CHRISTOPHER T. SLATTERY, A NEW YORK RESIDENT, AND THE EVERGREEN ASSOCIATION, INC., A NEW YORK NONPROFIT CORPORATION, DOING BUSINESS AS EXPECTANT MOTHER CARE AND EMC FRONTLINE PREGNANCY CENTERS, Plaintiffs-Appellants, v. KATHLEEN C. HOCHUL, IN HER OFFICIAL CAPACITY AS THE GOVERNOR OF THE STATE OF NEW YORK; ROBERTA REARDON, IN HER OFFICIAL CAPACITY AS THE COMMISSIONER OF THE LABOR DEPARTMENT OF THE STATE OF NEW YORK; AND LETITIA JAMES, IN HER OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Defendants-Appellees.
No. 21-911
United States Court of Appeals FOR THE SECOND CIRCUIT
FEBRUARY 27, 2023
AUGUST TERM 2021
ARGUED: NOVEMBER 29, 2021
* The Clerk of Court is directed to amend the caption as set forth above.
The Evergreen Association, Inc., doing business as Expectant Mother Care and EMC FrontLine Pregnancy Centers, and its president Christopher Slattery (collectively “Evergreen”) bring this action against New York state officials to enjoin their enforcement of New York’s Labor Law § 203-e against Evergreen. Among other things, the statute prohibits employers from taking adverse employment actions against employees for their reproductive health decisions. Evergreen argues that the statute unconstitutionally burdens its right to freedom of expressive association—as guaranteed by the First and Fourteenth Amendments—by preventing it from disassociating itself from employees who seek abortions. Evergreen contends that the statute undermines its anti-abortion message as a crisis pregnancy center because associating with such employees contradicts its central message. Evergreen also raises freedom of speech, free exercise of religion, and void for vagueness challenges to the statute. The district court granted the state’s motion to dismiss all claims at the pleading stage. We hold that the district court erred in dismissing the expressive association claim.
STEPHEN M. CRAMPTON, Thomas More Society, Chicago, IL (Mary Catherine Hodes, Thomas More Society, Chicago, IL, Timothy Belz, J. Matthew Belz, Clayton Plaza Law Group, St. Louis, MO, on the brief), for Plaintiffs-Appellants.
FREDERICK A. BRODIE, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, Albany, NY, for Defendants-Appellees.
Gabriella Larios, Katharine Es Bodde, Allison S. Bohm, Robert Hodgson, Molly K. Biklen, New York Civil Liberties Union Foundation, New York, NY, for Amicus Curiae New York Civil Liberties Union.
Richard B. Katskee, Alex J. Luchenitser, Adrianne M. Spoto, Americans United for Separation of Church and State, Washington, DC, for Amici Curiae Americans United for Separation of Church and State, Catholics for Choice, Central Conference of American Rabbis, Covenant Network of Presbyterians, Disciples Center for Public Witness, Disciples for Choice, Disciples Justice Action Network, Equal Partners in Faith, Hadassah, the Women’s Zionist Organization of America, Hindu American Foundation, Men of Reform Judaism, Methodist Federation for Social Action, Muslim Advocates, Muslim Public Affairs Council, National Council of Jewish Women, Reconstructionist Rabbinical Association, Union for Reform Judaism, Unitarian Universalist Association, and Women of Reform Judaism.
MENASHI, Circuit Judge:
The Evergreen Association, Inc., doing business as Expectant Mother Care and EMC FrontLine Pregnancy Centers, and its president, Christopher Slattery (collectively, “Evergreen”), bring this action against New York state officials to enjoin their enforcement of
We hold that Evergreen stated a plausible claim that the labor law unconstitutionally burdens its right to expressive association. We affirm in part and reverse in part the district court’s dismissal of Evergreen’s complaint and remand for further proceedings consistent with this opinion.
BACKGROUND
I
The New York Legislature enacted Senate Bill S660, popularly known as the “Boss Bill” and codified as
Unlike other antidiscrimination statutes, the Boss Bill contains no express exemption for religious employers or for small employers with objections to abortion. Compare
In addition to government enforcement, the Boss Bill authorizes a private right of action. “An employee may bring a civil action in any court of competent jurisdiction against an employer alleged to have violated the provisions of [§ 203-e]” and may seek damages (including attorneys’ fees), injunctive relief, an order of reinstatement, and/or liquidated damages.
II
The Evergreen Association, Inc. is a New York nonprofit organization that operates as Expectant Mother Care and EMC FrontLine Pregnancy Centers. It is opposed to abortion and,
Because of moral and religious objections, Evergreen hires only employees who oppose abortion and extramarital sexual relationships. Evergreen asks each prospective employee whether he or she is “pro-choice or pro-life,” and it will not consider for employment an applicant who expresses support for abortion. J. App’x 50. Evergreen explains that, through its employees, it “professes and promotes the moral and religious belief that all human life is equally valuable and deserving of protection, from fertilization to natural death.” Appellant’s Br. 7. For that reason, Evergreen will retain only those personnel who can credibly communicate to patients its “opposition to abortion and to sexual relationships outside of marriage and related use of potentially abortifacient contraception.” Id. at 8.
Evergreen represents that it intends to continue these hiring practices. It plans to state in employment advertisements that “it is seeking only pro-life candidates” and will not hire or retain employees who violate its policies against procuring abortions or engaging in extramarital sexual relations. J. App’x 50-51.
III
In January 2020, Evergreen filed a complaint for declaratory and injunctive relief, naming state officials as defendants in their official capacities. Evergreen sought a declaration that the Boss Bill was unconstitutional and an injunction prohibiting the state from
The state moved to dismiss the complaint, arguing that the Boss Bill was a constitutional exercise of the police power in furtherance of the state’s interest in nondiscrimination. The state said that it acted to protect its citizens’ federal constitutional right to privacy in the confidentiality of their medical information and autonomy in “decisions relating to their bodies, health and family planning.” J. App’x 81. The state further argued that because the Boss Bill was generally applicable, “all New York employers, including religious based ones ... must comply with it.” Id.
The district court granted the state’s motion to dismiss, rejecting all four of Evergreen’s arguments. Slattery v. Cuomo, 531 F. Supp. 3d 547 (N.D.N.Y. 2021). First, the district court rejected Evergreen’s claim that the statute prohibits the free exercise of its religion. Id. at 559-62. The district court concluded that the law was both religion-neutral and generally applicable and that it did not “target[] religious conduct in an impermissible way.” Id. at 561-62. When the state “seeks to enforce a law that is neutral and of general applicability, it need only demonstrate a rational basis for its enforcement.” Id. at 562 (alteration omitted) (quoting Fortress Bible Church v. Feiner, 694 F.3d 208, 220 (2d Cir. 2012)). The district court
Second, the district court held that the statute did not abridge the freedom of speech. Id. at 565-66. Because it concluded that the statute was content-neutral, the district court applied intermediate scrutiny. Id. at 565. The district court determined that the statute survived such scrutiny because the regulations of speech “are reasonable, are narrowly tailored to serve a significant governmental interest, and leave open ample alter[n]ative channels for communication of ... information.” Id. (quoting Mastrovincenzo v. City of New York, 435 F.3d 78, 98 (2d Cir. 2006)). The statute neither “prevent[s] employers from speaking on the issue and explaining the views and standards of the organization” nor “prevent[s] employers from advocating for their views to the general public.” Id. at 565-66.
Third, the district court decided that Evergreen failed to state a claim that the Boss Bill infringed its right to freedom of expressive association. Id. at 569. The district court said that Evergreen had adequately alleged that it “engage[s] in expressive association,” id. at 567, and therefore it has the right not to “accept members it does not desire,” id. at 568 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984)). The district court also explained that the plaintiffs “are somewhat correct to complain that they may be forced to associate with employees or prospective employees whose actions indicate that they do not share their views on abortion and other family planning issues.” Id. But the district court concluded that the “incidental limitations on the Plaintiffs’ associational rights” did not “place a
Fourth, the district court rejected Evergreen’s argument that the statute was unconstitutionally vague. According to the district court, an “ordinary employer” would understand that the statute prohibits “accessing an employee[’s] medical record to determine whether that employee had used birth control or not, or had an abortion or carried a child to term,” and “discrimination against or retaliation against an employe[e] for decisions made about birth control or pregnancy.” Id. at 571-72.
Evergreen timely appealed.
STANDARD OF REVIEW
“We review a district court’s grant of a motion to dismiss de novo, accepting as true all factual claims in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Henry v. County of Nassau, 6 F.4th 324, 328 (2d Cir. 2021) (internal quotation marks omitted). “[A] complaint will survive a motion to dismiss under Rule 12(b)(6) if it alleges facts that, taken as true, establish plausible grounds to sustain a plaintiff’s claim for relief.” Cornelio v. Connecticut, 32 F.4th 160, 168 (2d Cir. 2022).
Evergreen argues that it plausibly alleged that
I
Evergreen argues that § 203-e impermissibly burdens its First and Fourteenth Amendment right to freedom of expressive association. The district court acknowledged that Evergreen “engage[s] in expressive association” and that § 203-e imposes limitations on its expressive associational rights. Slattery, 531 F. Supp. 3d at 567. Even so, the district court characterized those limitations as “incidental” and held that § 203-e was subject only to rational basis scrutiny. Id. at 569.
We agree with the district court that Evergreen is engaged in expressive association. But we hold that the district court erred in concluding that § 203-e does not significantly affect Evergreen’s expressive activity. Instead, the district court should have applied strict scrutiny. And because the state has not at this stage demonstrated that § 203-e is the least restrictive means to achieve a compelling governmental interest, we reverse the district court’s dismissal of Evergreen’s expressive association claim.
The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
At the first step, “[a]n association must merely engage in expressive activity that could be impaired in order to be entitled to protection.” Dale, 530 U.S. at 655. As the district court correctly found, Evergreen has “alleged facts sufficient to make plausible [the] claim that [it] engage[s] in expressive activity.” Slattery, 531 F. Supp. 3d at 567. The district court explained that “the allegations in the Complaint clearly indicate that Plaintiffs aim to share their pro-life
B
Next, we consider whether § 203-e “significantly burden[s]” Evergreen’s right to freedom of expressive association. Dale, 530 U.S. at 653; see also Jacoby & Meyers, 852 F.3d at 191 (“Strict scrutiny applies only when a challenged regulation imposes ‘severe burdens’ on associational rights.”). The district court recognized that under the state law, the plaintiffs would be “forced to associate with employees or prospective employees whose actions indicate that they do not share their views.” Slattery, 531 F. Supp. 3d at 568. But the district court decided that this burden on Evergreen’s expressive association rights was incidental rather than severe. We disagree. A “regulation that forces the group to accept members it does not desire ... may impair the ability of the original members to express only those views that brought them together.” Roberts, 468 U.S. at 623.
This case resembles New Hope Family Services v. Poole, 966 F.3d 145, 179 (2d Cir. 2020). In New Hope, we reviewed a district court’s dismissal of an adoption ministry’s expressive association claim against the New York State Office of Children and Family Services (“OCFS”). See id. at 148-49. The adoption ministry—a voluntary, privately funded Christian ministry—had a policy against recommending “adoption by unmarried or same-sex couples because it [did] not think such placements are in the best interests of a child.”
OCFS informed New Hope that this policy violated state antidiscrimination law and gave the adoption ministry a choice: conform to the antidiscrimination law or shut down the adoption agency. Id. New Hope maintained that OCFS’s actions in applying New York law would force “it to include unmarried or same-sex couples in its comprehensive evaluation, training, and placement programs and adoptive-parent profiles,” thus altering “New Hope’s message and counseling to adoptive families and birthparents.” Id. at 178 (internal quotation marks and alterations omitted). Moreover, New Hope complained that OCFS, in enforcing the state law, “may require New Hope to correct or discipline employees who, sharing New Hope’s religious beliefs, act on, or even express, those beliefs in interacting with birthparents or prospective adoptive parents.” Id. at 179 (internal quotation marks and alterations omitted).
We reversed the district court’s dismissal of New Hope’s expressive association claim. We held it was “premature” to conclude—as the district court in that case did—that these requirements constituted merely a “slight impairment.” Id. We explained that “[c]ompelled hiring, like compelled membership, may be a way in which a government mandate can affect in a significant way a group’s ability to advocate public or private viewpoints.” Id. (internal quotation marks and alterations omitted).
The district court here declined to apply strict scrutiny because it decided that the burden on Evergreen’s expressive association rights was incidental rather than severe. That determination was erroneous. After weighing all reasonable inferences in Evergreen’s
C
Still, “[t]he right to associate for expressive purposes is not absolute. Infringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means
We hold that at this stage of the litigation, New York has not shown that § 203-e satisfies this standard. As an initial matter, when applying tiers of scrutiny higher than rational basis, “the norm is to wait until the summary judgment stage of the litigation to address the ultimate question of whether the [regulation] should stand.” Cornelio, 32 F.4th at 172 (quoting Graff v. City of Chicago, 9 F.3d 1309, 1322 (7th Cir. 1993)). At this stage, New York cannot show that § 203-e is the least restrictive means to achieve a compelling objective.
It may be the case that preventing discrimination based on one’s choice to engage in certain, legally authorized conduct is a compelling state interest.3 But we need not decide that question here.
Even if we answer in the affirmative, that interest cannot overcome the expressive rights of an association dedicated to outlawing or otherwise opposing that specific conduct. For this step of the inquiry, Dale instructs us to engage in a balancing of interests, setting “the associational interest in freedom of expression ... on one side of the scale” and “the State’s interest on the other.” 530 U.S. at 658-59. Here, drawing all inferences in Evergreen’s favor, the state’s interest cannot overcome the expressive association right of an organization such as Evergreen. On one side of the scale is the individual’s right not to be discriminated against for certain reproductive choices, such as having an abortion. On the other side is the First Amendment right of a particular association—in this case, Evergreen—to advocate against that conduct. If Evergreen had the right to exclude employees who have had an abortion, the right to be free of discrimination for having an abortion will be impaired only to the limited extent that a person cannot join the specific group or groups that oppose abortion. But if the state could require an association that expressly opposes abortion to accept members who engage in the conduct the organization opposes, it would severely burden the organization’s right of expressive association. “It would be difficult,” to say the least, for an organization “to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct.” Christian Legal Soc’y v. Walker, 453 F.3d 853, 863 (7th Cir. 2006). Evergreen’s beliefs about the morality of abortion are “its defining values; forcing it to accept as members those who engage in or approve of [that] conduct would cause the group as it currently identifies itself to cease to exist.” Id.
“The conduct at issue—i.e., discrimination in membership and leadership—is of First Amendment concern not simply because it is freighted with or motivated by ideas, but because it goes to the structure and identity of the association as an association.”4 For that reason, one must “distinguish for First Amendment purposes” between requiring—for example—the National Organization for the Reform of Marijuana Laws “to comply with laws prohibiting the distribution of controlled substances,” on the one hand, and requiring that same organization “to admit anti-drug crusaders” to its membership, on the other, because the latter requirement would “undermine or transform their values and message.”5
The district court concluded that § 203-e imposed only “incidental limitations on [Evergreen’s] associational rights” because it would not “place a restriction on their ability to advocate against abortion or contraception.” Slattery, 531 F. Supp. 3d at 569. It posed only a “danger that others could call the Plaintiffs hypocrites” and Evergreen could always respond by “draw[ing] a distinction for the public between what they believe and what the State requires.” Id. This reasoning, which could always justify a state’s forcing an association to accept members it does not desire, devalues Evergreen’s interest in expressive association. The right of Evergreen to choose those who promote its views “is not protected by the First
Freedom of expressive association vindicates the “important structural role” that “expressive associations play ... in our civil society and discourse.”8 For an expressive association that opposes certain conduct, the government’s general interest in bolstering the legal right to engage in that conduct gives way to the freedom of those in the association to join together to express a different view. Here, Evergreen has a right to limit its employees to people who share its views and will effectively convey its message.
Thus, the district court erred in dismissing Evergreen’s expressive association claim. At this stage of the litigation, Evergreen has sufficiently stated a claim that enforcing § 203-e against it would
II
Evergreen raises three other constitutional challenges to the Boss Bill. According to Evergreen, § 203-e violates its First Amendment rights to freedom of speech and the free exercise of religion, even apart from the freedom of expressive association right. Evergreen also argues that § 203-e is impermissibly vague under the Fourteenth Amendment. The district court dismissed these claims. We affirm.
A
Apart from its freedom of expressive association claim, Evergreen argues that § 203-e infringes its right to freedom of speech. Evergreen notes that its “uniquely expressive nature means that the people [it] hires affect its message,” likening itself to film and news companies. Appellant’s Br. 34. Evergreen further argues that the “no waiver” provision of the Boss Bill,
“It is possible to find some kernel of expression in almost every activity a person undertakes ... but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). To determine whether
Evergreen has not shown that the acts of hiring, terminating, or continuing to employ persons are themselves expressive conduct that communicates its views. The Supreme Court has rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968).
“When ... an individual engages in conduct that does not manifest an intent to convey a particularized message, the First Amendment does not come into play.” United States v. Thompson, 896 F.3d 155, 164 (2d Cir. 2018) (internal quotation marks omitted). While we recognize that Evergreen’s freedom to make personnel decisions affects its ability to advocate its views and thereby implicates its freedom of expressive association, see supra Part I, we are not persuaded that the state’s attempt to regulate those personnel decisions is itself a regulation of speech. We affirm the district court’s dismissal of this claim.
B
We turn next to Evergreen’s claim that § 203-e violates its rights under the Free Exercise Clause, as incorporated by the Fourteenth
The Free Exercise Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
“A law is not neutral ... if it is specifically directed at a religious practice.” Cent. Rabbinical Cong. of the U.S. v. N.Y.C. Dep’t of Health & Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (internal quotation marks and alteration omitted). To be neutral, a law must not “facially regulate a religious practice without a secular meaning discernible from the language or context” and must also be “neutral in operation, as assessed in practical terms.” Id. at 194 (internal quotation marks omitted). In assessing operational neutrality, a court “must consider ‘the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.’” New Hope, 966 F.3d at 163 (quoting Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 540 (1993)).
These statements could be read to suggest hostility on the part of some legislators to the religious exercise of employers. But the statements do not establish that the purpose of the legislature was to target religion. “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.” O’Brien, 391 U.S. at 384; see also Michael M. v. Superior Court, 450 U.S. 464, 470 (1981) (“[I]ndividual legislators may have voted for the statute for a variety of reasons.”); cf. Stormans, Inc. v. Wiesman, 136 S. Ct. 2433, 2437 n.3 (2016) (Alito, J., dissenting from the denial of certiorari) (“It is an open question whether a court considering a free exercise claim should consider evidence of individual lawmakers’ personal intentions, as is done in the equal protection context.”). The legislative debate, and the legislation itself, was generally directed at discrimination in the workplace and employee privacy. A sponsor of the bill also affirmed that because of the ministerial exception, § 203-e would not apply to religious employers who fire employees for religious reasons. See N.Y. State Assembly, Transcript of Session Part II, Jan. 22, 2019, at 127 (Statement of Assemblywoman Jaffee) (“[T]he First Amendment’s ministerial exception may be used as a defense ... in court, but is not a jurisdictional bar for bringing a discrimination complaint against an employer. And the court would then determine whether or not the employee is considered a minister for the purposes of [the] religious organization that is being accused of this ... kind of a discrimination.”).
The Boss Bill is also generally applicable. “The general applicability requirement prohibits the government from ‘in a selective manner imposing burdens only on conduct motivated by religious belief.’” Cent. Rabbinical Cong., 763 F.3d at 196 (alteration omitted) (quoting Lukumi, 508 U.S. at 543). Section 203-e applies to any employer that takes adverse action against an employee for a reproductive health decision. The statute does not provide for individualized exemptions. See Smith, 494 U.S. at 884 (“[W]here the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.”); see also Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1877 (2021); Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality opinion). Because § 203-e is a neutral law of general applicability, it need only satisfy rational basis review to survive Evergreen’s claim under the Free Exercise Clause. Cent. Rabbinical Cong., 763 F.3d at 193.9
For these reasons, we affirm the district court’s dismissal of Evergreen’s Free Exercise Clause challenge.
D
Evergreen also challenges § 203-e as unconstitutionally vague. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). This doctrine “guards against arbitrary or discriminatory law enforcement” and “guarantees that ordinary people have ‘fair notice’ of the conduct a statute proscribes.” Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972)). “A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
The terms “reproductive health decision making” and “proposes to commit a violation” are sufficiently clear that an ordinary reader would know what each term entails. The statute clarifies that the term “reproductive health decisions” includes, but is not limited to, a decision to use or to access “a particular drug, device or medical service.”
The term “proposes to commit a violation” does not encompass—as Evergreen argues that it might—such scenarios as (1) “employers contemplating aloud whether they can comply with Section 203-E, even if they eventually decide to do so”; (2) “seek[ing] legal protection from having to comply with Section 203-E”; or (3) “discuss[ing] with prospective or current employees their views on ‘reproductive health decision making.’” Appellant’s Br. 54-55. Proposing “to commit a violation” involves a contemplated violation of the statute; it is not equivalent to considering the feasibility of compliance or the seeking of legal advice as to whether compliance is required. Nor could this language encompass discussing employees’
The terms “employee” and “employer” are not vague either. New York’s labor laws provide that “‘[e]mployee’ means a mechanic, workingman or laborer working for another for hire,”
We affirm the district court’s dismissal of Evergreen’s vagueness challenge.
CONCLUSION
For these reasons, we reverse the judgment of the district court with respect to Evergreen’s expressive association claim, affirm the judgment in all other respects, and remand to the district court for further proceedings consistent with this opinion.