CONSTITUTIONAL LAW ESSAY EXAM #4

Question #1

In the town of Retirement World, California, pet owners start reporting mysterious cuts on their dogs. Investigation leads to a quasi-Christian religious cult, the Church of the Blood of Christ (CBC). Further investigation leads the police to discover that the CBC has as a ritual, relatively minor in the religion’s dogma, something called the “leaching of the animals of Christ,” in which small pets are given a minor cut by exactly seven believers, and their blood ritually spilled to the ground. This discovery shocks the small retirement community, which consists of privately-owned land governed by a corporation, in which each resident owns shares proportionate to the size of his or her house lot. The town, in addition to home lots, has two main streets with storefronts, a post office and a county sheriff substation. The roads are privately owned, but link up to the state of California’s road system at either end of the town. A sign at the end of each of the main roads reads “Private P roperty: Residents, Invited Guests and Those on Official Business Only.” At the next meeting of the town’s Board of Directors, the Board enacts the following town ordinance:

“No cutting of live animals shall be allowed except in cases of pest destruction, animals under the care of a doctor, humane euthanasia, and hunting.”

1. In response to the ordinance, the CBC sues.

While the lawsuit is pending, the CBC refrains from performing the ritual described above, but instead, performs a mock-up of that ritual, in which stuffed animals are used along with red Kool-Aid to simulate blood. To increase the town’s awareness of their presence, the cult requests a parade permit to perform the mock-up ritual every Sunday afternoon for the next month. In response, the town’s Board enacts the following ordinance.

“No parades of more than five individuals will take place within the next six months, and such parades as are allowed must include only the marchers and no props of any types.”

2. The CBC amends its lawsuit to challenge this second ordinance.
What claims can the CBC make? How likely is it that they will prevail?

View Answer

I. CBC v. Retirement World
1. State Action
The first question that has to be asked is whether Retirement World is a state actor at all. Only state government and its sub-entities are bound by the Fourteenth Amendment, not private parties. In determining whether an ostensibly private party is in fact acting in a way that requires adherence to constitutional requirements, the courts have found four categories of state action:

a) private parties performing public functions;
b) government entangled with private parties;
c) legislative approval of private action; and
d) judicial enforcement of private action

Here, the only possible category that fits is the first one. In Marsh v. Alabama (1946) the Court found a company-owned town to be a state actor, as it had all the features of a town. The facts here are quite similar to that in Marsh, except that the residents themselves own the town. Homeowners of course are not state actors, but when they act together to create the semblance of a town, there is much more reason to find state action. While shopping centers have been found not to be state actors (Hudgens v. NLRB (1976)), the facts here are much closer to Marsh. Thus, even though the public function prong of the state action doctrine is limited, this is probably one situation where it would apply.
Conclusion: Retirement World is probably a state actor.
2. Free Exercise Clause
The question is whether the first ordinance violates the Free Religious Exercise Clause of the First Amendment. Generally speaking, if a statute burdens religious conduct only incidentally, as part of a generally applicable rule of conduct, then the Free Exercise claim fails. (Employment Division v. Smith (1990)). In Smith, for example, a generally applicable rule that firing from a job for drug use disqualifies one for unemployment compensation was held valid, despite the fact that it burdened the religious exercise of the plaintiffs, who smoked a hallucinogenic drug as part of a Native American religious ritual. However, government action aimed at religious exercise in particular will be subject to strict scrutiny and probably struck down (Church of the Babalu Aye v. Hialeah (1993)).
Here, there is reason to suspect that the statute, even though facially neutral, was motivated by concerns over the CBC’s rituals. The impetus from the statute arose because of the discovery of the cult’s action, and its exceptions suggest that very little animal cutting will be banned except that done by the CBC. Note also that any legitimate interest the town might have had in protecting animals could have been taken care of by an animal theft and/or an animal cruelty statute that would not have been so closely targeted at the CBC’s actions.
Note finally that it doesn’t matter whether the ritual is central or peripheral to the religion’s dogma. The Supreme Court has been unwilling to inquire, in Free Exercise cases, into the centrality of a particular ritual.
Conclusion: The cutting ordinance is probably unconstitutional.
3. Free Speech/Time Place and Manner Regulation
The parade ordinance seems to be a targeted law masquerading as a neutral law, here, a time, place, and manner restriction on speech. The first requirement of such restrictions is that they be content-neutral. Here, the ordinance is facially neutral, but because it was enacted immediately after the CBC started requesting permits, and because its numerical cut-off is just under the number of people necessary for the ritual, there’s good reason to believe that it is content-based. Thus, as a content-based restriction on speech in a traditional public forum – a street – the ordinance would have to satisfy strict scrutiny.
It is unlikely that the statute could satisfy strict scrutiny. There is no compelling reason for the restriction, except residents’ dislike of the speech or their fear that it will lead to converts, neither of which is a legitimate, let alone a compelling, reason for restricting speech.
If for some reason a court held that the ordinance was in fact content-neutral, then the ordinance would have to be narrowly tailored and allow the speakers an alternative means of making their message heard (Ward v. Rock Against Racism (1989)). The narrow tailoring requirement here is not as strict as that similarly-worded requirement in equal protection (Ward). Even so, it might be asked whether the speakers did in fact have an alternative means of speaking, since the ordinance bans all marches of six or more people for six months, thereby making it impossible for the CBC to perform the ritual as it is required to be performed, i.e., with seven individuals. Moreover, the ban on use of props would also make the ritual harder to perform, and thus burden speech, probably unnecessarily (since any legitimate government interest, such as a concern for safety or litter, could be taken care of by less speech restrictive means). A total ban on marches for that long a period is a significant burden on speech, which might fail even the lenient time, place or manner test.
Under either analysis, then, the ordinance is probably unconstitutional.
Conclusion: The parade ordinance would probably be declared unconstitutional.

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