No. 17-218
IN THE UNITED STATES SUPREME COURT
FIRST BAPTIST CHURCH OF NORTH GREENE,
Petitioner,
v.
STATE OF NORTH GREEN,
Respondent.
On Appeal from the United States Court of Appeals for the Fourteenth Circuit
Brief for Respondent
Identification Number: 6
Counsel for State of North Green
QUESTIONS PRESENTED
I.
Whether, under the First Amendment of the United States Constitution, the Free
Exercise Clause requires the government to provide NGSAD public funds to religious
organizations.
II.
Whether the State of North Greene’s denial of 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 ......................................................................................................... iii
STATEMENT OF THE FACTS .....................................................................................................1
SUMMARY OF THE ARGUMENT ..............................................................................................3
ARGUMENT ...................................................................................................................................5
I.
THE STATE OF NORTH GREENE’S DECISION TO DENY FIRST BAPTIST
CHURCH NGSAD PUBLIC FUNDS DID NOT VIOLATE THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT. ...................................................................5
A. The State did not violate The Free Exercise Clause of the First Amendment by
denying First Baptist’s NGSAD grant because The Free Exercise Clause only
applies when the government “prohibits” the free exercise of religion. .................7
B. Even if the State’s decision did “prohibit” First Baptist’s free exercise of religion,
the State’s interest in not providing First Baptist NGSAD public funds is
substantial, while the burden imposed on First Baptist by that interest is minor.
........................................................................................................................................9
II.
THE STATE OF NORTH GREENE’S DECISION TO DENY FIRST BAPTIST
CHURCH’S NGSAD APPLICATION FOR PUBLIC FUNDS DID NOT VIOLATE
THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT ............................14
A. The State’s policy does not violate The Free Speech Clause of the First
Amendment by denying First Baptist’s NGSAD Application because the policy is
not vague and overbroad. .........................................................................................14
B. Eve State’s policy does not violate The Free Speech Clause of the First
Amendment and serves a social interest in protecting members of society from
harm and harassment. ...............................................................................................16
CONCLUSION .............................................................................................................................21
ii
TABLE OF AUTHORITIES
Cases
Am. Freedom Def. Initiative v. Washington Metro. Area Transit Auth., 898 F. Supp. 2d 73
(D.D.C. 2012) ..........................................................................................................................17, 18
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (2004) ........................................................18
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ...............................................................................16
Cantwell v. Connecticut, 310 U.S. 296 (1940) ..........................................................................7, 17
Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942) .............................................4, 16, 17
Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993).....................10, 11, 12, 13, 14
Cohen v. California, 403 U.S. 15 (1971) .......................................................................................17
Empl. Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990) ......................................................6
Engel v. Vitale, 370 U.S. 421 (1962) ...............................................................................................8
Everson v. Bd. Of Educ. Of Ewing Twp., 330 U.S. 1 (1947) ......................................................7, 8
Lee v. Weisman, 505 U.S. 577 (1992)..............................................................................................7
Lemon v. Kurtzman, 403 U.S. 602 (1971) .......................................................................................8
Locke v. Davey, 540 U.S. 712 (2004)) .........................................................................10, 11, 12, 13
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).............................................8
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) ...................................................15
Salve Regina College v. Russell, 499 U.S. 225, 237 (1990) ............................................................3
Sherbert v. Verner, 374 U.S. 398 (1963) .....................................................................................8, 9
United States v. Friday, 525 F.3d 938 (10th Cir. 2008) ..................................................................8
Virginia v. Hicks, 539 U.S. 113 (2003)....................................................................................19, 20
Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1990)...................................................11
Statutes
Civil Rights Act of 1964, 78 Stat. 255, 42 U.S.C. § 2000 ....................................................4, 15, 16
Constitutions
N. Greene Const. art. II, § 8 .....................................................................................1, 3, 4, 6, 12, 20
U.S. Const. amend. I ....................................................................................................................6, 7
Wash. Const. art. I, § 11.................................................................................................................12
iii
STATEMENT OF THE FACTS
The state of North Greene (“State”) sought to create a community environment where
citizens from all walks of life are treated justly. (R. at 5). The State manifested support of this
goal by adopting an anti-discrimination policy that only awards state funding to organizations
that refrain from harassment or discrimination against others based on factors such as race,
sexual orientation, or socioeconomic status among other factors. Id. Additionally, the State is
careful to maintain the separation of church and state. Id. Article II section 8 of the State’s
Constitution declares “no 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 or lands so
devoted be divided between religious sects or denominations.” Id.
As a further benefit for the community, the State’s Agriculture Department (NGSAD)
created a No Waste program that would reduce the amount of waste entering landfills and
provide fertilizer for local farmers. (R. at 3). To help facilitate the purchase of the fertilizer,
grants are offered from NGSAD’s funds for qualifying applicants. (R. at 4). However, NGSAD
receives more applications for grants then are approved; for example, in 2015, only forty-one
percent of applicants were awarded grants. Id.
One organization interested in the No Waste program is Caring Hands, a local soup
kitchen owned and operated by the First Baptist Church of North Greene (“First Baptist”) since
the fall of 2007. (R. at 3–4). Meals served at the Caring Hands are made possible by a large
garden maintained by First Baptist. (R. at 3). The garden was planted in early 2007 and helps
supply Caring Hands with food as well as other church functions hosted by First Baptist. Id.
Since 2007, the garden has been expanded and quadrupled its yield and provided multiple
opportunities for the community to learn more about agriculture. Id. Volunteers, such as Boy
1
Scouts and Girl Scouts, assist in the care and maintenance of the garden. Id. Supplemental funds
for the garden are earned from produce sales hosted by First Baptist when the harvest exceeds
their needs. Id.
In May 2105, three years after learning about the No Waste program, Caring Hands
applied for a NGSAD’s grant. (R. at 4). As part of the application process, First Church
identified three alternative fertilizer providers and included a detailed plan of how to use the
fertilizer in their garden. Id. The following month, First Church’s Pastor Thomas (“Thomas”)
gave a sermon condemning homosexuality in light of this Court’s ruling in Obergefell v. Hodges.
Id. Thomas declared,
this decision is the final death-knell of divine judgment upon our once great nation
. . . . Man has now spit upon God’s word and “put asunder” what God declared as
the standard for marriage . . . . A handful of justices may legalize the union between
people of the same sex…but redefining this as “marriage” would be like me
declaring that my Honda Civic is actually a Ferrari. The two are nothing like each
other. To believe otherwise is to deceive ourselves. Id.
Kyle Kalvert (“Kalvert”) is a homosexual male who visited First Baptist church on the day of
Thomas’s sermon and was shocked by the discriminatory speech. Id. Unfortunately, Kalvert
learned this was not Thomas’s first sermon protesting same-sex marriage and subsequently filed
a complaint with the State’s Human Relations Commission who enforce the State’s antidiscrimination policy. Id. In July 2015, Caring Hands received notice the grant application was
denied because 1) granting Caring Hands’s application violates the State’s Constitution and 2)
Thomas’s sermon violated the State’s policy. (R. 5).
Ten days after receiving the rejection notice, First Baptist filed a complaint with the
district court alleging the denied application violated First Baptist’s Free Exercise Clause and
Free Speech Clause. Id. The district court ruled in favor of the State and granted the State’s
motion to dismiss finding no violation of either Clause. (R. at 2). On appeal, the circuit court
2
reversed the ruling on the motion finding a violation of First Baptist’s Free Speech Clause but
agreed with the district court that the Free Exercise Clause was not violated. (R. at 12). Because
the decision was based on a question of law, after granting certiorari, this Court has complete
discretion under de novo review to affirm the Twelfth Circuit Court of Appeals decision. See
Salve Regina College v. Russell, 499 U.S. 225, 237 (1990).
SUMMARY OF THE ARGUMENT
The State’s denial of First Baptist’s application did not violate the Free Exercise Clause.
The First Amendment states, “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof. . . ” The Founders adopted these two clauses in
the First Amendment to prevent the serious abuse non-government favored religions had
previously endured. Separation of religion from government is vital in preventing governments
from forcing its preferred religion on citizens and instead allows citizens to choose their religion.
Along with this, the Free Exercise Cause provides religious organizations protection from
governmental actions that would prohibit their ability to worship. With these clauses, the
government cannot force citizens to accept a specific religion nor prohibit citizens from
practicing their religion.
Here, First Baptist claims the denied application violates its freedom to exercise its
religion. However, the Free Exercise Clause bans government actions that prohibit religious
exercises but does not require the government to provide funding for religious organizations. The
denial of NGSAD’s grant for First Baptist’s does not prohibit First Baptist from continuing its
religious observance. Further, the State’s Constitution does not allow the State’s funds to be
given to religious organization and declares, “no 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
3
religious sect . . . .” If the State approved First Baptist’s application, it would have violated its
own Constitution.
Even if it is found that First Baptist’s rejection prohibited religious exercise, providing
NGSAD funds to First Baptist places a far greater burden on the State than First Baptist.
Accepting First Baptist’s grant application is a substantial burden on the State because the State
has a substantial interest in maintaining the separation of church and state. Conversely, denying
First Baptist’s grant application is a minor burden because First Baptist has successfully
managed Caring Hands for eight years and with community support other farmers may not have.
As a result, there is no violation of the Free Exercise Clause because the State’s substantial
burden outweighs First Baptist’s minor burden.
Second, the State did not violate First Baptist’s freedom of speech as provided in the First
Amendment that, “Congress shall make no law . . . abridging the freedom of speech . . .” because
the State’s policy is clear and not overbroad. The State’s policy uses clear language that a
reasonable person is able to understand. This language can also be found in the Civil Rights Act
of 1964 and complies with an already accepted notion that in some circumstances, limits are
needed on freedom of speech. Moreover, the State’s policy is not overbroad because it does not
fit the Courts test of being both real and substantial. Here, the policy does not meet the
substantial requirement because the policy only applies to those applying for state funding, not
everyone within the State.
Additionally, the State’s denial of First Baptist’s application is not a violation of the Free
Speech Clause because supports the State’s policy interest in protecting members of society from
harm and harassment. As this Court acknowledged in Chaplinsky, the freedom of speech is not
absolute and does not apply to language that 1) can be considered “fighting words” 2) directed
4
toward another and 3) is likely to result in a violent reaction. Here, Thomas’s sermon contained
highly offensive language a reasonable person could define as fighting words that were directed
towards a specific group and could have resulted in a violent reaction although fortunately in this
case Kalvert chose not to violently fight back. In order to ensure the freedom of speech is
protected to its fullest extent, this Court adopted a “least restrictive” test to assure necessary
limits on free speech are as minimal as possible. The test evaluates the regulation at issue to
determine whether “it is the least restrictive means among available, effective alternatives.” The
State’s policy passes this test because it does allow its citizen to engage in discriminatory speech.
Instead of issuing criminal or civil sanctions for discriminatory speech, the State has chosen to
incentivize citizens to against this by providing the State’s funding to those who avoid
discriminatory speech. If there was any possible infringement on the Free Speech Clause, it is
outweighed by the policy’s legitimate purpose to 1) protect citizens from discrimination and
harassment, 2) allowing the State to show it supports protecting the safety of all its citizens, and
3) the State is not permitted to give funds to religious organizations.
Overall, the State did not violate the Free Exercise Clause because First Baptist’s ability
to continue its religious practice has not been limited in any way and the State has a substantial
interest in maintaining the separation between church and state. Also, the State did not violate
the Free Speech Clause because its policy is clearly written and supports the State’s interest in
preventing unjust treatment of its citizens.
ARGUMENT
I.
THE STATE OF NORTH GREENE’S DECISION TO DENY FIRST BAPTIST
CHURCH NGSAD PUBLIC FUNDS DID NOT VIOLATE THE FREE EXERCISE
CLAUSE OF THE FIRST AMENDMENT
5
As acknowledged by this Court nearly thirty years ago, The Free Exercise Clause of the
First Amendment “means, first and foremost, the right to believe and profess whatever religious
doctrine one desires.” Empl. Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 977 (1990).
Here, the State’s decision to deny First Baptist’s application to obtain NGSAD public funds for
its Caring Hands program in no way affects First Baptist’s “right to believe and profess whatever
religious doctrine [it] desires.” Id.
Specifically, in denying First Baptist’s application, First Baptist argues that the State
violated the Free Exercise Clause of the First Amendment because the State “[wa]s unable to
directly provide funds to any religious organization.” (R. at 6). Accordingly, First Baptist argues
that The Free Exercise Clause compels the State to provide NGSAD public funds to religious
organizations. (R. at 6-7). However, First Baptist’s argument misunderstands the purpose of the
Free Exercise Clause. Indeed, the State’s decision to deny First Baptist’s application to obtain
NGSAD public funds did not violate The Free Exercise Clause because, as the plain language of
the constitutional text indicates, the Free Exercise Clause precludes the government from
“prohibiting the free exercise” of religion; it does not compel the government to provide
churches and religious sects with public funds. U.S. Const. amend. I.
Moreover, contrary to First Baptist’s argument that the State “target[ed] [First Baptist]
for disparate treatment without a compelling government interest,” the State has a substantial
interest in not providing First Baptist–or any other religious organization–NGSAD public funds.
(R. at 6). Article II, Section 8 of the State’s Constitution provides that “no 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 . . . be divided between
religious sects or denomination.” (R. at 5). This indicates a strong and substantial interest on
6
behalf of the State to not provide NGSAD public funds to religious organizations. However, the
burden imposed on First Baptist–or any other religious organization–is extremely minor, because
the State’s decision does not restrict First Baptist’s ability to practice and engage in religious
activities.
Accordingly, for the following reasons, this Court should affirm the lower court’s
decision that “the Free Exercise Clause does not compel” the government “to provide public
funds . . . to a religious organization.” (R. at 6-7).
A. The State did not violate The Free Exercise Clause of the First Amendment by
denying First Baptist’s NGSAD grant because The Free Exercise Clause only applies
when the government “prohibits” the free exercise of religion.
The plain language of the Free Exercise Clause of the First Amendment commands that
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof. . . .” U.S. Const. amend. I (emphasis added). These two clauses are known as
the religious clauses, and it is the latter–The Free Exercise Clause–on which First Baptist relies.
(R. at 7-8). Further, as acknowledged by this Court, the Free Exercise Clause is applicable “to
the States” because it has been “incorporate[ed] into the Fourteenth Amendment.” Emp’t Div.,
Dep’t of Human Res. of Or., 494 U.S. at 876-77; (citing Cantwell v. Connecticut, 310 U.S. 296,
303 (1940).
It is a longstanding principle of First Amendment jurisprudence that the Free Exercise
Clause was adopted by the Founders of this Nation to avoid the dangers that are created by a
government favored church. See Everson v. Bd. Of Educ. Of Ewing Twp., 330 U.S. 1, 8 (1947);
Lee v. Weisman, 505 U.S. 577, 622 (1992) (Souter, J. concurring). Thus, in order to avoid such
dangers, a majority of “the early settlers of this country came here from Europe to escape the
bondage of laws which compelled them to support and attend government favored churches.”
7
Everson, 330 U.S. at 8. Indeed, these early settlers witnessed their previous government impose
monetary fines, place men and women “in jail, cruelly torture [], and kill [] [them]. Id. at 9.
As a result of these experiences, “there was widespread awareness among many
Americans of the dangers of a union of Church and State.” Engel v. Vitale, 370 U.S. 421, 429
(1962); see Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Thus, this widespread awareness
inspired the Founders to draft the language of The First Amendment–specifically, the religion
clauses–and include such language in our Constitution “to stand as a guarantee that neither the
power nor the prestige of the Federal Government” could impose the dangers the Founders and
early settlers of this Nation previously encountered. Engel, 370 U.S. at 429; see Everson, 333
U.S. at 8.
In considering the Founders’ purpose of the constitutional provision and the plain
language of The Free Exercise Clause, “[t]he crucial word . . . is ‘prohibit.’” Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 451 (1988). The Founders’ included this language in
The Free Exercise Clause to dictate “what the government cannot do to the individual.” Sherbert
v. Verner, 374 U.S. 398, 412 (1963) (emphasis added). Conversely, the Founders’ did not
include this language to dictate “what the individual [or religious organization] can exact from
the government.” Id.; see United States v. Friday, 525 F.3d 938, 957 (10th Cir. 2008)
(acknowledging that “[d]emands for affirmative governmental assistance are generally
disfavored in free exercise cases.”). Thus, the important distinction is that The Free Exercise
Clause precludes the government from prohibiting a religious organization’s free exercise of
religion; it does not allow that religious organization to “compel” government action or exact
monetary benefits.
8
Here, the crux of First Baptist’s argument is that the State violated First Baptist’s First
Amendment rights by denying its application to obtain generally available NGSAD public funds
on the basis of the Caring Hand’s religious affiliation. However, such an argument ignores the
plain language of the constitutional text and confuses the constitutional rights First Baptist
possesses. Indeed, this argument fails to indicate how the State has “prohibited” First Baptist’s
constitutional right to practice and freely engage in its religion.
Specifically, First Baptist’s argument misunderstands the Founders’ purpose to include
the word prohibit, rather than some other word, such as compel, in our Constitution. The
Founders’ included the word prohibit to act as a guarantee that the government could not dictate
religious beliefs; not to provide an individual with the power to compel or command government
action. Further, as acknowledged by this Court in Sherbert, The Free Exercise Clause does not
provide First Baptist–or any other religious organization for that matter–the ability to “exact” or
compel government action, including the requested relief of providing First Baptist with the
NGSAD public funds in this case. 374 U.S. at 412.
In sum, The Free Exercise Clause commands that the State shall not interfere with First
Baptist’s religious desires, activities, and practices; The Free Exercise Clause does not require
that the State provide First Baptist with NGSAD public funding. Accordingly, because The Free
Exercise Clause of the First Amendment of the United States Constitution does not apply in this
instance, this Court should reverse the Fourteenth Circuit’s decision, and reaffirm the State’s
decision to deny First Baptist NGSAD public funds.
B. Even if the State’s decision did “prohibit” First Baptist’s free exercise of religion, the
State’s interest in not providing First Baptist NGSAD public funds is substantial,
while the burden imposed on First Baptist by that interest is minor.
9
Even if the State’s decision to deny First Baptist’s application to obtain NGSAD public
funds “prohibited” First Baptist’s free exercise of religion as required by the First Amendment,
and even if the law supporting that decision is not a neutral or generally applicable law, the State
can still show that it possessed a substantial interest in implementing the law, while the burden
imposed on the individual or religious organization is minor. If the state can show that it
possessed such an interest, The Free Exercise claim must fail. See Church of the Lukumi Babalu
Aye v. Hialeah, 508 U.S. 520, 546 (1993).
A law is neutral or generally applicable if it does not “infringe upon or restrict practices
because of their religious motivation,” and does not “impose burdens only on conduct motivated
by religious belief[.]” Lukumi, 508 U.S. at 533, 543. “[I]f the object of a law is to infringe upon
or restrict practices because of their religious motivation, the law is not neutral . . . .” Id. at 533.
Here, the law at issue is not neutral or generally applicable because the State denied First
Baptist’s application for the NGSAD public funds because it was “unable to directly provide
funds to any religious organization. . . .” (R. at 5). Accordingly, it is clear that the intent was to
restrict due to Caring Hand’s religious affiliation with First Baptist. However, as stated, even if a
law is not neutral or generally applicable–as is true in this case–the State can still show a
substantial interest applies in regulating the religious conduct. Thus, if that interest is substantial
and the burden imposed on the religious organization is minor, the challenge will fail.
For example, in Locke v. Davey, this Court addressed similar issues as those presented in
this case. 540 U.S. 712 (2004). In Locke, the State of Washington instituted an academic
scholarship program for students that satisfied a variety of different requirements. Id. at 716.
Specifically, the requirements included “academic, income, and enrollment” based standards that
the specific student had to satisfy in order to qualify for the scholarship program. Id. However,
10
regardless of whether a student complied with the necessary requirements, the program barred
students from pursuing degrees in theology. Id.
In Locke, a college student was awarded the academic scholarship; however, he was
barred from receiving his scholarship funds because he was pursuing a “pastoral ministries
degree.” Id. at 717. Subsequently, the student brought a claim against the state, arguing, among
other things, that his Free Exercise rights were violated. Id. at 718. The Ninth Circuit ruled in
favor of the student, ruling that his constitutional rights were violated. Id. at 718, 725. However,
this Court granted certiorari, reversed the Ninth Circuit’s decision, and ultimately held that the
scholarship program did not violate the student’s Free Exercise rights. Id.
In so holding, the Court acknowledged that although The Free Exercise Clause and The
Establishment Clause “are frequently in tension,” “‘there is room for play in the joints between
them.’” Id. at 718 (quoting Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1990)).
Accordingly, this Court noted “‘that play in the joints’ described above” applied in this case. Id.
The Court distinguished Lukumi Babalu Aye, Inc. v Hialeah, where the city made animal
sacrifice a crime, and reasoned that in this case, “the State’s disfavor of religion [and the burden
on the student] . . . [wa]s of a far milder kind.” Id. at 720. Moreover, the Locke Court
distinguished Washington’s scholarship program from the law in Lukumi that criminalized
animal sacrifice. Id. This Court reasoned that Washington’s scholarship program did not impose
civil or criminal sanctions on the students who practiced their religion, the program did not deny
religious ministers or other qualified students any political rights, and the program did not
“require student to choose between their religious beliefs and receiving [the scholarship funds].”
Id.
11
Put simply, the Washington scholarship program was far milder than the criminal law
imposed in Lukumi. Id. Thus, this Court concluded that the burden imposed on the student by
Washington’s scholarship program was minor, and the state’s interest in not providing public
funds for religious opportunities was substantial; thus, the state did not violate the student’s Free
Exercise rights. Id. at 725.
Here, even if the State’s decision did prohibit First Baptist’s free exercise of religion, the
State’s interest in not providing First Baptist NGSAD public funds was substantial, while the
burden imposed on First Baptist by that interest is minor. Indeed, as stated by the Fourteenth
Circuit, “[t]he conclusion that this case falls squarely within the analysis of Locke is
inescapable.” (R. at 8). The State’s interest in not providing First Baptist NGSAD public funds is
substantial. Moreover, the burden the State’s decision imposed on First Baptist is minor.
Therefore, because the State’s interest is substantial and the burden imposed on First Baptist is
minor, this Court should affirm the circuit court’s decision that the State did not violate First
Baptist’s Free Exercise rights by denying the church’s application to obtain NGSAD public
funds.
The State’s interest in not providing First Baptist NGSAD public funds is substantial
because the State has a substantial interest in separating a union of church and state. Article II,
Section 8 of the State’s Constitution states that public funds shall not “be under the control of
any religious sect; nor . . . devised between religious sects or denominations.” (R. at 5).
Likewise, in Locke, the Washington Constitution stated that “[n]o public money nor property
shall be appropriated for or applied to any . . . religious establishment.” Locke, 540 U.S. at 716,
719, n.2 (quoting Wash. Const. art. I, § 11). Indeed, this policy to separate church and state
beyond what is required by the First Amendment is consistent with historical government
12
interests. Such a policy is imbedded in the State’s Constitution, and much like this Court’s
decision in Locke, it is a substantial interest that is consistent with First Amendment
jurisprudence.
Moreover, the burden imposed on First Baptist is minor. Similar to the Locke case where
the burdens imposed were minor, likewise in this case, the burden imposed on First Baptist is
also minor. For example, in Locke, the scholarship program did not impose civil or criminal
sanctions on the students, did not deny religious ministers or qualified students any political
rights, and did not require student to choose between their religious beliefs. Likewise, in this
case, First Baptist is still free to worship as it desires.
Furthermore, the State’s decision to deny First Baptist’s application does not preclude
First Baptist from operating its Caring Hands program and feeding those in need. Rather, the
only burden actually imposed on the First Baptist is minor. Indeed, that minor burden is the fact
that First Baptist will not be able to use NGSAD public funds to help operate its Caring Hands
program. However, this burden is minor as compared to the State’s substantial interest for a more
expansive separation between church and state.
Again, any argument by First Baptist that the Lukumi case applies is clearly inapposite. In
Lukumi, city ordinances imposed various criminal and civil sanctions. 508 U.S. at 546.
Specifically, the ordinance “sought to suppress ritualistic animal sacrifices of the Santeria
religion,” and criminalized any such sacrifice. Id. at 720. Conversely, similar to Locke, in this
case, “the burden placed on First Baptist Church is minor.” (R. at 7).
Thus, because the State’s interest in not providing First Baptist with NGSAD public
funds outweighs the minor burden placed on First Baptist, the Locke holding controls, and
13
accordingly, the State’s decision to deny First Baptist NGSAD public funds did not violate First
Baptist’s First Amendment rights.
Therefore, because The Free Exercise Clause commands that the State shall not interfere
with First Baptist’s religious desires, activities, and practices; The Free Exercise Clause does not
require that the State provide First Baptist with NGSAD public funding. Accordingly, because
the State’s denial of First Baptist’s application to obtain NGSAD public funds in no way
prohibited First Baptist’s ability to freely exercise its religion, and because even if it did, the
State possessed a substantial interest in separating the union between church and state, while the
burden imposed on First Baptist by such a decision is minor.
II.
THE STATE OF NORTH GREENE’S DECISION TO DENY FIRST BAPTIST
CHURCH’S NGSAD APPLICATION FOR PUBLIC FUNDS DID NOT VIOLATE
THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT
A. The State’s policy does not violate The Free Speech Clause of the First Amendment
by denying First Baptist’s NGSAD application because the policy is not vague and
overbroad.
The policy is not vague due to the specific language used and the clear requirements for
use of state funds. The policy is not overbroad because it does not facially or substantially prohibit
free speech.
Using clear language defeats the argument of vagueness because a reasonable person is
put on notice of the requirements for following the policy. The language of the policy includes
the following wording:
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.
14
(R. at 5). Here the policy is very explicit and clear in what the ultimate goal of the legislature
was, to protect individuals and groups from discrimination and harassment, and avoid funding
individuals and groups participating in discrimination and harassment.
The language used by the State in the policy mirrors the Civil Rights Act of 1964. “Title
VII of the Civil Rights Act of 1964 provides, in relevant part, that ‘[i]t shall be an unlawful
employment practice for an employer . . . to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such individual's
race, color, religion, sex, or national origin.’ 78 Stat. 255, as amended, 42 U.S.C. § 2000e–
2(a)(1).” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). By using
substantially the same language, the State is aligning with already accepted notions of a
limitation on free speech in specific instances by providing an incentive or requirement before
receiving state funds.
The Court in Oncale explained that “[t]he prohibition of harassment on the basis of sex
requires neither asexuality nor androgyny in the workplace; it forbids only behavior so
objectively offensive as to alter the “conditions” of the victim's employment.” Oncale, 523 U.S.
at 81. It is reasonable to infer that some of the offensive conditions envisioned by the Court
could include harassment and verbal abuse.
This Court has upheld the notion of protecting individuals and groups from harassment in
the workplace. This is direct prohibition placed on employers of the United States. The policy of
the State is not a direct prohibition upon state citizens. It is a requirement to comply with the
policy in order to receive funding for projects qualified for No Waste funding. (R. at 3, 5).
Individuals and groups are still free to use First Amendment protected hate speech, but those
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individuals are not free to receive state funding while also using hate speech to target individuals
who are vulnerable to verbal abuse.
The policy is not overbroad because any possible infringement upon free speech is not
substantial. This Court explained that overbroad language must be both real and substantial.
To put the matter another way, particularly where conduct and not merely speech
is involved, we believe that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate sweep. It is
our view that s 818 is not substantially overbroad and that whatever overbreadth
may exist should be cured through case-by-case analysis of the fact situations to
which its sanctions, assuredly, may not be applied.
Broadrick v. Oklahoma, 413 U.S. 601, 615–16 (1973). Even if the policy’s language is broad, the
language of the policy is not substantial when it only affects those individuals who are applying
for state funding and not the general public.
The policy is not vague because the intentions of the legislature are clear in discouraging
harassment similar to the prohibitions within of the Civil Rights Act, and the policy is not
overbroad because it does not facially or substantially prohibit free speech when it only affects
those individuals or institutions applying for state funding.
B. The State’s policy does not violate The Free Speech Clause of the First Amendment
and serves a social interest in protecting members of society from harm and
harassment.
Even if the Court believes the State’s policy is vague and overbroad, the policy should be
upheld because there is valid social interest of protecting all members of society from harm and
harassment that substantially outweighs the benefits of a few individuals willing to participate in
discrimination and harassment under the First Amendment.
This idea for limiting the First Amendment in some instances was addressed by the Court
in Chaplinsky. The Court stated:
Allowing the broadest scope to the language and purpose of the Fourteenth
Amendment, it is well understood that the right of free speech is not absolute at all
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times and under all circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd and obscene,
the profane, the libelous, and the insulting or “fighting” words—those which by
their very utterance inflict injury or tend to incite an immediate breach of the peace.
It has been well observed that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality. “Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Constitution, and its
punishment as a criminal act would raise no question under that instrument.”
Cantwell v. Connecticut, 310 U.S. 296, 309-310.
Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942). The emphasis from the Court in
Chaplinsky centers on the “slight social value” of “fighting words” versus the “social interest in
order and morality.” Here, the Court is acknowledged that the right to free speech is not absolute.
The Court has further explained the appropriate situation for using this analysis. “Since
Chaplinsky, the Court has further narrowed the nature of unprotected “fighting words” to speech
that is “directed to the person of the hearer” and likely to evoke a violent response. Cohen v.
California, 403 U.S. 15, 20 (1971).” Am. Freedom Def. Initiative v. Washington Metro. Area
Transit Auth., 898 F. Supp. 2d 73, 80 (D.D.C. 2012).
Thomas used language that could fall under this analysis because Kalvert was sitting in
the audience when Thomas stated that,
[m]an has now spit upon God’s word and “put asunder” what God declared as the
standard for marriage – one man and one woman joined before God for life. . . . A
handful of justices may legalize the union between people of the same sex—
perhaps eventually multiple people and even animals—but redefining this as
“marriage” would be like me declaring that my Honda Civic is actually a Ferrari.
(R. at 4). Admittedly the record does not indicate whether these words would be “likely to evoke
a violent response” from Kalvert, but not everyone will violently break out in emotional rage
from hearing hate speech directed toward them either. The requirements for receiving state
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funding is to protect those who could turn violent, or withdraw, heartbroken, in the face of verbal
harassment in the form of hate speech.
This Court recognizes that at times restricting freedom of speech will be necessary and
has adopted a test to ensure that this constitutional right is protected to the fullest extent possible.
The purpose of the test is not to consider whether the challenged restriction has
some effect in achieving Congress' goal, regardless of the restriction it imposes.
The purpose of the test is to ensure that speech is restricted no further than necessary
to achieve the goal, for it is important to ensure that legitimate speech is not chilled
or punished. For that reason, the test does not begin with the status quo of existing
regulations, then ask whether the challenged restriction has some additional ability
to achieve Congress' legitimate interest. Any restriction on speech could be justified
under that analysis. Instead, the court should ask whether the challenged regulation
is the least restrictive means among available, effective alternatives.
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).
Content-based restrictions place the burden upon the State to prove that under the “least
restrictive means” test the compelling government interest is accomplished through the least
restrictive means. “Further, when a restriction on speech is content-based, the burden is on the
government to prove that the restriction is the least restrictive alternative to achieve its
compelling interest.” Am. Freedom Def. Initiative, 898 F. Supp. 2d at 81.
The reason that this policy is valid under the “least restrictive means” test is that it is
centered on who is restricted and what is restricted. Again, no individual or group is prohibited
from using hateful or harassing speech under the policy. Individuals or groups who engage in
this type of destructive and hurtful behavior are free to do so within the approved confines of the
First Amendment. In North Greene, individuals or groups who choose to do so are restricted
from receiving state funding. Withholding state funding not only ensures that the State is not
seen as endorsing harassment and discrimination, it provides an incentive to comply with
nationally accepted norms of treating all individuals without infringing on the right to ignore the
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incentive and still engage in hateful or harassing speech. Only individuals and institutions
engaged in harassment and discrimination are restricted from receiving state funds.
A compelling state interest is a legitimate way to potentially restrict free speech if the
policy does not substantially infringe upon protected free speech.
The showing that a law punishes a “substantial” amount of protected free speech,
“judged in relation to the statute's plainly legitimate sweep,” suffices to invalidate
all enforcement of that law, “until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression.
Virginia v. Hicks, 539 U.S. 113, 118-19 (2003)(citations omitted).
There are many protected forms of free speech compared to the incentive the State is
providing to individuals or groups to not engage in harassment or discrimination. The focus of
the legislature is protecting individuals and groups through incentive, and not prohibiting free
speech. (R. at 5). The Court explained further that “we have insisted that a law's application to
protected speech be ‘substantial,’ not only in an absolute sense, but also relative to the scope of
the law's plainly legitimate applications, ibid., before applying the ‘strong medicine’ of
overbreadth invalidation, id., at 613, 93 S. Ct. 2908.” Id., at 2197. Here the Court recognized that
there are times, specifically when compared to the legitimate government purpose, where a law
may slightly infringe on First Amendment rights as long as they do not substantially infringe
upon them.
There are three reasons why the policy’s legitimate purpose outweighs the possible
minimal infringement of First Amendment rights. First, the legislature wants to protect
individuals from discrimination and harassment. Although this does not apply under the Civil
Right’s Act, providing an incentive to comply with nationally accepted norms of treatment is a
legitimate purpose for enacting the policy. Second, the legislature has legitimate concern with
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approving disbursement of state funds to individuals or groups who are engaging in
discriminatory harassment of others. The State wants to send a message of safety and tolerance
to all individuals and groups within the state, but funding individuals and institutions that
actively participate in discrimination sends the wrong message to the citizens of the State. Third,
the State Constitution prohibits state funds from falling under control of religious institutions. All
of these reasons significantly outweigh the possible deterrence to exercising First Amendment
free speech rights.
This Court clearly stated in Hicks that “[e]ven if this Court agrees that the policy is
overbroad and vague, this Court has recognized exceptions when ‘there comes a point at which
the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all
enforcement of that law—particularly a law that reflects’ legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.” Hicks, 539 U.S. at
113.
The policy uses an incentive of providing state funds to those individuals and groups who
are willing to abide by nationally accepted norms included in the policy for interacting with other
citizens of the State. The purpose behind the policy is to incentivize against discrimination and to
protect the state from funding individuals and groups who engage in discriminatory behavior.
Using specific language and clear requirements for use of state funds means that the
policy does not fall under the vagueness doctrine. The policy is not overbroad because it does not
facially or substantially prohibit free speech. The policy does not prohibit free speech. It
prohibits funding to those who engage in harassment and discrimination against other individuals
and groups in the State.
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CONCLUSION
For the foregoing reasons, we ask this court to affirm in part and reverse in part the
Fourteenth Circuit’s decision and hold there was violation of the Free Exercise Clause or Free
Speech Clause.
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