Hankins v. Lyght - dissent

by the a communication there be HANKINS, Plaintiff- Paul John policy per- makes sense client—and Appellant, recognizes privi- A rule spective. eye writing with any made

lege for too would be representation legal toward privilege no that allows A rule broad. York An- and New LYGHT Ernest S. discourage records would all for such Meth- of the United nual Conference step of taking reasonable clients from Defendants-Appellees, Church, odist in a conver- to assist an outline preparing attorney. their with sation Community Stony Brook parties undisputed It is Church, Defendant. to Collazos’s never delivered journal was fact No. 04-0743-CV. took that Docket court attorney. district determining that in dispositive to be Appeals, States Court United privi- of the outside cloak journal was Second Circuit. delivery of the argues that lege. Collazos long as necessary as is not journal itself 5, 2005. Argued: Jan. as an outline did serve journal’s entries Cer- attorney-client conversation. for an Feb. Decided: a client wishes of what tainly, an outline which is subse- counsel—and with discuss one’s counsel— with

quently discussed our un- squarely fit within seem to

would privilege. scope of the

derstanding of the

Ill court’s error in the district light privilege

defining scope of we be- “expectation privacy,”

Collazos’s order. a remand of matter

lieve court to

A remand allow district will of the hearing to decide

conduct journal fall within in the

writings contained as discussed scope privilege court district also note We

above. compelling there were

did decide con- overwhelming Sixth Amendment decision, those nor did involved its

cerns determination. play a role our

concerns

Therefore, the order VACATE we the matter court and REMAND

district proceedings consistent

for further opinion. seq.,.is ap- 2000bb et constitutional as law; it

plied to federal therefore amended governs the ADEA and the merits of the principal parties. issue raised We complaint vacate the dismissal Hankins’ and remand for a determination of wheth- er of the ADEA to Hankins’ relationship Lyght with the NYAC violates the RFRA.

BACKGROUND of the facts as We assume the existence in alleged complaint. Hankins was by ordained the NYAC and served as July clergy member from 1962 to 2003. 5, 2002, He turned 70 on November July was forced into retirement on by paragraph 356 of the prescribed Sullivan, Brook, Stony New Miles Bruce Discipline. Methodist Book of York, Plaintiff-Appellant. for According by to a the Meth- statement Brewington, Hempstead, K. Frederick Bishops, of odist Church’s Council York, Defendants-Appellees. New Discipline Book of is neither “sacrosanct” “infallible, nor ... is the most current but WINTER, SOTOMAYOR,and Before: agree Methodists statement how United PARKER, Judges. B.D. Circuit society as “an inclusive together” to live in dissents Judge SOTOMAYOR regard origin, to ethnic economic without separate opinion. condition, gender, age, or the disabilities alleges complaint The its constituents.” WINTER, Judge. Circuit contains “sub- Discipline that the Book of appeals from the John Paul Hankins ject that are sectarian and ecclesi- matters age dis- by Judge Hurley of his dismissal nature[,] being related to the astical in a clergy action. Hankins was crimination Trinity, the Deity nature of the and the by New York appellee member ordained Meth- of the scriptures, tenets United Method- Annual of the United Conference Church, theological grounding odist (“NYAC”). forced into He was ist Church faith, Wesley teachings of John biblical age of 70. retirement when he attained or religious principles values other and/or Lyght Bishop Ernest is the Appellee S. (... considerations’),” as well as ‘religious appoint power the NYAC and has the secular, “subject temporal that are matters clergy to churches. NYAC nature[,] being deter- civil and/or mined, by any reli- controlled or influenced claims that the NYAC’s manda- Hankins fur- complaint The Age gious considerations.” tory policy retirement violates 356, under paragraph Act of 1967 ther claims Employment Discrimination in retired, mandatorily (“ADEA”), Hankins was seq. 621 et We which U.S.C. secular, subject civil temporal, “is a Religious hold that the Freedom Restora- and/or determined, matter, (“RFRA”), controlled being Act of 1993 tion a “ministerial 12(b)(6) motion based any religious consider- by influenced adopted rule the ADEA—a exception” to ations.” rights that civil laws circuits several other Hankins and Lyght told Bishop employment rela- govern church cannot had the that he the Church members violating without with ministers tionships pastor, Hankins as authority to reappoint they sub- clause because exercise the free is over that Hankins the fact despite See, freedom. religious stantially burden However, Lyght also Bishop old. years Army, v. Salvation e.g., McClure (as policy “personal it is his stated Cir.1972) (5th Title (applying VII policy set forth from the distinguished re- relationship “would to church-minister reappoint never to Discipline) the Book of by the State into sult an encroachment attained clergy who have members into it freedom an area church out of which seventy to the age the Free Exer- enter” is forbidden they were retired.” Clause). court dismissed the cise age discrimination brought Appellant 12(b)(6). under Rule complaint Opportu- Equal Employment charge to (“EEOC”) on March nity Commission DISCUSSION Right issued a Notice EEOC 11, Appellant 2003. April on to Sue ex- the ministerial argues that Appellant the New Complaint with filed Verified non- a church’s ception should insulate Rights Human on June York Division of that discriminate regulations for 11, 2003; Complaint was dismissed Ap- age. ministers on the basis against 1, 2003. July on convenience administrative is barred action pellees assert this 3, July instant suit on filed the Appellant Alternatively, they contin- errors. EEOC 2003. exception,” “the ministerial rely upon toue clause, and the Estab- Exercise the Free claimed that complaint Appellant’s Clause, claiming applying lishment policy violated mandatory retirement church-minister relation- the ADEA Law, Rights ADEA, York Human the New religion. substantially burden ship would with him covenant and the NYAC’s note that “for regard, appellees In that (Counts IV); Bishop I, II, and that and Congress passed the very reason” this reappoint- policy against Lyght’s personal alleged EEOC We address RFRA. and the ADEA clergy violated ing retired the main issue: turning before errors III).1 (Count Rights Human Law the ADEA. the RFRA amended lack of to dismiss for Appellees moved jurisdiction and failure subject matter for a) Proceed- Completion Administrative relief could be upon a claim which to state ings (6) 12(b)(1) re- under granted, Rules court the district court, argue that ruling Appellees oral- spectively. district is- motion, the EEOC 12(b)(1) jurisdiction because lacked ly, declined decide Right to Sue appellant’s Notice sued apparently was based deficiencies charge sixty days his was fewer than after of appellant’s review the EEOC’s disagree. Instead, filed.2 We granted the court charge. Lyght appointed another preliminaiy the NYAC initially for a after Appellant moved

1. position. vacant to fill clergy member his requiring appellees to restore his injunction status, motion he withdrew the active but issue, this court not address district did legal questions, purely it raises but because days suits within 180 undermines its ex statutory require- all satisfied Appellant statutory every press duty investigate action un- private bringing ments filed, charge Congress’s well as unam age discrimina- ADEA. He filed der 19, biguous policy encouraging informal on March res charge with the EEOC tion Right charges up day.”). olution of to the 180th 2003; issued a Notice the EEOC 11, regula have not decided whether the 2003. Under U.S.C. We April to Sue on 626(d) (e), allowing early right-to-sue had to file the tion issuance of appellant § notices, 1601.28(a)(2), § per after 29 C.F.R. is a sixty days than instant suit more missible construction of 2000e-5. complaint and within Section filing his EEOC here, express opinion the EEOC We no on the issue ninety days receipt of his although we note that circuits and complied with both re- two Notice. Hankins 3, July several district courts within this circuit filing suit on 2003— quirements by disagreed and 83 have with Martini and Rodri days after March more than MacMillan, Furthermore, guez. con- Sims v. Trus Joist days April 11. after (11th Cir.1994) (early the instant 1061-63 arguments, trary appellees’ right-to-sue issuance of letter EEOC by appellant’s not barred June suit was suit); Saulsbury with the New does not bar Title VII filing Complaint of a Becker, Inc., & Rights Human because v. Wismer York Division of (9th Cir.1980) (same); on 1257 Commodari v. complaint the Division dismissed Univ., Long F.Supp.2d filed this Island 381— July appellant before (ADEA (E.D.N.Y.2000) 633(b) (same); pro- 29 U.S.C. Palumbo suit. See Airlines, days after German bringing hibits suit before Lufthansa 5005, 1999 proceedings, “un- Dist. LEXIS No. 98 Civ. commencement of state 1999) (S.D.N.Y. July at *2 have been earlier WL proceedings less such terminated”). (same); Figueira v. Black Entm’t Televi sion, Inc., F.Supp. 944 303-08 jurisdictional rely for their Appellees (S.D.N.Y.1996)(same). on two Title YII cases: Martini contention Ass’n, key present F.3d The fact in the matter is Mortgage Nat’l v. Fed. § (D.C.Cir.1999), language of 29 Rodriguez v. Con- the ADEA, Inc., authorizes suits under the F.Supp.2d Tech. nection (E.D.N.Y.1999). significantly inferred differs from that of Section These cases 2000e-5(f)(l). provides § of 42 U.S.C. 2000e- Section language from the 5(f)(1)3 may by commenced authority lacks civil action “[n]o that the EEOC days under this section until 60 notices based on Title individual right-to-sue issue charge alleging a unlawful discrimi- days charge after a after VII claims before 180 Martini, nation filed with the [EEOC].” 178 F.3d at 1347 has been E.g., is filed. 626(d). (“[T]he § this private Appellant complied Id. power to authorize EEOC’s York, charge ... has not McGinty New of such the Commission we do so here. See Cir.2001) (2d (addressing ques- filed a civil action ... or the Commission court where facts tion not decided district agree- into a conciliation has not entered legal question undisputed was were briefed). aggrieved person is a ment to which the notify party, the Commission ... shall so ninety person aggrieved and within 2000e-5(f)(l) pertinent provides in 3. Section days giving a of such notice civil after part: brought against respon- may be action charge a the Commission ... If filed with charge.... dent named in the Commission, or if within dismissed filing eighty days from the one hundred and may assert section of this filing violation days after sixty by waiting provision judicial in a defense a claim or the in- violation bringing charge before EEOC his relief appropriate and obtain proceeding EEOC termi- fact that the suit. The stant 2000bb-l(c). §Id. government.” a expira- against prior to proceedings its nated in- defined to is in turn irrelevant days “[G]overnment” was sixty of tion “branch, agency, department, authority any entertain clude court’s district (or per- other instrumentality, Section and official so because especially This is case. law) 2000e-5, the Unit- con- color of explicitly under acting son unlike Section 2000bb-2(l). § EEOC in- Id. early termination States.” templates ed 626(e) (“If charge Id. vestigations. against a a suit action is present The chapter under [EEOC] filed with the church. The official of that and an church proceedings is dismissed violated the defendants claims that suit by the terminated otherwise are [EEOC] judi- statute, ADEA, seeks federal per- notify the [EEOC], shall [EEOC] applica- remedies; claim appellees cial therefore was This suit aggrieved.”). son substantially bur- would of the statute tion court. the district before properly If the religion. their den the exercise evaluating burdens on RFRA’s test b) Restoration Freedom Religious (b)(1) and activity- —Subsections Act (2) met, arguably can appellees not—is in this view, dispositive issue In our as a com- of the RFRA a violation assert matter concerns defense. plete provi- RFRA. statute’s substantive the case court dismissed The district state: sions exception” that on a “ministerial based (a) shall general. Government anti- had read into various courts some exercise substantially person’s burden issue unresolved laws-—-an discrimination results if the even burden the ADEA. including in this circuit— applicability, ex- general from rule exception as merits of that Whatever the (b). provided subsection cept as it has no policy, statutory interpretation or (b) may sub- Exception. Government text, statutory whereas basis person’s exercise stantially burden legislation explicit applicable, if ap- only if it demonstrates religion point. on Given not be more could person— the burden to plication of statutory lan- relevant of other absence (1) compelling gov- of a is in furtherance must deemed full the RFRA be guage, interest; and ernmental intent with re- Congress’s expression (2) of fur- restrictive means is the least issues before religion-related gard governmental thering compelling doc- displace judge-made earlier us and interest. used to ame- might have trines been § 42 U.S.C. 2000bb-l. on impact ADEA’s liorate the City Mil- (b)(1) and activities. organizations out in The test Subsection set Illinois, 451 U.S. law, waukee (2) and the to all Federal “applies (“Feder- (1981) 68 L.Ed.2d law, whether statu- implementation necessary expedient, a law is otherwise, adopted al common and whether tory or question a Congress addresses and when 1993.” Id. November before after by decision rested governed a 2000bb-3(a). previously RFRA’s The remedial § need such common law the on federal whose person that “[a] states provision lawmaking by fed- exercise an unusual burdened in has religious exercise been (internal disappears.”) quota- eral courts RFRA as a only defense when relief is omitted). tion and citations marks also sought against a governmental par- ty a convoluted drawing of a —involves There is little addressing caselaw hardly negative inevitable implication. If RFRA applies issue whether the to an intended, such a limitation was by action private party seeking a relief chose a most way awkward of inserting it. against under a federal statute another The legislative history is neither directly private party who claims that the federal helpful nor harmful to that view. substantially statute burdens his or her not, however, needWe decide religion.4 exercise of lan RFRA’s the RFRA to a applies federal law guage surely enforce- seems broad enough to en only able in private pri- actions between compass such a case. The statutory lan parties. vate The ADEA is guage by that it enforceable “applies states to all federal law, private EEOC as well as law,” plaintiffs, implementation and the the substance 2000bb-3(a), § prohibitions ADEA’s that a de cannot change arguing depending that such a fendant law substan whether it is by enforced tially the exercise the EEOC or an aggrieved burdens private “may violation of party. [a assert See United RFRA] as States v. Brown, judicial (11th a ... defense in proceeding.” 1559 n. 16 2000bb-l(c). Cir.1996) (“The Id. This language easily meaning of statutory present covers the action. words only con ‘scheme defraud’ does change ceivably narrowing language phrase depending is the on whether the case is Civil immediately criminal.”). following: “and appro obtain RICO or An action brought priate against government.” relief Id. an agency such clearly EEOC is However, language would seem most one in which the RFRA may be asserted reasonably read as defense, rather broadening, as a policy and no of either the than narrowing, rights party of a as RFRA or the ADEA should tempt a court serting the RFRA. The narrowing inter to render a different decision on the merits pretation permitting the assertion of the in a case such present Indeed, as the one. — appears (In 4. No court to have Young), addressed the Church re 1418-19 squarely, (8th issue suggestive but some Cir.1996) (permitting caselaw a defendant to as exists. Some courts seem to have assumed sert RFRA defense and recover debtors’ may without discussion that the RFRA government tithes to the church because "the asserted private as a defense party curtails, question meaningfully action in al against private See, party. another e.g., retroactively, Gui beit religious practice"), va cated, nan v. Roman Catholic India Archdiocese napolis, (S.D.Ind. F.Supp.2d (1997), reaff'd, L.Ed.2d 1007 141 F.3d 854 1998) (permitting private (8th 1998); party Tessier, defendant Cir. see also In re 190 B.R. rejecting assert a RFRA (Bankr.D.Mont.1995); defense but it after Newman v. Mid finding first exception (In that the way Newman), ministerial Baptist ne Southern Church re gated defense); (Bankr.D.Kan.1995), the need to discuss the aff'd, RFRA 183 B.R. 239 Found., Maaherra, v. F.Supp. (D.Kan.1996). Urantia bankruptcy B.R. 468 A trustee (D.Ariz.1995) 1336-37 (permitting arguably "acting the under color of law” and reject defendant to raise a RFRA defense but therefore falls within the RFRA’s definition of ing it because the defendant “government." 2000bb-2(l). did contest § 42 U.S.C. constitutionality the of the and part trademark United States trustees are of the execu copyright general applied laws in or as protect tive branch and interests of the her). Bankruptcy generally courts have liquidation. United in the States See 28 permitted private-party a 586(a); 701(a)(1), §§ defendant assert 11 U.S.C. a against Chapter 703(b)-(c) 704(9); Schoenewerk, defense RFRA 7 trustee. In re and Crystal Evangelical (Bankr.E.D.N.Y.2003). Christians v. Free B.R. 62-63 kidnaping his child defense that feited the inappli- RFRA argues that the appellant RFRA, because violated unconstitutional. conviction it is only because cable trial, or pretrial, during point no “[a]t 1. Waiver ar- [appellant] did sentencing proceedings retaining removing and act of however, address his

First, gue we that must mandated or religiously forfeited was have waived or the children appellees (2d n. 1 original 879 & In inspired.” the RFRA. their upon reliance Cir.1997). to assert a party that the fails noted, argued Where brief, appellees as on their exercise burden on an unlawful burden ADEA was substantial therefore, court, party has that and a district religious activities before inherently RFRA, applied a statute may not raise issue—an enacted laws, very ap- reason.” “for this time on all one—for the first federal fact-based Believing that at 28. Brief Appellant’s peal. dispositive seemingly to a

this reference However, in the dis- argued appellees needed statute otherwise unmentioned but ar- continue to and here—and trict court ap unconvinced and some elaboration the ADEA gue—that had Supreme Court that the pellant’s claim ap- and their church relationship between in all cir unconstitutional the RFRA held religion. substantially their burdens pellant correct, for fur we asked cumstances was the “ministerial to assert They continue briefing. ther tracks the in their view exception,” appellees’ surprise, to our Somewhat the Constitution clause of Free Exercise that, al- states letter-brief post-argument as well. Clause Establishment of the pertinent portions all though 4-15; v. Elvig see Cal- Brief at Appellees’ constitutional, inapplica- the statute is are Church, Presbyterian vin matter “the case at bar is ble because Cir.2005) (“[T]he (9th ex- ‘ministerial employment situation private relating to out from Title is carved ception’ to VII govern- not involve actions and does of the based on commands statute Nevertheless, continue appellees ment.” Clauses Free Exercise Establishment exception” the “ministerial rely upon Amendment.”). substance, First Exercise and Establishment and the Free therefore, they apply us to ask Clauses. it. to mention but not above, view, as discussed In our directly point, on are provisions RFRA’s that the RFRA position Appellees’ who, claim appellees, like parties and allow private between to suits ADEA, statute, like the a federal analy of our is not determinative parties exercise of their substantially burdens the vigorously pur sis, they have given as a defense the RFRA religion to assert the substance preserved sued asserting a claim based any action interpret feder required to We are issue. their then is whether ADEA. The issue they are written —in as al statutes constitutes letter-brief post-argument by the the ADEA amended case forfeiture of that defense. waiver or by parties’ not bound we are RFRA—and Poling law. Becker stipulations waive or may certainly A party (2d 381, 390 Cir. Transp. Corp., 356 F.3d argue by failing to defense forfeit RFRA Kemper Fin. 2004); Kamen v. see also substantially action burdens that a law or 90, 99, Inc., 111 S.Ct. 500 U.S. in Servs. example, religion. For party’s (“When an issue or 1711, 152 114 L.Ed.2d Amer, for- appellant had States United court, before the of the Fourteenth properly claim is Amendment and the Necessary particular legal Proper court is not limited to the Clause of the Con parties, 103-88, advanced but rath- stitution. H.R.Rep. theories No. at 17 (1993) independent power (“Finally, er retains the to identi- the Committee believes fy proper construction of that Congress has the constitutional au law.”)- governing are not in the busi- thority We to enact [the RFRA]. Pursuant to deciding according hypo- ness of cases Section 5 of the Fourteenth Amendment schemes, legal particularly thetical when Necessary and the and Proper Clause of hypothetical posed by party scheme Constitution, legislative branch has tracks the actual law all name. but given authority been provide statu tory protection for a constitutional value Constitutionality ”). .... Supreme The Court held that the addressing the constitutional issues RFRA could not be enacted under Section by appellant regard raised with Amendment, 5 of the Fourteenth statutory we first describe the empowers Congress to enforce the Amend background. provisions ment’s other against the states. Flores, City 507, 519, Boerne v. 521 U.S. passed response The RFRA was 2157, (1997) 117 S.Ct. 138 L.Ed.2d 624 Smith, 872, Employment Div. v. 494 U.S. (“Congress does not enforce constitution (1990). 108 L.Ed.2d 876 S.Ct. is.”). right by al changing right what that Supreme Court held there “the The RFRA is therefore unconstitutional as right of free exercise does not relieve applied to state law. obligation comply individual of the general applica- valid and neutral law of However, the RFRA applies by its bility ground pro- the law only terms not to the states but also to “all (or prescribes) scribes conduct that his law, Federal and the implementation of (or at religion prescribes proscribes).” Id. law, otherwise, statutory (internal 879, 110 quotation S.Ct. 1595 and whether adopted before or after No- omitted). marks and citation limit- Smith § vember 1993.” 2000bb- applicability ed the of the “compelling 2000bb-2(l) (“ 3(a); § see also id. ‘[Gov- previous- state interest” test the had Court branch, department, ernment’ includes a ly applied allowing to neutral laws before (or agency, instrumentality, and official place them to a substantial burden on reli- law) person acting other color under 883-84, gious practice. Id. at 110 S.Ct. States.”). the United Boeme could not 1595 (limiting test to mean that “where the have addressed whether the RFRA was place system State has in of individual validly Necessary enacted under the exemptions, may it refuse extend only Proper Clause because the issue be- system ‘religious hardship’ to cases of building fore Court was denial of a reason”).5 compelling without permit zoning to a church local authori- pur enacted the RFRA ties. 521 U.S. S.Ct. 2157. Boeme, authority, “[ejvery appellate suant to two sources of Section 5 Since court that 2000bb(b)(l). purposes 5. The RFRA's stated include "re- Court noted stor[ing] compelling interest test as set "Congress enacted RFRA in direct re Verner, forth in Sherbert v. 374 U.S. sponse to the decision in” Smith. Court's (1963) S.Ct. 10 L.Ed.2d 965 and Wis Flores, City Boerne v. 521 U.S. Yoder, consin v. (1997). L.Ed.2d 624 (1972).” 32 L.Ed.2d 42 U.S.C. 106 shall be Laws which make all gress “[t]o has question the addressed squarely

has into carrying necessary Proper and activities the governs RFRA the held that including powers, I Article its O’Bryan Execution” agencies.” officers and federal Const, powers. U.S. 399, Prisons, 401 Clause F.3d its Commerce 349 Bureau v. all allows Guerrero, 8, The Clause I, § 290 cl. 18. Cir.2003); v. art. (7th Guam adapted” to (9th Cir.2002); “plainly legislation legitimate Henderson 1210, 1221 F.3d (D.C.Cir. Mary v. 1072, M’Culloch 1073 end. Kennedy, 265 F.3d constitutional v. Wheat.) 316, 421, 950, (4 4 L.Ed. land, 242 F.3d Hurley, 17 U.S. 2001); v. Kikumura (“Let let Crystal (1819) Cir.2001); legitimate, v. the end be (10th Christians 579 960 constitution, (In Young), the scope re the Free Church it be within Evangelical (8th Cir.1998); also appropriate, are 854, see which means F.3d 856 all 141 and (4th end, 310, Riter, adapted 315 355 F.3d plainly v. are Madison which Cir.2003). consist but prohibited, are constitution, are the spirit of and the letter hold in circuits join the other We constitutional.”). Finally, “plainly the as constitutional RFRA is ing “that the only requires standard adapted” Necessary law under to federal applied rational re legislation bear effectuating As of the Constitution. Proper and Clause constitutional to a lationship permissible case, simply the issue in this presented Lue, Kun Wang v. States end.” United authority to Congress had Cir.1998). (2d 79, 84 134 RFRA include ADEA to amend the F.3d at Young, 141 In re See standard. because to us that It is obvious (the effectively amended “has 861 to enact power had the Congress Code, engrafted and has Bankruptcy to amend ADEA, power it also had 548(a)(2)(A)that §to clause the additional by passing RFRA. that statute burden a substantial places recovery Necessary by the RFRA was authorized will not exercise debtor’s purpose its because Proper Clause and —to it the least restrictive unless be allowed as inter rights First Amendment protect compelling governmen satisfy a means to No. S.Rep. Congress, see by the preted interest.”). tal (1993), in 1993 103-111, reprinted at ADEA Congress enacted 1892, permissible. 1903—was U.S.C.C.A.N. powers Clause its Commerce pursuant sphere of acts withirUits Congress “When Re Bd. v. Fla. I. Kimel under Article just it has responsibilities, power 631, 145 62, 78, 120 S.Ct. gents, 528 U.S. its own duty to make right but the (“the (2000) ADEA consti L.Ed.2d meaning on the judgment informed power Congress’ tutes a valid exercise Boerne, 521 of the Constitution.” force among ... Commerce regulate ‘[t]o 535, 117 S.Ct. U.S. ”) Wyo EEOC v. (citing States’ several proper as The RFRA was U.S. ming, 460 because, particular the ADEA (alterations (1983)) original); applied L.Ed.2d authority to enact (2d noted, had York, as New McGinty v. Clause. the Commerce I, under Const., cl. that statute Art. Cir.2001); see U.S. Chadha, INS ... (“The power [t]o have Congress shall (“ (1983) ‘Con Nations, 77 L.Ed.2d foreign commerce with regulate all cases authority in States, gress plenary has and with the several among juris legislative it has Tribes.”). Furthermore, substantive Nec which Indian diction, the exercise long so Con- authorizes Proper Clause essary and authority not offend some other con- ... not Congress whether disagreed with ”) stitutional restriction.’ (quoting Buckley the Supreme Court’s constitutional analy- Valeo, sis, but Congress beyond acted (1976)) (internal L.Ed.2d 659 citation omit- the scope of its constitutional authority in ted); Guerrero, (“Con- 290 F.3d at 1220 applying RFRA to federal law.” In re gress derives ability protect its the free Young, 860; 141 F.3d at States v. United exercise of plenary its au- Marengo Comm’n, County thority found in Article I of the Constitu- (11th Cir.1984) (“[C]ongressional dis- tion; it can out a religious carve exemption approval of a Supreme Court decision does neutral, from otherwise generally applica- impair power the of Congress to legis- ble laws power based on its to enact the result, late a different long as Congress underlying place.”); statute the first In had that power in the first place.”). In- (“[W]e re Young, 141 F.3d at 861 can deed, “Congress has often provided statu- argument conceive of no support tory protection of individual liberties that Congress ] that incapable contention[ of exceed the Supreme Court’s interpretation amending legislation it has of constitutional protection.” In re Young, passed.”).6 141 F.3d at 860 (collecting examples); Guerrero, 290 F.3d at 1221 his post-argument letter-brief, (“Certainly appel- Congress can provide argues lant more application of individual the RFRA lib- erties the federal federal realm than separation law violates pow- of Consti- tution requires ers principles and without violating vital sepa- Establishment ration of powers Clause of principles.”). the Constitution.7 We That address provides RFRA protection these issues in turn. more from fed- actors eral may statutes than be re- Appellant’s separation powers of by quired the First hardly Amendment challenge is that because the RFRA man separation undermines powers of princi- dates evaluation of laws and actions that ples. religion by burden a standard different prescribed from that Supreme With respect appellant’s Estab Court, it is a Congressional usurpation lishment argument, Clause pro Clause judicial power. However, agree we vides “Congress shall make no law Eighth Circuit that key to “[t]he an respecting establishment of religion.” Const, separation of powers issue this case is U.S. amend. I. The 6. We find no principled constitutional distinc- power. suant to its Section 5 quoted Congress’s ability tion between to amend stat- phrase reads in full as follows: "Broad as the utes on an power individual basis and its power is under the Enforcement do so in wholesale through manner an Amendment, Clause of the Fourteenth RFRA Guerrero, enactment such as the RFRA. See contradicts vital principles necessary to main 290 F.3d at 1221 n. 18. separation powers tain and the federal bal analysis ance.” Id. This has no application to Appellant argues 7. explicitly that Boeme any separation powers raised concerns invalidated separation all RFRA due to RFRA's enactment and powers Specifically, appellant concerns. government federal Necessary under the upon relies the statement the "RFRA Guerrero, Proper Clause. See F.3d at principles contradicts vital necessary to main (Boeme’s separation "discussion of separation powers tain federal bal powers Boeme, entirely was ance.” doctrine within the 521 U.S. at argument analysis 2157. The framework of entirely its section 5 unconvinc —not ing. rationale.”). quoted independent language simply explained why Congress could not pur enact need purpose” legislative A “secular test to three-prong has established Court rather, religion”; to “unrelated not be violates statute

determine Con- prevent aims to prong first Lemon’s Clause. and act- neutrality abandoning “from gress have a secular First, the statute must particu- promoting of the intent ing with second, principal its purpose; legislative matters.” religious of point lar view nei- one that effect must primary 2862; 335, 107 S.Ct. Amos, at U.S. 483 fi- religion; nor inhibits ther advances 454, 828 Gillette, S.Ct. at 91 401 U.S. an must not foster the statute nally, is not religion (“ in matters of ‘Neutrality’ entanglement government excessive way of with ‘benevolence’ inconsistent religion. with duties, long as so from onerous exemptions 612-13, 602, Kurtzman, 403 U.S. Lemon v. enough broadly tailored exemption is an (1971) (quo- 2105, 745 29 L.Ed.2d 91 S.Ct. purposes.”) secular valid it reflects omitted). Applying citations tations and omitted). reflected (citation The RFRA exempt- held that test, has the Court this reli- particular to purpose promote no compli- from organizations religious ing of gious point view. violate not laws does neutral ance with Presiding Corp. E.g., Constitution. of the other RFRA also satisfies Lat- Christ Bishop Church Jesus of princi of Its Lemon test. prongs of two Amos, 483 U.S. ter-Day Saints nor inhibits neither advances effect pal 97 L.Ed.2d 338-40, 107 S.Ct. Lemon. meaning within religion antidis- (1987) from federal (exemption ‘effects’ un forbidden law to have “For organizations religious for laws crimination Lemon, say that be fair to it must der Clause); violate Establishment does not has advanced government itself States, 401 U.S. v. United also see Gillette influence,” activities and own through its L.Ed.2d 437, 460, 91 S.Ct. exemp an by granting simply than rather military (1971) draft (exemption from Amos, 483 organizations. religious tion not objectors does conscientious religious (“Where ... 337-38, 107 S.Ct. at U.S. Clause); v.Walz violate Establishment purpose proper with government acts Comm’n, 90 S.Ct. 397 U.S. Tax that burdens regulation lifting a (1970) (state proper- 1409, L.Ed.2d 697 reason to see no we religion, exercise organiza- religious exemption for ty tax packaged exemption come that the require Establishment not violate tions does entities.”). Al secular benefits to Clause). some certainly provides the RFRA though “a law organizations, religious holdings, benefit appellant these Given it al simply because unconstitutional claiming battle faces unwinnable advance religion, churches to reli lows exemption for limited the RFRA —a 337, 107 S.Ct. Id. at very purpose.” with their compliance gious organizations is no Finally, question there the Establishment laws—violates neutral than fosters rather decreases legisla a secular The RFRA had Clause. religion, as entanglement with government meaning Lem within purpose tive of Lemon. prong third by the required First individual namely, protect on— (An Amos, at 483 U.S. by the interpreted rights as Amendment complete a more “effectuates exemption noted, purpose was As Congress. avoids state] separation [church required only but was permissible religious be inquiry into intrusive ... interpret the Constitution. duty to Congress’s lief.”). rne, at 521 U.S. Boe general

We note in CONCLUSION legislative of and approved invited Court The RFRA is an amendment to neu- exceptions enactments and, such, ADEA is constitutional. The itself. tral laws in Smith parties have not briefed the issue of how it The court pointed 110 S.Ct. 1595. state impacts the merits this case. The dis- exceptions drug laws for sacramental trict court did not rely- noted with that “a peyote approval use and ing instead on the exception” “ministerial society negative in pro- that believes that, to the ADEA. We believe while the to can religious tection accorded belief law, RFRA’s is a of matter it expected to be of that value in its solicitous appropriate would be to hear from the (“[T]o legislation say as Id. that a well.” first, district court yet rather than seek nondiscriminatory religious-practice ex- further briefing this court. We there- emption it permitted, even is fore vacate and remand for reconsideration desirable, say to is not that it is constitu- under the RFRA standards. tionally required.”). We therefore hold applicable to federal SOTOMAYOR, Judge, Circuit law, does not the Establishment violate dissenting. Clause Constitution. The Religious Freedom and Restoration of Having portions found the (“RFRA”) Act is not to relevant this dis- applicable govern RFRA to the federal First, pute. appellees unambiguously have constitutional, ment and federal law we raise, they indicated that do not to seek difficulty finding portions have little those defense, protec- RFRA and the statute’s severable the RFRA’s unconstitution tions, applicable, even if otherwise are thus al sections. A must court sever invalid Second, the statute not apply waived. parts parts of a statute from the valid disputes private parties. to between Legislature “unless it is that the evident Third, we affirm judgment should of provisions would not enacted have those reaching the district court without power, independently which are within its ground RFRA issue on Chadha, of that which is not.” 462 at U.S. precedent Court Second Circuit com- (internal 931-32, quotation 103 2764 S.Ct. pels finding Age that the Discrimination marks, citations, omitted); and alterations Employment Act 29 U.S.C. (ADEA); Airlines, Brock, Alaska Inc. v. 480 U.S. § 621 et does not seq., govern disputes 107 94 L.Ed.2d 661 entity its spiritual between (1987) (“A court refrain from invali should majority’s opinion leaders. The thus vio- dating more of statute than neces judicial principle lates cardinal of re- (alteration omitted). sary.”) of We know by reaching unnecessarily the ques- straint no evidence that would have constitutionality. tion RFRA’s For govern the RFRA to the applied federal reasons, respectfully I these dissent. applied ment it could unless also be governments. state local We there A. hold portion applica fore the RFRA government parties’ original ble federal severable Because the submis- portions. from its unconstitutional See Ki mentioned RFRA with- sions this Court kumura, (finding 242 at 959-60 feder detailed providing analysis F.3d out either severable); portions constitutionality al In re the Act’s or its relevance (same). case, Young, supplemental F.3d at 859 ordered we 104; Maj. Op. see States v. United submitted ble. briefing. The letter-briefs (2d Amer, Cir.1997); n. 1 make clear that to our order response (1st Watson, any RFRA defense. have waived re appellees see In F.3d Cir.2005) argument that RFRA (holding supple- portions appellees’ In several forfeited); Bethesda Lutheran Homes was majority neglects mental brief Servs., Leean, Inc. v. F.3d & mention, they plainly that appellees state Cir.1997) (7th argu- (holding that RFRA a RFRA defense. to raise do intend Morris, waived); ment was Cochran explains that brief Appellees’ supplemental (4th Cir.1996) (holding 1317 n. 3 in Appellees’ to RFRA “the reference waived). In RFRA claim was purpose for the limited [original] brief was however, critically view, appel- of how example because providing majority’s was viewed” question ‘entanglement’ rights protected arguments lees’ relate words, appellees’ by Congress. other namely, First Amendment under RFRA — a rely the statute as aim was not to sub- religious rights appellees “[i]n have — claims, appellant’s but against defense not, have stance” relied on RFRA thus agreement merely Congress’s illustrate to disclaimer, their waived its despite explicit “entanglement of proposition at 104. protections. Maj. Op. [was] in church affairs the Government majority’s ap- to recognize refusal The (em- by the First Amendment.” prohibited in this case at odds with pellees’ waiver is added). fact, explicitly In appellees phasis text, provides that individu- RFRA’s reject of RFRA to their RFRA when “may als assert” a defense they that the stat- claims because believe on their challenging a burden to substantial private suits between ute does not rights, they not that must assert “the case at is matter parties, and bar relating private employment religious rights situation are to RFRA defense when 2000bb-l(c) (em- by the govern- and does not involve actions burdened. added). ment.” The letter-brief concludes: “We Moreover, majority’s phasis is do not think this issue determi- [RFRA] viability RFRA de- on the of a insistence native in the matters raised this case.” despite leads the appellees’ fense waiver majority might appellees’ find While the constitutionality Court to assess RFRA’s Maj. Op. “suprisfing],” unwise or position Wilkinson, unnecessarily. Cutter v. clearly letter-brief waives appellees’ - n. 544 U.S. S.Ct. any RFRA defense.1 (2005) (noting 2118 n. L.Ed.2d Supreme has “not had occa- that the Court majority The does not contest op- to rule” whether RFRA “remains generally RFRA’s are waiva- sion protections majority also ignoring language the ADEA. The con- In addition to most of violated parties have briefed the “[t]he tends that waiver, appellees’ relating brief to in the impacts of how the merits of [RFRA] issue majority opinion factually two errone- makes parties, Maj. Op. at this case.” however, 109. Both regarding sup- ous the content claims question have addressed First, majority plemental letter-briefs. Appellant relevance to this suit. ar- RFRA’s “appellant argues that the is writes that RFRA inapplicable gues because that RFRA is inapplicable only because it is unconstitution- “[tjhere is no burden to the free substantial ap- Maj. Op. contrary, al.” at 104. On the case, that, religion” exercise of in this pellant argues inapplicable is also that RFRA event, any “application of RFRA federal "[tjhere because is no substantial burden turn, Appellees, in law is unconstitutional.” the free exercise of that could result argue that but should RFRA constitutional ruling by appellees affect the outcome of this case. court” that Government”); plaintiff to the Federal had raised it for erative as the first time on Flores, City appeal. Boerne 521 U.S. See id. at 576. It impossible see 532-36, square 138 L.Ed.2d our plaintiffs refusal to consider (1997) RFRA (invalidating applied belated RLUIPA claim in Avenue Fifth law). By going way out of its to Presbyterian state Church with our refusal to question, constitutional the ma reach this recognize the voluntary defendant’s waiv- jority one of the “cardinal rules violates er of a RFRA defense in the instant case. courts,” namely, federal governing the There is no meaningful difference between anticipate question of constitu “never RFRA and RLUIPA that justify could necessity tional law advance such inconsistent results. Arcades, deciding Spokane it.” Brockett v. The most aspect troublesome of the ma-

Inc., jority’s waiver, however, ruling on is that it (1985) (citation L.Ed.2d 394 and internal fundamentally misconstrues the nature of omitted).2 marks quotation and, and First rights, Amendment majority’s approach is also inconsis- so, doing directly contradicts law, recog- tent with our case which has precedent. majority Court holds that statutory religious rights nized waiver of appellees because invoke FirsL- litigant even where a raises claims under exception” Amendment-based “ministerial Ave- the Free Exercise Clause. Fifth allege interference rights with their Presbyterian v. City nue Church New under the Free Exercise and Establish- (2d York, Cir.2002), 293 F.3d 570 for exam- Clauses, they ment effectively have ple, plaintiff argued the before this Court “ask[edj RFRA, to apply us the but not to religious rights that its had been violated Maj. mention it.” Op. at 104. This is under both the First Amendment and the incorrect. RFRA and the First Amend- Religious Land Use and Institutionalized provide protections, ment do not identical (RLUIPA) Persons Act statute virtual- —a and the invocation of Amendment First in ly aspects identical to RFRA all rele- rights under the Free Exercise —whether vant to the issue of waiver in the instant or the Establishment Clause—does not Although case.3 we ruled on the merits of necessarily implicate RFRA. plaintiffs the Free Exercise claim in Fifth Church, Court, Presbyterian interpreted by

Avenue we refused As example, to reach for Free Exercise the RLUIPA issue because Clause appropriate against government.”), 2. The other "cardinal cited in Brockett relief rule[ ]" 2000bb-l(c) ("A is that federal courts should "never ... for- person § with 42 U.S.C. mulate a rule of constitutional law broader religious whose exercise has been burdened required by precise than is facts to which may in violation of this section assert that applied.” it is to be 472 U.S. at 105 S.Ct. judicial violation or in a as claim defense (citation quotation 2794 marks internal appropriate proceeding obtain relief omitted). against government.”). RLUIPA is simulta- neously more broad and more narrow than RFRA, prohibits govern- 3. Like RLUIPA RFRA, however. RLUIPA is more broad be- imposing ment from substantial burdens on cause it still reaches state law. See Cutter v. religion even where the burden results from Wilkinson, 544 U.S. 161 general applicability. 42 neutral law of See (2005). narrow be- L.Ed.2d 1020 It is more § provi- U.S.C. 2000cc. RLUIPA’s remedial government applies only to certain cause it virtually sion is identical to RFRA’s. Com- regulations involving 2000cc-2(a) (“A actions land use may § pare person 42 U.S.C. correctional facilities. 42 U.S.C. assert a violation of this Act as a claim or 2000cc, judicial proceeding §§ defense in a and obtain 2000cc-l. 112 law, applied opposed to federal as normally ity “inhibit enforcement of

does not law,4 firmly case establish general application state valid laws of otherwise conduct,” RFRA and the Free Exercise Clause incidentally that that burden for Cutter, protec create different standards (citing Employ 125 at 2118 S.Ct. Smith, religion tion of and that RFRA’s substan Div., Dep’t Human Res. v. ment far protections beyond tive extend what 872, 878-82, S.Ct. U.S. Thus, requires. the Free Exercise Clause (1990)), such as the ADEA. L.Ed.2d 876 majority’s suggestion that a claim al contrast, scrutiny requires strict leging unconstitutional interference of such laws where the incidental burden religion the free exercise of sub “[i]n substantial. See a RFRA claim flies the face of stance” Indeed, fact 2000bb-l. McCaugh v. Boerne.5 See sweep broadly more protections RFRA’s Kaufman (7th Cir.2005) (not try, 419 than those of the Free Exercise Clause provides protections ing that RFRA be provided principal basis the Su yond First guaranteed those preme holding City Boerne Court’s 'Amendment); Poly Brzonkala v. Va. tech. Flores RFRA could not be considered Univ., & 881-82 Inst. State legislation or un “preventive” “remedial” (4th (“The Cir.1999) created a [RFRA] Section Five of the Fourteenth der right religious exercise was more Amendment. 521 U.S. S.Ct. generous protected by right than that protec RFRA’s 2157. The Court found ”), .... sub Constitution nom. Unit to a proportion supposed tions “so out affd Morrison, ed States v. preventive object or [the remedial (2000). 1740, 146 L.Ed.2d respon cannot understood as statute] to, designed prevent, sive unconstitu majority argue can plausibly Nor tional behavior.” Id. Because RFRA went de- appellees’ Establishment Clause far beyond so what the First Amendment necessarily implicates fense RFRA. To sat- required, (1) the the Boeme Court understood isfy the Establishment Clause: “attempting] statute as a substantive legislative have statute must “a secular (2) change protections” in constitutional “principal purpose”; statute’s —a change Congress primary that was not authorized effect must one that neither (3) Although religion”; to make. Id. Boeme does not and advances nor inhibits the issue resolve of RFRA’s constitutional- “the statute must not foster an excessive express standing "legislatively I no view on RFRA con- is that RFRA over- applied to stitutional federal law because it Supreme turned a number recent Court unnecessary question. for us to reach this it created [free exercise] decisions" that Thus, a new we rule of constitutional law. Boeme, argument 5. Before a reasonable could language concluded that because have made all Free Exercise been that Clause applicable RFRA it to made "all cases scrutiny required claims under RFRA. The where free exercise of is substan- Circuit, example, Tenth McCotter, held in Werner v. burdened,” tially ought its standard to con- (10th 1995), 49 F.3d 1476 Cir. that trol Free Clause claim Exercise even claims, applied RFRA all Free Exercise Supreme when not raised. Because the parties even where had not raised claim Court has made clear Werner subsequent or defense under the statute. In however, assumptions court's about RFRA were opinion, en banc Tenth Circuit recognized faulty, longer convincing. its rationale no that Boeme had undermined its Hardman, earlier conclusion: United States v. (10th Cir.2002) (en banc) (altera- Werner, Boeme, 1125 n. 15 prior City [I]n decided (citations omitted). original) laboring we under the false tion in were under- religion.” entanglement contrary, appellees’ with On the government supplemental Kurtzman, 602, 612-13, brief explicitly any rely Lemon v. disclaims intent (1971) (cita- 2105, 29 L.Ed.2d 745 on RFRA. omitted). quotation tion and internal marks sum, appellees’ religious because Clause, Thus, the Free like Exercise argument freedom relies only on the Free strin- imposes Establishment Clause less Clauses, Exercise and Establishment on than gent requirements federal statutes because protections the substance of the RFRA, scrutiny- mandates strict by afforded these provisions constitutional neutral, generally applicable laws even of considerably protections differs from the incidentally impose bur- substantial afforded as interpreted Furthermore, religion.6 dens on Court, I cannot agree with the enacting made clear majority’s appellees conclusion that have any statute intended to have effect was Maj. substance” relied on Op. “[i]n RFRA. Clause See 42 Establishment claims. at 104. chap- (“Nothing 2000bb-4 this affect, interpret, ter shall be construed to majority’s refusal to recognize ap- way any portion or in address that pellees’ waiver any clear RFRA defense First Amendment laws re- prohibiting rest, in appears part, disagree- on its religion.”). establishment of specting the ment appel- with the reasons underlying pursue lees’ decision not to majority’s appellees assertion that such a defense. Specifically, majority “all a RFRA defense in but- takes presented have issue if plausible appellees’ be more some- conclusion that RFRA name” would appellees’ apply to suits between thing private parties. briefs indicated they protection beyond Maj. that which I sought Op. any at 104-105. am unaware Court, guarantees. Nothing in other in which Constitution case after order- briefs, however, supports ing party con- supplemental briefing such to allow a heavily defense, Appellees’ rely clusion. briefs on to waivable statutory discuss a Clause, recognize the Free Exercise the Establish- refused to the party’s subse- Clause, interpreting ment of that quent ground case law waiver defense on the provisions. they disagreed those Nowhere ask that do the Court with counsel’s declining rely the Court a standard stricter reasons for on the statute. (2d Lord, requires.7 than what the First Amendment DeLuca Cf. occasion, however, recently emphasized by appel- 6. plurality only As a of is the in which Justices, Supreme applied the Court has referring not employ language by RFRA-like lees consistency. test with the Lemon much alleged rights intrusion on their as a -, Perry, Van Orden -U.S. burden,” "substantial!] and it is clear 2854, 2860-61, (2005) (plu- 162 L.Ed.2d 607 part ap- the context that statement formed of rality opinion). applica- any I am unaware of pellees' argument Establishment Clause that Clause, however, tion Establishment application of the ADEA an ex- would foster neutral, generally ap- that would invalidate a entanglement religion. cessive with brief plicable imposing law an but sub- incidental purport separate did not to raise a defense religion. on stantial burden event, any appellees' under RFRA. In even if a in ] mention of burden” their “substantial! appellees making a The closest come to original generously could be brief construed argument, opposed a RFRA as to First defense, attempt present as an to a RFRA argument, in Amendment is a statement their subsequent appellees' clear letter-brief makes original application that brief of the ADEA “substantially they that this was not their intent and that do would burden the free exercise rights protections. of the United Methodist This not RFRA's Church.” seek to invoke defense, Cir.1996) I a that does not suffice to waive such (observing where defense find to the case improper it remand made “a would a criminal case has counsel to the district court consideration decision, investigation, not after considered disagree I implications RFRA’s because defense, this Court pursue” particular a majority’s regarding the with conclusion “extremely to second- be reluctant should applicability. by RFRA its terms RFRA’s decision”). if sec- that Even such guess private to suits between apply not to party’s a decision ond-guessing of parties. particular appropriate defense is pursue circumstances, ma- the

in certain limited implicitly the provisions Two statute the clear jority’s acknowledge refusal to its in which application disputes limit improper, given is that waiver this case government party. is Section the 2000bb-l(c) adequately represented appellees are that whose person “[a] states a rea- their on has been counsel and based waiver exercise burdened Indeed, may of the law. violation of section assert interpretation sonable this judicial that it is unable to as a claim or defense in a majority the concedes violation ap- relief single holding proceeding appropriate that contradicts and obtain find added). government” against (emphasis RFRA pellees’ view that does not view, we Maj. majority’s In the should read private parties. See suits between “broadening, as than nar- provision rather Op. at 103 n. 4. rowing, asserting the of a the rights party Court, majori Quoting Maj. Op. interpre- RFRA.” at 103. This claim ty argues that issue or “[w]hen if questionable tation would even Sec- court, the court is not properly before the 2000bb-l(e) only provision tion were ad particular legal limited to the theories affecting statute question but rather parties, vanced retains suits. applies private whether RFRA independent identify ap power conjunction read in the rest of When with ply proper governing construction of statute, however, it clear that becomes Maj. Ka Op. (quoting law.” at 104-105 Congress’s this section reflects under- Servs., Inc., Kemper men v. Fin. standing RFRA defenses claims and 114 L.Ed.2d only against govern- would be raised (1991)). certainly true, only it This but 2000bb-l(b) instance, For ment. section question begs the of whether the “issue or provides impos- where a law properly claim is before the court.” Id. religion, es a substantial burden on ” they appellees’ Given clear indication that ... “government ] must “demonstrate! rely applica do not seek to the least burden” is bility of that statute is before us. The furthering compel- restrictive means of majority’s disagreement appellees’ ling governmental (emphasis interest add- reasoning change fact. does not ed). The statute defines “demonstrate”

“meetfing] forward going the burdens persuasion.” and of evidence B. 2000bb-2(3). here, Where, § as U.S.C. assuming, arguendo, appel- government party, Even that not a it cannot is any my clear any “go[ lees’ disclaimer of RFRA defense forward” with evidence.8 ] government every plausible ways require pri- 8. There are two to reconcile intervention in 2000bb-l(b) majori- parties suit of the that section of RFRA with the where one asserts vate ty opinion incidentally imposed a sub- in this case. The first would a law has—even — cy perspective, is no view, strongly suggests acceptable there read- provision this in apply RFRA to ing yield did not intend of the statute that would kind Congress private parties.9 suits between consistency majority desires. RFRA’s according recognize I above, Finally, majority as noted section, applies the statute “applicability” single concedes that it is unable to locate a 2000bb- “to all Federal law.” directly court holding supports its however, is not inconsis- provision, This 3. novel of RFRA to a suit be- finding with a the statute tent private parties. Maj. Op. tween private parties. to suits between apply telling, Congress n. 4.10 This is enact- conjunction in with the rest of the Read years ago. ed RFRA over twelve The statute, simply requires provision statute, plain language legislative of the its RFRA all apply “to Federal law” courts history, interpretation by and its courts any government to which the lawsuit years past over the twelve demonstrate party. a apply that RFRA does not to suits be- majority objects interpre- that this The private parties. tween protections improp- RFRA’s tation makes private party, on whether a erly dependent EEOC, brings suit un- opposed C. ADEA. der the substance “[T]he appellees Even if had not waived majority ar- prohibitions,”

ADEA’s defense, RFRA if RFRA applied and even gues, change depending “cannot on wheth- private parties, to suits between I would er it is enforced the EEOC or unnecessary it still find reach the Maj. aggrieved private party.” Op. at 103. issue, analyze or to the statute’s however, majority explain, does not constitutionality, because Court why If RFRA amends all feder- this is so. precedent compel and Second Circuit they apply to suits in al statutes as apply conclusion that the ADEA does not party, a government then sub- dispute. to this Because the ADEA does prohibitions the ADEA’s most stance of apply, is no “substantial burden” there certainly change depending can on who religion, even if constitu- Although majority enforces it. evi- tional, unsatisfactory poli- is irrelevant. dently finds this examples All of the cited in the Senate and stantial burden on freedom. Absent 9. Congress Reports statement that intended such House on RFRA involve actual or clear result, govern- hypothetical in which the it is not the role of this Court to lawsuits Rep. party. See S. No. 103-111 widespread mandate such and automatic fed- ment is (1993); (1993). Rep. private H.R. 103-88 The lack of eral in lawsuits between intervention Moreover, single example of a RFRA claim or parties. even a were we to read the stat- intervention, private parties defense a suit between require government ute to Reports what is evi- these tends to confirm surely would underscore the wisdom in language plain of the statute: It dent from the recognizing explicit any appellees' waiver of was not intended to to suits between RFRA defense. The second would be to force private parties. private parties to bear the burden RFRA places government. gives on the The statute private majority no indication that intended cites dicta from district court burden, parties opinions nor would it be but concedes to bear such in Indiana and Arizona require private parties appropriate to to satis- courts "assumed” that RFRA could those any fy stringent places apply analyzing the issue in the burden RFRA on the without depth. Maj. Op. 4. government. at 103 n.

116 ... of avoid- practice to applicability the Court’s “consistent analyzing ADEA’s case, questions possi- where princi- ing in the constitutional guidance this we find ble”). by the Court in ples articulated 440 Bishop Chicago, v.

NLRB Catholic Bishop, we con- Distinguishing Catholic 1313, L.Ed.2d 533 99 59 U.S. S.Ct. Holy High v. Cross cluded DeMarco (1979). To the Nation- determine whether (2d Sch., Cir.1993), 4 the F.3d 166 (NLRA) Act authorized al Labor Relations ADEA, NRLA, ap- generally unlike Board to Labor Relations National at 172. plies religious to institutions. Id. regulate parochi- relations between a labor lay Specifically, held a former we faculty, Bish- al school and its the Catholic bring teacher an .ADEA action could ques- two op principal Court considered though against parochial school even First, 99 1313. tions. See id. at S.Ct. performed religious some duties. teacher it whether this considered holding, Id. at 168-72. In so we observed con- the NLRA raised First Amendment NRLA, ADEA, unlike the did, it cerns. concluded that The Court pose of “extensive or continu- risk judicial oversight of labor explaining judicial intrusion into ous administrative or risk parochial religious relations at a school would Id. the functions of institutions.” Instead, entanglement secular at 170. “ the ADEA involves excessive between ” and re- regulatory ‘routine interaction’ religious authorities in violation “ 501-04, ‘no into doc- quires inquiries religious 99 Establishment Clause. Id. at trine, power no to a Second, delegation state 1313. examined S.Ct. Court religious monitoring and no detailed body, expressed an intention close contact between [or] administrative apply religious the statute institutions ” at 170 religious secular and bodies.’ Id. Be- despite constitutional concerns. these Comm’r, v. 490 (quoting Hernandez U.S. such con- cause Court discerned no 680, 696-97, 109 S.Ct. 104 L.Ed.2d intent, it the NLRA gressional construed (1989) (internal quotation marks omit- in a avoided constitutional manner that (“In ted)); age see also id. discrimination difficulty, holding that the statute did not cases, only authority EEOC’s extends apply disputes parochial between labor investigation attempted concilia- employees.11 Id. at 504- schools and their group tion or resolution of individual 1313; see id. at limited time and complaints; it (citing longstanding principle (citation scope.” quotation and internal Congress “ought acts of not be construed omitted)). These distin- marks factors any violate if the Constitution other from the guished ADEA NLRA.12 available”) possible construction remains (citing Murray Charming Betsy, rule, v. The general may aAs federal courts (2 Cranch) 64, 118, 2 U.S. L.Ed. 208 disputes, including employment decide civil (1804)); By Through see also Hsu & Hsu disputes, discrimination between reli- Roslyn Free gious Sch. Dist. No. institution and its without employees Union (2d Cir.1996) (noting Mer- violating First Amendment. See below, 11. The Court reached this conclusion 12. As DeMarco also found even discussed though expressly did not the NLRA include distinguishable the ADEA the NLRA be- religious eight types in its institutions list of Congress clearly ADEA to cause intended the employers exempted from the act. See Catho- institutions. See F.3d Bishop, lic 440 U.S. at S.Ct. 1313 (Brennan, J., dissenting) (citing 29 U.S.C. 152(2)). Chinuch, L’inyonei tanglement kos Inc. v. Otsar in matters as fundamental as a Sifrei (2d Lubavitch, Inc., 312 F.3d 99-100 religious institution’s selection or dismissal Cir.2002) (citing Bridgeport Martinelli v. of its spiritual leaders risks an unconstitu- Roman Corp., Catholic Diocesan 196 F.3d tional “trespass[] on the spiritually most (2d Cir.1999)); Gargano v. Dio- grounds intimate of a religious communi- Ctr., (2d cese Rockville F.3d ty’s existence.” EEOC v. Roman Catholic Cir.1996); DeMarco, 172; 4 F.3d at N.C., Diocese Raleigh, cf. Div., Employment Dep’t Human Res. v. (4th Cir.2000). Smith, 872, 879, 494 U.S. 110 S.Ct. In light of these serious constitutional (1990) (“[T]he 108 L.Ed.2d 876 right of concerns, we must ask Congress free exercise does not relieve an individual intended to apply the ADEA religious obligation comply of the -witha valid and in institutions their spiritual selection of general neutral law of applicability on the leaders. See Catholic Bishop, 440 U.S. at (or ground that proscribes pre- law 504, 99 S.Ct. 1313. We concluded in De- scribes) conduct that his [or her] Marco that Congress “implicitly expressed (or (internal prescribes proscribes).” quo- an intention apply ADEA to reli- omitted)). case, tation marks The instant gious institutions.” 4 F.3d at 172. We however, presents the more ques- difficult conclusion, based this in part, on the general tion of whether this applies rule ADEA’s similarity to Title VII of the Civil the narrow context of a forced-retirement Act, Rights 2000e et seq. dispute a religious body between and a “Given that intended to apply clergy. member of its religious institutions, Title VII to and that DeMarco, As we noted the relation- Congress modelled the coverage ADEA’s ship between a religious institution and upon VII,” that of Title we were “con- employees may certain of its perva- “so [Congress] vinced that also intended to sively religious that it impossible to en- apply the ADEA to such institutions.” Id. gage age-discrimination in an inquiry at 173. without offending serious risk of the Es- DeMarco, however, involved an employ tablishment Clause.” Id. at 172. This dispute ment religious between a institu particularly risk is in employment serious who, tion and a math despite teacher hav disputes religious between institutions and duties, ing religious some primarily served spiritual their leaders where the enforce- non-religious parochial functions in a ment of statutes might like the ADEA Here, contrast, school. dispute “power religious threaten the bodies to primarily between minister with religious themselves, decide for free from state in- duties and a church that no longer wishes terference, matters of church government him to serve as pastor congregation. of a well as those of faith and doctrine.” That Congress intended ADEA Serbian E. Orthodox Diocese the U.S. apply Title VII to under Milivojevich, & Can. v. the circumstances (1976) (in- described in 96 S.Ct. DeMarco does not 49 L.Ed.2d 151 indicate an ternal intention quotation that those statutes marks and alteration should omitted). text, “A in all Nothing church’s selection circumstances. in the of its own structure, clergy” is a legislative history “core matter of ecclesiastical self-governance” at ADEA the “heart” of the indicates an intention to extend its provisions church’s mission. religious body’s Bollard v. Cal. to a selection or Jesus, Soc’y Province dismissal its ministers. See Catholic (9th Cir.1999). Federal court Bishop, 1313; en- 440 U.S. at 118 courts,

DeMarco, possible, where Bishop requires 4 172-73. Accord F.3d at I ADEA not that would ingly, interpret ways believe that the does statutes avoid apply to the case at bar.13 Because concerns. In raising serious constitutional is no apply, cases, there substan interpretation ADEA no such will some trigger on could cases, tial burden In those reasonably available. RFRA. may provide independent ave- religious nue protecting rights both for majority that reliance on suggests avoiding and for definitive resolution of DeMarco) (and unwar- Bishop Catholic Thus, RFRA questions. constitutional ranted, full ex- [is] because “RFRA supplant read to should not be Catho- regard intent with Congress’s pression Bishop inquiry, supplement lic but to it. religion-related issues before us and Indeed, express that RFRA’s given pur- judge-made doctrines displacéis] earlier pose protection to enhance for reli- was used to might have been ameliorate 2000bb, gion, '§ 42 U.S.C. it makes see religious organiza- ADEA’s on impact Maj. little to read as eliminat- Op. at 102. sense the statute tions and activities.” ing protection afforded the Catholic private if RFRA suits and applied Even case, in this I rule. Bishop had not been waived would majority’s suggestion disagree with the displaces completely

that the statute D. Bishop analysis. Although the Catholic I that a is a believe remand wasteful Bishop and RFRA sim- rule serve Catholic expenditure judicial resources and an un- purposes, they require ilar courts to unnecessary and uninvited burden inquiries. different See dertake Univ. of parties. The district court is no better NLRB, Falls v. 278 F.3d 1347 Great position than we are to decide either the (D.C.Cir.2002) (holding that the court need statutory questions pre- or constitutional university’s RFRA argument not address view, my in this case. an sented most university was entitled to because disposition of this case Bishop, appropriate under would exemption Catholic ob- be to the district court’s serving presents separate that “RFRA affirm dismissal of ”). Bishop appellant’s ground from claims on the that the inquiry Catholic Catholic question directly This consistent with the hold reached the constitutional 13. conclusion is Circuits, ings at least of our seven sister and have held that the Amendment First bars adopted have limited "ministerial adjudication employment of ministerial dis- religious exception” exempts institutions See, 1304; putes. e.g., Gellington, at 203 F.3d grounds employ on First Amendment Combs, 351; Young, F.3d at 21 173 F.3d at brought by clergy ment suits discrimination Here, contrast, apply I would Catho- employees serving primari members other Bishop’s principles statutory lic construc- ly religious roles. See Roman Catholic Dio making pro- avoid definitive tion so as to N.C., 800, 805; Raleigh, 213 F.3d at cese of question. on the constitutional nouncements Gellington Episcopal v. Christian Methodist 1313; at see Inc., Church, (11th Cir. 203 F.3d Scharon, (applying 929 F.2d at 361-63 Bollard, 949; 2000); F.3d Combs v. Bishop analysis employment Catholic to an Central Tex.Annual the United Meth Conf. brought by priest). discrimination action Church, (5th odist 173 F.3d Cir. difference, Despite my conclusion sub- 1999); Am., EEOC Catholic Univ. stantially the same as of other Circuits: (D.C.Cir.1996); Young v. N. Ill. may adjudicate employment courts dis- Church, United Methodist 21 F.3d Conf. brought by clergy lawsuits (7th crimination mem- Cir.1994); Scharonv. St. Luke's challenging religious body's bers refusal to Presbyterian Hosps., Episcopal (8th 1991). spiritual Cir. them leaders. Most circuits have select or retain employment does not suits ADEA

brought against institutions Because the ma- spiritual

their leaders. disregards

jority’s contrary approach waiver, voluntary

clear and conflicts with binding precedent,

RFRA’s text and with unnecessarily resolves contested respectfully I question, dis-

constitutional

sent.14 Appellee, STATES of America

UNITED SNYPE, Defendant-Appellant,

Vernon Hicks,

Marisa Defendant. 04-3299-cr(L), 04-3551-cr(CON),

Nos.

04-4985-cr(CON). Appeals,

United States Court

Second Circuit.

Argued: 2005. June 17, 2006.

Decided: March however, issue, (a) opinion. analysis majority’s Maj. I take no with the section Op. procedural requirements of the ADEA's 100-102.

Case Details

Case Name: Hankins v. Lyght - dissent

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 22, 2006

Citation: 441 F.3d 96

Docket Number: Docket 04-0743-CV

Court Abbreviation: 2d Cir.