Amicus Curiae Brief — Ronald Hittle, Petitioner v. City of Stockton, California, et al.

No. 24-427

IN THE

Supreme Court of the United States

_____________________________

RONALD HITTLE,

Petitioner,

v.

CITY OF STOCKTON, CALIFORNIA, ET AL.,

Respondents.

_____________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

_____________________________

BRIEF OF AMICUS CURIAE FOUNDATION FOR

MORAL LAW IN SUPPORT OF PETITIONER

_____________________________

John A. Eidsmoe*

*Counsel of Record

Talmadge Butts

FOUNDATION FOR MORAL LAW

P.O. Box 148

Gallant, AL 35972

(334) 262-1245

eidsmoeja@juno.com

talmadge@morallaw.org

Nov. 15, 2024

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF THE ARGUMENT......................... 1

ARGUMENT ............................................................ 4

I.

The City’s firing of Hittle violates Hittle’s

First Amendment right to free exercise of

religion ............................................................... 4

A. The Framers held a high view of

religious liberty ............................................ 4

B. The

Framers

derived

their

understanding

of

Church/State

relations from the Bible and JudeoChristian tradition ....................................... 5

C. The Framers held a jurisdictional

understanding

of

Church/State

relations...................................................... 11

D. This jurisdictional understanding

applies to the Free Exercise Clause .......... 16

II. Title VII must be interpreted to provide

broad protection to religion in light of the

First Amendment ............................................ 24

CONCLUSION ....................................................... 25

ii

TABLE OF AUTHORITIES

Cases

Page

American Legion v. American Humanist

Association,

139 S. Ct. 2067 (2019)....................................... 24

Employment Division Dept. of Human Resources of

Oregon v. Smith,

494 U.S. 872 (1990)...................................... 22-24

Everson v. Bd. of Educ. of the Twp. of Ewing,

330 U.S. 1 (1947).................................... 14-15, 20

Kennedy v. Bremerton School District,

597 U.S. 507 (2022)..................................2, 24, 26

Lemon v. Kurtzman,

403 U.S. 602 (1971)........................................... 24

McGowan v. Maryland,

366 U.S. 420 (1961)...................................... 16-17

Roman Catholic Diocese of Brooklyn, N.Y. v.

Cuomo,

No. 20A87 (U.S. Nov. 25, 2020) ........................ 23

Shurtleff v City of Boston,

596 U.S. __ (2022) ..........................................2, 26

South Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021)......................................... 23

iii

Tandon v. Newsom,

141 S. Ct. 1294 (2021)....................................... 23

United States v. Macintosh,

283 U.S. 605 (1931)...................................... 21-22

Zorach v. Clauson,

343 U.S. 306 (1952)...................................... 16-17

Executive Orders

Executive Order No. 13798, S. 4, 82 Fed. Reg.

21675 (May 4, 2017) ......................................... 24

Other Authorities

Dr. Donald S. Lutz, "The Relative Influence of

European Writers on Late Eighteenth-Century

American Political Thought," American

Political Science Review, 189 (1984) .................. 5

George Washington, May 1789; quoted by Paul F.

Boller, Jr., George Washington and Religion

(Dallas: Southern Methodist University Press,

1963) ............................................................. 11-12

Hebden Taylor, The Christian Philosophy of Law,

Politics, and the State (Nutley, NJ: Craig Press,

1966) ................................................................. 6-7

James Madison, Memorial and Remonstrance (June

20, 1785) ..................................................... 4-5, 13

James Madison, Veto Message, February 21, 1811,

http://baptiststudiesonline.com/wp-

iv

content/uploads/2018/03/MadisonVetoMessageCongress.pdf ................................ 13

James O’Donnell, Encyclopedia Britannica,

https://www.britannica.com/topic/The-City-ofGod ...................................................................... 8

John Calvin, Institutes of the Christian Religion,

1537 ................................................................ 9-10

Laurence H. Tribe, American Constitutional Law

(Mineola, New York: Foundation Press, 1978) ....

........................................................................... 19

Leo Pfeffer, Church, State and Freedom (Boston:

Beacon Press, 1953) .......................................... 19

Loraine Boettner, The Reformed Doctrine of

Predestination, Presbyterian and Reformed

Published Company (April 15, 1991) ................. 9

M.E. Bradford, A Worthy Company: Brief Lives of

the Framers of the United States Constitution

(Marlborough, ND: Plymouth Rock Foundation,

1982) .................................................................... 9

Norman Cousins, "In God We Trust" (New York:

Harper & Brothers, 1958) ................................ 13

Sydney E. Ahlstrom, A Religious History of the

American People (Doubleday, 1975) ........... 10-11

Thomas Jefferson, Letter to Samuel Miller,

January 23, 1808; "Thomas Jefferson on

v

Separation of Church and State,"

https://candst.tripod.com/tnppage/qjeffson.htm ..

........................................................................... 14

1

INTEREST OF AMICUS CURIAE1

Amicus curiae Foundation for Moral Law (“the

Foundation”) is a 501(c)(3) non-profit, national

public interest organization based in Alabama,

dedicated to defending religious liberty, God’s moral

foundation upon which this country was founded,

and the strict interpretation of the Constitution as

intended by its Framers who sought to enshrine

both. To those ends, the Foundation directly assists

or files amicus briefs in cases concerning religious

freedom, the sanctity of life, and other issues that

implicate the God-given freedoms enshrined in our

Bill of Rights.

The Foundation has an interest in this case

because the Foundation believes that believes the

firing of Chief Hittle is clear religious discrimination in

violation of the Free Exercise Clause of the First

Amendment.

SUMMARY OF THE ARGUMENT

Petitioner Ronald Hittle (“Hittle”) served the

City of Stockton, California (“the City”) for 24 years,

including service as Fire Chief from 2005-2011. The

City wanted Hittle as Fire Chief to attend leadership

1 Counsel of record for all parties received notice at least ten

days prior to the due date of amicus curiae’s intention to file

this brief. Pursuant to Rule 37.6, amicus curiae certifies that

no party or party’s counsel authored this brief in whole or in

part, or contributed money that was intended to fund its

preparation or submission; and no person other than the

amicus curiae, its members, or its counsel, contributed money

that was intended to fund the preparation or submission of this

brief.

2

training but was strapped for funds to pay for such

training. Hittle learned of the Global Leadership

Summit which was being conducted by a local

church, so he attended the Summit at his own

expense, although he drove a city vehicle to the

event and attended the event on City time.2 Hittle’s

attendance at this Global Leadership Summit is the

primary if not the exclusive reason the City fired

Hittle.3

Hittle sued in Federal District Court, alleging

among other things a violation of Title VII. The

Foundation argues that Hittle has a stronger claim

under the First Amendment than under Title VII,

2 Hittle’s use of the City vehicle and attendance on City time

should not be an issue, because he would have been entitled to

attend a secular leadership training program in a City vehicle

and on City time. Allowing him to attend a secular leadership

training event in a City vehicle and on City time but forbidding

him to attend a religious leadership training event on similar

terms is discrimination against religion which violates the

First Amendment as interpreted by this Court in Shurtleff v

City of Boston, 596 U.S. __ (2022), and in Kennedy v. Bremerton

School District, 597 U.S. 507 (2022). As to whether Hittle’s

attendance at the Global Leadership Summit was of value to

the City in that it improved his leadership skills, the City and

the lower Court seems to have looked no further than the fact

that the Summit was held at a church and was in some respects

“religious.” This shows a distinct hostility toward religion.

3 As Judge Van Dyke noted in dissent on the motion for en banc

hearing, the City’s other grounds for firing Hittle seem

contrived, inconsequential, and insubstantial. The primary

motiving factor driving Hittle’s firing is his attendance at this

“religious” event.

3

and that because Title VII was enacted to protect

religious liberty as guaranteed by the First

Amendment, the history and interpretation of the

First Amendment must govern the application of

Title VII.

The Petitioner has effectively and persuasively

argued that Chief Hittle was fired because of his

attendance at a so-called “religious event,” that his

firing violated Title VII of the Civil Rights Act as

well as California state law, that the decision below

fails to give proper weight to the evidence Hittle

presented, that the decision below conflicts with

precedents of this Court and of other Circuit Courts,

and that the decision wrongly denied Hittle a jury

trial. The Foundation fully supports Hittle in these

arguments.

Rather than duplicate those arguments, the

Foundation will argue that Chief Hittle is entitled to

the protection of the First Amendment. Our

examination of the history and meaning of the

religious liberty clauses of the First Amendment

establish that the First Amendment provides even

stronger protection to Hittle than does Title VII.

Title VII was enacted to provide a practical

mechanism for enforcing free exercise of religion in

the workplace and to extend the protection of

religious liberty to employment in the private sector.

The interpretation and application of Title VII must

be governed by the interpretation and application of

the Free Exercise Clause of the First Amendment—

especially because Hittle’s employment as fire chief

was in the public sector and therefore already

4

protected by the First Amendment regardless of

Title VII.

Although Chief Hittle’s attendance at a Global

Leadership Summit held at a church in no way

violates the Establishment Clause of the First

Amendment and is fully protected by the Free

Exercise Clause, the City of Stockton apparently

believes his very presence at this event during work

hours and with a city vehicle violates the City’s

understanding of separation of church and state and

must therefore be prohibited and punished by firing.

This constitutes blatant discrimination against

religion and is motivated by hostility toward

religion, which is prohibited by the First

Amendment.

ARGUMENT

I. The City’s firing of Hittle violates Hittle’s First

Amendment rights to free exercise of religion and

freedom of speech.

Let us consider the high value the Framers of our

Constitution placed upon religious freedom.

A. The Framers held a high view of

religious liberty.

It is proper to take alarm at the first

experiment on our liberties. We hold this

prudent jealousy to be the first duty of citizens,

and one of the noblest characteristics of the

late Revolution.

James Madison, A Memorial and Remonstrance,

1785, Works 1:163.

5

As Jefferson recognized in the Declaration of

Independence, this nation is founded on the “laws of

nature and of nature's God,” and the “unalienable”

rights to “life, liberty, and the pursuit of happiness”

are “endowed by [the] Creator.”

The Framers viewed church and state as

separate institutions with separate jurisdictions.

When Jefferson spoke of a “wall of separation

between church and state,” he meant a jurisdictional

separation.

B. The

Framers

derived

their

understanding of Church/State relations

from the Bible and Judeo-Christian

tradition.

The Framers did not view Church and State

simply as man-made institutions. They did not

accept Rousseau's notion that the State is above the

Church and above all other institutions.4 Like the

people of their time and those of preceding

generations, they understood Church and State as

divinely-established

institutions,

each

with

distinctive authority and distinctive limitations.

This institutional separation goes back to the

ancient Hebrews. Going back to the time of Moses

and perhaps further back to the time of Jacob's sons

4 Dr.

Donald S. Lutz, "The Relative Influence of European

Writers on Late Eighteenth-Century American Political

Thought," American Political Science Review, 189 (1984) 18997, studied citations of European thinkers by American writers

1760-1805 and demonstrated that American writers most

frequently cited Montesquieu (8.3%), Blackstone (7.9%), and

Locke (2.9%), and cited much less frequently (0.9%).

6

Judah and Levi, the Levites (descendants of Levi,

the Tribe of Levi) served as Israel's religious

authority, the priests. From the time of King David

onward, Israel's kings came out of the tribe of Judah.

These were separate offices and separate

jurisdictions, but both were subject to the will of God

and the Law of God. On several occasions, God

disciplined kings severely for usurping the functions

of the priesthood. For example, when King Saul

offered sacrifices instead of waiting for Samuel the

priest, God cut off his descendants from the kingship

forever. When King Uzziah tried to usurp the

functions of the priesthood by burning incense on the

altar in the Temple, eighty “valiant” priests

withstood him, saying, “It appertaineth not to thee,

Uzziah, to burn incense to the Lord, but to the

priests the sons of Aaron, that are consecrated to

burn incense: go out of the sanctuary; for thou hast

trespassed.” (II Chronicles 26:16-18). When Uzziah

persisted, God smote him with leprosy, and he

remained a leper all the days of his life (II Chron

2:19-23).

This institutional separation continued in the

New Testament. When the Pharisees asked Jesus

about paying taxes to the Roman government, He

pointed to Caesar's image on a coin and answered,

“Render therefore to Caesar the things which are

Caesar's; and to God, the things that are God's.”

(Matthew 22:21). Lord Acton said of Christ's answer,

It was left for Christianity to animate old

truths, to make real the metaphysical barrier

which philosophy had erected in the way of

absolutism. The only thing Socrates could do

7

in the way of a protest against tyranny was to

die for his convictions. The Stoics could only

advise the wise man to hold aloof from politics

and keep faith with the unwritten law in his

heart. But when Christ said “Render unto

Caesar the things that are Caesar’s and unto

God the things that are God’s,” He gave to the

State a legitimacy it had never before enjoyed,

and set bounds to it that had never yet been

acknowledged. And He not only delivered the

precept but He also forged the instrument to

execute it. To limit the power of the State

ceased to be the hope of patient, ineffectual

philosophers and became the perpetual

charge of a universal Church.5

It is neither surprising nor unreasonable to

conclude that the Framers derived their

understanding of Church/State relations from

religious sources. On October 4, 1982, Congress

passed, and the President then signed, Public Law

97-280, declaring 1983 the “Year of the Bible.” The

opening clause of the bill reads:

Whereas, Biblical teachings inspired concepts

of civil government that are contained in our

Declaration of Independence and the

Constitution of the United States...

5 Lord Acton, quoted by Gertrude Himmelfarb (London, 1955)

p. 45; in ElL. Hebden Taylor, The Christian Philosophy of Law,

Politics, and the State (Nutley, NJ: Craig Press, 1966) pp. 44546.

8

The Bible, coupled with Church and Jewish

tradition, is therefore relevant to the Framers'

understanding of Church and State.

From the beginning, Church scholars understood

that Church and State were distinct kingdoms, but

they sometimes differed as to the relationship

between them. Some, like the North African lawyer

and Church Father Tertullian (c. A.D. 200), asked,

“What concord hath Athens with Jerusalem?”

Augustine of Hippo (AD 356-430), whose Civitas Dei

“set the very course of Western Civilization,”6 wrote

of the City of God and the City of Man, although he

did not precisely identify the City of God as the

Church or the City of Man as the State.

The Protestant Reformation took force in

Northern Europe in the 1500s, a century before the

settlement of the English colonies in North America.

The Reformers' understanding of the Two Kingdoms

of Church and State is therefore instrumental in

understanding the views of the Framers. Most of

6 Martin Luther describes Augustine's masterpiece as "one of

the most influential works of the Middle Ages" and says it "

would be read in various ways, at some points virtually as a

founding document for a political order of kings and popes that

Augustine could hardly have imagined. Indeed, his famous

theory that people need government because they are sinful

served as a model for church-state relations in medieval times.

He also influenced the work of St. Thomas Aquinas and John

Calvin and many other theologians throughout the centuries."

quoted at http://grantian.blogspot.com/2006/11/tale-of-twomen.html; James, O’Donnell, Encyclopedia Britannica,

https://www.britannica.com/topic/The-City-of-God

9

them were children of the Reformation,7 and as such

they understood that God had established two

kingdoms, Church and State, each with distinctive

authority. As Luther said,

...these two kingdoms must be sharply

distinguished, and both be permitted to

remain; the one to produce piety, the other to

bring about external peace and prevent evil

deeds; neither is sufficient in the world

without the other.

And as John Calvin stated in his Institutes of the

Christian Religion,

Let us first consider that there is a twofold

government in man: one aspect is spiritual,

whereby the conscience is instructed in piety

7 As Dr. M.E. Bradford established in A Worthy Company: Brief

Lives of the Framers of the United States Constitution

(Marlborough, ND: Plymouth Rock Foundation, 1982) pp. iv-v,

the fifty-five delegates to the Constitutional Convention

included 28 Episcopalians, 8 Presbyterians, 2 Lutherans, 2

Dutch Reformed, 2 Methodists, 2 Roman Catholics, one

uncertain, and 3 who might be Deists. And as Dr. Loraine

Boettner observed in The Reformed Doctrine of Predestination,

It is estimated that of the 3,000,000 Americans at the

time of the American Revolution, 900,000 were of

Scotch or Scotch-Irish origin, 600,000 were Puritan

English, and 400,000 were German or Dutch Reformed.

In addition to this the Episcopalians had a Calvinistic

confession in their Thirty-nine Articles, and many

French Huguenots also had come to this Western

world. Thus, we see that about two-thirds of the

colonial population had been trained in the school of

Calvin. 382.

10

and in reverencing God; the second is

political, whereby man is educated for the

duties of humanity and citizenship that must

be maintained among men. These are usually

called the 'spiritual' and the 'temporal'

jurisdiction (not improper terms) by which is

meant that the former sort of government

pertains to the life of the soul, while the latter

has to do with the concerns of the present life

- not only with food and clothing but with

laying down laws whereby a man may live his

life among other men holily, honorably, and

temperately. For the former resides in the

inner mind, while the latter regulates only

outward behavior. The one we may call the

spiritual kingdom, the other, the political

kingdom. Now these two, as we have divided

them, must always be examined separately;

and while one is being considered, we must

call away and turn aside the mind from

thinking about the other. There are in man,

so to speak, two worlds, over which different

kings and different laws have authority.

This understanding of Church and State as two

separate kingdoms, both established by God but

with separate spheres of authority, shaped the legal

and political thinking of the Reformers, of the

colonists, and of the Framers of the Declaration of

Independence, the Constitution, and the Bill of

Rights. As Yale History Professor Sydney E.

Ahlstrom has noted,

No factor in the "Revolution of 1607-1760"

was more significant to the ideals and thought

11

of colonial Americans than the Reformed and

Puritan character of their Protestantism; and

no institution played a more prominent role in

the molding of colonial culture than the

church. Just as Protestant convictions were

vitally related to the process of colonization

and a spur to economic growth, so the

churches laid the foundations of the

educational system, and stimulated most of

the creative intellectual endeavors, by

nurturing the authors of most of the books

and the faculties of most of the schools. The

churches offered the best opportunity for

architectural expression and inspired the

most creative productions in poetry,

philosophy, music, and history.8

C. The Framers

understanding

relations.

held a

of

jurisdictional

Church/State

Long before Jefferson would speak of the “wall of

separation between church and state,” Rhode Island

founder Roger Williams wrote of a “gap in the hedge

or wall of separation between the garden of the

church and the wilderness of the world,” and George

Washington declared to the General Committee of

United Baptist Churches in Virginia that "no one

would be more zealous than myself to establish

effectual barriers against the horrors of spiritual

tyranny, and every species of religious persecution."9

8 Sydney

E. Ahlstrom, A Religious History of the American

People (Doubleday, 1975), I:423.

9 George Washington, May 1789; quoted by Paul F. Boller, Jr.,

12

Reflecting this same jurisdictional view of

Church and State, James Madison as President

vetoed "an Act incorporating the Protestant

Episcopal Church in the town of Alexandria, in the

District of Columbia":

Because the bill exceeds the rightful authority

to which governments are limited by the

essential distinction between civil and

religious functions, and violates in particular

the article of the Constitution of the United

States which declares that "Congress shall

make no law respecting a religious

establishment." The bill enacts into and

establishes by law sundry rules and

proceedings

relative

purely

to

the

organization and polity of the church

incorporated, and comprehending even the

election and removal of the minister of the

same, so that no change could be made

therein by the particular society or by the

general church of which it is a member, and

whose authority it recognizes. This particular

church, therefore, would so far be a religious

establishment by law, a legal force and

sanction being given to certain articles in its

constitution and administration. Nor can it be

considered that the articles thus established

are to be taken as the descriptive criteria only

of the corporate identity of the society,

inasmuch as this identity must depend on

other characteristics, as the regulations

George Washington and Religion (Dallas: Southern Methodist

University Press, 1963) 169-70.

13

established are generally unessential and

alterable according to the principles and

canons by which churches of that

denomination govern themselves, and as the

injunctions and prohibitions contained in the

regulations would be enforced by the penal

consequences applicable to a violation of them

according to the local law.10

Madison's veto was consistent with his

jurisdictional view of Church and State. In his

“Memorial and Remonstrance Against Religious

Assessments” (1785), he objected to a proposed tax

for the support of Christian churches and pastors,

not because he opposed the Church, but because

Christianity is “the Religion which we believe to be

of divine origin.” Christianity, he said, is a religion

of “innate excellence” and a religion that enjoys the

“patronage of its Author.” Christianity therefore

does not need the aid of the State.11

Jefferson's "wall of separation" must be viewed in

this context, as a jurisdictional separation between

the two kingdoms, Church and States. As he wrote

in 1808,

James Madison, Veto Message, February 21, 1811,

http://baptiststudiesonline.com/wpcontent/uploads/2018/03/Madison-VetoMessageCongress.pdf

11 James Madison, "Memorial and Remonstrance Against

Religious Assessments," 1785, reprinted in Norman Cousins,

"In God We Trust" (New York: Harper & Brothers, 1958) 30814. https://founders.archives.gov/documents/Madison/01-0802-0163

10

14

I consider the government of the United

States as interdicted by the Constitution from

intermeddling in religious institutions, their

doctrines, discipline, or exercises. This results

not only from the provision that no law shall

be made respecting the establishment or free

exercise of religion, but from that also which

reserves to the states the powers not

delegated to the United States. Certainly, no

power to prescribe any religious exercise or to

assume authority in religious discipline has

been delegated to the General Government. It

must rest with the States, as far as it can be

in any human authority.12

The first Supreme Court Establishment Clause

case, Everson v. Board of Education, 330 U.S. 1

(1947), is consistent with this jurisdictional

understanding of the kingdoms of Church and State.

As the Court explained at 18 (emphasis added):

The 'establishment of religion' clause of

the First Amendment means at least this:

Neither a state nor the Federal Government

can set up a church. Neither can pass laws

which aid one religion, aid all religions, or

prefer one religion over another. Neither can

force nor influence a person to go to or to

12 Thomas

Jefferson, Letter to Samuel Miller, January 23,

1808; "Thomas Jefferson on Separation of Church and State,"

https://candst.tripod.com/tnppage/qjeffson.htm.

Jefferson's

closing statement that authority over churches "must rest with

the States, as far as it can be in any human authority," reflects

his belief that the First Amendment restricts only the federal

government and not the States.

15

remain away from church against his will or

force him to profess a belief or disbelief in any

religion. No person can be punished for

entertaining or professing religious beliefs or

disbeliefs, for church attendance or nonattendance. No tax in any amount, large or

small, can be levied to support any religious

activities or institutions, whatever they may

be called, or whatever from they may adopt to

teach or practice religion. Neither a state nor

the Federal Government can, openly or

secretly, participate in the affairs of any

religious organizations or groups and vice

versa.

Everson did not address issues of strict scrutiny,

compelling interest, or rational basis. Nor did the

Court discuss specific types of state regulation of

churches. Rather, the Court stated as an absolute

that "neither a state nor the Federal Government"

can "force nor influence a person to go to or to remain

away from church against his will or force him to

profess a belief or disbelief in any religion."

After providing that "Congress shall make no law

respecting an establishment of religion," the First

Amendment adds an equally important clause, "or

prohibiting the free exercise thereof."

Like the Establishment Clause, the Free

Exercise Clause is also jurisdictional, because there

is a jurisdiction—“our duty to God and the manner

of discharging it”—that is beyond the jurisdiction of

government.

16

D. This jurisdictional understanding of

Church/State relations applies to the

Free Exercise Clause.

The Framers held a jurisdictional understanding

of Free Exercise. Certainly, foremost among the

rights included in the term "liberty" in the

Declaration of Independence is the right to free

exercise of religion.

As the Declaration makes clear, this nation was

founded upon Higher Law. The Supreme Court said

in Zorach v. Clauson, 343 U.S. 306, 313 (1952), "We

are a religious people whose institutions presuppose

a Supreme Being." The Court found that recognition

is completely compatible with statements such as

"We guarantee the freedom to worship as one

chooses" id. at 314, and "There cannot be the

slightest doubt that the First Amendment reflects

the philosophy that Church and State should be

separated. And so far as interference with the 'free

exercise' of religion and an 'establishment' of religion

are concerned, the separation must be complete and

unequivocal" id. at 312.

And in McGowan v. Maryland (1961), Justice

Douglas, the author of the Zorach opinion, stated in

dissent:

The institutions of our society are founded on

the belief that there is an authority higher

than the authority of the State; that there is

a moral law which the State is powerless to

alter; that the individual possesses rights,

conferred by the Creator, which government

must respect.

17

This is entirely consistent with Madison's

understanding of free exercise. As he said in the

Remonstrance,

We remonstrate against the said Bill,

Because we hold it for a fundamental and

undeniable truth, “that Religion or the duty

which we owe to our Creator and the manner

of discharging it, can be directed only by

reason and conviction, not by force or

violence.” [quoting from Article XVI of the

Virginia Declaration of Rights of 1776]. The

Religion then of every man must be left to the

conviction and conscience of every man; and it

is the right of every man to exercise it as these

may dictate. This right is in its nature an

unalienable right. It is unalienable, because

the opinions of men, depending only on the

evidence contemplated by their own minds

cannot follow the dictates of other men: It is

unalienable also, because what is here a right

towards men, is a duty towards the Creator.

It is the duty of every man to render to the

Creator such homage and such only as he

believes to be acceptable to him. This duty is

precedent, both in order of time and in degree

of obligation, to the claims of Civil Society.

Before any man can be considered as a

member of Civil Society, he must be

considered as a subject of the Governour of

the Universe: And if a member of Civil

Society, who enters into any subordinate

Association, must always do it with a

reservation of his duty to the General

18

Authority; much more must every man who

becomes a member of any particular Civil

Society, do it with a saving of his allegiance to

the Universal Sovereign. We maintain

therefore that in matters of Religion, no man’s

right is abridged by the institution of Civil

Society and that Religion is wholly exempt

from its cognizance. True it is, that no other

rule exists, by which any question which may

divide a Society, can be ultimately

determined, but the will of the majority; but

it is also true that the majority may trespass

on the rights of the minority.13

Establishment and Free Exercise go together. In

the term "free exercise thereof," the word "thereof"

refers back to "religion" in the Establishment

Clause.

The very punctuation of the First

Amendment sets these clauses apart from the rest.

There are three parts to the First Amendment,

separated by semicolons, and each of these parts

consists of two clauses, separated by commas:

"Congress shall make no law"

(1) "respecting an establishment of religion,

or prohibiting the free exercise thereof;"

(2) "or abridging the freedom of speech, or of

the press;

Madison, Remonstrance, https://founders.archives.gov/

documents/Madison/01-08-02-0163.

13

19

(3) "or the right of the people peaceably to

assemble, and to petition the Government for

a redress of grievances."

Note, also, that the one verb "abridging"

introduces the last two parts and sub-parts, thus

further setting these last four cluses from the first

two, the religion clauses which contain the verbs

"respecting" and "prohibiting."

Professor Leo Pfeffer called the free exercise

clause the “favored child” of the First Amendment.14

Lawrence H. Tribe argued that the religion clauses

of the First Amendment embody two concepts, i.e.,

separation, roughly embodied in the Establishment

Clause, and voluntarism, roughly embodied in the

Free Exercise Clause.

Of these, he said,

“voluntarism may be the more fundamental,” and

therefore “the free exercise principle should be

dominant in any conflict with the antiestablishment principle.”15

Jefferson's words, quoted earlier, pertain to both

establishment and free exercise:

I consider the government of the United

States as interdicted by the Constitution from

intermeddling in religious institutions, their

doctrines, discipline, or exercises. This results

not only from the provision that no law shall

be made respecting the establishment or free

14 Leo

Pfeffer, Church, State and Freedom (Boston: Beacon

Press, 1953) p. 74

15 Laurence H. Tribe, American Constitutional Law (Mineola,

New York: Foundation Press, 1978) s.14-3, p. 818, 833.

20

exercise of religion, but from that also which

reserves to the states the powers not

delegated to the United States. Certainly, no

power to prescribe any religious exercise or to

assume authority in religious discipline has

been delegated to the General Government. It

must rest with the States, as far as it can be

in any human authority.

(Emphasis added). The Court's explanation of the

Establishment Clause in Everson applies in part to

Free Exercise as well:

The 'establishment of religion' clause of

the First Amendment means at least this:

Neither a state nor the Federal Government

can set up a church. Neither can pass laws

which aid one religion, aid all religions, or

prefer one religion over another. Neither can

force nor influence a person to go to or to

remain away from church against his will or

force him to profess a belief or disbelief in any

religion. No person can be punished for

entertaining or professing religious beliefs or

disbeliefs, for church attendance or nonattendance. No tax in any amount, large or

small, can be levied to support any religious

activities or institutions, whatever they may

be called, or whatever from they may adopt to

teach or practice religion. Neither a state nor

the Federal Government can, openly or

secretly, participate in the affairs of any

religious organizations or groups and vice

versa.

(Emphasis added).

21

In United States v. Macintosh, 283 U.S. 605, 63335 (1931), the Court recognized in a case involving a

person seeking citizenship who held conscientious

objections to military service:

The essence of religion is belief in a relation

to God involving duties superior to those

arising from any human relation. As was

stated by Mr. Justice Field, in Davis v.

Beason, 133 U. S. 333, 342: 'The term 'religion'

has reference to one's views of his relations to

his Creator, and to the obligations they

impose of reverence for his being and

character, and of obedience to his will.' One

cannot speak of religious liberty, with proper

appreciation of its essential and historic

significance, without assuming the existence

of a belief in supreme allegiance to the will of

God. Professor Macintosh, when pressed by

the inquiries put to him, stated what is

axiomatic in religious doctrine. And, putting

aside

dogmas

with

their

particular

conceptions of deity, freedom of conscience

itself implies respect for an innate conviction

of paramount duty. The battle for religious

liberty has been fought and won with respect

to religious beliefs and practices, which are

not in conflict with good order, upon the very

ground of the supremacy of conscience within

its proper field. What that field is, under our

system of government, presents in part a

question of constitutional law, and also, in

part, one of legislative policy in avoiding

unnecessary clashes with the dictates of

conscience. There is abundant room for

22

enforcing the requisite authority of law as it

is enacted and requires obedience, and for

maintaining the conception of the supremacy

of law as essential to orderly government,

without demanding that either citizens or

applicants for citizenship shall assume by

oath an obligation to regard allegiance to God

as subordinate to allegiance to civil power.

The Court said the conflict between the power of the

state and what the person believes to be his duty to

God must be resolved on jurisdictional grounds. In

areas in which the state has jurisdiction, its needs

must take precedence, but in areas in which the

state does not have jurisdiction, the individual

conscience must take precedence.

The Court has sometimes recognized the power

of the State to regulate certain arguably religious

practices. But at least within the area of church

doctrine and church worship and attendance, the

Court has recognized a jurisdictional limit to the

Free Exercise Clause. In Unemployment Division v.

Smith, 494 U.S. 872 (1990), Justice Scalia

recognized that jurisdictional limit in his majority

opinion at 877-78:

The free exercise of religion means, first and

foremost, the right to believe and profess

whatever religious doctrine one desires. Thus,

the First Amendment obviously excludes all

“governmental regulation of religious beliefs

as such.” The government may not compel

affirmation of religious belief, punish the

expression of religious doctrines it believes to

be false, impose special disabilities on the

23

basis of religious views or religious status; or

lend its power to one or the other side in

controversies over religious authority or

dogma.

(Internal citations omitted).

In 2020 and 2021, the Supreme Court decided

three cases which involved the closure of churches

because of COVID-19, and ruled in all three cases

that the Governors of New York and California

violated the free exercise clause: Roman Catholic

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 63 (Nov.

25, 2020), South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 719 (Feb. 5, 2021), and

Tandon v. Newsom, 141 S. Ct. 1294, 1294 (April 9,

2021).

This is not surprising. Over the years, the courts

have wrestled with what practices are protected by

the Free Exercise Clause. But one thing has been

clear from the beginning: If the Free Exercise Clause

protects nothing else, it protects the right to go to

church and worship, and the right to believe and

speak in accordance with one’s religious convictions.

Even the concurrence in Smith recognized that

The very purpose of a Bill of Rights was to

withdraw certain subjects from the

vicissitudes of political controversy, to place

them beyond the reach of majorities and

officials and to establish them as legal

principles to be applied by the courts. One's

right to life, liberty, and property, to free

speech, a free press, freedom of worship and

assembly, and other fundamental rights may

24

not be submitted to vote; they depend on the

outcome of no elections.

Smith, 494 U.S at 903 (O’Conner, J., concurring).

II. Title VII must be interpreted to provide

broad protection to religion in light of the

First Amendment.

Now that this Court has effectively overruled the

“Lemon test” of Lemon v. Kurtzman, 403 U.S. 602

(1971), in American Legion v. American Humanist

Association, 139 S. Ct. 2067 (2019), and Kennedy v.

Bremerton School District, 597 U.S. 507 (2022), the

Court should now look to the historical context in

interpreting the religious liberty clauses of the First

Amendment.

And likewise, the Court should give a similar

interpretation to Title VII. As Executive Order No.

13798, S. 4, 82 Fed. Reg. 21675 (May 4, 2017) states,

“Religious Liberty is a foundational principle of

enduring importance in America, enshrined in our

Constitution and other sources of federal law.”16

The Order continues:

Statutory Protections

Recognizing the centrality of religious liberty

to our nation, Congress has buttressed these

constitutional

rights

with

statutory

protections for religious observance and

practice. These protections can be found in,

among other statutes, the Religious Freedom

16 Executive Order No. 13798, S. 4, 82 Fed. Reg. 21675 (May 4,

2017) p. 1.

25

Restoration Act of 1993, 42 U.S.C. §§ 2000bb

et seq.; the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. §§

2000cc et seq.; Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e et seq.; and the

American Indian Religious Freedom Act, 42

U.S.C. § 1996. Such protections ensure not

only that government tolerates religious

observance and practice, but that it embraces

religious adherents as full members of society,

able to contribute through employment, use of

public accommodations, and participation in

government programs. The considered

judgment of the United States is that we are

stronger through accommodation of religion

than segregation or isolation of it.17

Because Title VII and other statutory protections

were enacted to protect First Amendment rights,

they should be interpreted in light of the First

Amendment.

CONCLUSION

Interpreting Title VII consistently with the

religious liberty clauses of the Frist Amendment, it

is clear that the lower courts have misinterpreted

Title VII and not applied the facts of this case to the

law. The City has discriminated against Chief

Hittle, firing him for attending leadership training,

solely because that leadership training took place at

a church. There appears to be no suggestion that

this training was in any way substandard or

17 Id. P. 5a.

26

unhelpful, much less that it was harmful, in training

Chief Hittle to be a better leader and serving the

City and his Department better than before. This is

blatant discrimination against religion as prohibited

by Shurtleff and Kennedy.

The Foundation urges this Court to grant Chief

Hittle’s Petition for a Writ of Certiorari.

Respectfully submitted,

John A. Eidsmoe*

*Counsel of Record

Talmadge Butts

FOUNDATION FOR MORAL LAW

One Dexter Avenue

Montgomery, AL 36104

(334) 262-1245

eidsmoeja@juno.com

talmadge@morallaw.org

Counsel for Amicus Curiae

Nov. 15th, 2024