No. 17-218
IN THE
FIRST BAPTIST CHURCH OF NORTH GREENE
Petitioners,
v.
STATE OF NORTH GREENE
Respondent.
On Writ Of Certiorari To The United States
Court Of Appeals For The Fourteenth Circuit
BRIEF FOR RESPONDENT
TEAM #31
0
QUESTIONS PRESENTED
1. Whether the State of North Greene’s denial of the First Baptist Church’s application
to participate in the state’s fertilizer grant program violated the Free Exercise Clause
of the First Amendment.
2. Whether the State of North Greene’s denial of the First Baptist Church’s application
to participate in the state’s fertilizer grant program violated the Free Speech Clause of
the First Amendment of the United States Constitution.
i
TABLE OF CONTENTS
QUESTIONS PRESENTED................................................................................................ i
TABLE OF CONTENTS.................................................................................................... ii
TABLE OF AUTHORITIES ............................................................................................. iv
STATEMENT OF THE CASE........................................................................................... 1
PROCEEDINGS BELOW .................................................................................................. 3
I.
The District Court granted summary judgment in favor of North Greene on both
Free Speech and Free Exercise grounds...................................................................3
II.
The Fourteenth Circuit.... .........................................................................................4
A. The court of appeals affirmed the District Court's decision regarding First Baptist
Church's Free Exercise claim ...................................................................................4
B. The court of appeals reversed the District Court's decision regarding First Baptist
Church's Free Speech claim .....................................................................................4
SUMMARY OF THE ARGUMENT ................................................................................. 7
I.
North Greene did not violate the Free Exercise Clause because the grant would
merely subsidize First Baptistt's religious beliefs, North Greene did not
invidiously discriminate against North Green, and the No Waste Program is not a
widely available benefit ...........................................................................................7
II.
North Greene did not infringe First Baptist's free speech because North Greene
could constitutionally restrict content-based categories of harassment speech and
the condition was not an unconstituional burden on applicants...............................7
ARGUMENT ...................................................................................................................... 8
I.
NGSAD’s No Waste Program does not violate the Free Exercise
Clause.......................................................................................................................9
A. Excluding
religious
organizations
from
receiving
a
grant
from the No Waste Program does not rise to the level of “prohibiting” the free
exercise of religion............................. ...............................................................9
1. The Free Exercise Clause does not entitle First Baptist to have
North Greene subsidize their religious beliefs. .............................9
2. Even if NGSAD does make it harder for First Baptist Church to
exercise its rights, it does not rise to the level of prohibiting the
free exercise of religion...............................................................11
B.
Under Locke v. Davey, the No Waste Program does not violate the Free
Exercise Clause...........................................................................................12
1. NGSAD’s decision will have little impact on First Baptist
Church .........................................................................................13
ii
2. North Greene’s Constitution advances the same state interest as
the Establishment Clause ............................................................16
C.
II.
NGSAD’s No Waste Program is not a “widely-available” benefit..........17
North Greene’s anti-discrimination policy does not violate the Free Speech
Clause.....................................................................................................................19
A.
North Green’s anti-discrimination policy constitutionally restricts
harassment speech because harassment speech is unprotected under the First
Amendment and the the content-based restrictions are narrowly tailored to a
legitimate government interest ......................................................................19
1. The First Amendment does not protect the class of harassment
speech..........................................................................................20
2. Restricting types of harassing speech on the basis of content is
permissible because restricting harassment speech generally is
permissible and the Policy is directed towards conduct .............22
3. Even if harassment speech as a class is protected by the First
Amendment, the Policy may restrict these content based classes
of harassment speech because the restriction is necessary to
protect equality for traditionally disadvantaged classes of
people... .......................................................................................25
B.
The Policy is otherwise constitutional because it is neither overbroad nor
vague ..........................................................................................................27
1. The Policy does not restrict a substantial amount of protected
speech to render it overbroad ......................................................27
2. The Policy’s restrictions on the speech are adequately clear,
particularly in comparison to federal anti-discrimination
policies.........................................................................................29
C.
North Greene permissibly conditioned No Waste funds on compliance
with North Greene’s anti-discrimination policy.........................................32
CONCLUSION ..................................................................................................................34
iii
TABLE OF AUTHORITIES
Supreme Court Cases
Agency for Intern. Development v. Alliance for Open Soc’y Intern., Inc.,
122 S. Ct. 2321 (2013) .......................................................................................... 33
Aguilar v. Avis Rent A Car Systems, Inc.,
529 U.S. 1138 (2000) ............................................................................................ 31
Board of Dirs. Of Rotary Int’l v. Rotary Club of Duarte,
481 U.S. 537 (1987) .............................................................................................. 26
Boos v. Barry,
485 U.S. 312 (1988) .............................................................................................. 26
Broadrick v. Oklahoma,
413 U.S. 601 (1973) .............................................................................................. 27
Burson v. Freeman,
502 U.S. 191 (2002) .................................................................................. 25, 26, 27
Cammarrano v. United States,
358 U.S. 498 (1959) .............................................................................................. 13
Church of Lukumi Babalu Aye, Inc. v. Hialeah,
508 U.S. 520 (1993) .................................................................................... 5, 15, 16
Everson v. Bd. of Educ.,
330 U.S. 1 (1947) ........................................................................................ 7, 17, 18
FCC v. League of Women Voters,
468 U.S. 364 (1984) .............................................................................................. 33
Graham v. Richardson,
403 U.S. 365 (1971) .............................................................................................. 24
Grayned v. City of Rockford,
408 U.S. 104 (1972) .............................................................................................. 29
Harris v. Forklift Systems Inc.,
510 U.S. 367 (1993) .................................................................................. 20, 21, 23
Harris v. McRae,
448 U.S. 297 (1980) .............................................................................................. 10
Hernandez v. New York,
500 U.S. 352 (1991) .............................................................................................. 32
iv
Locke v. Davey,
540 U.S. 712 (2004) ....................................................................................... passim
Lyng v. Castillo, 4
77 U.S. 635 (1986) ................................................................................................ 11
Lyng v. Int’l Union,
485 U.S. 360 (1988) ...................................................................................... 7, 9, 11
McDaniel v. Paty,
435 U.S. 618 (1978) .............................................................................................. 13
Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57 (1986) .............................................................................. 20, 21, 28, 31
National Endowment of the Arts (NEA) v. Finley,
524 U.S. 569 (1998) .............................................................................................. 32
Oncale v. Sundowner Offshore Sycs.,
523 U.S. 75 (1998) ................................................................................................ 29
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ....................................................................................... passim
Regan v. Taxation with Representation,
461 U.S. 540 (1983) ....................................................................................... passim
Roberts v. Jaycee,
468 U.S. 609 (1984) .............................................................................................. 30
Rosenberger v. Rector and Visitors of the Univ. of VA,
515 U.S. 819 (1995) .............................................................................................. 17
Rust v. Sullivan,
500 U.S. 173 (1991) .............................................................................................. 33
United States v. Carolene Products,
304 U.S. 144 (1938) .............................................................................................. 24
United States v. Williams,
553 U.S. 285 (2008) .............................................................................................. 27
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) .............................................................................................. 32
Virginia v. Hicks,
539 U.S. 113 (2003) .............................................................................................. 27
Wisconsin v. Mitchell,
v
508 U.S. 476, 487 (1993) ................................................................................ 24, 26
Wooley v. Maynard,
430 U.S. 705 (1977) ................................................................................................ 6
Zelman v. Simmons-Harris,
536 U.S. 639 (2002) ................................................................................................ 9
Circuit Court Cases
Saxe v. State College Area School Dist.,
240 F.3d 200, 202-03 (2001)
...................................................................20, 21
District Court Cases
Fort Des Moines Church of Christ v. Jackson,
2016 WL 6089842, at *16 (S.D. Iowa Oct. 14, 2016) .......................................... 30
Statutes
29 U.S.C. § 621 (2016) ..................................................................................................... 30
42 U.S.C. § 2000e-2(a)(1)..................................................................................... 20, 21, 28
The Policy ........................................................................................................................... 2
Other Authorities
Characteristic, MERRIAM-WEBSTER, (2017) https://www.merriamwebster.com/dictionary/characteristic. ............................................................................. 31
Personal, MERRIAM-WEBSTER, (2017) https://www.merriamwebster.com/dictionary/personal. ..................................................................................... 31
H.R. REP. NO. 92-238 ........................................................................................................ 23
Richard Levy, Political Process and Individual Fairness Rationales in the U.S. Supreme
Court’s Suspect Classifications, 50 Washburn L. J. 33 (2010) ........................................ 24
Regulations
29 CFR § 1604.11(a)(3) .................................................................................................... 21
Wash. Rev. Code § 28B 10.814 (1997) ............................................................................ 12
vi
STATEMENT OF THE CASE
First Baptist Church initiated this suit against the North Greene State Agriculture
Department (NGSAD) after First Baptist Church did not receive a grant from the
NGSAD No Waste Program. First Baptist alleges that NGSAD violated both the Free
Exercise and Free Speech Clause of the First Amendment.
The NGSAD established the No Waste Program to reduce landfills and assist
local farmers by recycling waste into fertilizer. R. 3. Organizations, typically schools
with agricultural programs, can apply for a grant from NGSAD to purchase fertilizer for
gardening and agriculture uses. R. 4. The grants are funded through North Greene’s state
budget for the Natural Resources Department. R. 4. If an applicant receives a grant,
rather than give the fertilizer directly to the applicant, the state sends the applicant a
check with the expectation that the check will be used to buy fertilizer. R. 1.
Due to funding constraints, not all applicants receive a grant, and in fact less than
half of applicants are awarded the grant. R. 4. NGSAD thus uses a variety of secular and
neutral criteria for selecting grant recipients, including two limitations on grant
recipients: (1) under Article II, Section 8 of the North Greene Constitution,1 the state is
unable to provide funds to any religious organization and (2) the state is unable to
1
North Greene’s Constitution states in part at Article II, Section 8:
“[N]o money raised by taxation, or derived from any public fund therefore, nor any
public lands devoted thereto, shall ever be under the control of any religious sect; nor
shall any money so raised or lands so devoted be divided between religious sects or
denominations.”
R. 5.
1
provide funds to an organization that fails to abide by North Greene’s AntiDiscrimination Policy (the “Policy”).2 R. 5.
First Baptist Church applied for a grant through the No Waste Program to
purchase fertilizer for a church garden. R. 4. The garden is on church premises, and is
used to produce vegetables used by church members and by First Baptist’s soup kitchen
“Caring Hands.” R. 3. The garden also serves as an educational tool for the First Baptist
community, with classes for children and Caring Hands visitors. R. 3.
First Baptist “completely license[s] and own[s]” Caring Hands. In fact, First
Baptist has successfully run Caring Hands since it started in 2007—five years before
First Baptist even knew about the No Waste Program, see R. 3, and eight years before
First Baptist decided to apply for a grant, see R. 4. Three times a week, Caring Hands
provides free meals to visitors during which they also provide free bibles. R. 3. First
Baptist views this as an opportunity to give back to the community and to “introduce
Christ to the needy.” R. 3.
First Baptist also holds Sunday services led by Pastor Thomas. R. 4. Pastor Thomas
has gained internet recognition through his sermons preaching against gay marriage. R.
4. In one sermon, Pastor Thomas condemned the Obergerfell decision as the “final
2
The Policy states in part:
“State funding programs may not be disbursed to organizations engaging in conduct that
the individual or organization knows or reasonably should know is harassment or
discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status, or socioeconomic status.
Discrimination and harassment includes extreme verbal conduct directed at one’s actual
or perceived race, religion, color, national origin, gender, sexual orientation, disability, or
other personal characteristics, and which has the purpose or effect of creating an
intimidating, hostile, or offensive environment towards targeted individuals.” R. 5.
2
death-knell of divine judgment upon our once great nation.” R. 4. He admonished man
for “[spitting] upon God and [putting] asunder what he has declared the standard for
marriage.” R. 4.
A young homosexual male, Kyle Kalvert, was in attendance at First Baptist for this
particular sermon. R. 4. Leaving quite upset and angry, Kalvert filed a complaint against
First Baptist with the North Greene Human Relations Commission. A story in the daily
newspaper followed. R. 4.
A few weeks later, NGSAD informed First Baptist they were ineligible for the No
Waste program due to two eligibility restrictions: (1) the state could not provide funds to
them as a religious organization and (2) the state could not provide funds to organizations
that violated the anti-discrimination policy. R. 5. The NGSAD cited the complaint with
the Human Relations Committee as evidence of First Baptist’s violation of the Policy. R.
5.
PROCEEDINGS BELOW
I.
The District Court
After finding out that they did not receive a grant, First Baptist Church brought
suit against NGSAD in United States District Court of North Greene. First Baptist alleged
that NGSAD violated the Free Exercise and Free Speech Clauses of the First Amendment
of the United States Constitution. North Greene moved to dismiss the complaint for
failure to state a claim. The District Court granted NGSAD’s motion to dismiss for two
reasons.
First, the District Court held that denying First Baptist’s application did not
violate the Free Exercise clause because the issue fell directly within the “play in the
3
joints” between the Free Exercise and Establishment Clauses of the First Amendment. R.
6 (quoting Locke v. Davey, 540 U.S. 712 (2004)). Specifically, the District Court held
that the state could have awarded a grant to First Baptist without violating the Free
Exercise Clause. But, under Locke, state’s can provide for greater protections against
potential Establishment Clause violations “because there is cushion in the cross-over
between the two religion clauses.” Id.
Second, the District Court held that NGSAD did not violate the Free Speech
clause because the First Amendment does not protect “harassing” speech. R. 9. The
District Court rejected First Baptist’s characterization of the the Policy as a “speech
code,” holding that the Policy “merely prohibits harassment that is already unlawful
under state and federal law.” Id.
II.
The Fourteenth Circuit
First Baptist Church then appealed the District Court decision to the Fourteenth
Circuit. That court reviewed the District Court’s holdings on the Free Exercise Clause
and Free Speech Clause, affirming the former, R. 7-9, and reversing the latter, R. 9-12.
A. The Fourteenth Circuit affirmed the District Court’s decision
regarding First Baptist Church’s Free Exercise claim.
The Fourteenth Circuit—like the District Court—determined that the primary
question in this case was whether North Greene’s Constitution could provide for greater
protection for the separation of church and state than the federal constitution without
violating the Free Exercise Clause. Like the District Court, the Fourteenth Circuit held
that it could. Id.
4
The court rejected First Baptist’s argument that this case was decided by Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). Id. It noted that North
Greene’s Constitution does not impose any criminal or civil penalties nor does it prevent
First Baptist from participating in political affairs of the community. R. 9. Critically, the
court noted that First Baptist did not have to choose between their religious beliefs and
receiving a government benefit—First Baptist “remains free to practice its religion as it
deems appropriate.” Id.
The court also rejected the argument that the Free Exercise Clause requires
NGSAD to provide grant funding to First Baptist. The Free Exercise, the court held while
citing Locke, “has never been understood to require [the] government to finance a
subject’s exercise of religion.” In coming to that conclusion, the court noted that the
burden on First Baptist was almost nonexistent as it can still “operate Caring Hands, and
feed those in need in an way that it sees fit.” Id. And the interest the state sought to
protect was substantial because it is a “hallmark[] of an established religion” to receive
money from the government. Id. Because the burden on First Baptist was minor and the
interest protected by the state was substantial, NGSAD, the court held, did not violate the
Free Exercise Clause.
B. The Fourteenth Circuit reverses the District Court’s decision regarding
First Baptist Church’s Free Speech claim.
The court then reversed the District Court’s holding about First Baptist’s Free
Speech Claims. It recognized that the First Amendment “protects the right of individuals
to hold a point of view different from the majority and to refuse to foster . . . an idea they
find morally objectionable.” R. 9 (quoting Wooley v. Maynard, 430 U.S. 705, 715
5
(1977)). Having outlined this broad principle, the court reversed the District Court’s
holding on two bases. Id.
First, the court held that the First Amendment does not exclude harassing speech
from its protections. Id. Acknowleding that this Court has not addressed the issue of
whether harrassment—when it takes the form of pure speech—is exempt from First
Amendment protections, id., the Fourteenth Circuit nonetheless ruled that the First
Amendment did protect harassing speech in this instance. Relying on dicta from this
Court’s decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the court noted that
only when “the non-expressive elements of speech that create the discrimination, rather
than the direct speech itself” may the government regulate that speech. R. 10. For
example, if an employer tells an employee they are fired, and it is found that the
employee was fired because of their race, the discrimination could be sanctioned not
because of the content of the boss’s speech, speaking to the firing, but because it enabled
discriminatory conduct. R. 10. The Fourteenth Circuit held that the non-expressive
elements of speeech did not create discrimination in this instance and therefore North
Greene could not regulate the Pastor’s speech under the Policy. R. 10-11.
Second, the court held that the Policy was unconstitutionally “overbroad and
vague.” R. 11. The court specifically relied on the Policy’s use of the term “offensive”
and the phrase “or other personal characteristics.” Id. The court found the term
“offensive” overbroad because it encompassed speech that is protected by the First
Amendment. It found the phrase “or other personal characteristics” vague because
“[t]here is no way for a speaker to know” if they are violating the statute without further
defining what is a personal characteristic. Id.
6
Finally, in two short paragraphs at the end of the opinion, the court also concluded
that the Policy would fail strict scrutiny even if it was not unconstitutionally vague or
overbroad and that the Policy violates the unconstitutional conditions doctrine. R. 12.
First Baptist Church appealed the Fourteenth Circuit’s ruling regarding the Free
Exercise claim to this Court. NGSAD then cross-appealed as to the Free Exercise claim.
R. 1.
SUMMARY OF THE ARGUMENT
I. North Greene did not violate the Free Exercise Clause because the grant would
merely subsidize First Baptist’s religious beliefes, North Greene did not
invidiously discriminate against North Greene, and the No Waste Program is
not a widely available benefit.
North Greene did not violate the Free Exercise Clause by denying First Baptist a
grant from the No Waste Program. There are three reasons for this conclusion. First, First
Baptist Church is not entitled to have their religious beliefs subsidized by the state. See
Regan v. Taxation with Representation, 461 U.S. 540, 545 (1983). This is true even if,
although not the case here, denying a benefit to an organization makes it harder for that
organization to exercise their right. See Lyng. v. Int’l Union, 485 U.S. 360, 368 (1988).
Second, this Court has never struck down a law unless it found that the statute invidiously
discriminates against religion. See Locke v. Davey, 540 U.S. 712, 720 (2004). North
Greene’s Constitution does not invidiously discriminate against religion. Rather, it
advances the same interests as the Establishment Clause of the First Amendment. Third,
the No Waste Program is not a widely available benefit. The only time this Court has
held that religious organizations as a whole cannot be excluded from government benefits
is when those benefits are widely available. See Everson v. Bd. of Educ., 330 U.S. 1
(1946). But the No Waste Program is is only available to certain people who meet certain
7
criteria. And even then, not all of those qualifying applicants receive a grant. For these
reasons, North Greened did not violate the Free Exercise Clause by denying a grant to
First Baptist.
II. North Greene did not infringe First Baptist’s free speech because North
Greene could constitutionally restrict content-based categories of harassment
speech and the condition was not an unconstituitonal burden on applicants.
North Greene’s No Waste program did not infringe upon First Baptist’s First
Amendment rights to free speech. The Anti-Discrimination Policy applies to harassment
speech, which has historically been restricted in Title VII cases and is outside the scope
of First Amendment protections. Content-based restrictions of harassment speech are
permissible under this Court’s doctrine in R.A.V., first because the Policy is aimed
primarily at conduct and second because the purpose of restricting harassment speech has
special force when applied to classes of historically disadvantaged people.
Further, even if this harrassment is protected by the First Amendment, the Policy
satisfies strict scrutiny. Preventing discrimination is a compelling government interest
and the policy is narrowly tailored to cover only those forms of speech that substantially
interfere with this goal.
Aside from the constitutionality of restrictions on harassing speech, the No Waste
condition is constitutional because it does not impose a substantial burden on speech
rights. The speech covered by the condition is not core protected speech and the
condition is necessary to further the interests of the No Waste program.
ARGUMENT
I. NGSAD’s No Waste program does not violate the Free Exercise clause.
8
A. Excluding religious organizations from receiving a grant from the No Waste
program does not rise to the level of “prohibiting” the free exercise of
religion.
The Free Exercise Clause does not require states to proactively make it easier for
religious organizations to exercise their religious beliefs to the fullest extent. While this
Court has recognized that states do not violate the Establishment Clause when providing
funds to religious organizations, see Zelman v. Simmons-Harris, 536 U.S. 639, 652
(2002), this Court has never held that states must provide funds to religious organizations
when—as in this case—not providing those funds would not violate the Establishment
Clause. If North Greene must provide funds to religious organizations in this
circumstance, it would contradict this Court’s decisions for two reasons. First, this Court
has repeatedly held that legislatures do not have to subsidize how organizations choose to
exercise their constitutional rights. See, e.g., Regan v. Taxation with Representation, 461
U.S. 540, 545 (1983). Second, this Court has also held that states are not required to
provide funding to organizations even if, without the provision of those funds, the
organization has a harder time expressing its First Amendment right. See Lyng v. Int’l
Union, 485 U.S. 360 (1988). For these two reasons, North Greene did not violate the Free
Exercise Clause when it denied a No Waste Program grant to First Baptist.
1. The Free Exercise Clause does not entitle First Baptist to
have their religious beliefs subsidized by North Greene.
First Baptist is not entitled to a subsidy that helps it fully express its religious
beliefs. This Court has time and again rejected the “notion that First Amendment rights
are somehow not fully realized unless they are subsidized by the state.” Regan, 461 U.S.
at 545. Just as here, in Regan, the government provided a benefit—in that case a tax
9
benefit and in this case a grant from the No Waste Program. See id. at 544. And also just
as in this case, any organization that did not comply with certain criteria did not receive
the benefit—in that case any organization whose primary function was lobbying and in
this case any organization that is a church. See id. This Court did not even question that
lobbying fell under the First Amendment. And yet it still rejected the argument that an
organization’s First Amendment rights were violated because they would have even more
money to exercise their rights if they were not denied the benefit. Id. at 550. In so
holding, the Court emphasized that “although the government may not place obstacles in
the path of a[n] [organization’s] exercise of . . . [First Amendment] freedom . . . it need
not remove those not of its own creation.” Id. at 549-50 (quoting Harris v. McRae, 448
U.S. 297, 316 (1980)).
In this case, North Greene has not placed any obstacle in the path of First Baptist
Church expressing its religious beliefs. First Baptist Church has successfully run Caring
Hands without government grants since 2007. R.3. During that time, it has added two
additional plots of land and “nearly quadrupl[ed] the amount of produce it produces. R. 3
It does not claim that it now needs the No Waste grant to continue running the program.
Id. In fact, First Baptist first learned about the program in 2012 but did not apply for a
grant until three years later. R. 4. First Baptist and Caring Hands are also partially selfsufficient as they sell produce grown in their garden with 100 percent of the proceeds
going back to Caring Hands. R. 3. All of this is achieved without the use of government
grants. Just as the organization in Regan could continue to express its First Amendment
rights despite being denied a government benefit, so too can First Baptist Church.
10
2. Even if NGSAD does make it harder for First Baptist Church
to exercise its rights, it does not rise to the level of prohibiting
the free exercise of religion.
Even if the NGSAD program was more than just a subsidization of First Baptist
Church’s Caring Hands program and actually made it harder for First Baptist Church to
exercise its rights, it still would not violate the Free Exercise clause. This Court has
always drawn a distinction between laws that infringe a First Amendment right and laws
that merely make it harder to exercise a First Amendment right. See Lyng v. Int’l Union,
485 U.S. 360 (1988). In Lyng, this Court upheld a law that prevented striking workers
from claiming more food stamps due to a loss of income from the strike. See id. The law,
according to this Court, was constitutional even though it made “it harder for strikers to
maintain themselves and their families during the strike and exert[ed] pressure on them to
abandon their union.” Id. at 368. That same reasoning applies here. This Court, in Lyng,
relied on the fact that “in the overwhelming majority of cases [the statute] probably has
no effect at all.” See id. at 365 (quoting Lyng v. Castillo, 477 U.S. 635, 638 (1986)).
Similarly, the North Green Constitution will have little impact in this case as the
“primary organizations” that apply for the grant are not churches like First Baptist but are
“schools with agriculture programs, such as Future Farmers of America and various 4H
programs.” R.4. Further, this Court also reasoned in Lyng that the statute at issue did not
require striking workers to do anything against their wishes. See Lyng, 485 U.S. at 369
(noting that the statute “does not require appellees to participate in political activities or
support political views with which they disagree”). Similarly, the North Greene
Constitution does not compel First Baptist Church to express a view that it does not hold.
Because it has a relatively small impact and does not require First Baptist Church to hold
11
a belief it does not want to have, the North Greene Constitution does not violate the Free
Exercise Clause.
B. Under Locke v. Davey, the No Waste Program does not violate the Free
Exercise Clause.
The Establishment Clause establishes a basement—not a ceiling—for the amount
of separation between church and state. Under Locke, states are allowed to set the bar for
separation of church and state higher than the Establishment Clause as long as that bar
does not prohibit the free exercise of religion. Locke v. Daly, 540 U.S. 712 (2004). In
Locke, the state of Washington established a program that provided a small scholarship to
students who met certain secular requirements. Id. at 715. But Washington also had
statutes and regulations that prevented the state from providing any money to students
who pursued a degree in theology. Id. at 716. See generally Wash. Rev. Code § 28B
10.814 (1997) (“No aid shall be awarded to any student who is pursuing a degree in
theology.”); Wash. Const. art. I, § 11. This Court—as both courts below have in this
case—held that Washington would not have violated the Establishment Clause had it
provided students pursuing degrees in theology with a scholarship. See Locke, 540 U.S. at
719. But it did not follow that the state violated the Free Exercise Clause by not
providing the student with a scholarship. Id. Rather, “there is room for play in the joints”
between the two clauses. Id. In other words, what is not prohibited by the Establishment
Clause is not necessarily required by the Free Exercise Clause.
This Court relied on a balancing test in holding that Washington’s laws—like
Article II § 8 of the North Greene Constitution—fell between the Establishment and the
Free Exercise Clauses. According to this Court, when a state exhibits a “mild” disfavor
towards religion that is outweighed by a substantial interest, the law is constitutional. Id.
12
at 720, 722. Because Article II § 8 of North Greene’s Constitution has minimal impact on
First Baptist Church and advances the same interests as the Establishment Clause, North
Greene’s constitutional provision preventing funding from going to religious
organizations falls within the “play in the joints” and does not violate the Free Exercise
Clause.
1. NGSAD’s decision will have little impact on First Baptist
Church.
First Baptist Church can still express its religious beliefs without receiving a grant
from the No Waste Program. This Court has upheld laws that were not facially neutral
towards religion provided those laws did not invidiously discriminate against religion.
See Locke, 540 U.S. at 720; see also Regan, 461 U.S. at 548 (“The case would be
different if Congress were to discriminate invidiously in its subsidies in such a way as to
‘[aim] at the suppression of dangerous ideas’” (quoting Cammarrano v. United States,
358 U.S. 498, 513 (1959))). That same reasoning applies in this case. The Court provided
examples of invidious discrimination that was struck down in past cases. See id. Those
examples apply with equal force in this case. Just as the statute in Locke did not impose
criminal or civil sanctions on any type of religious service or rite, see Locke, 540 U.S. at
720, neither does the North Green Constitution. And just as the statute did not prevent
religious organizations from “participat[ing] in the political affairs of the community, see
id. (citing McDaniel v. Paty, 435 U.S. 618 (1978)), neither does the North Green
Constitution.
Of course, in Locke, the student who sued Washington could still practice his
religious beliefs and receive the scholarship, see id. n.4. (“Promise Scholars may still use
their scholarship to pursue a secular degree at a different institution from where they are
13
studying devotional theology.”), and in this case, First Baptist cannot receive the funds no
matter how it uses them. But that difference between this case and Locke stems from the
inherent differences between a person and a church. A student can do things that are
entirely distinct from religion like study a secular topic at a school. First Baptist, on the
other hand, is inherently religious. And indeed, it was the inherently religious nature of
pursuing a theology degree that this Court relied on in Locke to uphold the ban on
providing funds to students pursuing those degrees. See id. at 721 (“Training someone to
lead a congregation is an essentially religious endeavor.”). Under the Constitution, it is
permissible to treat inherently religious organizations or actions differently than
nonreligious organizations or actions because the Constitution specifically singles out
religion with the Establishment and Free Exercise Clauses. See id. (“That a state would
deal differently with [religious] . . . than with [nonreligious organizations] is a product of
these views, not evidence of hostility toward religion.”).
Further, the impact on First Baptist Church from not receiving this grant will be
minimal. As noted previously, see Part I(A)(1), First Baptist Church has successfully run
Caring Hands for almost a decade without government support. It even knew about the
program for three years before it decided to apply for a grant. See R.3-4 (noting that
Caring Hands learned about the program in 2012 and did not apply until 2015).
Additionally, Caring Hands has ways to raise funding outside of the grant program. See
R.3 (Caring Hands sells its extra produce and 100 percent of those funds go back to
Caring Hands).
These impacts on First Baptist Church stand in stark contrast to the impacts on the
Santeria religion in Church of Lukumi. In that case, the Court struck down a law that
14
exhibited invidious discrimination against religion. The leader of the local Santeria
organization announced plans to open a church in Hialeah. Hialeah then passed a number
of regulations that prohibited animal sacrifice—a prominent religious practice in the
Santeria religion. See id. at 523. While the Court determined that the laws were facially
neutral, 3 it nonetheless struck down the animal sacrifice regulations because the object of
the law was “to infringe upon or restrict practices because of their religious motivation.”
Id. at 533. The Court also relied on this principle of intentional infringement in Locke
where it specifically upheld the statute because the Washington Constitution provision at
issue in that case did not “evince[] the hostility toward religion which was manifest in
Lukumi.” See id.
The hallmarks of hostility in Church of Lukumi are not present in this case. In that
case, the Court reasoned that the law was hostile towards religion in Church of Lukumi
because there was nothing in the record to indicate that the city council or anyone in the
town was concerned about animal sacrifice until after the Santeria Church announced
plans to open. See Church of Lukumi, 508 U.S. at 541 (noting that the city council “made
no attempt to address the supposed problem before its meeting . . . just weeks after
Church of Lukumi announced plans to open”). First Baptist Church has not made and
3
Part of this Court’s decision in Church of Lukumi states that the Free Exercise Clause
protects against “law[s] . . . if they discriminate against some or all religious beliefs or
regulates or prohibits conduct because it is undertaken for religious purposes.” On its
face, Article II § 8 is not facially “neutral” towards religion. See North Green Const. Art.
II § 8 (“[N]o money raised by taxation . . . shall ever be under the control of any religious
sect; nor shall any money so raised or lands so devoted be divided between religious sects
or denominations.”). But if the Court’s analysis ended there, it would be in direct conflict
with Locke, which also dealt with provisions that were not facially “neutral.” See Locke,
540 U.S. at 716 (“No aid shall be awarded to any student who is pursuing a degree in
theology.”). A closer look at the cases relied on in Church of Lukumi show that even
when a law is not facially neutral, it may still pass the Free Exercise requirement. See
McDaniel v. Paty, 435 U.S. 618, 627-28 (1978) (plurality opinion).
15
neither the dissent nor majority in the court below have pointed to anything that would
indicate the North Greene Constitution added language after First Baptist Church applied
for a grant. Additionally, the regulations specifically prohibited animal sacrifice but left
out other types of actions that were akin to animal sacrifice such as kosher slaughter. See
id. at 536. The specific singling out of a religion and one of its particular practices
indicated hostility towards religion. But in this case, the North Greene Constitutional
provision does not target any one religion nor any one practice of a religion. Without
something more than a lack of facial neutrality, North Greene’s Constitution does not
violate the Free Exercise clause.
2. North Greene’s Constitution advances the same state interest
as the Establishment Clause.
This Court held in Locke that Washington’s statute preventing students advanced
substantial state interests that outweighed any “mild disfavor” towards religion. See
Locke, 540 U.S. at 722. There, the Court outlined how the state had a specific historical
interest in not providing money to people pursuing the ministry. See Locke, 540 U.S. at
722 (“Since the founding of our country, there have been popular uprisings against
procuring taxpayer funds to support church leaders.”). In this case, the North Greene
Constitution does not have such a specific purpose as preventing state money from going
to clergy leaders. Rather, it reflects the broader, permissible goal of preventing the
establishment of religion. See North Greene const. art. II § 8 (“[N]o money raised by
taxation, or derived from any public fund therefore . . . shall ever be under the control of
any religious sect; nor shall any money so raised . . . be divided between religious sects or
denominations.”). Of course, both lower courts held that North Greene would not violate
the federal establishment clause by providing funds to First Baptist. See R. 3. But the
16
interests at issue do not disappear simply because the federal Establishment Clause is not
violated. This is particularly true considering that the North Greene Constitution sets up a
stronger protection than the federal Establishment Clause regarding the separation of
church and state. Further, North Greene’s interests against establishing a religion are of
particular importance in this case as this Court has recognized that there are “special
Establishment Clause dangers” “where the government makes direct money payments to
sectarian institutions,” Rosenberger v. Rector and Visitors of the Univ. of VA, 515 U.S.
819, 842 (1995), as would happen in this case if First Baptist received a grant. Just as
Washington had a historical interest in not providing funds to those pursuing the ministry,
North Greene has an interests in not establishing a religion. This Court has documented
on multiple occasions the history and interests that brought about the Establishment
clause. See, e.g. Everson v. Bd. of Educ., 330 U.S. 1, 14-15 (1947) (“The meaning and
scope of the First Amendment, preventing establishment of religion or prohibiting the
free exercise thereof, in light of its history and the evils it was designed to forever
suppress, have been several times elaborated by the decisions of this Court.”). Because
the North Greene Constitution is advancing the same interests as the Establishment
Clause, North Greene has a historical interest that outweighs the “mild” burdens placed
on First Baptist in this case.
C. NGSAD’s No Waste program is not a “widely available” benefit.
The No Waste program is more limited in scope than programs that cannot leave
out religious organizations. This Court—as the dissent pointed out in the court below—
has held that states violate the Free Exercise Clause by withholding “the benefits of
public welfare legislation.” See Everson 330 U.S. at 16. But the benefits in this case are
17
not like the benefits at issue in Everson. In Everson, the Court ruled that prohibiting
“spending of tax-raised funds to pay bus fares of parochial school pupils as part of a
general program under which it pays the fares of pupils attending public and other
schools” violates the Free Exercise Clause. Everson, 330 U.S. at 17. Those benefits differ
in three critical respects from the benefits in this case.
First, the program in Everson was available to all children who took the bus to
school. See id. In this case, the benefits are only available to those who qualify for them.
R.4. And even if an applicant meets all the qualifications, they are not guaranteed to
receive the funds as only around 40 percent of qualified applicants received awards in
2015. See id.
Second, the bus fares were a part of a program that helped students fulfill New
Jersey’s compulsory education laws. See id. at 18. New Jersey required parents to send
their children to school. Id. It also allowed parochial schools that met secular education
requirements to satisfy that requirement. See id. By striking down the law in Everson, the
Court was recognizing the conflict between allowing children to go to parochial schools
but not helping them get to those schools safely by taking advantage of school buses.
Denying access to school buses was akin to the state refusing to provide police services
to cars on their way to the school. See id. at 17. There is no such analog in this case. The
state does not require anyone to go to Caring Hands as the students were required to go to
schools in Everson. While the students in Everson were required to go to school, the
organizations the come to Caring Hands “volunteer their time.” R. 3.
Third, the benefits in this case are indistinguishable from the religious aspects of
First Baptist. In Everson, the Court relied on the fact that bussing students to the school
18
was “so indisputably marked off from the religious function” of the school to strike down
the law. In this case, First Baptist by its own admission says that Caring Hands is a way
to “introduce Christ to the needy.” R. 3. First Baptist even provides free Bibles and other
literature to those visiting Caring Hands. Id. Because First Baptist’s administration of the
Caring Hands program has so inextricably linked religion to the use of the grant money,
the state does not require anyone to attend Caring Hands, and only a portion of qualified
applicants receive grant money, the NGSAD No Waste program is not a “widely
available” benefit.
II.
North Greene’s Anti-discrimination policy does not violate the Free Speech
Clause.
A. North Green’s Anti-Discrimination Policy constitutionally restricts
harassment speech because harassment speech is unprotected under the First
Amendment and the the content-based restrictions are narrowly tailored to a
legitimate government interest.
North Greene can legitimately regulate harassing speech because such speech is
not protected by the First Amendment. Therefore, the Policy’s content-based restrictions
on harassment speech need only satisfy a low level of scrutiny. R.A.V. v. City of St. Paul,
505 U.S. 377, 387 (1992) (finding that content-based discrimination on a class of
proscribable speech does not pose the threat of driving ideas from the marketplace). Even
in the absence of a categorical harassment speech exception, content-based restrictions on
protected speech are permissible when the restriction is narrowly tailored to serve a
compelling government interest. Id. at 395.
19
1. The First Amendment does not protect the class of
harassment speech.
A categorical harassment speech exception is not only consistent with precedent
but necessary to preserve current anti-discrimination policy jurisprudence. The Court has
consistently held that verbal harassment constitutes a legitimate violation of federal antidiscrimination statutes. Further, in R.A.V, the Court explicitly contemplated a harassment
speech exception to the First Amendment. Id. at 389-90.
A categorical exception would apply to harassment, defined as extreme verbal
conduct that has the purpose or effect of creating an intimidating, hostile, or offensive
environment, and similarly defined severe types of speech. This exception does not
cover speech that is merely offensive or disagreeable. Compare Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 64 (1986) (defining harassment as speech sufficiently “severe or
pervasive” to alter conditions of employment or create an abusive environment) with
Saxe v. State College Area School Dist., 240 F.3d 200, 202-03 (2001) (where harassment
is defined as including “any unwelcome verbal . . . conduct which offends, denigrates, or
belittles an individual.”). This Court has consistently held that merely offensive speech is
protected by the First Amendment. See Meritor, 477 U.S. at 67; Harris v. Forklift
Systems Inc., 510 U.S. 367, 370 (1993).
Cases regarding Title VII demonstrate that this Court has adopted restrictions on
harassment speech. Title VII of the Civil Rights Act of 1964 prohibits employers from
discriminating against individuals on the basis of race and other enumerated
characteristics. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).
According to the Equal Employment Opportunity Commission’s (EEOC) guidelines,
20
conduct is harassment when “such conduct has the purpose or effect of unreasonably
interfering with an individual’s work performance or creating an intimidating, hostile, or
offensive working environment.”
Meritor, 477 U.S. at 64 (quoting 29 CFR §
1604.11(a)(3)) (emphasis added); see also Saxe, 240 F.3d at 205 (recognizing the Court
adopted a “hostile environment” framework for Title IX claims of sexual harassment in
education). “Actionable conduct” is an expansive category that can include “unwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct of a
sexual nature.” See id. (quoting 29 CFR § 1604.11(a)) (emphasis added); see also
Harris, 510 U.S. at 21 (“When the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive . . . Title VII is
violated.”).
In recognizing that speech in the form of “requests for sexual favors,” “verbal
conduct,” or “ridicule and insult” is a potential violation of Title VII, this Court
effectively accepted a small exception to the blanket disfavoring of restrictions on
speech. The communicative aspects of impermissible behavior under Title VII are
actionable, because that communication still “unreasonably interfere[s] with an
individual’s work performance” and creates “an intimidating, hostile or offensive
working environment.” R. 5.
North Greene’s anti-discrimination policy restricts discriminatory and harassing
speech in a similar manner as Title VII. Compare North Greene Const. art II, § 8
(restricting “harassment and discrimination on the basis of race, sex, religion, national
origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or
socioeconomic status.”) with 42 U.S.C. § 2000e-2 (restricting discrimination in
21
employment because of an individual’s “race, color, religion, or national origin”). The
Policy’s definition of harassment speech mirrors the Court’s recognized definition under
Title VII cases. See North Greene Const., art. II, § 8 (defining harassment as “extreme
verbal conduct” that “has the purpose or effect of creating an intimidating hostile or
offensive environment.”). Thus the speech regulated by the Policy is substantially similar
to the speech permissibly regulated by Title VII.
The Court preserved the harassment speech exception in its opinion in R.A.V. In
his concurring opinion, Justice Brennan expressed concern that the majority’s holding
risked categorizing “sexually harassing expression” as violating the First Amendment.
R.A.V., 505 U.S. at 410 (Brennan, J. concurring).
In paralleling restrictions on harassing
speech to restrictions on fighting words, an unprotected class of speech, the concurrence
suggested that harassment speech is also unprotected by the First Amendment. Id. In an
apparent response, the majority explicitly recognized permissible restrictions on speech
under Title VII: “For example, sexually derogatory ‘fighting words,’ among other words,
may produce a violation of Title VII.” Id. at 389 (emphasis added). When read in
context of the opinion and concurrence, this statement suggests that the majority intended
to preserve restrictions on speech that violate Title VII, including harassment speech.
2. Restricting types of harassing speech on the basis of content
is permissible because restricting harassment speech
generally is permissible and the Policy is directed towards
conduct.
R.A.V. recognized that although content-based restrictions within a class of
unprotected speech are subject to First Amendment review, there are specific
circumstances under which the restrictions are permissible.
22
First, restrictions on content-based subcategories of speech are permissible when
the purpose of the content-based restriction is the same as the purpose for restricting the
class of speech entirely. R.A.V., 505 U.S. at 388-89 (“Such a reason, having been
adjudged neutral enough to support exclusion of the entire class of speech from First
Amendment protection, is also neutral enough to form the basis of discrimination within
the class.”). For example, threats against the president may be restricted because the
reasons why threats of violence are unprotected by the First Amendment have “special
force when applied to the person of president.” Id. But the state could not prohibit only
those threats related to a president’s policies, because that prohibition would serve a
different purpose. Id.
Harassment speech directed towards historically disadvantaged classes of people
is a particularly concerning form of harassment speech, like threats against the president
were considered particularly concerning in R.A.V. Restrictions on harassment speech aim
to ensure equality through preventing discriminatory, abusive, and hostile environments.
See Harris, 510 U.S. at 22 (recognizing Title VII’s “broad rule of workplace equality”);
H.R. REP. NO. 92-238, at 2 (finding discrimination “incompatible with the concepts of
liberty and equality”). Federal legislation, including the Civil Rights Act of 1964, and
Equal Protection clause jurisprudence suggest that discriminatory practices have “special
force” when applied to particular classes of people. See H.R. REP. NO. 92-238, at 2
(recognizing that many citizens are denied rights and privileges solely because of their
race, color, or national origin); United States v. Carolene Products, 304 U.S. 144, 152-53
n.4 (1938) (“Prejudice against discrete and insular minorities may be a special condition,
which tends seriously to curtail the operation of those political processes ordinarily to be
23
relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry”). Judicial guidance under the Equal Protection Clause, for
example, suggests that when particular people are classified on the basis of a certain
characteristic, and that particular classification has historically been the source of
discrimination, individuals in the class should be afforded heightened protection under
the law. Graham v. Richardson, 403 U.S. 365, 371-72 (1971) (recognizing suspect
classifications are subject to “close judicial scrutiny”); see also Richard Levy, Political
Process and Individual Fairness Rationales in the U.S. Supreme Court’s Suspect
Classifications, 50 Washburn L. J. 33 (2010) (recognizing various rationales for affording
suspect classifications greater protection, such as political powerlessness and inherent
fairness).
Because the purpose of ensuring equality is significantly furthered by specifically
protecting these disadvantaged classes of people, the Policy’s sub-class restrictions on
harassment speech were permissible.
The second exception holds that when statutes aimed at conduct also restrict
certain content-based classes of unprotected speech, the limitation is not a violation of the
First Amendment. R.A.V., 510 U.S. at 322-23. Title VII, for example, may permissibly
restrict a content-based subcategory of fighting words—those that are sexually
derogatory—because Title VII is directed primarily at conduct. Id. at 389-90. Because
the statute in R.A.V. was “directed at expression” as opposed to conduct, it could not meet
this exception. See Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (stating the statute in
R.A.V. was directed at expression).
24
Like Title VII, the Policy is aimed primarily at conduct. The language of the
Policy mirrors Title VII, the EEOC guidelines, and judicial guidance on the Civil Rights
Act. Further, the Policy defines harassment as “extreme verbal conduct.” North Greene
const., art. II § 8. Just as Congress may permissibly restrict some content-based speech
under Title VII, North Green may permissibly restrict subcategories of harassment speech
incorporated into the Policy. The eleven content-based subcategories of harassment
speech may therefore be addressed by the Policy.
3. Even if harassment speech as a class is protected by the First
Amendment, the Policy may restrict these content-based
classes of harassment speech because the restriction is
necessary to protect equality for traditionally disadvantaged
classes of people.
Even if the speech North Greene regulates is protected by the First Amendment,
the Policy satisfies strict scrutiny. A regulation of protected speech is permissible when
it serves a compelling governmental interest and is narrowly drawn to achieve that end.
Burson v. Freeman, 504 U.S. 191, 198-99 (2002) (finding that protection of voter rights
ensuring integrity and reliability in the election process was compelling government
interest).
The Fourteenth Circuit recognized that preventing discrimination is a compelling
governmental interest. See R. 11 (citing Board of Dirs. Of Rotary Int’l v. Rotary Club of
Duarte, 481 U.S. 537, 549 (1987)). Preventing discrimination against certain protected
classes is especially compelling.
R.A.V., 505 U.S. at 395 (holding that ensuring the
basic human rights of members of groups historically subject to discrimination was a
25
compelling government interest.); Mitchell, 508 US. at
487-88 (recognizing the
individual and societal harm created by bias-inspired conduct).
Content-based restrictions on speech can be narrowly tailored permissibly when
the category of restricted speech is especially problematic. See R.A.V., 505 U.S. at 393
(holding a content-neutral restriction on fighting words would be more narrowly tailored
because race-based fighting words were not an “especially offensive” mode of
expression); see also Boos v. Barry, 485 U.S. 312, 326 (1988) (finding a statute that
prohibited only picketing that was undertaken to “intimidate, coerce, threaten, or harass”
and not general picketing to be narrowly tailored). While content-based restrictions on
speech are suspect, such restrictions are permissible when serving a legitimate purpose
because “the First Amendment does not require States to regulate for problems that do
not exist.” Burson, 504 U.S. at 207.
The Policy is narrowly tailored to serve the compelling interest of preventing
discrimination against protected classes of people. Like the narrowly tailored restriction
in Boos, the Policy carefully targets only “harassing” speech that creates unequal
environments, and does not restrict core protected speech that is merely offensive or
annoying. See Part II(B)(1).
Unlike R.A.V., a content-neutral policy would not be
sufficient because the content-based restriction here affords necessary heightened
protection to traditionally disadvantaged classes of people. See Part II(A)(2). Legislation
and judicial guidance consistently recognize the need to afford this special protection to
individuals who are discriminated on the basis of certain personal characteristics. See id.
Further, under Burson, a content-neutral policy would not be narrowly tailored because it
would address problems that don’t exist. Finally, because the Policy is aimed primarily
26
at conduct and not expression, a content-neutral restriction would prevent permissible
forms of workplace discrimination, such as discrimination on the basis of requisite job
qualifications.
B. The Policy is otherwise constitutional because it is neither overbroad nor
vague.
1. The Policy does not restrict a substantial amount of protected
speech to render it overbroad.
The Policy is not overbroad because it does not restrict a substantial amount of
protected speech. The overbreadth of a law must be “substantial” as compared to the
law’s permissible applications in order for it to be unconstitutional.
Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973). Thus some restrictions on protected speech are still
constitutional, so long as these restrictions do not outweigh permissible applications of
the law. See United States v. Williams, 553 U.S. 285, 301 (2008) (holding statute
criminalizing offers to provide or requests to obtain child obscenity and child
pornography not overbroad even though one could conceive of some impermissible
applications of the statute). Overbreadth challenges will rarely succeed against a law not
specifically addressing speech, because concerns about chilling effects on speech are far
more attenuated when a law is directed predominantly towards conduct. Broadrick, 413
U.S. at 614-15; see Virginia v. Hicks, 539 U.S. 113, 123-34 (2003) (finding policy aimed
at trespassing not overbroad because the statute was aimed at conduct and petitioner
hadn’t shown the statute prohibited a substantial amount of protected speech).
The Fourteenth Circuit cited as too broad the phrase: “extreme verbal conduct
directed towards one’s actual or perceived race, religion, color, national origin, gender,
sexual orientation, disability, or other characteristics, and which has the purpose or effect
27
of creating an intimidating, hostile, or offensive environment towards targeted
individuals.” R. 11. Specifically, the court found the word “offensive” rendered the
statute overbroad because offensive speech is protected by the First Amendment. See id.
at 12.
Contrary to the holding below, the Policy does not restrict offensive speech.
Instead, the Policy refers to speech that “has the purpose or effective of creating an
intimidating, hostile, or offensive environment.”
(emphasis added).
North Greene const., art. II § 8
This Court has recognized that speech that creates an offensive
environment, consistent with the definition of permissibly restricted harassment speech,
is distinct from speech that merely offends the listener. See Meritor, 477 U.S. at 67
(holding the “mere utterance of [a] . . . racial epithet which engenders offensive feelings”
would not constitute harassment speech that creates an offensive environment under Title
VII) (emphasis added). Because the policy permissibly retricts harassment speech that
creates an “offensive environment,” and does not restrict constitutionally protected
offensive speech, the term “offensive,” as used in the Policy, does not render the law
overbroad.
The Fourteenth Circuit did not identify other elements of the Policy that reached
protected speech to render it overbroad, but the Policy’s language is consistent with
federal anti-discrimination laws. See infra Part II(A)(2); Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2(a)(1) (prohibiting employment discrimination on the basis
of “race, color, religion, sex, and national origin”); Oncale v. Sundowner Offshore Sycs.,
523 U.S. 75, 79 (1998) (recognizing Title VII’s restriction on “hostile working
environments”).
28
Furthermore, the statute is aimed predominantly at conduct, so even if it catches
protected speech, the restrictions are permissible under Broadrick. Invalidations based on
overbreadth are “strong medicine” and it would directly contradict its purpose to apply
the doctrine here.
2. The Policy’s restrictions on the speech are adequately clear,
particularly in comparison to federal anti-discrimination
policies.
North Greene’s Anti-Discrimination Policy is also not void for vagueness. A law
is vague when prohibitions are so undefined that a person has no reasonable opportunity
to know what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972).
Legal clarity for the purposes of overcoming vaguenes does not mean
“mathematical certainty,” and words and phrases that might otherwise be unclear can be
defined by the context of the statute. Id. at 113-14 (statute preventing disorderly conduct
near school product was not vague because the words “noise” and “diversion” were
defined by requirement that they disrupt normal school activities).
Dictionary
definitions, similarly construed statutes, and a statute’s overall purpose can all provide
adequate instruction on the meaning of a law. See id. at 111 (holding statute not vague
because the Court had construed a statute with similar language as “tends to disturb” and
phrase was adequately defined in reference to the statute’s purpose); Roberts v. Jaycee,
468 U.S. 609, 629 (1984) (holding statute barring public accommodation discrimination
not vague when it used objective criteria typically employed in anti-discrimination
statutes).
29
In Fort Des Moines Church of Christ v. Jackson, the Iowa legislature’s ban on
discrimination in public accomodations4 was upheld despite a claim that the phrase “‘in
any other manner’ indicate that persons . . . are unwelcome” was vague. 2016 WL
6089842, at *16 (S.D. Iowa Oct. 14, 2016). Though appearing broad, surrounding words
such as “advertise” or “publicize” counseled that “in any other manner indicate” meant to
“[encompass] those [communication methods] that may not comfortably fit within the
definitions of ‘advertise’ or ‘publicize’” but accomplish the same end. Id.
The Fourteenth Circuit claimed the Policy was vague because the phrase “extreme
verbal conduct directed towards one’s actual or perceived race, religion, color, national
origin, gender, sexual orientation, disability, or other characteristics, and which has the
purpose or effect of creating an intimidating, hostile, or offensive environment towards
targeted individuals” contained the “kind of undefined words” that implicate the
vagueness doctrine. R. 11. The court only specifically pointed to the phrase “other
personal characteristics” as problemtically vague.
Here, the enumerated characteristics for which discrimination is prohibited are not
vague because, as in Jaycee, they are objective criteria typically found in antidiscrimination statutes. See Title VII; Age Discrimination in Employment Act, 29 U.S.C.
§ 621 (2016) (prohibiting employment discrimination on the basis of age). Like the
statutes in Roberts and Grayned, the phrase referring to an “intimidating, hostile, or
4
Iowa Code section 216.7 provides:
“It shall be an unfair or discriminatory practice . . . to directly or indirectly
advertise or in any other manner indicate or publicize that the patronage of
persons of any particular race, creed, . . . or disability is unwelcome,
objectionable, not acceptable or not solicited.”
30
offensive environment” is frequently used in Supreme Court decisions, and is familiar to
courts. See, e.g., Meritor, 477 U.S. at 64.
The phrase “other personal characteristics” is sufficiently clear, especially
considering its dictionary definition and the context of the statute. The word “personal” is
defined as “of, relating to, or affecting a particular person” and “relating to the person or
body.”
Personal,
MERRIAM-WEBSTER,
webster.com/dictionary/personal.
The
word
(2017)
“characteristic”
https://www.merriamis
defined
as
“a
distinguishing trait, quality, or property.” Characteristic, MERRIAM-WEBSTER, (2017)
https://www.merriam-webster.com/dictionary/characteristic. Taken together, the phrase
clearly refers to an individual person’s identifiable and distinguishable traits.
The structure of the Policy provides further instruction on the meaning of the
phrase. In the first clause, the Policy restricts discrimination and harassment on the basis
of eleven clearly enumerated personal characteristics (including race, religion, and age).
In the second clause, the Policy defines harassment as including verbal conduct directed
at these classes or “other personal characteristics.” Like the general phrase in Fort Des
Moines, the general phrase “other personal characteristics” is targeted towards speech,
the content of which is not comfortably within the definitions of the eleven enumerated
personal characterstics, but which still has the effect of discriminating against those
classess. For instance, an employer constantly demeaning only Hispanic employees for
their lack of English language skills could be deemed discrimination on the basis of
ethnicity. See Aguilar v. Avis Rent A Car Systems, Inc., 529 U.S. 1138 (2000); see also
Hernandez v. New York, 500 U.S. 352 (1991) (“It may well be, for certain ethnic groups .
. . that proficiency in a particular language . . . should be treated as a surrogate for race”).
31
Similarly, speech directed at someone’s height could discriminate and harass on the basis
of the “disability” of dwarfism. See R.12 (asking whether statements about ones height
could violate the policy).
Furthermore, the effect of vague laws is less concerning when the law does not
impose criminal penalties. See National Endowment of the Arts (NEA) v. Finley, 524
U.S. 569, 589 (1998) (recognizing vague criteria for government grant to artists was
unlikely to chill speech because it was not a criminal or regulatory scheme); see also
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)
(“The Court has also expressed greater tolerance of enactments with civil rather than
criminal penalties because the consequences of imprecision are qualitiative less severe.”).
The Policy is unlikely to have a chilling effect on speech because it does not impose
criminal or civil penalties. The requirement that an individual or organization “know or
reasonably know” their conduct is discriminating provides sufficient guidance for a
reasonable person to conform their conduct for the grant if they choose to apply. Because
the Policy’s reach is adequately clear and conduct inconsistent with the Policy imposes
no criminal or civil penalites, the Policy should not be void for vagueness.
C. North Greene permissibly conditioned No Waste funds on compliance with
North Greene’s anti-discrimination policy.
Even if harassment speech may not be restricted under the First Amendment,
North Greene’s decision to condition the No Waste grants on compliance with the antidiscrimination policy is not an infringement of the right to free speech. The
unconstitutional conditions doctrine operates under the broad principle that a
“legislature’s decision not to subsidize a constitutional right does not infringe the right.”
Regan v. Taxation With Representation of Washington, 461 U.S. 540, 549 (1983); see
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also Agency for Intern. Development v. Alliance for Open Soc’y Intern., Inc., 122 S. Ct.
2321, 2328 (2013) (“If a party objects to a condition on the receipt of federal funding, its
recourse is to decline the funds.”). In some cases, however, conditions on funding can
result in an unconstitutional burden on the exercise of speech. See Agency for Inten.
Development, 133 S. Ct. at 2829.
A condition may be impermissible because the speech subject to restriction is core
protected speech. See FCC v. League of Women Voters, 468 U.S. 364, 385 (1984) (Court
had to be “especially careful” in considering limits on editorializing speech because it
was the kind of speech the Framers were “most anxious to protect”). Conditions imposing
limits on speech may otherwise be unconstitutional if the restriction is outside the scope
of the government’s program. See Rust v. Sullivan, 500 U.S. 173, 194 (1991) (condition
that federal funds not be used for abortion planning was constitutional when advancing
the goals of the program “necessarily [discouraged] alternative goals”); Agency for
Intern. Develop., 133 S. Ct. at 2330 (requirement that funding recipients adopt
Government’s view on prostitution and sex trafficking was outside the scope of a
program to combat the spread of HIV/AIDS). In Regan, the government permissibly
conditioned tax exemption status for charities on their not engaging in lobbying, due to
concerns that the charity would use the public monies for private interests. 461 U.S. at
549.
Limits on harassment speech do not require the special analysis used in League of
Women Voters for conditions on editorializing speech. Harassment speech has
consistently been restricted by anti-discrimination policies and such speech does not
serve the important societal functions like editorial speech. North Greene appropriately
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determined that limitations on discrimination and harassment were not only within the
scope of the No Waste Program, but necessary to further the program’s objectives. As
one of its goals, the program aims to increase access to “much needed fertilizer.”
Increasing access to much needed resources would be compromised if organizations
participating in the program engaged in discriminatory and harassing conduct that
prevented some of the neediest from getting access. Furthering the goal of increasing
access to needed resources must discourage discriminatory practices in conflict with the
goal, just as encouraging conduct in Rust necessarily discouraged conflicting conduct.
North Greene did not go so far as to require First Baptist to adopt the state’s beliefs about
these classes of people, as the government did in Agency for Intern. Develop. North
Greene did not require First Baptist to adopt the state’s beliefs on gay marriage but only
prevents First Baptist from discriminating against and harassing gay people. North
Greene also appropriately decided to prevent public funds from funding private interests.
First Baptist’s decision to hand out bibles and literature during the Caring Hands
programs evidences the likelihood that No Waste funds would promote private interests.
The No Waste program did not impose substantial burdens on First Baptists right to
speech and First Baptist could choose to decline funds in order to engage in harassing
speech. Therefore, the Policy did not impose an unconstitutional condition.
CONCLUSION
For all the foregoing reasons, this Court should affirm the Fourteenth Circuit’s
holding on the Free Exercise Clause and reverse its holding on the Free Speech issue.
Respectfully submitted,
/s/
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March 17, 2017
Counsel for Respondent
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