Amicus Curiae Brief — Nancy Williams, et al., Petitioners v. Greg Reed, Secretary, Alabama Department of Workforce
Supreme Court briefApr 18, 2024
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No. 23-191
In the Supreme Court of the United States
__________
NANCY WILLIAMS, ET AL.,
Petitioners,
v.
FITZGERALD WASHINGTON,
ALABAMA SECRETARY OF LABOR,
__________
Respondent.
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA
__________
BRIEF AMICI CURIAE OF
THE ISLAM AND RELIGIOUS FREEDOM
ACTION TEAM AND THE AMERICAN HINDU
COALITION IN SUPPORT OF PETITIONERS
__________
NICHOLAS R. REAVES
YALE FREE EXERCISE CLINIC
1919 Pennsylvania Ave.
N.W., Suite 400
Washington, D.C. 20006
nicholas.reaves@yale.edu
LIA M. HIGGINS
SIDLEY AUSTIN LLP
787 Seventh Ave.
New York, NY 10019
BRIAN P. MORRISSEY
Counsel of Record
DANIEL J. HAY
HUNDLEY H. POULSON
SIDLEY AUSTIN LLP
1501 K Street., N.W.
Washington, D.C. 20005
(202) 736 8407
bmorriss@sidley.com
ROBERT C. UHL
SIDLEY AUSTIN LLP
2021 McKinney Ave #2000,
Dallas, TX 75201
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................
ii
INTEREST OF THE AMICI .................................
1
INTRODUCTION ..................................................
2
ARGUMENT ..........................................................
4
I. STATE AND LOCAL ADMINISTRATIVE
PROCESS CAN BE WEAPONIZED
AGAINST RELIGIOUS MINORITIES .........
4
II. STATE COURTS ARE A CRITICAL BULWARK AGAINST UNFAIR ADMINISTRATIVE PROCEEDINGS ...................................
9
A. State courts have historically been an important forum for religious exercise
cases ...........................................................
10
B. Federal abstention doctrines push many
religious minority litigants to state
courts ..........................................................
11
C. Unending administrative process makes
religious liberty rights illusory .................
17
III. A STATE-COURT EXHAUSTION RULE
UNDERMINES CONGRESSIONAL INTENT AND INCENTIVIZES BAD ACTORS ..............................................................
20
CONCLUSION ......................................................
23
ii
TABLE OF AUTHORITIES
CASES
Page
Almodovar v. Reiner, 832 F.2d 1138 (9th
Cir. 1987) ....................................................
12
Amanatullah v. Colo. Bd. of Med. Exam’rs,
187 F.3d 1160 (10th Cir. 1999)..................
16
Am. Legion v. Am. Humanist Ass’n, 139 S.
Ct. 2067 (2019) ...........................................
11
Arbaugh v. Y&H Corp., 546 U.S. 500
(2006) ..........................................................
14
Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d
493 (9th Cir. 2016) .....................................
7
Church of Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520 (1993).................
5
City of Boerne v. Flores, 521 U.S. 507
(1997) ..........................................................
12
Congregation Etz Chaim v. City of Los Angeles, No. CV 10-1587, 2010 WL 11595886
(C.D. Cal. Apr. 26, 2010)............................
13
Coulee Cath. Schs. v. Lab. & Indus. Rev.
Comm’n, 768 N.W.2d 868 (Wis. 2009).......
10
Courthouse News Serv. v. Planet, 750 F.3d
776 (9th Cir. 2014) .....................................
12
Crisitello v. St. Theresa Sch., 299 A.3d 781
(N.J. 2023) ..................................................
11
In re Diocese of Lubbock, 624 S.W.3d 506
(Tex. 2021) ..................................................
11
Doe v. McCulloch, 835 F.3d 785 (8th Cir.
2016) ...........................................................
13
Elane Photography, Inc. v. Cordova, No.
Civ. 07-0173, 2008 WL 11409878 (D.N.M.
Jan. 3, 2008) .............................................. 15, 16
Emp. Div. v. Smith, 494 U.S. 872 (1990) .....
10
iii
TABLE OF AUTHORITIES – continued
Page
Entman v. City of Memphis, 341 F. Supp. 2d
997 (W.D. Tenn. 2004) ...............................
13
Espinoza v. Mont. Dep’t of Revenue, 140 S.
Ct. 2246 (2020) ...........................................
10
Eugene Sand & Gravel, Inc. v. City of Eugene, 558 P.2d 338 (Or. 1976) ....................
11
Felder v. Casey, 487 U.S. 131 (1988) ............ 9, 20
Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ., 82 F.4th
664 (9th Cir. 2023) .....................................
5
Gomez v. Toledo, 446 U.S. 635 (1980) ..........
4
Grubbs v. Sheakley Grp., 807 F.3d 785 (6th
Cir. 2015) ....................................................
14
Guru Nanak Sikh Soc’y of Yuba City v.
Cnty. of Sutter, 456 F.3d 978 (9th Cir.
2006) ...........................................................
7
Hosanna-Tabor
Evangelical
Lutheran
Church & Sch. v. EEOC, 565 U.S. 171
(2012) ..........................................................
10
Islamic Ctr. of Miss., Inc. v. City of
Starkville, 840 F.2d 293 (5th Cir. 1988) ...
6
Israelite Church of God in Jesus Christ, Inc.
v. City of Hackensack, No. 11-5960, 2012
WL 3284054 (D.N.J. Aug. 10, 2012) ..........
7
James v. Heinrich, 960 N.W.2d 350 (Wis.
2021) ...........................................................
11
Jesus Christ Is the Answer Ministries, Inc.
v. Baltimore Cnty., 915 F.3d 256 (4th Cir.
2019) ........................................................... 8, 9
Jesus Christ is the Answer Ministries, Inc.
v. Baltimore Cnty., 303 F. Supp. 3d 378
(D. Md. 2018), vacated on other grounds,
915 F.3d 256 (4th Cir. 2019)......................
9
iv
TABLE OF AUTHORITIES – continued
Page
Knick v. Twp. of Scott, 139 S. Ct. 2162
(2019) ..........................................................
17
Maier v. Good, 325 F. Supp. 1268 (N.D.N.Y.
1971) ...........................................................
14
Mast v. Fillmore Cnty., 141 S. Ct. 2430
(2021) ..........................................................
8
Masterpiece Cakeshop, Ltd. v. Colo. Civil
Rights Comm’n, 584 U.S. 617 (2018) ... 5, 10, 21
Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423 (1982) ........
15
Morr-Fitz, Inc. v. Blagojevich, 901 N.E.2d
373 (Ill. 2008) ...........................................
19
N. Coast Women’s Care Med. Grp., Inc. v.
Super. Ct., 189 P.3d 959 (Cal. 2008) .........
10
Ocean Grove Camp Meeting Ass’n of United
Methodist Church v. Vespa-Papaleo, 339
F. App’x 232 (3d Cir. 2009) ........................
16
Patsy v. Bd. of Regents of Fla., 457 U.S. 496
(1982) ..........................................................
21
Presbytery of N.J. of the Orthodox Presbyterian Church v. Whitman, 99 F.3d 101 (3d
Cir. 1996) ....................................................
13
Quackenbush v. Allstate Ins. Co., 517 U.S.
706 (1996) ...................................................
12
Roman Cath. Diocese of Brooklyn v. Cuomo,
592 U.S. 14 (2020) ......................................
11
Spirit of Aloha Temple v. Cnty. of Maui, No.
14-00535, 2016 WL 347298 (D. Haw. Jan.
26, 2016) .....................................................
13
Stinemetz v. Kan. Health Pol’y Auth., 252
P.3d 141 (Kan. Ct. App. 2011) ...................
10
v
TABLE OF AUTHORITIES – continued
Page
Sts. Constantine & Helen Greek Orthodox
Church, Inc. v. City of New Berlin, 396
F.3d 895 (7th Cir. 2005).............................
6
Sullivan v. Finkelstein, 496 U.S. 617
(1990) ..........................................................
20
Susan B. Anthony List v. Driehaus, 573 U.S.
149 (2014) ...................................................
19
Tenafly Eruv Ass’n, Inc. v. Borough of
Tenafly, 309 F.3d 144 (3d Cir. 2002) .........
5
Tran v. Gwinn, 554 S.E.2d 63 (Va. 2001) ....
6
Voluntary Ass’n of Religious Leaders,
Churches, & Orgs. v. Waihee, 800 F. Supp.
882 (D. Haw. 1992) ....................................
14
Ware v. People’s Counsel, 17 A.3d 628 (Md.
Ct. Spec. App. 2015) ...................................
9
W. Va. Parents for Religious Freedom v.
Christiansen, Civ. A. No. 5:23-CV-158,
2023 WL 5506030 (N.D.W. Va. Aug. 2,
2023), appeal filed, No. 23-1887 (4th Cir.
Aug. 25, 2023) ............................................
13
Wisconsin v. Yoder, 406 U.S. 205 (1972) ......
10
Word of Faith World Outreach Ctr. Church,
Inc. v. Morales, 986 F.2d 962 (5th Cir.
1993) ......................................................... 13, 14
STATUTES AND ORDINANCES
42 U.S.C. § 1997e ..........................................
D.C. Mun. Regs. tit. 11, § 504.1(e)................
Miami-Dade Cnty., Fla., Code § 33238(29.1) .....................................................
Prince William Cnty., Va., Code § 32-302.04 ...
Vill. of Atl. Beach (N.Y.) Code § 250-108.1 ..
20
6
6
6
6
vi
TABLE OF AUTHORITIES – continued
LEGISLATIVE MATERIALS
146 Cong. Rec. 16698 (2000) .........................
Protecting Religious Freedom After Boerne
v. Flores: Hearing Before the Subcomm. on
the Const. of the H. Comm. on the Judiciary, 105th Cong. 18 (1997) ........................
H.R. Rep. No. 106-219 (1999) .......................
Page
7
22
6, 7
SCHOLARLY AUTHORITIES
William J. Haun, Keeping Our Balance:
Why the Free Exercise Clause Needs Text,
History, and Tradition, 46 Harv. J.L. &
Pub. Pol’y 419 (2023) .................................
21
Douglas Laycock & Luke W. Goodrich,
RLUIPA: Necessary, Modest, and UnderEnforced, 39 Fordham Urb. L.J. 1021
(2012) ..........................................................5, 6, 7
Ashira Ostrow, Judicial Review of Local
Land Use Decisions: Lessons from
RLUIPA, 31 Harv. J.L. & Pub. Pol’y 717
(2008) ..........................................................
5
Christopher C. Lund, RFRA, State RFRAs,
and Religious Minorities, 53 San Diego L.
Rev. 163 (2016)...........................................
12
OTHER AUTHORITIES
17A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Juris.
§ 4242 (3d ed.) .......................................... 12, 13
Becket, Federal & State RFRA Map,
https://bit.ly/3xuXc7y (last visited Apr.
16, 2024) .....................................................
12
vii
TABLE OF AUTHORITIES – continued
Becket, Odgaard v. Iowa Civil Rights
Comm’n, https://tinyurl.com/4kbkbmbm
(last visited Apr. 16, 2024) ........................
Grant Rodgers, Struggling Gortz Hause to
Close Without Wedding Business, Des
Moines Register (June 22, 2015) ...............
Statement on Signing the Religious Land
Use and Institutionalized Persons Act of
2000, 2 Pub. Papers 1905 (Sept. 22, 2000)
Page
18
19
22
INTEREST OF THE AMICI 1
The Islam and Religious Freedom Action Team
(IRF) of the Religious Freedom Institute amplifies
Muslim voices on religious freedom, seeks a deeper understanding of support for religious freedom inside Islamic teachings, and aims to protect Muslims’ religious freedom. The IRF engages in research, education, and advocacy on core issues including equal citizenship for diverse faiths and freedom from coercion.
The IRF fosters inclusion of Muslims in religious freedom work, including by translation of resources into
and out of English.
The American Hindu Coalition (AHC) is an apolitical national advocacy organization representing
Hindus, Buddhists, Jains, Sikhs, and related members
of minority religions that frequently face discrimination and misunderstanding in government administrative proceedings, as their religious practices and beliefs are unfamiliar to mainstream America.
Amici have an interest in ensuring that religious minority communities are able to protect their constitutional rights without facing insurmountable administrative hurdles or outright religious discrimination in
state and local administrative proceedings. In particular, minority faiths who lack political power within a
community are particularly likely to be the target of
pretextual administrative proceedings.
1 No counsel for a party authored this brief in whole or in part
and no counsel or party made a monetary contribution intended
to fund the preparation or submission of this brief. This brief is
prepared by a clinic operated by Yale Law School but does not
purport to present the School’s institutional views, if any.
2
INTRODUCTION
Federal law guarantees that persons of all religions
are free to worship according to the tenets of their
faith, not the edicts of bureaucrats. Centuries of practice further teaches that state courts are an appropriate forum to seek vindication of those rights. Yet state
and local administrative procedures can prove a substantial and often insurmountable burden to religious
claimants seeking a state judicial forum. This Court
should reverse the decision of the Alabama Supreme
Court, and place state-court civil rights plaintiffs on
equal footing with those who seek relief in federal
court.
If states are allowed to impose their own administrative exhaustion requirements on federal causes of
action, state bureaucrats and local administrative
bodies could subject religious minorities to overwhelming administrative burdens and effectively block religious claimants from seeking redress for violations of
core constitutional rights. This process-as-punishment
regime would chill many claimants from seeking redress in state court for clear violations of religious
rights and ex ante discourage minority religions from
freely exercising their religion where local officials are
viewed as hostile.
The risk of state administrative process nullifying
federally guaranteed religious liberty rights is, sadly,
far from hypothetical. Case law and Amici’s experience demonstrate how state and local officials strategically employ administrative procedures to discriminate against religious minorities and unpopular forms
of religious exercise. These officials wield broad discretion, which can be used to mask decisions based on religious animus. Land use and local zoning decisions
provide a ready example of how local governments can
3
abuse the administrative process to covertly—and in
some cases, overtly—discriminate against religious
minorities. With nowhere else to turn, subjects of discrimination must rely on the courts for relief. Federal
laws like 42 U.S.C. § 1983 and the Religious Land Use
and Institutionalized Persons Act (RLUIPA) provide
religious minorities necessary protective avenues to
litigate their rights and must remain open to these
claims.
Congress has decided that claims under section 1983
and RLUIPA may be brought in either federal or state
court. An exhaustion requirement that places obstacles at the entrance to the state courthouse—but not
its federal counterpart—makes no sense. While Alabama has blithely stated this case has “little practical
significance” because “anyone in Alabama seeking to
sue under § 1983 may sue in federal court,” BIO 20,
that is simply not the case. State courts are a critical
forum for civil rights claims generally, and free exercise claims specifically.
Even assuming, as Alabama does, that federal court
is in theory open to all section 1983 and RLUIPA
plaintiffs, but see infra Section II.B.a, the exhaustion
requirement is at best a trap for the unwary. For example, an uncounseled party may choose to file suit at
his or her local state courthouse, unaware that doing
so triggers procedural requirements that would not
apply in federal court. Even with counseled litigants,
a religious community may decide at first to begin the
state administrative process, in false hope that local
officials will be duly solicitous of their First Amendment rights, and turn to litigation only when the process reveals itself to be unfair. Under Alabama’s rule
and federal abstention doctrine, the plaintiffs in that
4
situation could find themselves trapped in a Kafkaesque process that could take years to exhaust and
that could result in preclusive factual or legal determinations. In other words, Alabama’s exhaustion rule
will harm primarily those who need the protection of
the courts the most.
Alabama’s rule is not merely bad policy; it is unmoored from sound principles of statutory interpretation. Alabama’s parsimonious construction of section
1983 stands in stark contrast to this Court’s command
that Ҥ 1983 is to be construed generously to further
its primary purpose.” Gomez v. Toledo, 446 U.S. 635,
639 (1980). Congress knows how to establish exhaustion requirements—or choose not to. In the present
case, Congress neither established an exhaustion requirement nor delegated its authority to the State of
Alabama, and it was improper for the Alabama Supreme Court to substitute its judgment for Congress’s.
ARGUMENT
I. STATE AND LOCAL ADMINISTRATIVE
PROCESS CAN BE WEAPONIZED AGAINST
RELIGIOUS MINORITIES.
State and local government officials wield an incredible amount of power, and with that power comes the
potential for abuse by unscrupulous officials. In particular, state and local administrative officials, out of
their own animus or in furtherance of community sentiment, with great frequency and even greater effect,
use process as a pretext to target and discriminate
against certain religious groups and exercise practices, inflicting serious harm on believers.
5
While the potential for religious discrimination in
administrative proceedings can arise in many contexts, 2 religious land use and zoning decisions typify
the type of highly discretionary, often lengthy and idiosyncratic administrative proceedings most easily
subject to abuse by bad actors. See generally Ashira
Ostrow, Judicial Review of Local Land Use Decisions:
Lessons from RLUIPA, 31 Harv. J.L. & Pub. Pol’y 717,
736 (2008) (describing local zoning boards: “because of
their small size and homogeneous constituency, local
decision making bodies are particularly vulnerable to
political capture by a single interest or faction”).
Religious communities frequently have to seek special permission to buy, build, or renovate real property. Douglas Laycock & Luke W. Goodrich, RLUIPA:
Necessary, Modest, and Under-Enforced, 39 Fordham
Urb. L.J. 1021, 1030 (2012) (“Zoning ordinances often
require churches to obtain a special-use permit, and
2 See, e.g., Church of Lukumi Babalu Aye, Inc. v. City of Hia-
leah, 508 U.S. 520, 541 (1993) (plurality) (finding “significant hostility exhibited by residents, members of the city council, and
other city officials toward the Santeria religion”); Masterpiece
Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 584 U.S. 617, 634
(2018) (“The neutral and respectful consideration to which Phillips was entitled was compromised here.”); Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th
664, 692 (9th Cir. 2023) (en banc) (“[T]he facts of this case arguably demonstrate animus by government decision-makers exceeding that present in Masterpiece Cakeshop or Lukumi.”); Tenafly
Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 168 (3d Cir.
2002) (“[T]he Borough’s invocation of the often-dormant Ordinance 691 against conduct motivated by Orthodox Jewish beliefs
is sufficiently suggestive of discriminatory intent that we must
apply strict scrutiny.”) (cleaned up).
6
special-use permits are often subject to vague conditions or to the broad discretion of local officials.”). 3
Special permission opens religious communities—especially religious minority communities whose religious practices may be less familiar to or unpopular
with the local community—to government discrimination. See id. at 1021 (“Churches are often unpopular in
the zoning context.”); Islamic Ctr. of Miss., Inc. v. City
of Starkville, 840 F.2d 293, 294 (5th Cir. 1988) (highlighting religious discrimination against Islamic Center); Sts. Constantine & Helen Greek Orthodox Church,
Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir.
2005) (“[I]n the case of the grant or denial of zoning
variances, a state delegates essentially standardless
discretion to nonprofessionals operating without procedural safeguards.”).
In the hearings leading up to the passage of
RLUIPA, Congress heard testimony confirming both
this country’s “pervasive land use regulation and the
nearly unlimited discretionary power of land use authorities.” H.R. Rep. No. 106-219, at 18 (1999). But
Congress also heard how zoning boards and other local
3 See, e.g., Tran v. Gwinn, 554 S.E.2d 63, 65 (Va. 2001) (describ-
ing Fairfax County zoning administrator’s efforts to enjoin a Buddhist monk from using his property for worship services without
special use permit); Prince William Cnty., Va., Code § 32-302.04
(religious institutions and places of worship subject to requirement of special use permit in semi-rural residential districts);
D.C. Mun. Regs. tit. 11, § 504.1(e) (subjecting “religious program
uses” to requirement of special exception and various other conditions in mixed-use zone); Miami-Dade Cnty., Fla., Code § 33238(29.1) (religious facilities “outside the Urban Development
Boundary” in neighborhood business districts “will be permitted
only upon approval after public hearing”); Vill. of Atl. Beach
(N.Y.) Code § 250-108.1 (prohibiting “religious and educational
use[]” without “a special exception permit”).
7
land-use authorities regularly use their “authority in
discriminatory ways.” 146 Cong. Rec. 16698 (2000).
These discriminatory burdens were “often covert” and
difficult to detect, id. at 16699, because discrimination
frequently “lurks behind such vague and universally
applicable reasons as traffic, aesthetics,” or the especially common claim that a religious community’s
house of worship is “not consistent with the city’s land
use plan,” id. at 16698. Such land-use proceedings, testimony confirmed, were “often vague, discretionary,
and subjective.” H.R. Rep. No. 106-219, at 24; Laycock
& Goodrich, supra, at 1022 (“[C]ore First Amendment
rights are placed at the mercy of a standardless licensing system that makes it easy for local officials to disguise regulation of churches that is arbitrary, discriminatory, or both.”).
Despite Congress’s cautionary findings and the passage of RLUIPA, discrimination against religious
groups in the land use context has continued. See Laycock & Goodrich, supra, at 1026-27 (documenting postRLUIPA hostility toward Muslims seeking to build an
Islamic community center and Orthodox Jews requesting to build a yeshiva); see also Guru Nanak Sikh Soc’y
of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 991 (9th
Cir. 2006) (explaining how NIMBYism 4 was used to
exclude a Sikh temple from the community).
All too often, Amici have seen how local governments
can hold minority faith communities hostage in administrative proceedings “just by running applicants
in infinite circles” rather than granting or denying applications outright. Israelite Church of God in Jesus
4 NIMBY is an acronym for “not-in-my-backyard.” See, e.g.,
Ave. 6E Invs., LLC v. City of Yuma, 818 F.3d 493, 498 (9th Cir.
2016).
8
Christ, Inc. v. City of Hackensack, No. 11-5960, 2012
WL 3284054, at *5 (D.N.J. Aug. 10, 2012).
One need not look far for additional recent examples.
In Mast v. Fillmore County, Fillmore County enacted
an ordinance requiring homes to have a modern septic
system for gray water disposal. 141 S. Ct. 2430 (2021).
The Amish, who objected to these systems on religious
grounds, petitioned the Minnesota Pollution Control
Agency for an exemption. Petition for Review of Decision of Court of Appeals, Swartzentruber v. Cnty. of
Fillmore, No. A19-1375 (Minn. July 7, 2020). But the
state ignored their request and instead initiated an
administrative enforcement action against 23 Amish
families, exposing them to the prospect of criminal
penalties and civil fines. Even after the Amish were
forced to sue under RLUIPA, the state continued to
harass them. The government sought to dispossess
these families of their homes if they didn’t comply with
the septic system requirements and even attempted to
use discovery to “attack the sincerity of [the Amish’s]
religious beliefs.” App. to Br. in Opposition for Respondent MPCA at 81 n.5, Mast v. Fillmore Cnty., 141
S. Ct. 2430 (2021) (No. A19-1375). The litigation alone
has already spanned nine years—and that was without a state administrative exhaustion regime.
Or consider the case of Jesus Christ Is the Answer
Ministries, an evangelical, multicultural Christian
church in Baltimore that ministers to a community of
primarily African immigrants. See Jesus Christ Is the
Answer Ministries, Inc. v. Baltimore Cnty., 915 F.3d
256, 258–59 (4th Cir. 2019). There, the church’s request to convert a single-family residence into a
church was initially set for approval but was then
quickly rejected after a public hearing at which several
community members “display[ed] open hostility to …
9
the Church,” including complaints that congregants
were “dancing and hollering like they back at their
home back in Africa.” Id. at 259; see Ware v. People’s
Counsel, 117 A.3d 628, 632 (Md. Ct. Spec. App. 2015)
(affirming zoning board’s denial of church’s request).
The Church later sought a more modest zoning modification, only to suffer through four more years of
costly administrative proceedings before the government concluded that the new request was barred by
res judicata and collateral estoppel. See Jesus Christ
is the Answer Ministries, Inc. v. Baltimore Cnty., 303
F. Supp. 3d 378, 386 (D. Md. 2018), vacated on other
grounds, 915 F.3d 256 (4th Cir. 2019).
Alabama’s administrative exhaustion requirement
creates a system ripe for abuse. If blessed by this
Court, Alabama’s rule would force minority religious
litigants into a game of Calvinball designed by those
hostile to their faith; only those who can afford to withstand the punitive administrative process, and who
can do so without having their claims effectively
erased by preclusive or highly discretionary decisions,
would have even the faint hope, years later, of their
day in state court.
II. STATE COURTS ARE A CRITICAL BULWARK AGAINST UNFAIR ADMINISTRATIVE PROCEEDINGS.
Faced with hostility from state or local governments,
religious minority communities have long found refuge
in section 1983. While federal courts are oftentimes
available to these litigants, Congress “did not leave the
protection of such rights exclusively in the hands of
the federal judiciary, and instead conferred concurrent
jurisdiction on state courts as well.” Felder v. Casey,
487 U.S. 131, 147 (1988).
10
Indeed—contrary to Alabama’s claim that access to
state courts is of “little practical significance,” BIO 2021—state courts can be crucial forums for religious minorities seeking to enforce their federal rights in a variety of contexts.
A. State courts have historically been an
important forum for religious exercise
cases.
A quick look at the history of religious liberty litigation confirms that many of this Court’s most significant religious exercise cases have come from state
courts. See, e.g., Espinoza v. Mont. Dep’t of Revenue,
140 S. Ct. 2246 (2020); Masterpiece Cakeshop, 584 U.S.
617 (2018); Emp. Div. v. Smith, 494 U.S. 872 (1990);
Wisconsin v. Yoder, 406 U.S. 205 (1972). And even
when a particular case does not reach this Court, state
courts often adjudicate pressing issues that this Court
does eventually decide. As just a few examples:
Religious Exemptions: State courts adjudicating
Free Exercise Clause compliance frequently evaluate
whether laws are generally applicable and facially
neutral under Smith, 494 U.S. 872. See, e.g., Stinemetz
v. Kan. Health Pol’y Auth., 252 P.3d 141, 155-56 (Kan.
Ct. App. 2011); N. Coast Women’s Care Med. Grp., Inc.
v. Super. Ct., 189 P.3d 959, 966, 967 (Cal. 2008).
Ministerial Exception: Three years before HosannaTabor Evangelical Lutheran Church & Sch. v. EEOC,
565 U.S. 171, 196 (2012), the Wisconsin Supreme
Court held that the ministerial exception barred an
age discrimination claim from a first grade non-ordained teacher at a Catholic elementary school. Coulee
Cath. Schs. v. Lab. & Indus. Rev. Comm’n, 768 N.W.2d
868, 892 (Wis. 2009). And post-Hosana-Tabor, state
courts have played an important role in fleshing out
11
how the ministerial exception applies beyond federal
employment discrimination causes of action. See, e.g.,
In re Diocese of Lubbock, 624 S.W.3d 506, 513 (Tex.
2021) (holding ministerial exception barred state tort
law claims); Crisitello v. St. Theresa Sch., 299 A.3d
781, 795 (N.J. 2023) (same result under state employment discrimination law).
Public Religious Monuments: Decades before American Legion v. American Humanist Ass’n, 139 S. Ct.
2067, 2090 (2019), the Oregon Supreme Court decided
that a large Latin cross veteran memorial sponsored
by the American Legion did not offend the Establishment Clause. Eugene Sand & Gravel, Inc. v. City of
Eugene, 558 P.2d 338, 349 (Or. 1976).
COVID-19 Litigation: The decisions by many state
and local authorities to limit or prohibit in-person religious services prompted an array of Free Exercise
claims in both federal and state court. See, e.g., James
v. Heinrich, 960 N.W.2d 350 (Wis. 2021) (holding closure of religious schools did not satisfy strict scrutiny);
cf. Roman Cath. Diocese of Brooklyn v. Cuomo, 592
U.S. 14 (2020) (per curiam) (granting injunction pending appeal against applying occupancy restrictions to
houses of worship).
Protection for religious exercise is not the sole province of the federal judiciary.
B. Federal abstention doctrines push many
religious minority litigants to state
courts.
Religious minority litigants might choose state
courts for more favorable precedent, more familiarity
with state court procedures, geographic proximity,
personnel, or any other of many legitimate strategic
reasons, but two federal abstention doctrines can
12
sometimes bar access to federal courts altogether,
making state courts an even more critical forum for
litigants.
a. Pullman abstention. After this Court’s decisions in Smith and City of Boerne v. Flores, 521 U.S.
507 (1997), religious minorities have increasingly relied on state laws—like state Religious Freedom Restoration Acts (RFRAs)—to protect their ability to practice their faith. Today, a majority of states have state
RFRAs, and free exercise litigants frequently join federal and state religious liberty claims. See Becket,
Federal & State RFRA Map, https://bit.ly/3xuXc7y
(last visited Apr. 16, 2024); see also Christopher C.
Lund, RFRA, State RFRAs, and Religious Minorities,
53 San Diego L. Rev. 163, 166-67 (2016) (symposium)
(explaining importance of state RFRAs).
But when religious minority litigants bring both
state and federal law claims in federal court, they run
the risk of falling victim to Pullman abstention, under
which federal courts typically refrain from weighing in
on novel state law questions that could be dispositive.
See Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
716–17 (1996); see also 17A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure Juris. § 4242 (3d ed.). Whether justified or not, 5 Pullman
5 Some courts have hesitated to apply Pullman abstention in
the First Amendment context, explaining that “Pullman abstention is almost never satisfied in First Amendment cases because
the guarantee of free expression is always an area of particular
federal concern.” Courthouse News Serv. v. Planet, 750 F.3d 776,
784 (9th Cir. 2014) (cleaned up). Nevertheless, “there is no absolute rule against abstention in first amendment cases.” Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir. 1987). And in-
13
abstention can force some litigants into state court,
putting on hold any access to federal court until the
state law claims are finally adjudicated. Federal Practice and Procedure Juris. § 4242.
Thus, whenever plaintiffs seek protection from
newly enacted or under-litigated state laws alongside
their federal claims, state forums may be the only rational choice for timely decisions. See, e.g., W. Va. Parents for Religious Freedom v. Christiansen, Civ. A. No.
5:23-CV-158, 2023 WL 5506030, at *5-6 (N.D.W. Va.
Aug. 2, 2023) (invoking Pullman abstention to stay
federal proceedings in a Free Exercise Clause section
1983 challenge because a state statute had “the potential to resolve th[e] issue”), appeal filed, No. 23-1887
(4th Cir. Aug. 25, 2023); Spirit of Aloha Temple v.
Cnty. of Maui, No. 14-00535, 2016 WL 347298, at *1,
*11–14 (D. Haw. Jan. 26, 2016) (applying Pullman to
abstain from deciding federal issue and to stay state
law claims “based on allegations that” the local government’s land-use decision “violated religious and
other rights”); Congregation Etz Chaim v. City of Los
Angeles, No. CV 10-1587, 2010 WL 11595886, at *1, *6
(C.D. Cal. Apr. 26, 2010) (applying Pullman and staying an action involving the “question of whether members of” of a congregation “may conduct religious services at a house”); Entman v. City of Memphis, 341 F.
Supp. 2d 997, 999 (W.D. Tenn. 2004) (remanding to
state court under Pullman abstention doctrine to allow state court to interpret Tennessee’s establishment
clause); Presbytery of N.J. of the Orthodox Presbyterian Church v. Whitman, 99 F.3d 101, 106 (3d Cir.
deed, federal courts do frequently stay or dismiss First Amendment claims under Pullman. See, e.g., Doe v. McCulloch, 835 F.3d
785, 788 (8th Cir. 2016); Word of Faith World Outreach Ctr.
Church, Inc. v. Morales, 986 F.2d 962, 968–70 (5th Cir. 1993).
14
1996) (affirming application of Pullman to as-applied
free speech claim by religious plaintiffs); Word of Faith
World Outreach Ctr. Church, Inc. v. Morales, 986 F.2d
962, 969 (5th Cir. 1993) (applying Pullman abstention
to Church’s free association claim); Voluntary Ass’n of
Religious Leaders, Churches, & Orgs. v. Waihee, 800
F. Supp. 882, 891 (D. Haw. 1992) (explaining in dicta
that Pullman abstention would require the court to abstain from deciding free exercise claim); Maier v. Good,
325 F. Supp. 1268, 1270 (N.D.N.Y. 1971) (abstaining
from deciding constitutionality of religious exemption
because “there are possibly controlling issues of state
law that should be decided in the first instance by the
state courts”).
Even where Pullman does not prove an insuperable
obstacle to federal jurisdiction, the existence of pendent state law claims may counsel some litigants to
prefer filing in state court. For example, the constitutional avoidance doctrine may make state statutory
claims a more appropriate vehicle than a federal constitutional claim, and concomitantly state court a
more natural forum. Likewise, where a litigant determines that its state law claim is comparatively
stronger than its federal claim, the litigant may prefer
to sue initially in state court, rather than risk having
to start over again if the federal court dismisses its
federal claim on the merits and declines to retain jurisdiction over the pendent state law claim. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Grubbs
v. Sheakley Grp., 807 F.3d 785, 805 (6th Cir. 2015).
b. Younger abstention. Even more concerning,
Younger abstention can force religious entities into
state or local administrative proceedings and block access to federal courts entirely. Generally speaking,
Younger abstention requires federal courts to abstain
15
from intervening in certain ongoing state proceedings.
See Middlesex Cnty. Ethics Comm. v. Garden State
Bar Ass’n, 457 U.S. 423, 431 (1982). And Younger can
be invoked in state administrative proceedings, even
in the face of First Amendment claims. For Younger
abstention to apply, the primary requirement is that a
state proceeding be “ongoing,” id. at 437, which can be
interpreted quite expansively. Some governments
have asserted that the mere initiation of an administrative investigation can trigger mandatory abstention, barring access to federal court.
For example, in Seattle Pacific University v. Ferguson, the university brought a section 1983 action under, among other things, the Free Exercise Clause and
the church autonomy doctrine, to challenge its subjection to the Washington Law Against Discrimination
and to enjoin an investigation by the Washington
State Attorney General, Robert Ferguson. First Am.
Compl. at 16-26, Seattle Pac. Univ. v. Ferguson, No.
3:22-cv-05540-RJB (W.D. Wash. Sept. 2, 2022), ECF
No. 16, appeal argued, No. 22-35986 (9th Cir. Nov. 16,
2023). The district court dismissed the lawsuit, applying Younger abstention based on a single letter sent by
Attorney General Ferguson and a single press release
issued two days after Seattle Pacific commenced its
lawsuit in federal court. Tr. of Mot. to Dismiss Hr’g at
37, Seattle Pac. Univ., ECF No. 33. The agency had
filed no complaints or charges, nor had any adjudicative hearings or state court proceedings even been
scheduled. Even so, the district court held that the
plaintiffs were barred from federal court.
Seattle Pacific is not an outlier. In Elane Photography, Inc. v. Cordova, the religious plaintiff sued the
New Mexico Human Rights Bureau in federal court,
claiming its investigation and prosecution of her for
16
refusing to engage in certain business activities violated her free exercise and free speech rights. She filed
suit shortly after the Bureau initiated its investigation
but before any adjudicative proceedings had begun.
No. Civ. 07-0173, 2008 WL 11409878, at *1 (D.N.M.
Jan. 3, 2008). Still, the district court held that the “initiation of the investigation” constituted the “beginning of the state administrative proceeding” and triggered Younger abstention, requiring dismissal of the
religious minority litigant’s complaint. Id. at *3. See
also Ocean Grove Camp Meeting Ass’n of United Methodist Church v. Vespa-Papaleo, 339 F. App’x 232, 237,
240 (3d Cir. 2009) (abstaining from a Free Exercise
Clause challenge to the New Jersey Law Against Discrimination and reasoning that proceedings begin
when a complaint is filed with the New Jersey Division
on Civil Rights); Amanatullah v. Colo. Bd. of Med.
Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999) (holding
that state proceedings began when the medical board
issued the “first ‘30-day’ letter to Amanatullah advising him of its investigation”).
Federal abstention doctrines confirm that state
courts can be the best—or only—forum available for
religious minorities to vindicate their constitutional
rights, so impeding their access to state court through
administrative exhaustion is unjust.
c. Trap for the unwary. Even assuming Alabama is correct that the federal courts have an open
door to civil rights plaintiffs, the effect of its rule would
be for the exhaustion requirement to make a difference
only where the injured party is unsophisticated or too
trusting of hostile state and local bureaucrats.
The anticipated effect of a state-court exhaustion
rule would be for seasoned counsel to steer every case
17
to federal court. But in low- or no-dollar religious freedom cases, parties may not have seasoned counsel—or
any counsel at all. Thus, it will likely only be those who
did not know about the availability of a federal forum
or the procedural differences in a state forum that will
encounter Alabama’s exhaustion requirement. Likewise, in free exercise litigation, there is often an impulse on the part of faith communities to try to avoid
litigation, both to minimize cost and to avoid unnecessary confrontation. In those cases, faith communities
could be drawn into abstention- and even preclusiontriggering administrative processes, only to find out
too late that the process is stacked against them.
* * *
Both section 1983 and RLUIPA recognize that certain religious claims belong in court, not before bureaucrats. Placing bureaucrats in line before the
courts upsets that design. Cf. Knick v. Twp. of Scott,
139 S. Ct. 2162 (2019). There is no constitutional, statutory, or policy justification for Alabama’s exhaustion
requirement.
C. Unending administrative process makes
religious liberty rights illusory.
Many minority religious houses of worship and nonprofits operate on tight budgets. In addition, given
their smaller profile in the community and the technical nature of state administrative proceedings, particularly in the land-use context, it can be very hard
for lesser-known religious groups to secure pro bono
counsel. As a result, in many cases, the choice to exhaust administrative remedies comes at the cost of
funding other core religious exercise, such as helping
the needy in the community or educating youth in the
ways of the faith. By contrast, state and local govern-
18
ments can easily shoulder years of administrative proceedings, especially when motivated to make the process as long and costly for the claimant as possible.
Given this asymmetry, costly and time-consuming proceedings can grind religious minority litigants into
submission before they are able to have their claims
heard in court.
Take Betty and Richard Odgaard, a Mennonite couple whose small business was destroyed while they
languished in administrative limbo. The Odgaards operated an art gallery and bistro in a restored nineteenth-century church, which they rented out for weddings and other events. While the Odgaards hired
LGBTQ employees and served LGBTQ customers,
their religious convictions precluded them from renting their business out to same-sex weddings. Brief of
Amicus Curiae Christian Business Owners Supporting Religious Freedom in Support of Petitioners at 3,
Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Comm’n, 584 U.S. 617 (2018) (No. 16-111). 6 After a
complaint was filed against the couple with the Iowa
Civil Rights Commission, they brought a section 1983
action (among other federal and state law causes of action) asserting that their practice was protected by the
Free Exercise Clause. Verified Pet. at 23, Odgaard v.
Iowa Civil Rights Comm’n, No. CVCV046451 (Polk
Cnty. Iowa Dist. Ct. Oct. 7, 2013). Applying a rule similar to the one Alabama has now adopted, the state
court dismissed their lawsuit on exhaustion grounds,
holding that the Odgaards needed to wait for the administrative investigation and adjudication to come to
6 The original documents are available at Becket, Odgaard v.
Iowa Civil Rights Comm’n, https://tinyurl.com/4kbkbmbm (last
visited Apr. 16, 2024).
19
a close. Ruling on Defs.’ Mot. To Dismiss at 14, Odgaard.
But it never did. While the administrative process
was pending, and before any court reached the merits
of the Odgaards’ constitutional claims, the couple’s
business faltered and closed. See Grant Rodgers,
Struggling Gortz Hause to Close Without Wedding
Business, Des Moines Register (June 22, 2015). As the
adage goes, “justice delayed is justice denied.”
Religious minority litigants who are subject to exhaustion requirements not only suffer monetary and
reputational harm; they are also forced to spend years
under a cloud of legal uncertainty. See Morr-Fitz, Inc.
v. Blagojevich, 901 N.E.2d 373, 380 (Ill. 2008). Without
resolution of the merits of their claim, they cannot exercise their First Amendment freedoms without risking further liability. As this Court has recognized,
“threatened Commission proceedings” in the First
Amendment context “may give rise to harm” because
of the “burdens that Commission proceedings can impose” on those First Amendment rights. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 165 (2014).
Hence, “courts routinely find not just harm, but irreparable harm, where a plaintiff asserts a chill on free
exercise rights.” Morr-Fitz, Inc., 901 N.E.2d at 387.
Administrative exhaustion requirements can turn
the vindication of one’s rights into a war of attrition.
Religious minority litigants frequently cannot bear the
cost, time, and reputational injuries caused by protracted administrative proceedings. State and local
governments can often outspend or simply wait out
even the most resolute claimants, which is why this
Court has recognized that “the dominant characteristic of civil rights actions” is that they “belong in court”
and “are judicially enforceable in the first instance.”
20
Felder, 487 U.S. at 148 (quoting Burnett v. Grattan,
468 U.S. 42, 50 (1984)).
III. A STATE-COURT EXHAUSTION RULE UNDERMINES CONGRESSIONAL INTENT
AND INCENTIVIZES BAD ACTORS.
Allowing states to impose their own exhaustion requirements on section 1983 claims would undermine
congressional design. Congress makes its intent clear
in what it chooses to include in legislation—and what
it chooses not to include.
As this Court has recognized, “where Congress had
not provided” an administrative exhaustion requirement, the baseline rule for section 1983 claims is that
administrative exhaustion is not required. Id. at 148–
49. Thus, outside of specific contexts where exhaustion
is expressly required, Congress did not intend for section 1983 claims to require exhaustion, and there is no
statutory indication that this intent was limited to federal lawsuits.
The Prison Litigation Reform Act (PLRA), 42 U.S.C.
§ 1997e, provides a helpful comparison to the judgemade rule in this case. The PLRA applies to all lawsuits under federal laws (including section 1983 and
RLUIPA) pertaining to “prison conditions,” and requires pre-suit exhaustion of administrative remedies.
Id. § 1997e(a). But when Congress later enacted
RLUIPA, it did not extend that exhaustion requirement to land use cases or to section 1983 cases more
broadly. When Congress expressly establishes exhaustion requirements for some claims and not for others—
especially in legislation on the same general subject
matter—courts should not read in an implicit exhaustion requirement where none exists. See Sullivan v.
21
Finkelstein, 496 U.S. 617, 632 (1990) (Scalia, J., concurring in part) (“statutes in pari materia should be
interpreted harmoniously”). Instead, courts must respect Congress’s choice. In this case, Congress has not
established an exhaustion requirement. Alabama
should not override that decision. See, e.g., Patsy v. Bd.
of Regents of Fla., 457 U.S. 496, 508 (1982) (“[A] judicially imposed exhaustion requirement would be inconsistent with Congress’s decision to adopt § 1997e
and would usurp policy judgments that Congress has
reserved for itself.”).
The omission of an exhaustion requirement cannot
be dismissed as an oversight. Given that, under both
section 1983 and RLUIPA, the gravamen of the claim
is an abuse of state authority, it makes perfect sense
why Congress would not have wanted to condition
such claims on prior review by those very state actors.
Recent experience bears out Congress’s reasoned
choice. Most religious freedom cases at the Supreme
Court in the past decade have come from administrative actions, not legislation. See William J. Haun,
Keeping Our Balance: Why the Free Exercise Clause
Needs Text, History, and Tradition, 46 Harv. J.L. &
Pub. Pol’y 419, 451 (2023); see also, e.g., Masterpiece
Cakeshop, Ltd., 584 U.S. at 628–30. In contrast to
democratically accountable legislatures, “regulatory
bodies—premised on their ‘expertise’ in technical
knowledge—are generally disinclined to accommodate
religious orthodoxy or account for social knowledge.”
Huan, supra, at 451 (citing Antonin Scalia, Rulemaking as Politics, 34 Admin L. Rev. xxv, xxvi, xxxi
(1982)). There is, in other words, good reason to doubt
that technocratic regulators will be accommodating to
unfamiliar religious practice.
22
RLUIPA in particular was passed amid a growing
concern for “[t]he need for affirmative federal protection of religious freedom” from unsympathetic state
and local bureaucrats, and reflected an awareness
that “states and local governments would often not be
sufficiently protective of fundamental rights.” Protecting Religious Freedom After Boerne v. Flores: Hearing
Before the Subcomm. on the Const. of the H. Comm. on
the Judiciary, 105th Cong. 18 (1997) (prepared statement of Marc D. Stern, Director, Legal Department,
American Jewish Congress). President Clinton reaffirmed this intent when he signed the Act into law,
saying it seeks to prevent “State and local governments from imposing a substantial burden on the exercise of religion.” Statement on Signing the Religious
Land Use and Institutionalized Persons Act of 2000, 2
Pub. Papers 1905 (Sept. 22, 2000).
By enacting RLUIPA, Congress chose to protect religious rights by granting remedies against state and
local governments that burden those rights. And Congress made an explicit policy decision not to require
administrative exhaustion. Permitting states to impose their own exhaustion requirements impermissibly undermines Congress’s choice and threatens critical civil rights protections.
23
CONCLUSION
For the foregoing reasons, the Court should reverse
the decision below.
Respectfully submitted,
NICHOLAS R. REAVES
YALE FREE EXERCISE CLINIC
1919 Pennsylvania Ave.
N.W., Suite 400
Washington, D.C. 20006
nicholas.reaves@yale.edu
LIA M. HIGGINS
SIDLEY AUSTIN LLP
787 Seventh Ave.
New York, NY 10019
BRIAN P. MORRISSEY
Counsel of Record
DANIEL J. HAY
HUNDLEY H. POULSON
SIDLEY AUSTIN LLP
1501 K Street., N.W.
Washington, D.C. 20005
(202) 736 8407
bmorriss@sidley.com
ROBERT C. UHL
SIDLEY AUSTIN LLP
2021 McKinney Ave #2000,
Dallas, TX 75201
Counsel for Amici Curiae
APRIL 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.