memorial Team
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APPENDIX
The First Amendment to the Constitution of the United States
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.
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East Ames Religious Freedom Restoration Act,
East Ames Civil Law § 50-1001 (eff. January 1, 2000)
(a) In general
The State or any political subdivision of the State shall not
substantially burden a person’s exercise of religion even if the
burden results from a rule of general applicability, except as
provided in subsection (b) of this section.
(b) Exception
The state or any political subdivision of the state may substantially
burden a person’s exercise of religion only if it demonstrates that
application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
(c) Judicial relief
A person whose religious exercise has been burdened in violation of
this section may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief against the state
or any political subdivision of the state.
(d) Definitions
As used in this subtitle:
(1) “Free exercise of religion” means an act or a refusal to act
that is substantially motivated by religious belief; and
(2) “State or any political subdivision of the state" includes any
agency, board, commission, department, officer, or employee of
the state or any political subdivision of the state.
(e) This statute has been enacted with the purpose of codifying the
protections that Congress intended to extend to the States in 42 U.S.C.
§ 2000bb-1. Where the text of this subtitle is ambiguous and is
identical or substantially similar to that used by Congress or another
State, courts of this State may look to federal legislative history and
court decisions, as well as the court decisions and other legal sources of
this State and other States with similar provisions, for interpretive
guidance.
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East Ames Civil Law, Title 20 (eff. June 1, 2014)
(selected sections)
§ 20-101, Definitions
The following terms shall have the following meanings in this subtitle:
***
(e) “Gender identity” means the gender-related identity, appearance,
expression, or behavior of a person, regardless of the person's assigned
sex at birth, which may be demonstrated by:
(1) consistent and uniform assertion of the person’s gender identity;
or
(2) any other evidence that the gender identity is sincerely held as
part of the person’s core identity.
***
§ 20-301, “Place of Public Accommodation” Defined
In this subtitle, “place of public accommodation” means:
(1) an inn, hotel, motel, or other establishment that provides lodging to
transient guests;
(2) a restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or
other facility principally engaged in selling food or alcoholic
beverages for consumption on or off the premises, including a
facility located on the premises of a retail establishment or gasoline
station;
(3) a motion picture house, theater, concert hall, sports arena, stadium,
or other place of exhibition or entertainment;
(4) a retail establishment that:
(i) is operated by a public or private entity; and
(ii) offers goods, services, entertainment, recreation, or transportation.
§ 20-302, General Construction
This subtitle does not prohibit the proprietor or employees of any
establishment from denying service to any person for failure to
conform to the usual and regular requirements, standards, and
regulations of the establishment, provided that the denial is not based
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on discrimination on the grounds of race, sex, age, color, creed,
national origin, marital status, sexual orientation, gender identity, or
disability.
§ 20-303, Scope of Subtitle
In general
(a) This subtitle does not apply:
(1) to a private club or other establishment that is not open to the
public, except to the extent that the facilities of the private club
or other establishment are made available to the customers or
patrons of an establishment within the scope of this subtitle;
(2) with respect to sex discrimination, to a facility that is:
(i) uniquely private and personal in nature; and
(ii) designed to accommodate only a particular sex; and
(3) to an establishment providing lodging to transient guests
located within a building that:
(i) contains not more than five rooms for rent or hire; and
(ii) is occupied by the proprietor of the establishment as the
proprietor's residence.
Definitions
(b)(1)(i) In this subsection the following words have the meanings
indicated.
(ii) “Equivalent private space” means a space that is functionally
equivalent to the space made available to users of a private
facility.
(iii) “Private facility” means a facility, such as a restroom:
1. that is designed to accommodate only a particular sex;
2. that is designed to be used simultaneously by more than
one user of the same sex; and
3. in which it is customary to use a toilet or urinal, whether
in a private stall or not, or to disrobe in view of other
users of the facility.
(2) Except as provided in paragraph (3) of this subsection, this subtitle
applies, with respect to gender identity, to all facilities in a place of
public accommodation, including to private facilities.
(3) This subtitle does not apply, with respect to gender identity, to a
private facility, if the place of public accommodation in which the
private facility is located makes available, for the use of persons
whose gender identity is different from their assigned sex at birth,
an equivalent private space.
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§ 20-304, Prohibited Acts
An owner or operator of a place of public accommodation or an agent or
employee of the owner or operator may not refuse, withhold from, or
deny to any person any of the accommodations, advantages, facilities,
or privileges of the place of public accommodation because of the
person's race, sex, age, color, creed, national origin, marital status,
sexual orientation, gender identity, or disability.
§ 20-305, Judicial Relief
(a) Any person subjected to discrimination under this title may bring
suit in any court of this State within 180 days of the alleged
discriminatory act. If the suit alleges discrimination by a place of
public accommodation, the suit shall name the public
accommodation as defendant. No individual shall be liable for
discrimination under this section.
(b) Any person subjected to discrimination in violation of this title may
recover actual damages or statutory damages in lieu of actual
damages in an amount of $5,000 per discriminatory incident.
Prevailing plaintiffs may also recover attorney’s fees and costs in
the discretion of the court.
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U.S. Religious Freedom Restoration Act
42 U.S.C. § 2000bb (2012)
§2000bb, Congressional findings and declaration of purposes
(a) Findings
The Congress finds that—
(1) the framers of the Constitution, recognizing free exercise of
religion as an unalienable right, secured its protection in the
First Amendment to the Constitution;
(2) laws “neutral” toward religion may burden religious exercise as
surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise
without compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the
Supreme Court virtually eliminated the requirement that the
government justify burdens on religious exercise imposed by
laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court
rulings is a workable test for striking sensible balances between
religious liberty and competing prior governmental interests.
(b) Purposes
The purposes of this chapter are—
(1) to restore the compelling interest test as set forth in Sherbert v.
Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S.
205 (1972) and to guarantee its application in all cases where
free exercise of religion is substantially burdened; and
(2) to provide a claim or defense to persons whose religious exercise
is substantially burdened by government.
§2000bb–1, Free exercise of religion protected
(a) In general
Government shall not substantially burden a person's exercise of
religion even if the burden results from a rule of general
applicability, except as provided in subsection (b) of this section.
(b) Exception
Government may substantially burden a person's exercise of
religion only if it demonstrates that application of the burden to the
person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
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(c) Judicial relief
A person whose religious exercise has been burdened in violation of
this section may assert that violation as a claim or defense in a
judicial proceeding and obtain appropriate relief against a
government. Standing to assert a claim or defense under this
section shall be governed by the general rules of standing under
article III of the Constitution.
§2000bb–2, Definitions
As used in this chapter—
(1) the term “government” includes a branch, department, agency,
instrumentality, and official (or other person acting under color of
law) of the United States, or of a covered entity;
(2) the term “covered entity” means the District of Columbia, the
Commonwealth of Puerto Rico, and each territory and possession of
the United States;
(3) the term “demonstrates” means meets the burdens of going forward
with the evidence and of persuasion; and
(4) the term “exercise of religion” means religious exercise, as defined
in section 2000cc–5 of this title.
§2000bb–3, Applicability
(a) In general
This chapter applies to all Federal law, and the implementation of
that law, whether statutory or otherwise, and whether adopted
before or after November 16, 1993.
(b) Rule of construction
Federal statutory law adopted after November 16, 1993, is subject
to this chapter unless such law explicitly excludes such application
by reference to this chapter.
(c) Religious belief unaffected
Nothing in this chapter shall be construed to authorize any
government to burden any religious belief.
§2000bb–4, Establishment clause unaffected
Nothing in this chapter shall be construed to affect, interpret, or in any
way address that portion of the First Amendment prohibiting laws
respecting the establishment of religion (referred to in this section as
the “Establishment Clause”). Granting government funding, benefits,
or exemptions, to the extent permissible under the Establishment
Clause, shall not constitute a violation of this chapter. As used in this
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section, the term “granting”, used with respect to government funding,
benefits, or exemptions, does not include the denial of government
funding, benefits, or exemptions.
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