Quiz #75 -- How does the government satisfy "strict scrutiny"?

Can you believe we are up to Religion Law Quiz #75?  What a milestone?  In honor of that milestone today’s quiz focuses on a key concept that is critically important to many constitutional rights. 

 

How does the government satisfy “strict scrutiny”? 

 

(Scroll down for the answer)

 

Answer: Here’s how the Supreme Court answered that question three years ago. 

 

Strict scrutiny “is not ‘watered down but really means what it says,’ Lukumi, 508 U.S. at 546, 113 S.Ct. 2217 (internal quotation marks and alterations omitted). To satisfy it, government action ‘must advance ‘interests of the highest order’ and must be narrowly tailored in pursuit of those interests.’ Ibid. (quoting McDaniel, 435 U.S. at 628, 98 S.Ct. 1322).”

Espinoza v. Montana Dep't of Revenue, 207 L. Ed. 2d 679, 140 S. Ct. 2246, 2260 (2020)

 

Disclaimer: The Religion Law Quizzes are provided as a service to the bar. They are informal, non-binding hypothetical questions intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

 

HERE IS AN AI GENERATED SUMMARY OF TODAY’S PODCAST

 

 

Welcome to episode 75 of the Religion Law Podcast. In this episode, your host Michael Fielding, throws light on the concept of strict scrutiny as applied to religion-related legal cases. Focusing on the key legal principles from the major Supreme Court decision, Espinoza v. Montana Department of Revenue in 2020, Michael shares insights on how the government satisfies strict scrutiny.

Discussing how strict scrutiny isn't just a label but it really implies what it signifies, he emphasizes the need for government actions to advance the highest order of interests and to be strictly tailored in pursuit of such interests. A practical application of strict scrutiny is also shared from a layperson's viewpoint with some memorable and relatable examples.

This episode takes us on a journey where we get a more systematic understanding of the Supreme Court's religious freedom-related cases over the past years. The episode ends with the assurance that the next episodes will be even more significant, offering an up-to-date understanding of the law and how it affects us.

Laid out in a convenient question-and-answer format, this episode of the Religion Law Podcast is a valuable resource for anyone keen on understanding the legal aspect of religious freedom. The content is solely for educational purposes and is not intended as legal advice.

Episode Transcript

(00:01):
Welcome to another episode of the Religion Law Podcast, where you learn about
religious freedom and other religion law-related topics through a short question-and-answer format.
I'm your host, Michael Fielding.
Let's see how you do on today's quiz.
Welcome to Religion Law Quiz number 75, numero 75.

(00:25):
Another big milestone, 75 is a great number to hit. and we are plowing ahead.
We are planning to do many more episodes of the religion law quiz.
We'll see if life circumstances allows us to carry it out. All right.
So with quiz number 75 today, I know a few quizzes ago, we had touched on a

(00:47):
few items from the Supreme Court's 2020 decision, Espinoza v.
Montana Department of Revenue.
But what we're going to be doing really starting at quiz number 75 and going
all the way up to quiz either 82 or 83, with one minor exception.
We'll deviate in one of the quizzes. But with the exception of that,
we're going to focus on some really key legal principles from the religion from

(01:12):
the 2020 Supreme Court decision.
And just to give you a preview, quite candidly, of what you can expect really
from now, starting on quiz quiz number 75, all the way going up through quiz number 150,
is we're going to start walking a little bit more methodically through the Supreme

(01:32):
Court religious freedom-related cases in the past three or four years,
and really pulling out key points of the law,
talking about how it applies to a lay person.
And I think these quizzes over the next few weeks are going to be super important
because because this is going to give you what is.

(01:52):
Current state of the law. And it'll be helpful, it'll be beneficial,
and hopefully can be a good resource that you can just review,
like when you're exercising or
driving or whatever, just to keep yourself refreshed on what the law is.
All right. So with 75, we're actually going to keep 75 really simple.

(02:12):
And the question here for you is, how does the government satisfy strict strict scrutiny.
Interesting question. What do you think? How does the government satisfy strict scrutiny?
Well, here's what the Supreme Court said in the Espinoza decision.

(02:33):
And again, I'll have the citation in the show notes. The Supreme Court said,
strict scrutiny is not watered down, but really means what it says.
To satisfy it, government action must advance interests of the highest order
and must be narrowly tailored in pursuit of those interests, close quote.

(02:58):
Now, that's a simple definition, and people will say, well, what's the practical
layman's application here for me?
And the best way that I can think about how to describe it at the moment is to say this.
When the Supreme Court imposes a strict scrutiny standard.

(03:22):
On something, and in this case, we're talking about the imposition of some government
regulation that would somehow infringe or impede a person's ability to exercise their religion.
When the Supreme Court, when you have a government doing that,
the Supreme Court said that that government action is going to be reviewed under

(03:45):
a strict scrutiny standard.
And the Supreme Court is making it really clear here that this is not just a,
talking judges just saying that, but then in reality, they put the label of
strict scrutiny on and then anything passes muster, so to speak.
Because sometimes, like I'll give you an example, at times you will see people

(04:10):
say, oh, there's a risk to children.
And so we have to impose this safety regulation, or we have to do this or that.
And clearly protecting children is super important.
But at the same time, the regulation that is imposed may very well be overkill,

(04:34):
or it may not be narrowly tailored. I'm giving an extreme example.
Maybe there is some practice or something out there, and on average,
four kids die per year because of this.
And it's obviously when when any child dies, it's tragic.
That's the reality of the matter for anything.
But at the same time, and this is the economics major in me,

(04:56):
the reality of the matter is we can't stop all heartache from ever happening.
And when I was in college, the best example that I heard, which is very memorable,
was my economics professor.
He said, hey, there are X number number of people that are killed every single
year from railroad accidents where they get hit by trains.

(05:19):
And he was right. And then he said, and guess what?
We have a technology that could 100% stop this. And he was right as well.
And what is that technology? It's called a bridge.
And the reality of the matter is we could build bridges to go over every train
track in the the United States, but the cost of doing so would be super expensive.

(05:44):
And the reality of the matter is we...
Take other measures because there are limited funds available and we don't have
bridges over every single railroad track in the United States.
Well, taking that example, taking that concept here and applying it to this
notion of strict scrutiny,

(06:04):
what the government is saying is that when there is a governmental interest
here that is infringing on religion,
it's again going to to be weighed under the standard of strict scrutiny.
And the government has to have a super, super important reason for imposing
the restriction or the regulation.

(06:26):
And, and this is the caveat, that has to be narrowly tailored in pursuit of those interests.
So you can't go in there and say, they, you know, we're trying to protect this particular interest.
And so instead of, I'll give you another analogy.

(06:47):
We want to kill a fly.
And obviously the simple, easiest way to get a fly would be use a fly swatter
or maybe even some fly tape.
Narrowly tailored, has minimal impact. But instead, if the government comes
in and instead of using a fly swatter, or the government comes in with a baseball bat,

(07:08):
the equivalent of a regulatory baseball bat, well, then that's not narrowly
tailored because it's going to be doing a lot more damage and infringing or
causing more damage than what otherwise could happen.
So maybe my analogies are not the best today.
I realize I'm recording this at the end of the day, and if so,

(07:29):
my analogies are not the best, But I hope you can bear with me in understanding
the point here that I'm trying to get across,
which is, A, when the Supreme Court says it's strictly construed, it really means it.
And then if you have strict construction or strict scrutiny,
then what the Supreme Court says

(07:49):
is there has to be a super important government reason for doing this.
And the means that are being used to address it have to be narrowly tailored.
So, in other words, it's this precision pinpoint surgical strike, so to speak,
and you can't come in just with a cluster bomb, so to speak,
to try to alleviate the situation when you have perhaps a missile that could

(08:15):
do the pinpoint surgical strike to take care of the problem.
All right, that does it for today's quiz. I hope to see you on the next Religion Law Quiz. quiz.
Thank you for listening to today's episode. Remember, religion law quizzes are
for educational purposes only and are not intended to be relied upon as legal advice.

(08:36):
If you have found this episode to be helpful, please share it and leave a review.
Until we meet again, keep being an influence for.
Music.