RC Past Exam Essay Question 2

SAMPLE ESSAY EXAM QUESTION (40 POINTS)

It is the summer of 2023, and WashU has just completed a full academic year of in-person classes. In July, St. Louis County Commissioner Sam Page announces at a press conference that a new strain of coronavirus, SARS-CoV-3, has been detected in several communities in the United States. Early data suggests that this new strain spreads slightly faster and is somewhat deadlier than COVID-19, though the exact transmission rates are unknown. Fortunately, the federal government has just approved an experimental vaccine for SARS-CoV-3 that is likely (though not certain) to provide immunity.

Page, wanting to be a proactive local leader, issues an order that all residents of St. Louis County must be vaccinated. Page specifies that the county will need a 90% vaccination rate to create “herd immunity” that will stop the virus. He notes that “health exemptions” will be granted to those residents with “any health condition that would make a vaccination harmful” and also underscores that “no religious exemptions from vaccination will be allowed.” Residents claiming the medical exemption will need a signed note from any licensed health care provider.

Page also declares that St. Louis County will be on lockdown to any non-residents except for essential workers, which includes only health care professionals, grocery store workers, and K-12 teachers. WashU students not living in the county will be required to take classes over Zoom. WashU students residing in the county will be able to attend classes in-person.

Assume that Page’s orders are not subject to challenge for reasons not covered in our course. Discuss all issues related to our course raised by the additional facts below. Cite relevant authorities to support your arguments.

1a. Julie (10 points)

Roughly 10% of the county population is granted health exemptions and not vaccinated. Most controversially, a small percentage of the health exemptions are granted to individuals whose sole objection to vaccination is that being vaccinated would cause them severe mental health anxiety. Julie, a Christian Scientist who works at WashU’s law school as an administrative assistant, refuses to be vaccinated on the basis that doing so would violate her sincerely held religious beliefs. The Christian Science community in St. Louis County is split on the issue, with roughly half voluntarily taking the vaccination and the other half opposing vaccination.

1b. Cole (20 points)

Cole, a college minister, leads the WashU Christian Student Club and lives in the city. He has been vaccinated and would like to meet with students at WashU for prayer and to administer holy communion to them. But he learns that as a city resident he is not permitted on campus. When he inquires with Page’s office, a staffer tells Cole that he is not an essential worker and that he should simply meet with students over Zoom. Page’s staffer also informs Cole that none of the other campus ministers living in the city have complained. When Cole mentions that the only campus ministers who live in the county are Catholic priests, which means that only Catholic clergy will be able to meet in-person with students, Page’s staffer says “that’s not our problem.” Cole tries again and says “My WiFi is so spotty that I can’t effectively minister to my students over Zoom.” Exasperated, the staffer in Page’s office tells Cole that he should apply for Missouri’s Tech Relief Fund, a special fund that the legislature has established for Missouri residents lacking critical infrastructure to online access. The staffer tells Cole that this fund is usually for lower-income residents, but the state has recently been issuing grants to anyone claiming a complication to online access related to pandemic orders. But the staffer cautions Cole that she isn’t sure whether the funding can go to religious applicants.

1c. Daniel (10 points)

Daniel is an Orthodox Jewish student who lives in a city neighborhood in walking distance to campus. (For purposes of this exam question, assume that this neighborhood is in the city and not the county.) Daniel has chosen to live in this neighborhood because he can walk to synagogue and to campus and live in a community with other Orthodox Jews. He feels disadvantaged by being forced to take classes over Zoom while other students who live in the county can meet in-person.

An above average Exam response

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STUDENT RESPONSE (2,487 words):

A. Julie’s objection to the vaccine mandate raises Free Exercise issues. After Smith, a law that is neutral to religion and generally applicable only needs to pass rational basis review against a Free Exercise challenge. Julie needs to argue that the law is not neutral or generally applicable toward religion to trigger strict scrutiny (Lukumi, Masterpiece).

Sincerity. Julie can show that her opposition to the vaccine is a sincerely held religious belief. Although Christian Scientists are split on vaccination, courts will generally defer to Julie’s individual belief about vaccines. See Thomas.

Neutrality. To establish a lack of neutrality in the mandate, Julie needs to show evidence of animus or hostility toward religion. Lukumi. This could include concurrent statements of authority figures that reveal an impermissible purpose to discriminate against religion. Masterpiece. Julie could identify Page’s emphatic denial of religious exemptions, but, on its own, this statement is unlikely to show non-neutrality. It looks much less hostile toward religion than city council members’ statements in Lukumi or commissioners’ statements in Masterpiece. Page’s statement indicates that the mandate will apply to religious and non-religious residents alike, in contrast to the “religious gerrymander” the Court found non-neutral in Lukumi. To argue that the law is non-neutral toward religion, Julie will need more than Page’s statement.

General Applicability. A stronger argument for Julie is that the mandate is underinclusive and not generally applicable. Julie can point to the health exemption and, as in Newark Police, argue that once the government extends a medical exemption that undermines its state interest, it must also extend a religious exemption. However, unlike in Newark Police, the County has a stronger argument that any necessary exemptions it grants strengthen its state interest because of the nature of herd immunity. Because the County already granted 10% of the popoulation a health exemption, it needs to vaccinate every other County resident to reach 90% herd immunity.

But, after Tandon, government regulations are not neutral or generally applciable when they treat any comparable secular activity more favorably than religious exercise. Julie can point to the mental heatlh exemption as “comparable” to a religious exemption because it protects emotional well-being as opposed to physical well-being. Julie’s argument that the mental health exemption is comparable to a religious exemption is even more convincing than the Tandon Court’s comparison of private home gatherings to public retail services. After Tandon, Julie will likely succeed in showing that the law is neither neutral nor generally applicable.

Strict Scrutiny. While Masterpiece and Cuomo seem to suggest that if Julie can show a lack of neutrality to religion, she may automatically win her case without reaching strict scrutiny, Julie should still argue that: 1) the vaccine mandate substantially burdens her sincerely held religious belief; 2) the County lacks a compelling government interest in the mandate; and 3) even if the County’s interest is compelling, it is not narrowly tailored to serve its interest.

Substantial Burden. Forcing Julie to receive an injection that violates her sincerely held religious belief against vaccination is clearly a substantial burden on her Free Exercise.

Compelling Interest. Julie can argue that the County mandate lacks a compelling government interest because SARS-CoV-3 is not yet widespread, and because the vaccine is experimental without guarantee of immunity. The County’s grant of mental health exemptions may also undermine its compelling interest in achieving 90% herd immunity, although these only made up a small number of the health exemptions and still required certification from a licensed health care provider. The experimental nature of the vaccine gives Julie a strong argument that the County lacks a compelling interest in the mandate.

Narrowly Tailored. Even if the County can establish a compelling interest in reaching 90% herd immunity through the vaccine mandate, Julie can argue this interest is not narrowly tailored because of the mental health exemption. This analysis mirrors the “general applicability” analysis (Lukumi); therefore, Julie also has a strong argument that the County’s interest is not narrowly tailored.

Overall, Julie can make a strong showing that the law is neither neutral nor generally applicable because it grants a mental health exception while denying a comparable religious exception. Applying strict scrutiny, Julie will likely prevail on her Free Exercise claim because of the experimental nature of the vaccine and the mental health exception.

B. Tech Relief Fund (TRF). The Tech Relief fund can likely be distributed to religious applicants like Cole consistent with the Establishment Clause. If the MO legislature denies the funds to religious applicants as a policy or practice, this would likely violate Cole’s Free Exercise.

Establishment Clause. After Witters and Zelman, when a government funding program is neutral toward religion and provides assistance directly to a broad class of citizens who then use the aid for religious purposes solely as a result of their independent private choice, the program does not violate the Establishment Clause. The TRF looks like a neutral program that provides funding to a broad class of MO citizens who lack online infrastructure to cope with lockdown orders. Aside from the staffer’s warning, the program does not seem to allot funds differently based on religion or to award a direct subsidy to religion. Here, Cole would receive the funds directly and make an independent private choice to use the funds to purchase better WiFi so that he could more effectively minister to his students on Zoom. His private choice would function as a “circuit-breaker” and prevent any Establishment Clause violation. And, while not material to the Establishment Clause issue after Zelman, Cole would likely receive a de minimis amount of funding, which cuts against an Establishment Clause violation.

Even under Lemon, Cole’s receipt of the TRF funds would likely comply with the Establishment Clause. To survive a Lemon test challenge, Missouri would need to show that the TRF 1) has a secular legislative purpose; 2) its principal or primary effect neither advances nor inhibits religious practice; and 3) the TRF does not result in an “excessive government entanglement” with religion. Here, prongs 1 and 3 work in favor of allowing Cole to receive the TRF. TRF clearly has a secular legislative purpose to equalize access to the internet during the lockdown, and Cole’s receipt and un-monitored use of the funds as an individual citizen do not suggest an excessive entanglement of government with religion. Prong 2 is the closest question, as Cole’s receipt of the funds may advance religion by his use of Wifi and Zoom to host religious services. But, this is not the “primary effect” of his receipt of the funds - instead, the primary effect is to provide Cole the same access to internet as his fellow citizens.

Free Exercise. If Missouri denies Cole the generally available TRF aid because of his religious status as a campus minister, this would violate his Free Exercise rights. Trinity Lutheran, Espinoza. But, Missouri may still deny Cole TRF funds because of his religious use, and because of the “historical and substantial” tradition in refusing to fund the clergy. Locke, Espinoza. If Cole challenged denial of the TRF under Free Exercise, Missouri would likely argue it denied him the funds because of his religious use, not his status as a minister, and that it should be allowed “play in the joints” of the Religion Clauses under Locke. But as we see in application of the status-use distinction in Espinoza (and Gorsuch’s concurring opinion), the status-use distinction is conceptually thin. In Espinoza, the Court found Montana denied the religious school funds because of their status as a religious school, even when the funds would likely have funded some religious uses. Here too, Cole will have a strong argument that MO is denying him the funds because of his status as a campus minister, and not because of his potential religious use of the funds. Cole will likely prevail on his Free Exercise challenge, especially given that the technology funds fall outside the tradition of not funding devotional theological education in Locke.

Catholic Priest Problem. Cole can argue that allowing only Catholic Priests to access campus, at the exclusion of all other campus ministers, is an impermissible establishment of religion. Because there is no evidence of a religious purpose or government entanglement in the law (Lemon), O’Connor’s endorsement test is most appropriate here. Cole would need to show that the law’s purpose or effect communicate a message of endorsement or disapproval of religion, from the standpoint of an objective observer acquainted with the legislative history and text of the statute. Lynch (O’Connor concurring). While there is no evidence of impermissible purpose to allow only the Catholic priests on campus, the effect of the law limits mobility for all non-Catholic clergy who minister in the County while allowing Catholic priests to continue to minister freely. A reasonable observer like Cole could perceive this as an endorsement of Catholicism to the exclusion of all other religions. But, Cole’s argument may still falter because of the merely incidental effect on religion compared to the overall scheme of the law. Many citizens’ mobility will be limited if they are non-residents and not deemed “essential workers.” To gain campus access, Cole may need to rely on Free Exercise.

Campus Access. To access campus through Free Exercise, Cole would need to show that the County exclusion of non-resident ministers as “essential workers” violates Free Exercise because it is neither neutral nor generally applicable, triggering strict scrutiny (Lukumi). After Smith, neutral laws of general applicability must only pass rational basis review to survive a Free Exercise challenge.

Sincerity & Substantial Burden: The County would be unlikely to contest that Cole’s deeply held religious beliefs of ministering to students in person are sincerely held. But the County may argue the lockdown order imposes no substantial burden on Cole’s Free Exercise because he can still minister to students on Zoom. Because religious worship and sacraments like communion lie at the core of Free Exercise, Cole is likely to show a substantial burden because he cannot administer communion to students over Zoom, and because his technological difficulties complicate transition of the campus ministry online. See Cuomo.

Neutrality: To show non-neutrality, Cole would need to show evidence of the County’s hostility or animus toward religion in excluding ministers from the list of non- resident essential workers. Lukumi. There is no evidence of government hostility toward ministers in the enactment or history of the essential workers provision, so Cole would need to show a lack of general applicability instead.

General Applicability: To argue the law is not generally applicable, Cole will need to show that it is underinclusive because of its other exemptions. Lukumi. After Tandon, even a single comparable secular exemption will make the law neither neutral nor generally applicable. Cole’s best argument for a comparable secular exemption is that non-resident K-12 teachers are deemed essential workers, and that he is providing religious services in an educational environment. Cole’s job is distinguishable from K-12 teachers since he ministers to college students on a private campus. But because of the Court’s broad conception of “comparable” in Tandon (equating private home gatherings to hair salons and movie theaters) Cole’s argument may succeed. If Cole can show the law is not neutral, then he may prevail on his Free Exercise claim without reaching strict scrutiny. E.g., Masterpiece.

Strict Scrutiny: Cole should still prepare to argue strict scrutiny. As discussed above, he can show a substantial burden on his religion in his inability to minister to students in-person. The County likely has a compelling interest in preventing the spread of SARS-CoV-3 across its borders and maintaining herd immunity, but Cole can argue this interest is not narrowly tailored because the County could achieve the same interest by requiring all non-resident workers to be vaccinated before entering the County. Cole would likely prevail on this argument, since he is vaccinated and would not contribute to the spread of COVID-19 in the County.

C. Daniel’s potential objection to the lockdown order exemplifies the tension between the Free Exercise and Establishment Clause.

Free Exercise. If Daniel brought a Free Exercise challenge to the law, his major hurdle would be demonstrating a substantial burden on religious exercise, because his place of residence seems more like a lifestyle choice than a religious belief. Cf. Yoder. Daniel clearly has an interest in living with an Orthodox Jewish community and being able to walk to synagogue and campus. But, the Court has refused to recognize a substantial burden in other cases when religious plaintiffs’ cases were rooted in the location of their religious practice and when granting an exemption would amount to dictating the internal affairs of the government. See Lyng (“Government simply could not operate if it were required to satisfy every citizen’s religious needs and desires”). Courts are likely to defer to Daniel’s religous belief as sincere and deeply held (Thomas). But, unlike Yoder, in which the Court found a substantial burden because the Amish religion and way of life were truly inseparable, here Daniel likely lacks a substantial burden because his religious worship and practice are separable from his desired lifestyle of walking to campus, living in an Orthodox Jewish neighborhood, and attending in-person classes. The Court is also unlikely to find Daniel’s Zoom education to be a substantial burden on his religious practice, as it does not restrict worship or observing his beliefs.

Daniel would also have difficulty showing that the law is neither neutral nor generally applicable to trigger strict scrutiny on a Free Exercise claim because there are no other exemptions for non-resident students, only for essential workers. Even the Tandon argument of a single “comparable” secular exemption is not available to Daniel.

Establishment. Even if Daniel could bring a successful Free Exercise claim, recognizing an exemption for Daniel could border on establishment of religion because the County would have to extend the benefits of this exemption to Daniel’s entire Orthodox Jewish neighborhood in the City. This looks suspiciously like the boundary drawing on a religious criteria that the Court found non-neutral toward religion and unconstitutional in Kiryas Joel.

Everson is also instructive, as the Establishment Clause at least means a government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” If the County provided an exemption for Daniel and other Orthodox Jewish students in his neighborhood, it may then need to exempt students of other religions to achieve neutrality between religions. And to achieve neutrality between religious and non-religious students, the County may have to grant secular exemptions for students, such as for disability or poor WiFi access. The landslide of necessary exemptions would completely obviate the County’s interest in preventing travel into the County and reducing transmission of SARS-CoV-3.

The same logic also strengthens the County’s argument against Daniel’s Free Exercise claim; when mandatory participation is indispensable to the government’s overriding state interest, the limitation on Free Exercise is justified. Lee.