No FIRST BAPTIST CHURCH OF NORTH GREENE, STATE OF NORTH GREENE,

No. 17-218 FIRST BAPTIST CHURCH OF NORTH GREENE, v. Petitioner, STATE OF NORTH GREENE, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR PETITIONER Team 21 Attorneys for Petitioner Prepared in accordance with The Bluebook: A Uniform System of Citations

QUESTIONS PRESENTED 1. Whether the Free Exercise Clause does not permit a state to ignore neutral criteria established for conveying a government benefit and deny a religious organization funding based solely on its status as a religious organization and its ecclesiastical message without a historical and substantial state interest that outweighs any burden on the exercise of religion. 2. Whether the Free Speech Clause does not permit a state to deny funding to an organization based on the views expressed by a pastor in a sermon to his congregation. i

TABLE OF CONTENTS Questions Presented... i Table of Contents... ii Table of Authorities...v Opinions Below...1 Statement of Jurisdiction...1 Constitutional and Statutory Provisions Involved...1 Statement of Case...1 Summary of Argument...3 Argument:...5 I. It is a violation of the Free Exercise Clause for North Greene to deny grant funding to Caring Hands based on its status as a religious organization and based on statements made by First Baptist s pastor in a sermon to his congregation....6 A. It is a violation of the Free Exercise Clause to deny funding to Caring Hands based on its status as a religious organization when there are neutral criteria in place for the distribution of state funds because North Greene s denial does not satisfy the balancing test in Locke and cannot survive even rational basis scrutiny...6 i. North Green s denial of Caring Hands application does not fall into the play in the joints framework...7 ii. North Green s denial of Caring Hands application is subject to strict scrutiny....12 iii. North Green s denial of Caring Hands application fails strict scrutiny because it lacks a compelling government interest narrowly tailored to achieve the state s end...13 iv. North Greene s denial of Caring Hands application cannot even survive rational basis scrutiny as there is no state interest in denying funds to Caring Hands garden...14 Page ii

B. The application of the Policy to condition funding based on whether First Baptist preaches against homosexuality is an impermissible intrusion into the independence of the church and violates the Free Exercise Clause...15 i. The application of the Policy to limit First Baptist s minister from preaching against homosexuality impermissibly compels him to preach only messages approved by the government....15 ii. The application of North Greene s Policy to prevent First Baptist s minister from preaching about homosexuality is an impermissible violation of First Baptist s right to believe what it chooses...17 C. The application of North Greene s Policy is an abridgment of First Baptist s Free Exercise Clause rights and should be subject to strict scrutiny as a hybrid claim because it implicates the Free Speech Clause in addition to the Free Exercise Clause and because the Free Speech claim alone is subject to strict scrutiny...19 i. Free exercise claims, like the one in the case at bar, that implicate another constitutional provision, where the secondary constitutional claim would be subject to strict scrutiny, are hybrid claims and are subject to strict scrutiny...19 ii. The application of the Policy to deny funding to First Baptist is not narrowly tailored to achieve a compelling end and thus fails strict scrutiny....22 II. It is a violation of the Free Speech Clause for North Greene to deny grant funding to First Baptist when the Policy on which the denial was based imposes a regulation on protected speech that is at least content-based and discriminates against Caring Hands because of the viewpoint expressed by a preacher at the pulpit and places an unconstitutional condition on the receipt of funds...24 A. The State of North Greene s Anti-Discrimination Policy is unconstitutionally vague and overbroad because it is so vaguely worded that it gives inadequate notice of proscribed conduct and a substantial part of the speech it proscribes is constitutionally protected...24 i. The Policy is unconstitutionally vague because the ambiguity of the statutory language gives the public inadequate notice of proscribed conduct and allows for arbitrary and discriminatory enforcement....25 ii. The Policy is facially overbroad because a substantial portion of the conduct proscribed is constitutionally protected...28 iii

B. The denial of Caring Hands application based on the Policy violates Caring Hands First Amendment rights because it imposes a viewpoint discriminatory regulation of protected speech and cannot withstand strict scrutiny...31 i. Pastor Thomas s sermon is entitled to First Amendment protection...32 ii. The Policy s regulation of Pastor Thomas s protected speech constitutes viewpoint discrimination...32 iii. The Policy is at least a content-based regulation of speech....34 iv. Speech regulations that are based on the content or viewpoint of the speaker are subject to strict scrutiny, which the Policy cannot withstand...35 C. As applied to North Greene s rejection of Caring Hands application, the Policy violates the unconstitutional conditions doctrine...37 Conclusion...39 iv

TABLE OF AUTHORITIES Pages SUPREME COURT CASES CITED Board of County Com rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668 (1996)...37 Braunfield v. Brown, 366 U.S. 599 (1961)...17 Broadrick v. Oklahoma, 413 U.S. 601 (1973)...25, 28, 30 Cantwell v. Conn., 310 U.S. 296 (1940)...17, 20, 33 Carey v. Brown, 447 U.S. 455 (1980)...35 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)... passim City of Ladue v. Gilleo, 512 U.S. 43 (1994)...22 Connally v. General Const. Co., 269 U.S. 385 (1926)...26 County of Allegheny v. ACLU, 492 U.S. 573 (1989)...23 Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999)...36 Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)... passim Faragher v. City of Boca Raton, 524 U.S. 775 (1998)...36 Grayned v. City of Rockford, 408 U.S. 104 (1972)... 25, 26 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)...29, 30 Hobbie v. Unemployment Appeals Com., 480 U.S. 135 (1987)...13 Hosanna-Tabor Evangelical Lutheran Church & Sch. V. EEOC, 565 U.S. 171 (2012)...15, 16 Hurley v. Irish-American Gay, 515 U.S. 557 (1997)...18 Laird v. Tatum, 408 U.S. 1 (1972)...37 Larson v. Valente, 456 U.S. 228 (1982)...13, 16, 23 Locke v. Davey, 540 U.S. 712 (2014)... passim Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)...30 v

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)...26 Perry v. Sindermann, 408 U.S. 593 (1972)...37 Plyler v. Doe, 457 U.S. 202 (1982)...13, 22 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)...31, 32, 33, 34, 35 Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)...22, 35 Reno v. ACLU, 521 U.S. 844 (1997)...27 Roemer v. Bd. of Public Works, 426 U.S. 736 (1981)...11 Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)...32, 33 Rust v. Sullivan, 500 U.S. 173 (1991)...37, 38 Smith v. Goguen, 415 U.S. 566 (1974)...25, 27 Snyder v. Phelps, 562 U.S. 443 (2011)...18, 28, 29, 30 Street v. New York, 394 U.S. 576 (1979)...29 Texas v. Johnson, 491 U.S. 397 (1989)...18 Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707 (1981)...10, 17 Tinker v. De Moines Independent Comm. School Dist., 393 U.S. 503 (1969)...31 Torasco v. Watkins, 367 U.S. 488 (1961)...13 Town of Greece v. Galloway, 134 S. Ct. 1811 (2014)...16 Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 (1994)...35 United States v. Playboy, 529 U.S. 803 (2000)...36 United States v. Williams, 553 U.S. 285 (2008)...28 Walz v. Tax Comm n., 397 U.S. 664 (1970)...13, 15 Widmar v. Vincent, 454 U.S. 263 (1981)...12, 14 CIRCUIT COURT CASES CITED vi

American Friends Serv. Comm. Corp. v. Thornburgh, 941 F.2d 808 (9th Cir. 1991)... 21 Brannum v. Mo. Dept. of Corrections, 518 F.3d 542 (8th Cir. 2008)...30 Colo. Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008)....7, 8, 9 EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008)...30 Saxe v. State College Area School Dist., 230 F.3d 200 (3rd Cir. 2001)...31, 32 Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779 (8 th Cir. 2015)... 8, 10, 11 DISTRICT COURT CASES CITED George v. Kankakee Cmty. Coll., No. 14-2160 U.S. Dist. LEXIS 161379 (C.D. Ill. Oct. 27, 2014)...21 STATE COURT CASES CITED First Covenant Church v. City of Seattle, 120 Wash. 2d 203 (1992)...22 State v. Miller, 202 Wis. 2d 56 (Wis. 1996)...20 State v. Arlene's Flowers, Inc., No. 91615-2, 2017 Wash. LEXIS 216 (Feb. 16, 2017)...31 STATUTES AND CONSTITUTIONAL PROVISIONS 42 U.S.C. 2000d, et seq (1964)...29, 36 20 U.S.C. 1681(a), et seq (1972)...36 U.S. Const. Amend. I... Passim OTHER AUTHORITIES Bradley P. Jacob, Free Exercise in the Lobbying Nineties, 84 Neb. L. Rev. 795 (2006)...22 Cara McClellan, Discrimination as Disruption: Addressing Hostile Environments Without Violating the Constitution, 34 Yale L. & Pol y Rev. (2015)...29 Craig Peyton Gaumer, Punishment for Prejudice: A Commentary on the Constitutionality and Utility of State Statutory Responses to Hate Crimes, 39 S.D. L. Rev. 1 (1994)...34 Gary Stuart McCaleb, A Century of Free Exercise Jurisprudence: Don t Practice What You Preach, 9 Regent U. L. Rev. 253 (1997)...21 vii

Michael V. Hernandez, The Right of Religious Landlords to Exclude Unmarried Cohabitants: Debunking the Myth of the Tenant s New Clothes, 77 Neb. L. Rev. 494 (1998)...20, 21 viii

OPINIONS BELOW The decision of the United States District Court for the Eastern District of North Green granting The State of North Greene s Motion to Dismiss is unreported and is not reproduced in the record. On appeal, The Fourteenth Circuit affirmed the District Court s dismissal of First Baptist s Free Exercise claims but reversed the dismissal of First Baptist s Free Speech claims. The Fourteenth Circuit s decision, decided December 18, 2016, is reproduced in the record. STATEMENT OF JURISDICTION Per competition rules, jurisdiction has been waived. STATUTORY AND REGULATORY PROVISIONS INVOLVED This case involves Article II, Section 8 of the North Greene Constitution and North Greene s Anti-Discrimination Policy, which are both reproduced in the Record at page five. STATEMENT OF THE CASE Since the fall of 2007, First Baptist Church ( First Baptist ) has operated Caring Hands, a community garden and soup kitchen to serve those in need. (R. at 3.) For the last ten years, Caring Hands has served three meals every week to any member of the North Greene community in the dining facility of First Baptist s fellowship hall. (R. at 3.) While First Baptist made Bibles and other religious literature available to visitors of the Caring Hands soup kitchen, no recipient of aid was required to accept the literature or First Baptist s religious tenants. (R. at 3.) More than 75% of the produce grown in the Caring Hands garden goes to the soup kitchen. (R. at 3.) The remaining portion is used to feed sick members of the church community and members of the congregation during church picnics. (R. at 3.) When the growing season is particularly abundant, the extra produce is sold to citizens of North Greene. (R. at 3.) All proceeds go to funding the operation of Caring Hands. (R. at 3.) 1

The community garden serves as an educational tool for the entire community. (R. at 3.) Various groups, including local Boy Scout and Girl Scout groups, have had the opportunity to take agricultural classes. (R. at 3.) Needy members of the community who visit the soup kitchen can also attend these classes. (R. at 3.) The Caring Hands garden has become a tool, by which the entire community learns about sustainable growth and healthy food preparation. (R. at 3.) The agricultural classes do not have a religious element but are solely a way to teach the community about the practice of growing food in a private garden. (R. at 3.) The Caring Hands director learned that the State of North Greene ( North Greene ) operated a subsidized fertilizer grant program, the No Waste Program, and applied for the grant. (R. at 4.) According to the neutral criteria used to evaluate applicants, Caring Hands was ranked in the top ten percent of applicants. (R. at 4.) North Greene provided funding to the top forty percent of applicants that year but refused to provide funding to Caring Hands. (R. at 4.) On July 13, 2015, Caring Hands received a letter from the director of the No Waste Program indicating that its application had been denied. (R. at 5.) Caring Hands was provided with two bases for the denial. (R. at 5.) First, its very status as a religious organization precluded its eligibility under Article II, Section 8 of North Greene s Constitution ( Constitutional Provision ). (R. at 5.) Second, the viewpoint articulated in a sermon about homosexuality by First Baptist s Pastor, John Thomas, was offensive to a homosexual visitor, Kyle Kalvert, and thereby violated the State s Anti- Discrimination Policy ( the Policy ). (R. at 4-5.) Since the Policy provides that violators are ineligible for state funding, Caring Hands was disqualified as an applicant. (R. at 5.) First Baptist filed a complaint in the United States District Court for the Eastern District of North Greene ( District Court ) on the basis that North Greene had violated its First Amendment rights by denying funding on the basis of its religious status and viewpoint. (R. at 5.) The District 2

Court granted North Greene s motion to dismiss, concluding that the State s denial of funding violated neither the Free Exercise nor Free Speech clauses of the United States Constitution. (R. at 6.) The Fourteenth Circuit Court of Appeals ( Circuit Court ) affirmed the District Court s decision in part and reversed in part. (R. at 6.) The Circuit Court concluded that although North Greene had not violated First Baptist s rights under the Free Exercise Clause, the Policy constituted impermissible viewpoint discrimination and violated First Baptist s rights under the Free Speech Clause. (R. at 6.) First Baptist appealed the Circuit Court s decision regarding the Free Exercise claim, and North Greene cross appealed the decision regarding First Baptist s Free Speech claim. The Supreme Court of the United States granted certiorari on this cross-appeal. SUMMARY OF THE ARGUMENT 1. The decision of the Circuit Court to affirm the decision of the District Court to dismiss First Baptist s claims under the Free Exercise Clause of the First Amendment, U.S. Const. Amend. 1 ( Free Exercise Clause ), should be reversed. When a law that affects religious exercise is neither neutral nor generally applicable, this Court has held that it should be subject to strict scrutiny. The Constitutional Provision as applied in the instant case denies funding only to religious organizations and is neither neutral nor generally applicable. This Court found in Locke v. Davey ( Locke ) that some restrictions on government support of ecclesiastical entities are permitted by the Free Exercise Clause even though providing the support would not violate the Establishment Clause. 540 U.S. 712 (2014). The Court in Locke balanced the burden on religious exercise with the historical and substantial state interest present in that case and permitted the state to withhold funding from the training of ministers. In the case at bar, the burden on religious exercise is significant, and North Greene lacks a historical and significant interest in denying funding for a fertilizer grant. Therefore, the application of the 3

Constitutional Provision to First Baptist in the instant case is subject to strict scrutiny. Without a compelling state interest narrowly tailored to achieve the state s end, the Constitutional Provision is unconstitutional as applied to First Baptist. The Policy is also unconstitutional as applied to First Baptist. The purpose of the Free Exercise Clause is to prevent government intrusion into ecclesiastical decision making. By conditioning funds on whether First Baptist preaches against homosexuality, North Greene is impermissibly intruding upon the independence that ministers and churches possess to determine a belief system and to proselytize those beliefs. Even if the Court finds that the Policy is not an impermissible intrusion into ecclesiastical matters, it is still subject to strict scrutiny. This Court found that even neutral and generally applicable laws can be subject to strict scrutiny if they implicate the Free Exercise right as well as another well-established constitutional right. The Court referred to this as a hybrid claim. The hybrid claim theory has not been tested by this Court since, and its limitations are thus not clearly delineated in precedent. This Court need not fully determine the reach of the hybrid claim theory. It is enough that the secondary claim, here the violation of First Baptist s right to free speech, is well-founded and would be subject to strict scrutiny. Therefore, the application of the Policy to First Baptist should be subject to struct scrutiny, and absent a compelling state interest narrowly tailored to achieve the state s end, must fail. 2. This Court should affirm the Circuit Court s reversal of the District Court s dismissal of First Baptist s claims under the Free Speech Clause of the First Amendment ( Free Speech Clause ). U.S. Const. Amend. I. The Policy is unconstitutional both on its face and as applied to First Baptist and should therefore be struck down. The Policy is void for vagueness because it is too ambiguous for a person to reasonably know if his or her conduct falls within the 4

prohibitions of the law. The Policy is also substantially overbroad because a substantial portion the conduct proscribed by the Policy is constitutionally protected. The vague and expansive language of the Policy gives inadequate notice of what conduct is proscribed, and the plain language prohibits a significant amount of constitutionally protected speech. Therefore, it is unconstitutionally vague and overbroad. The Policy should be struck down because it infringes on First Baptist s Free Speech rights. Pastor Thomas s sermon was constitutionally protected speech. Although the Policy characterizes the sermon as harassment, there is no categorical exception for harassment which would remove its First Amendment protection. Since the Policy only bars funding to those who espouse a particular viewpoint, it constitutes impermissible viewpoint discrimination and is subject to strict scrutiny. The Policy is at least a content-based regulation of speech and is therefore subject to strict scrutiny. Since no compelling state interest is served by penalizing the religious teachings of a preacher at the pulpit, the Policy cannot withstand strict scrutiny. Finally, even if this Court finds that the Policy is not facially unconstitutional, and is content-neutral, it is still unconstitutional because it violates the unconstitutional conditions doctrine. North Greene s Policy conditions the receipt of government funding on the abdication of the right to Free Speech, thereby imposing an unconstitutional condition on the receipt of funds. For these reasons, this Court should affirm the Circuit Court s decision in support of First Baptist rights under the Free Speech Clause. 5

ARGUMENT I. It is a violation of the Free Exercise Clause for North Greene to deny grant funding to Caring Hands based on its status as a religious organization and based on statements made by First Baptist s pastor in a sermon to his congregation. The Constitutional Provision is unconstitutional as applied to Caring Hands because it denies funding based on Caring Hands affiliation with a religious organization and does not fit into the balancing test established in this Court s decision in Locke. It is thus subject to and fails strict scrutiny. The Policy is also unconstitutional as applied to First Baptist because it intrudes upon the minister s independence from state control and dictates religious positions to religious bodies. The Policy, paired with First Baptist s Free Speech claim, also creates a hybrid right claim, which is subject to strict scrutiny. For these reasons, Petitioner requests that this Court reverse the Circuit Court decision regarding First Baptist s Free Exercise claim and compel North Green to give Caring Hands the funding it qualified for under North Green s own criteria. A. It is a violation of the Free Exercise Clause to deny funding to Caring Hands based on its status as a religious organization when there are neutral criteria in place for the distribution of state funds because North Greene s denial does not satisfy the balancing test in Locke and cannot survive even rational basis scrutiny. But for the fact that Caring Hands was run by a Church, it would have received the public funds from the No Waste Program. (R. at 13) (Monroe, J., dissenting). The First Amendment of the United States Constitution provides in pertinent part, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. U.S. Const. Amend. I. When a government actor imposes a restriction upon an individual or a group based on its religion, it has violated that person or group s rights under the Free Exercise Clause. This Court permits some restrictions affecting religious practice. A restriction on the funding of the training of clergy was upheld under Locke v. Davey because the state had a historical and compelling interest, and the burden on religious practice was minimal. 540 U.S. 6

712 (2004). An examination of Locke and the facts in the instant case indicate that North Greene s denial of funding to First Baptist does not fit within the play in the joints between the Establishment and Free Exercise Clauses as described by Locke. The denial must therefore be examined using strict scrutiny. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Without a compelling state interest narrowly tailored to achieve the state s end, the Constitutional Provision is unconstitutional as applied to Caring Hand s application for the state s No Waste Program. Additionally, because there is no state purpose in the denial of funding to First Baptist, even if this Court were to apply rational basis review to the denial, it would still be unconstitutional. i. North Green s denial of Caring Hands application does not fall into the play in the joints framework. This Court in Locke created an exception to Lukumi s prohibition on government provisions and laws that target religious exercise. The Court found, [T]here are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause. 540 U.S. 712, 719 (2004) (upholding a state scholarship program that provided funding for students at religious schools but not for students majoring in theology). The Court called this room in between the Free Exercise and Establishment Clauses the play in the joints. Id. The Circuit Court interpreted this framework very broadly. (R. at 8.) However, this Court s decision in Locke does not permit states unfettered discretion in denying funding to religious institutions. See Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1256 (10th Cir. 2008) ( [The Court in Locke] also indicated that the state s latitude with respect to funding decisions has limits. ); see also (R. at 13) (Monroe, J. dissenting) ( Chief Justice Rehnquist stated simply that there is room for play in the joints, not that there is a free-for-all in the joints. ). 7

North Greene s denial of Caring Hands application does not fit within the discretion allotted to it by Locke and is therefore not excluded from Lukumi strict scrutiny. See generally Colo. Christian, 534 F.3d at 1254 (finding some legislative discretion in making funding decisions, limited by Locke itself and other Supreme Court precedent); see also Trinity Lutheran Church of Columbia, Inc. v. Pauley, 788 F.3d 779, 791 (8th Cir. 2015) (Gruender, J. dissenting). ( Locke did not leave states with unfettered discretion to exclude the religious from generally available public benefits. ). This Court in Locke utilized a balancing test, finding that because the state s provision was mild, 540 U.S. at 720, and the state had a historic and substantial interest in not directly funding theology majors the state scholarship policy withstood constitutional scrutiny. 540 U.S. at 725; see also (R. at 8.) The Circuit Courts have been grappling to determine the limitations of state discretion under Locke. Compare Colo. Christian, 534 F.3d at 1253, with Trinity Lutheran, 788 F.3d at 785. This Court should follow the example of the Tenth Circuit, which found, The [Locke] Court s language suggests the need for balancing interests: its holding that minor burdens and milder forms of disfavor are tolerable in service of historic and substantial state interests implies that major burdens and categorical exclusions from public benefits might not be permitted in service of lesser or less established governmental ends. Colorado Christian, 534 F.3d at 1255-56 ( The [Locke] opinion thus suggests, even if it does not hold, that the State s latitude to discriminate against religion is confined to certain historic and substantial state interests and does not extend to the wholesale exclusion of religious institutions and their students from otherwise neutral and generally available government support. ) (citing Locke, 540 U.S. at 725) (internal citation omitted); see also Trinity Lutheran, 788 F.3d at 792 (Gruender, J. dissenting). This Court should examine whether North Greene s denial of funding to Caring Hands farming 8

efforts is unconstitutional through the same balancing inquiry used by this Court in Locke. See Colo. Christian, 534 F.3d at 1255. The first inquiry for analyzing whether the State s denial fits into the play in the joints is the extent to which the denial disadvantages religious institutions. See Colo. Christian, 534 F.3d at 1255. This Court in Locke found, [The scholarship provision] is of a far milder kind. It does not require students to choose between their religious beliefs and receiving government benefit. 540 U.S. at 720-21. In Locke, the denial of funding was limited to the direct funding of theology degrees, and this Court pointed out that training someone to lead a congregation is an essentially religious endeavor. 540 U.S. at 721. This Court in Locke found that far from making schools choose between government funding and offering religious majors and [f]ar from evincing the hostility toward religion, which was manifest in Lukumi, the entirety of the [scholarship program] goes a long way toward including religion in its benefits. 540 U.S. at 724. The program in Locke allowed students to not only attend religious schools but also to take religious classes. 540 U.S. at 716-17. Unlike the provision in Locke, the blanket denial of funding to Caring Hands based solely on its status as a religious organization is tantamount to a requirement that Caring Hands choose between its religious beliefs and receiving the government benefit. (R. at 14) (Monroe, J. dissenting). It was irrelevant to the State that Caring Hands could only use the state funding for a purely secular purpose: purchasing fertilizer for its nonprofit farm. See (R. at 13) (Monroe, J. dissenting). Also unlike the provision in Locke, North Greene does not limit its reach to denying funding to primarily religious endeavors. (R. at 14) (Monroe, J. dissenting). It denies funding for secular work solely because the owner of the project is religious in character. Id. Here, there is 9

no balance between the program and the fact that First Baptist Church is a religious organization; rather, there is a distinct disfavor of religion that was not present in Locke. In the present case, if an organization is religious, then it is point-blank excluded from the program. (R. at 14) (Monroe, J dissenting). In other words, Caring Hands must choose between operating its farm, with the financial assistance to which it is entitled according to North Greene s own criteria, or abdicating its status as a religious organization. While the compulsion may be indirect, the infringement upon Free Exercise is nonetheless substantial. See generally, Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 717-18 (1981) (finding that condition placed on receipt of public funds that even indirectly requires a religious group or individual to forgo conduct proscribed by a religious faith is a severe burden on the exercise of religion). For this reason, the impairment on Caring Hands is not mild; it is a substantial impairment on Carting Hands ability to obtain any state aid in the operation of its secular farm. North Greene lacks a historical and substantial interest in denying funding to First Baptist Church. This Court in Locke emphasized that the State had a historical interest in limiting scholarship funding to exclude subsidizing the training of clergy. 540 U.S. at 721. An examination of the relevant history reveals that the interest in avoiding the use of tax dollars to support the clergy was at the root of the Establishment Clause. Locke, 540 U.S. at 722-23. Therefore, the State had a historical justification for not subsidizing the training of clergy. North Greene, however, cannot make such a claim. No such historical concerns exist in the present case. First Baptist Church simply applied for funds to fertilize its miniature farm, which is used to feed the needy through the soup kitchen that it operates. There is no risk of overreaching clergy. (R. at 14) (Monroe, J dissenting); see also Trinity Lutheran, 788 F.3d at 792 (Gruender, 10

J. dissenting) (finding that because Missouri s interest in providing funding was the protection of the environment and the safety of children, it could not justify denying funds to the church under the same historical concerns that allowed the state in Locke the discretion to not fund the training of clergy, an inherently religious endeavor). Without a similar historical underpinning, North Greene does not have a historical interest in limiting the funding of fertilizer for community gardens, regardless of the religious affiliation of the garden s owner. Because the direct funding of clergy training is closely related to government establishment of religious principles, this Court found a substantial interest in limiting scholarship funding for religion majors. Locke, 540 U.S. at 721. However, the funding of fertilizer for First Baptist s farm does not have the same implications as did the funding of religion majors in Locke. See Trinity Lutheran, 788 F.3d at 793 (Gruender, J. dissenting) (finding that if the substantial interest requirement of Locke is interpreted to include state bans on participation in state programs like the one in the case at bar for religious organizations, then all government aid could be denied to religious institutions, a reach that the Court in Locke never envisioned). The funds provided to First Baptist are limited to use for the purchase of fertilizer in a particular program. See (R. at 13) (Monroe, J., dissenting). There is no risk that the funds will be averted to religious purposes. (R. at 13) (Monroe, J., dissenting). Even if the provision of public funding to a religious organization has the result of freeing up funds for that organization s nonsecular work, the Establishment Clause is not implicated. See Roemer v. Bd. of Public Works, 426 U.S. 736, 746 (1976). Therefore, such concerns should not be used as justification for denying funds to religious organizations. Id. Thus, there is no concern that the State will be viewed as directly funding religious exercise or establishing a state religion. and there is really no risk of 11

animosity in the public perception of use of the funds. (R. at 13-14) (Monroe, J. dissenting). Without some evidence of the appearance of impropriety there is no substantial interest in denying generally available funding to religious organizations. See Widmar v. Vincent, 454 U.S. 263, 278 (1981) (discrimination based on religion in limited public forum cannot be justified by interest in avoiding establishment clause litigation); see also (R. at 13) (Monroe, J. dissenting). Furthermore, any risk of seeming to favor religious institutions would be overcome by the neutral criteria established by North Greene. (R. at 5.) Because there is a neutral process already in place, North Greene s interest in avoiding the appearance of favoring or working to establish religion is eliminated. There is no substantial interest in denying funds to Caring Hands. For this and the foregoing reasons, the denial of Caring Hands application does not survive the balancing test established by Locke and must be examined as a Free Exercise violation, subject to the boundaries set forth by Lukumi. ii. North Green s denial of Caring Hands application is subject to strict scrutiny. Because the denial of First Baptist s application does not fit into the play in the joints described by Locke, it must be examined to determine if it is a neutral and generally applicable limit on the exercise of religion. See generally, Employment Div., Dep t. of Human Resources v. Smith, 494 U.S. 872 (1990). North Greene s denial of Caring Hands application under the Constitutional Provision discriminates against Caring Hands based solely on its status as a religious institution. (R. at. 5.) This is not a neutral and generally applicable application of the law. It is clear from this Court s precedent that [t]he government may not impose special disabilities on the basis of religious views or religious status. Smith, 494 U.S. at 877 (citing McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); Larson 12

v. Valente, 456 U.S. 228, 245 (1982)); see also Torasco v. Watkins, 367 U.S. 488, 493 (1961). At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. Lukumi, 508 U.S. at 532. North Greene s denial of Caring Hands application disregarded the objective criteria established by North Greene for determining which nonprofit organizations should be awarded funding. (R. at 5.) North Greene instead chose to base its determination solely on Caring Hands status as a religious organization. (R. at 5.) This Court in Lukumi found if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. 508 U.S. 531; see generally Walz v. Tax Comm n., 397 U.S. 664, 669 (1970). This Court found in Hobbie v. Unemployment Appeals Commission of Florida that the denial of any public benefit based on religious status or belief is subject to strict scrutiny. 480 U.S. 136, 144 (1987). The denial in the instant case is based on Caring Hands religious status and is not neutral and generally applicable. It is thus subject to strict scrutiny. iii. North Green s denial of Caring Hands application fails strict scrutiny because it lacks a compelling government interest narrowly tailored to achieve the state s end. To survive strict scrutiny, this Court requires that the government action be precisely tailored to serve a compelling governmental interest. See Smith, 494 U.S. at 887 n. 3 ( [W]e strictly scrutinize governmental classifications based on religion. ) (citing McDaniel v. Paty, 435 U.S. 618 (1978); and Torcaso v. Watkins, 367 U.S. 488 (1961)); see also Plyler v. Doe, 457 U.S. 202, 218 (1982) (explaining the application of strict scrutiny). North Greene s denial of Caring Hands application for grant funding cannot withstand this level of scrutiny. 13

North Greene has no compelling interest in denying funds to Caring Hands. It is uncontested that providing funding to Caring Hands farm would not implicate the Establishment Clause. (R. at 7.) This Court found in Widmar v. Vincent that a similar constitutional provision in Missouri, while facially valid, must operate within the bounds of the Free Exercise and Free Speech Clauses. 454 U.S. 263, 276 (1981) (finding free speech violation, implicating free exercise concerns, in university policy that denied public forum to religious student organizations). In that case, the desire to avoid Establishment Clause violations was not sufficiently compelling that the application of Missouri s Constitutional provision to limit the free speech of religious groups could survive strict scrutiny. Id. Therefore, North Greene s desire to avoid the appearance of an Establishment Clause violation is not a compelling state interest. Additionally, North Greene s denial of Caring Hands application is not narrowly tailored to achieve the state s interests in avoiding an Establishment Clause violation. This Court has held that to survive strict scrutiny, the state must use the least restrictive means available to it. See Lukumi, 508 U.S. at 546. The state s goal of avoiding the appearance of favoring any religion or impermissibly intruding upon the Establishment Clause is met by North Green s generally applicable and neutral criteria for allotting funds. (R. at 5, 7.) The least restrictive means of avoiding an Establishment Clause violation or the appearance of impropriety has already been established in the case at bar. Therefore, the denial of First Baptist s application is not narrowly tailored to meet a legitimate end and thus fails strict scrutiny. iv. North Greene s denial of Caring Hands application cannot even survive rational basis scrutiny as there is no state interest in denying funds to Caring Hands garden. Even if this Court finds that the denial of funds to First Baptist is neutral and generally applicable and should be considered under Smith s deferential framework, it must still satisfy rational basis scrutiny: the state must still have some legitimate purpose for the denial. See Smith, 14

494 U.S. at 886 (rejecting strict scrutiny for claims under neutral and generally applicable laws but not finding government can implement these laws without any purpose). It is uncontested that there is no Establishment Clause concern implicated by providing grant funds to First Baptist s community garden. (R. at 6.) Furthermore, because there are neutral criteria in place, there is no risk that it will appear North Greene is establishing a government religion. Therefore, there is no government purpose in denying funds to First Baptist, and the denial fails even the most deferential standard of review. B. The application of the Policy to condition funding based on whether First Baptist preaches against homosexuality is an impermissible intrusion into the independence of the church and violates the Free Exercise Clause. If the Free Exercise Clause has any power, it must preclude the government from dictating the religious beliefs of ministers and churches. By applying the Policy to deny funding to churches because of religious statements made in front of a voluntary audience from the pulpit of a church, North Greene is attempting to control what First Baptist s minister preaches about and thus the religious beliefs espoused by the church. An examination of related precedent demonstrates that this intrusion into a religious institution is an unconstitutional abridgment of First Baptist s right to free exercise of religion. i. The application of the Policy to limit First Baptist s minister from preaching against homosexuality impermissibly compels him to preach only messages approved by the government. This Court has recognized the danger of permitting the government to dictate religious beliefs and practices of ministers and religious organizations. See e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012) (finding government cannot interfere in hiring and firing decisions of church ministers); Walz v. Tax Com. of New York, 397 U.S. 664, 669 (1970) ( [W]e will not tolerate either governmentally established religion or 15

governmental interference with religion. ); Town of Greece v. Galloway, 134 S. Ct. 1811, 1821-22 (2014) (noting that limiting the types of prayers given in city council to only generic, nondenominational invocations would intrude on the freedom of ministers and would be but a few steps removed from [requiring] chaplains to redact the religious content from their message in order to make it acceptable for the public sphere ). North Greene has impermissibly intruded into the content of a minister s sermon by conditioning receipt of government funds on whether his sermon conforms to government approved views. There is a historical concern in preventing the government from disfavoring religious beliefs of which it disapproves. See Larson v. Valente, 456 U.S. 228, 244-45 (1982) (finding tax policy that treated religious organizations differently based on the percentage of funding received from donations violated Establishment Clause). The Free Exercise Clause was written on the backdrop of England s history of limiting the exercise of religion within its sovereign borders. Hosanna-Tabor, 565 U.S. at 182-85 (noting that Henry VIII created the Church of England and forced English citizens to conform to his Protestant faith). The Free Exercise Clause was intended to prevent the government from dictating to its citizens how they should exercise their religious beliefs. Id. The Court has been careful to prevent government intrusions into the relationship between a minister and his or her congregation. See Hosanna-Tabor, 565 U.S. at 185-87. This Court in Hosanna-Tabor reaffirmed the idea that the government cannot interfere with religious independence. Id. at 188. In that case, a teacher, considered a minister by Hosanna-Tabor, was fired in apparent violation of the American s with Disabilities Act. Id. at 179. However, this Court declined to permit the teacher to file suit for improper dismissal. Id. at 195. This Court found that despite being a neutral and generally applicable law, which would seem to create 16

protection from invalidation under this Court s opinion in Smith, the Americans with Disabilities Act could not constitutionally be used to require a church to retain one of its ministers. Id. at 190. While the Court s opinion in Hosanna-Tabor was limited to whether the government could control the hiring and firing of ministers, it stands for the broader proposition that the government cannot and should not interfere with ecclesiastical decision-making, which includes the ability of a minister and his or her church to determine the content of sermons. North Greene is attempting to control the message First Baptist s minister conveys to his congregation. This is a severe intrusion into the independence of First Baptist s minister and is a violation of the Free Exercise Clause. ii.the application of North Greene s Policy to prevent First Baptist s minister from preaching about homosexuality is an impermissible violation of First Baptist s right to believe what it chooses. This Court in Cantwell v. Connecticut found that the [First Amendment] embraces two concepts, -- freedom to believe and freedom to act. The first is absolute. 310 U.S. 296, 303-04 (1940); see also Braunfield v. Brown, 366 U.S. 599, 603 (1961) ( The freedom to hold religious beliefs and opinions is absolute. ). North Greene found that statements made from First Baptist s pulpit about homosexuality and gay marriage were sufficient justification to deny the church s application under the Policy. (R. at 5.) This is tantamount to dictating the religious beliefs First Baptist can legally espouse from its pulpit. North Greene s Policy conditions receipt of public funds on First Baptist forgoing a religious practice that is prescribed by its religious belief. (R. at 5.) This Court in Thomas found, Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his 17

beliefs, a burden upon religion exists. 450 U.S. at 717-18. First Baptist is required to forgo the dissemination of religious doctrine from its pulpit as a condition for the receipt of funds from North Greene. This is a substantial burden on First Baptist s exercise of religion. There is no reason to believe that First Baptist acted in any way that would qualify as discriminatory, in either its services or its soup kitchen. In fact, the record indicates that a homosexual man attended the service. (R. at 4.) There is no indication that anyone showed any animosity toward him. (R. at 4.) He was offended by the contents of a controversial sermon, but no action was taken against him based on his sexual orientation. (R. at 4.) There is no indication in the record that either First Baptist or Caring Hands takes any action against congregants, visitors, or recipients of aid based on sexual orientation. (R. at 3-4.) First Baptist Church, like every other religious group, has a system of belief, and its leader, like all leaders of religious groups, spoke to his congregation about that system of belief. (R. at 3.) While North Greene might disagree with these beliefs, it may not deny government benefits to First Baptist based on them. To do so is a violation of the Free Exercise Clause. This Court has carefully guarded the right of religious organizations and individuals to hold and express even offensive and hurtful religious beliefs. See, e.g., Hurley v. Irish-American Gay, 515 U.S. 557 (1995) (finding parade organizers must be allowed to exclude homosexual marchers despite city anti-discrimination concerns under First Amendment s Free Speech provisions); Snyder v. Phelps, 562 U.S. 443 (2011) (finding Westboro Baptist has First Amendment Free Speech right to protest at funeral because the First Amendment protects even hurtful speech); and Texas v. Johnson, 491 U.S. 397, 414 (1989) ( If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. ) (striking down 18

Texas ban on flag burning as a restriction on speech). First Baptist has done nothing more than express a religious belief. (R. at 4-5.) North Greene s denial of First Baptist s application based on statements made in the church s pulpit unconstitutionally penalized the church for its religious belief and violates the Free Exercise Clause of the First Amendment. C. The application of North Greene s Policy is an abridgment of First Baptist s Free Exercise Clause rights and should be subject to strict scrutiny as a hybrid claim because it implicates the Free Speech Clause in addition to the Free Exercise Clause and because the Free Speech claim alone is subject to strict scrutiny. This Court in Smith created an exception to that case s deferential framework for claims that implicate both the Free Exercise Clause and another constitutional provision. There has been debate about the reach of Justice Scalia s hybrid claim language as no recent Supreme Court decision has been decided under this framework. However, the substantial impediments to two well-established fundamental rights, as presented in the case at bar, warrants such an application. Under the hybrid claim framework as described by legal scholars, if the secondary claim would be considered under strict scrutiny, so should the Free Exercise claim. Because the secondary claim is a viewpoint-based, or at least a content-based, restriction on speech, it is subject to strict scrutiny and so should the Free Exercise claim. Because there is no compelling state interest in the application of the Policy to First Baptist that is narrowly tailored to achieve the government s end, the application of the Policy to First Baptist is unconstitutional i. Free exercise claims, like the one in the case at bar, that implicate another constitutional provision, where the secondary constitutional claim would be subject to strict scrutiny, are hybrid claims and are subject to strict scrutiny. Even if this Court finds that North Greene s Policy is neutral and generally applicable, it should still be subject to strict scrutiny under this Court s decision in Smith. While Smith did provide that generally applicable and neutral laws could constitutionally restrict religious exercise, Justice Scalia s majority opinion was careful to limit the opinion s reach to cases that 19

only implicate the Free Exercise Clause. 494 U.S. at 882. Justice Scalia wrote, The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech. Id. at 881. The Court found that claims implicating both the Free Exercise Clause and some other constitutional provision are hybrid claims, which are not entitled to the deference provided in Smith. The only requirement Justice Scalia established for a hybrid claim is that the statute implicates the Free Exercise Clause as well as another constitutional provision. He cited several Supreme Court decisions that he found had been decided as a hybrid claim. Smith, 494 U.S. at 881; see also Michael V. Hernandez, The Right of Religious Landlords to Exclude Unmarried Cohabitants: Debunking the Myth of the Tenant's "New Clothes", 77 Neb. L. Rev. 494, 528-29 ( [T]he Court explained in Employment Division v. Smith that it applied strict scrutiny review in some other earlier decisions, because those cases involved Hybrid claims, where some other claim based on a constitutional protection or fundamental right was raised in addition to a free exercise claim. ). For example, in Cantwell v. Connecticut this Court invalidated a licensing scheme for solicitation. 310 U.S. 296, 302-03 (1940). The scheme required a determination about whether the group wanting to solicit was a religious or charitable organization before a license could issue. Id. at 302. The Cantwell Court noted that the licensing scheme implicated both the First Amendment right to Free Exercise of Religion as well as the right to Free Speech. Id. at 307 ( The fundamental law declares the interest of the United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not abridged. ); see also State v. Miller, 202 Wis. 2d 56, 67 n.8 (Wis. 1996) ( The Smith Court concluded, 20