! Docket No. 666/14 IN THE SUPREME COURT OF THE UNITED STATES

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Docket No. 666/14
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2014
STATE OF FROESSEL,
Petitioner,
- Against -
JEFF LIU,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEETNTH CIRCUIT
BRIEF FOR RESPONDENT
Team #14
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QUESTIONS PRESENTED
I. Under the Second Amendment to the United States Constitution, are FCCL § I and II
unconstitutional by limiting citizens’ rights to bear arms for self-defense when the statute
requires applicants to demonstrate a “justifiable need”?
II. Under the Froessel Religious Freedom Restoration Act (RFRA), does FCCL § III violate Jeff
Liu’s right to exercise of religion by commanding he provide state-mandated firearm training
against his religious beliefs, or else pay severe and inescapable fines?
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TABLE OF CONTENTS
QUESTIONS PRESENTED………………………………………………………………………i
TABLE OF CONTENTS ………………………………………………………………………...ii
TABLE OF AUTHORITIES……………………………………………………………………...v
OPINIONS BELOW………………………………………………………………………………1
STATEMENT OF THE CASE……………………………………………………………………2
Statement of Facts…………………………………………………………………………2
Procedural History………………………………………………………………………...4
SUMMARY OF ARGUMENT…………………………………………………………………...5
ARGUMENT……………………………………………………………………………………...7
I. FCCL §§ I AND II ARE UNCONSTITUTIONAL BECAUSE THE JUSTIFIABLE NEED
REQUIREMENT INFRINGES ON RESPONDENT’S SCECOND AMENDMENT RIGHT
TO KEEP AND BEAR ARMS FOR SELF-DEFENSE………..………..………..……………7
A. The Right To Bear Arms For Self-defense Extends Outside The Home Because
Confrontations Where Death Can Occur Are Not Limited To The Home. ………..………..8
B. FCCL § I Burdens Respondent’s Conduct Within The Second Amendment Because It
Infringes Upon The Core Component Of The Second Amendment, Self-defense.…………9
C. The Correct Standard Of Review Is Strict Scrutiny Because The Justifiable Need and
Training Requirements Of The FCCL Infringe Upon The Fundamental Right Of Selfdefense Under The Second Amendment. ………..………..………..………..……………11
1. FCCL § I and § II are invalid under the “least restrictive means” requirement of strict
scrutiny, because the government can advance public safety through less restrictive
means without infringing upon Liu’s constitutional right………..………..……….......11
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2. Under the less severe review of intermediate scrutiny the FCCL is invalid because the
“justifiable need” and training requirements are not related to achieving the state’s
interest in public safety or preventing crime.……...……...…………………………….13
D. FCCL I and II are invalid because a person of average intelligence cannot accurately
guess at the regulation’s meaning. ……...……………………………...…………………..15
II. FCCL § III IS UNCONSTITUTIONAL AS APPLIED TO LIU BECAUSE THE
STATUTE SUBSTANTIALLY BURDENS HIS RELIGIOUS EXERCISE, THE STATE OF
FROESSEL FAILED TO DEMONSTRATE ENFORCEMENT IS THE LEAST
RESTRICTIVE MEANS OF FURTHERING ITS COMPELLING STATE INTEREST, AND
AN ACOMMODATION IS CONSISTENT WITH THE ESTABLISHMENT CLAUSE.…..17
A. The U.S. Court Of Appeals For The Thirteenth Circuit Correctly Applied Strict Scrutiny
Because The State of Froessel Enacted The Religious Freedom Restoration Act To Restore
The Compelling Interest Test, Which Protects Liu’s Exercise of Religion Under Hobby
Lobby. …………………………...……………………………...…………………………..17
1. Jeff Liu is entitled to RFRA protection under Hobby Lobby because Peace Keeper is a
closely-held company that can only operate through Liu. ……...……………………….17
B. FCCL § III Violates Liu’s Rights Under RFRA Because The Statute Substantially
Burdens Liu’s Religious Exercise By Demanding He Provide Services Against His
Religious Beliefs, Restricts His Ability To Operate His Business In Accordance With His
religious Beliefs Or Pay Substantial Fines For Noncompliance. ……...…………………..19
1. FCCL § III substantially burdens Liu’s exercise of religion because it imposes
oppressive and potentially crippling penalties for noncompliance. ……...……………...19
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2. FCCL § III is not a neutral law of general applicability because it coerces Liu into
choosing between his religious fidelity or pay incalculable fines. ……...………………21
C. FCCL III Fails Strict Scrutiny Because The Substantial Burden Imposed On Liu Is Not
Justified By Froessel’s Enforcement To Achieve Its Compelling Interests Through The
Least Restrictive Means. ……...……………………………...…………………………….22
1. The State of Froessel’s interest in ensuring access to the commercial marketplace is
neither specific nor compelling to justify infringement on Liu’s religious exercise…….23
2. FCCL § III does not satisfy the least-restrictive means test because Froessel has not
offered any evidence to demonstrate alternatives are not viable to justify its substantial
burden on Liu’s exercise of religion. ……...……………………………...……...……...25
D. An Exemption Under RFRA Does Not Violate the Establishment Clause Because it Does
Not Demonstrate an “Establishment” of Religion, Provide Financial Support, Or Entangle
the Government With Liu’s Religious Beliefs.……...……………………… ……...……...27
CONCLUSION……...……………………………...……………………………...……………28
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TABLE OF AUTHORITIES
United States Supreme Court Cases
Ashcroft v. ACLU, 542 U.S. 656 (2004). ……………………………………………………….26
Bob Jones Univ. v. U.S., 461 U.S. 574 (1983). ……………………………………………..23, 25
Braunfeld v. Brown, 336 U.S. 599 (1961). ………………………………………………….18, 21
Burwell v. Hobby Lobby Store, Inc., U.S. Lexis 4505 (June 30, 2014). ……18, 19, 20, 23, 24, 26
Champlin Ref. Co. v. Corporation. Comm’n of State of Okl., 286 U.S. 210 (1932).…………...15
City of Boerne v. Flores, 521 U.S. 507 (1997). ……………………………………………..18, 22
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483
U.S. 327 (1987). ……………………………………………………………………………..27, 28
Cutter v. Wilkinson, 544 U.S. 709 (2005). ……………………………………………………...27
Dist. of Columbia v. Heller, 554 U.S. 570 (2008). ……………………...1, 8, 9, 10, 11, 14, 15, 17
Gonzales v. O’Centro Espirita Beneficente Unia de Vegetal, 546 U.S. 418 (2006).……23, 24, 26
Grayned v. City of Rockford, 408 U.S. 104 (1972).……………………………………..………16
McDonald v. City of Chicago, III, 130 S.Ct. 3020, 3036 (2010)……………………1, 8, 9, 11, 12
Prince v. Mass., 321 U.S. 158 (1944)………………………………………………………..23, 25
Roberts v. United States Jaycees, 468 U.S. 609 (1984)……………………………………...23, 25
Sherbert v. Verner, 374 U.S. 898 (1968)………………………………….………....18, 19, 21, 22
Thomas v. Review Bd. of Employ’t Sec. Div., 450 U.S. 707 (1981)…………………....19, 21, 22
United States v. Lee, 445 U.S. 252 (1982)……………………………………………...……….24
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 445 U.S. 489 (1982)………….15, 16
Wis. v. Yoder, 406 U.S. 205 (1972).………………………………….……………..…..18, 21, 22
Walz v. Tax Comm’n of City of New York, 397 U.S. 664 (1970).…………………………27, 28
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United States Court of Appeals Cases
High Ol’ Times Inc. v. Busbee, 673 F.2d 1225 (11th Cir. 1982).…………………….…15, 16, 17
Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 100 (2d. Cir. 2012)……...……………….13, 15
Liu v. Froessel, 665 F. Supp. 3d 5321 (13th Cir. 2014)………………………………..…2, 13, 22
Moore v. Madigan, 702 F.3d 933, 935 (7th Cir. 2012)…………………………………..…8, 9, 11
Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014)…………………………….8, 10, 11
United States v. Marzzarella, 614 F.3d 85 (3d. Cir. 2010)……………………………7, 11, 12, 13
Woollard v. Gallagher, 712 F.3d 865, 876 (4th Cir. 2013)…………………………………..13, 15
Statutory Provisions
Froessel Conceal Carry Law……………………………………………………………………All
Restoration of Freedom of Religion Act……………………………………………………1, 5, 7
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OPINIONS BELOW
Jeff Lui sued in the United States District Court for the District of Froessel, challenging
three sections of the Froessel Conceal Carry Law. Lui argued that FCCL § I and II are
unconstitutional on their face because the “justifiable need” and firearm training requirements
infringe on his constitutional right under the Second Amendment to bear arms for self-defense,
as recognized in District of Columbia v. Heller, 554 U.S. 570 (2008), and incorporated against
the states in McDonald v. City of Chicago, 561 U.S. 542 (2010). Additionally, Lui challenged
FCCL § III as-applied, arguing the public accommodation requirement violates RFRA because it
substantially burdens his exercise of religion.
At trial, the district court found (1) Jeff Liu is a “law-abiding, responsible citizen” within
the meaning of Heller, regardless of any alleged violation of FCCL § III; (2) Jeff Liu is an
adherent of the Christian faith; (3) Jeff Liu has a sincerely held religious belief, which requires
him to refrain from any transaction, commercial or otherwise, with Satanists and other
individuals whose faith offends his Christian values; (4) Jeff Liu’s refusal to offer his training
services to Sigmund Yung because of Sigmund’s Satanic beliefs constitutes religious-affiliation
discrimination within the meaning of FCCL § III.
In an unpublished opinion, the District Court granted Froessel’s motion for summary
judgment, upholding the constitutionality of the Froessel Conceal Carry Law (“FCCL”) on the
grounds that it does not regulate conduct within the scope of the Second Amendment. The
District Court also denied Petitioner’s claim for a religious exemption from FCCL § III under the
Froessel Religious Freedom Restoration Act (“RFRA”) because it found that FCCL § III, as
applied to Petitioner, satisfies RFRA’s strict scrutiny standard.
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Jeff Lui appealed the judgment of the District Court to the United States Court of
Appeals for the Thirteenth Circuit. The Court held the “justifiable need” requirement of FCCL §
I is facially unconstitutional because it obstructs law-abiding citizens from exercising their
constitutional and fundamental right to bear arms under the Second Amendment. Additionally,
the Court held FCCL § III invalid as applied to Jeff Liu because the State of Froessel failed to
satisfy strict scrutiny under RFRA and an exemption is consistent with the Establishment Clause.
The Thirteenth Circuit reversed and remanded the judgment to the District Court. The opinion of
the Court of Appeals for the Thirteenth Circuit is reported at Liu v. Froessel, 665 F. Supp. 3d
5321 (13th Cir. 2014).
In response to the Appeal by the State of Froessel of the judgment of the United States
Court of Appeals for the Thirteenth Circuit, the Supreme Court of the United States has granted
writ of certiorari.
STATEMENT OF THE CASE
STATEMENT OF FACTS
Gotham is the capital city of the State of Froessel. Since 2001, Gotham has become an
epicenter of crime, including narcotics and prostitution. Froessel has maintained the highest rate
of handgun violence in the United States and slowest police response time, averaging 30 minutes
compared to three in neighboring areas. One legislative finding reported approximately 3,000
firearm related homicides in Froessel in 2001 alone. By 2007, this statistic increased to roughly
6,000 per year, with the majority occurring in public.
In 2007, Froessel enacted its first and only firearm regulation, The Froessel Conceal
Carry Law (“FCCL”). FCCL prohibits all citizens from openly carrying a firearm in public. Any
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resident seeking to carry a concealed firearm in public must obtain a permit issued by the
superintendent of the Froessel State Police. However, the superintendent may only issue permits
for handguns. Thus, the FCCL does not designate how citizens can obtain a conceal-carry permit
for firearms other than handguns. Additionally, applicants must demonstrate a “justifiable need”
and obtain a Training Certificate from a firing range. FCCL defines a “justifiable need” as “the
urgent necessity for self-protection, as evidenced by specific threats or previous attacks . . . .” see
FCCL § I.
Gotham’s most popular newspaper, The Daily Prophet, recently reported several statistics
regarding Gotham’s crime rate from two separate studies. The article reported only 50 out of
more than 20,000 applicants satisfied the “justifiable need” requirement since 2007. One study
by Gotham University’s Institute of Statistics (“GUIS”) found that all homicides between 2007
and 2013 were committed in public with firearms. Additionally, the number of homicides in
2013 reflected those in 2007, roughly 6,000 per year. The second GUIS study found that in 2007,
the number of handgun sales was 70,000 and 10,000 in 2013.
Jeff Lui is a life long resident and small business owner in Gotham. In 2008, Lui
purchased a handgun for his home. However, Lui applied for a conceal-carry permit after being
robbed at gunpoint by a group of drug addicts while on his way home from work and witnessing
his grandmother murdered by gunfire after a car accident. Even though Lui submitted both police
reports and his application, superintendent of the Froessel State Police, Alex Noble denied his
application for failure to demonstrate a “justifiable need.”
Jeff Lui is owner and operator of Peace Keeper. Peace Keeper is one of five firing ranges
that can issue the Training Certificate required under FCCL § II and the only facility within 120
miles of the city. It is undisputed that Jeff is an adherent of the Christian faith with a sincerely
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held religious belief that prohibits him from engaging in any transactions, commercial or
otherwise, with Satanists and other individuals of faith that offends his Christian values. Jeff
operates business to promote his religious beliefs. For example, Jeff offers his customers pro-life
leaflets and erected a monument listing the Ten Commandments at the entrance of his firing
range.
In January 2013, Jeff received a citation from the Law Department of the State of
Froessel, requiring him to pay $15,000 for violating the public accommodation provision of
FCCL § III. Two weeks earlier, Sigmund Yung, an ardent Satanist and an active member of
Gotham’s Satanist Church visited Peace Keeper to obtain the mandatory training certificate in
order to receive his conceal-carry permit. Sigmund recently suffered a violent attack by a group
of ministers who beat him with bibles and set his car on fire. He also discovered his home
vandalized with Pro-Christian rhetoric. During Jeff’s encounter with Sigmund, he recognized
Sigmund’s necklace with the distinctive five-pointed symbol of LaVeyan Satanism. Without any
hesitation, Jeff informed Sigmund that he does not provide his training services to Satanists,
Atheists, Wiccans or others whose faith offends his Christian values. Shortly after, Jeff received
his fine.
PROCEDURAL HISTORY
Jeff Lui sued in the United States District Court for the District of Froessel, challenging
three sections of the Froessel Conceal Carry Law (“FCCL”). The State of Froessel moved for
summary judgment, which the court granted. The district court held FCCL is constitutional on
the grounds that it does not regulate conduct within the scope of the Second Amendment.
Additionally, the court denied Liu’s claim for a religious exemption from FCCL § III under the
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Froessel Religious Freedom Restoration Act (“RFRA”) because the public accommodation
mandate satisfies RFRA’s strict scrutiny standard.
Liu appealed to the District Court to the United States Court of Appeals for the
Thirteenth Circuit, which held the “justifiable need” requirement of FCCL § I facially
unconstitutional because it obstructs law-abiding citizens from exercising their constitutional and
fundamental right to bear arms under the Second Amendment. Additionally, the court held
FCCL § III invalid, as applied to Jeff Liu, because the State of Froessel failed to satisfy strict
scrutiny under RFRA. The court concluded that an exemption is consistent with the
Establishment Clause.
In response to the Appeal by the State of Froessel of the judgment of the United States
Court of Appeals for the Thirteenth Circuit, the Supreme Court of the United States has granted
writ of certiorari.
SUMMARY OF ARGUMENT
I. POINT ONE
This court must find FCCL § I and II unconstitutional. The Second Amendment
guarantees individuals the right to bear arms, for self-defense. This right extends beyond of the
home because confrontations are not limited to the home. The FCCL prohibits all open carry of
firearms and requires citizens satisfy FCCL § I’s a subjective and vague criterion. Together, the
State of Froessel bans both open and conceal carry of firearms, supported by the mere 50
approved permit applicants.
Strict scrutiny is the correct standard of review because the FCCL burdens conduct
within the scope of the Second Amendment. The State of Froessel fails to carry its burden under
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strict scrutiny because the government has not demonstrated its exhaustion of less restrictive
means to ensure public safety. The State of Froessel still fails the less severe analysis,
intermediate scrutiny because the statistics disprove any correlation between the FCCL’s
effectiveness and the alarmingly high homicide rate. Further, Froessel ignores its burden by
failing to provide any evidence to show “training requirement” has impacted crime rates in
Gotham. Finally, The FCCL is unconstitutional under statutory interpretation because the
regulation is facial vague and a person of reasonable intelligence is left to guess at the meaning
of “justifiable need”.
II. POINT TWO
This Court must affirm the U.S. Circuit Court of Appeals for the Thirteenth Circuit’s
decision that FCCL § III violates RFRA as applied to Jeff Liu. The Froessel Religious Freedom
Restoration Act protects Jeff Lui. Jeff Liu, a life-long Gotham resident and business owner,
exercises his sincere religious faith through Peace Keeper. The public accommodation mandate
substantially burdens Liu’s exercise of religion. Liu’s faith prohibits him from transaction with
Satanists, and specifically from providing firearm training for a person who Satanist who
satisfies the “justifiable need” requirement. It is undisputed that Jeff Liu is an adherent Christian
and the FCCL § III coerces his religious sacrifice through incalculable fines. This punitive aspect
revokes any, if all of FCCL § III’s neutrality.
The State of Froessel fails to provide any evidence under its burden to demonstrate FCCL
§ III satisfies strict scrutiny. The government’s asserted interest in guaranteeing equal access to
the commercial marketplace is too nonspecific to qualify as compelling under the scrutinized
inquiry RFRA demands. A religious accommodation would neither jeopardize the FCCL’s
viability nor undercut its “effectiveness.” Further, the State of Froessel has not substantiated
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any reason that the available alternatives are less restrictive than one that infringes on Liu’s
religion.
Granting Jeff Liu a religious exemption falls well within the accommodating area
between the Establishment Clause and Free Exercise Clause. RFRA’s inception is rooted in our
nation’s fundamental right to religious liberty, created to protected that right against government
infringement. Therefore, this Court must affirm FCCL § III unconstitutionality as applied to Liu,
granting him an exemption based on the substantial burden imposed on Liu’s religious exercise.
ARGUMENT
I. FCCL §§ I AND II ARE UNCONSTITUTIONAL BECAUSE THE JUSTIFIABLE
NEED REQUIREMENT INFRINGES ON RESPONDENT’S SCECOND AMENDMENT
RIGHT TO KEEP AND BEAR ARMS FOR SELF-DEFENSE.
Froessel’s conceal carry law, FCCL, requires citizens to apply for a firearm permit in
order to carry a handgun outside of their home, however in order to be awarded a permit
applicants must meet the “justifiable need” and training requirements. The right to bear arms for
self-defense extends outside the home, and the FCCL unconstitutionally infringes upon this right.
The first issue addressed under a Second Amendment challenge is whether the challenged
law imposes a burden on conduct that falls within the protections of the Second Amendment.
United States v. Marzzarella, 614 F.3d 85 (3d. Cir. 2010). If the challenged law does not burden
protected conduct, then the inquiry is complete; courts do not proceed into further analysis. Id.
However, if the challenged law does burden protected conduct then it is evaluated under
appropriate means-end scrutiny. Id. The law is only constitutional if it passes the appropriate
level of means-end scrutiny. Id.
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A. The Right To Bear Arms For Self-defense Extends Outside The Home Because
Confrontations Where Death Can Occur Are Not Limited To The Home.
The right to bear arms is not limited to the home, as this Court, in deciding District of
Columbia v. Heller, specifically emphasized that Heller was not limited by its facts. 554 U.S.
570, 635 (2008) (observing that “whatever else [the Second Amendment] leaves to future
evaluation, it surely elevates above all other interests the right of law-abiding, responsible
citizens to use arms…”). Furthermore, carrying a firearm outside the home for self-defense falls
under the meaning of “bearing arms” of the Second Amendment. Peruta v. Cnty of San Diego,
742 F.3d 1144 (9th Cir. 2014).
Courts have considered when confrontations are likely to occur to determine whether the
Second Amendment right for self-protection extends outside the home. Moore v. Madigan, 702
F.3d 933, 935 (7th Cir. 2012). Moore noted that while Heller and McDonald found the need for
self-defense to be most acute in the home, “confrontations are not limited to the home.”
McDonald v. City of Chicago, III, 130 S.Ct. 3020, 3036 (2010); Heller, 544 U.S. at 628; Moore
702 F.3d 933, 935-936 (7th Cir. 2012).
Furthermore, if the right to bear arms for self-defense, recognized in Heller, applied only
within the home, then the right to “keep arms” would describe the entire scope of the Second
Amendment, rendering “the right of the people to bear arms” superfluous. Moore, 702 F.3d at
936. Additionally, “[t]o confine the right to be armed to the home is to divorce the Second
Amendment from the right of self-defense described in Heller and McDonald.” Id. 702 F.3d 937.
In Heller, the regulation made carrying or keeping unregistered handguns a crime and disallowed
permit granting authorities from granting permits for handguns. 554 U.S. 570.
Here, applying the Court’s reasoning in Moore, viewing Second Amendment rights in
light of when confrontations are more likely to occur, all homicides in Gotham occurred in
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public, thus citizens of Gotham are only at risk of confrontations leading to death when outside
of their home. The need for self-defense in confrontations is therefore not limited to
confrontations that occur at home. Furthermore, Heller’s focus on Second Amendment rights
within the home stems from the statute at issue in that case, as it limited the right to have
firearms within one’s home, and the court specifically emphasized that its holding, finding the
regulation infringed upon the second amendment, was not limited by the facts. Under Heller,
Moore, and McDonald, the Second Amendment guarantees law-abiding citizens the right to
carry firearms outside the home.
In light of the prior decisions of Heller, McDonald, and Moore the Court should continue
to find that right to bear arms for the lawful purpose of self-defense extends outside the home.
B. FCCL § I Burdens Respondent’s Conduct Within The Second Amendment Because It
Infringes Upon The Core Component Of The Second Amendment, Self-defense.
The FCCL § I burdens conduct within the scope of the Second Amendment because the
statute restricts citizens’ right to self-defense, the core component of the Second Amendment.
In Heller, the Court recognized the core component of the Second Amendment is the right to
bear arms for self-defense. McDonald, 130 S.Ct. at 3026 (reinforcing Heller’s guaranteed right
under the Second Amendment). Self-defense as a core component of the Second Amendment is
separate from regulations that unconstitutionally prohibit citizens’ right to bear arms within the
home. Id. at 3026 (“In Heller we held that the Second Amendment protects the right to keep and
bear arms for purpose of self-defense, and we struck down a law that banned the possession of
handguns in the home.”). Severe restrictions on Second Amendment rights have been struck
down as per se unconstitutional. Heller, 554 U.S. 628-29. When a permit scheme results in the
destruction of Second Amendment rights it “requires Heller-style per se invalidation” because
although a “state may prohibit the open or concealed carry of firearms, it may not ban both”
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Peruta v. Cnty. of San Deigo, 742 F.3d at 1172. In Peruta the court held the handgun regulation
invalid because the typical, reasonable, and law abiding citizen could not bear arms in public for
self-defense. Id. at 1169.
In Heller, the challenged regulation required all long gun style firearms to be
disassembled or rendered inoperable with a trigger lock. 554 U.S. at 570. The Court held that
such a regulation effectively destroyed the Second Amendment right, and invalidated under such
grounds. Id. at 636. The handgun regulation in Peruta was declared invalid because under the
concealed handgun permit scheme the typical, reasonable, and law abiding citizen could not bear
arms in public for self-defense. 742 F.3d at 1169. The fact that a small number of individuals
could carry weapons in some places some of the time did not disprove that the regulation
deprived citizens of their right to bear arms. Id.
In the present case, the FCCL bans the open carry of firearms, attempts to regulate when
citizens can carry a concealed firearm outside their homes, and determines which types of
firearms are permitted to be carried concealed. Like the regulation in Heller, the core right of the
Second Amendment, self-defense, is destroyed by the FCCL § I. The FCCL § I prohibits the
open carry of firearms in public and requires citizens to obtain a permit for the concealed carry
of firearms; however, applicants must demonstrate a “justifiable need” to receive the permit.
Similar to the permit scheme in Peruta, the “justifiable need” requirement, although claimed to
regulate permits, essentially bans both the open and concealed carry of firearms. The Daily
Prophet reported that only 0.25% of applicants met the “justifiable need” requirement in 2007.
The practical application of the FCCL banned both the concealed and open carry of firearms,
inconsistent with this Court’s holding in Peruta.
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Therefore, because Heller, McDonald, Peruta, and Moore recognize the right to bear arms
for self-defense extends outside the home and only 0.25% of applicants meet the FCCL § I
requirements, this Court should find that the right to bear arms is destroyed by the FCCL § I.
C. The Correct Standard Of Review Is Strict Scrutiny Because The FCCL’s Justifiable
Need and Training Requirements Infringe Upon The Fundamental Right Of Self-defense
Under The Second Amendment.
The FCCL need not be analyzed under the second prong of Marzzarella because the
“justifiable need” requirement destroys the core right of the Second Amendment, and is thus
unconstitutional. However, FCCL § I is still invalid under Marzzarella’s second inquiry as it
does not meet any applicable level of scrutiny. Courts must apply either intermediate scrutiny or
strict scrutiny to Second Amendment claims. Heller, 544 U.S. at 628 n.27. Applying the least
restrictive review, rational basis, would strip the Second Amendment of any power, as the
government would be able to restrict any firearm under the rational basis of public safety. Id.
Even the severely burdensome regulation in Heller would meet the rational basis standard of
review, however; the Court held the regulation unconstitutional, further evidence that a higher
standard of review is required. Marzzarella, 614 F.3d 85, 95-6 (3d. Cir. 2010). The interestbalancing test is likewise inappropriate, as The People have already conducted interest-balancing
when deciding to enact the amendment and it is not the place of the judiciary to re-conduct this
interest balancing using its own ideals. Heller, 544 U.S. at 635.
1. FCCL § I and § II are invalid under the “least restrictive means” requirement of strict scrutiny,
because the government can advance public safety through less restrictive means without
infringing upon Liu’s constitutional right.
When a fundamental right is infringed by a regulation, courts must review the regulation
under strict scrutiny, with the least amount of deference given to the legislature. McDonald, 130
S.Ct. at 3050. When reviewing a regulation under strict scrutiny, to pass muster the regulation
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must be narrowly tailored and serve a compelling state interest. Marzzarella, 614 F.3d at 99.
Additionally, for a regulation to be deemed constitutional under strict scrutiny it must be the least
restrictive means of serving the compelling state interest that was the basis for its enactment. Id.
at 100. The Court in Marzzarella applied intermediate scrutiny after it determined that the
regulation requiring serial numbers on weapons was not a severe limitation and there was no
intent to limit citizen’s ability to possess a class of firearms. Id. at 98.
Here, although the State of Froessel has a compelling interest in public safety, as do all
governments, the FCCL is not the least restrictive means to realize improvements in public
safety. The FCCL operates as a severe limitation on firearms at the very least, and infringes on
the fundamental right of self-defense as provided by the Second Amendment. Unlike the
regulation in Marzzarella, the FCCL seeks to limit an entire class of weapons. This is a much
more severe limitation than that of the regulation in Marzzarella, where the Court applied
intermediate scrutiny, and thus the FCCL should be reviewed under strict scrutiny. Furthermore,
as in McDonald, the FCCL seeks to infringe upon the core guarantee of the Second Amendment,
the right of self-protection, and as such should be viewed under strict scrutiny.
The State of Froessel’s interest in improving public safety in Gotham can be advanced by
means that are far less restrictive than the “justifiable need” and training requirement of the
FCCL. Gotham’s police response time, at over thirty minutes, is the longest in the nation. By
increasing the size of the police force, Gotham could effectuate a lower response time, which
may decrease the number homicides committed; since all gun related homicides occurred in the
public sphere. This is a far less restrictive method to realize Froessel’s compelling interests; the
record does not support that Froessel has exhausted other less restrictive means.
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The State of Froessel did not seek to lower the homicide rate or improve public safety
through means that do not restrict citizen’s rights. Instead, the state relied solely on the FCCL to
further its interests. Therefore, under a strict scrutiny review the FCCL should be held invalid, as
it is not the least restrictive means to ensure public safety or reduce crime in Gotham.
2. Under the less severe review of intermediate scrutiny the FCCL is invalid because the
“justifiable need” and training requirements are not related to achieving the state’s interest in
public safety or preventing crime.
Even if the Court reviewed the FCCL under intermediate scrutiny, the regulation should
still be held invalid as the law is not narrowly tailored to Froessel’s important state interest, nor
is it substantially related to achieving these interests. To be held constitutional, when reviewing a
regulation under intermediate scrutiny, the regulation must serve an important government
interest that is “important,” “significant,” or “substantial.” Marzzarella, 614 F.3d at 96-8. A
showing that the government interest is merely legitimate will not suffice. Id. at 98. The
government bears the burden of proving that their important state interest is furthered by the
promulgation of the regulation. Id. at 99.
In applying intermediate scrutiny, courts often confuse the requirement that states must
have a compelling interest that is advanced by the regulation with an interest-balancing review to
compare individual rights with government interests. see Liu v. Froessel, 665 F. Supp. 3d 5321,
5331 (13th Cir. 2014) (determining that prior courts engaged in undue deferential scrutiny by
effectively applying interest-balancing test under the guise of intermediate scrutiny); but see
Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 100 (2d. Cir. 2012) (balancing public safety
against need to carry a handgun for self-defense); see also, Woollard v. Gallagher, 712 F.3d 865,
876 (4th Cir. 2013) (balancing state interests against private rights). These courts incorrectly
applied interest-balancing review purported as intermediate scrutiny, which was explicitly
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rejected by the United States Supreme Court. see Heller, 544 U.S. at 635 (rejecting the interest
balancing test for challenges to the Second Amendment).
Prior to the enactment of the FCCL, there were 6,000 firearm related homicides in
Gotham. The FCCL was enacted in response to these disturbing figures, and sought to ensure
public safety. However, after the enactment of the FCCL the figure remained the same, at 6,000,
despite a sharp decrease in the number of handguns sold in the state from 70,000 in 2007 to
10,000 in 2013, as reported by Gotham University’s Institute of Statistics. This is strong
evidence that the large number of handgun related homicides are caused by criminals who are
violating the FCCL.
Froessel has not met its burden of proving that the important state interest is furthered by
the promulgation of the FCCL. The State of Froessel has merely offered that a stabilization of
the homicide rate at an extraordinarily high figure is evidence of FCCL’s effect; however,
Froessel mistakes a stagnant homicide rate for evidence that the FCCL has furthered the interest
in public safety. The State of Froessel’s position is without merit, as criminals who are
committing homicides on Gotham’s streets are unlikely to heed a firearm regulation and the
homicide rate remained stagnant despite an 85% decrease in handgun sales. Therefore, it is much
more likely that firearm related homicides are being perpetrated by those with illegal weapons
under the FCCL than by law-abiding citizens, whom the regulation affects.
Froessel has not proffered any evidence that the training requirement of FCCL § II has
affected the homicide rate in any way. The State of Froessel bears the burden of proving that
their important interest is advanced by the regulation but it has not provided any evidence that
would suggest the training requirement has had an effect. Instead the State of Froessel has simply
ignored its burden.
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The present case is distinguishable from Woodard and Kachalsky, because although those
courts purported to apply intermediate scrutiny, when reviewing a regulation of firearms outside
the home, they actually applied the interest-balancing test. This interest-balancing test was
rejected as a standard of review for regulation of Second Amendment rights by the Heller Court,
and is likewise inappropriate here. Furthermore, in Woodard, the state provided some evidence
that their interests were furthered by the challenged regulation. Here, the State of Froessel has
provided no evidence that the FCCL has furthered its goals.
The State of Froessel’s important government interest in preventing crime and ensuring
public safety are not supported by the statistical evidence. Criminals are unlikely to follow the
FCCL and the constant homicide rate after the FCCL’s enactment reflects that criminals are
responsible for the vast majority of the homicides. Thus, Froessel has failed to demonstrate that
FCCL § I and § II are substantially related to achieving its interest in public safety.
D. FCCL § I and II are invalid because a person of average intelligence cannot accurately
guess at the regulation’s meaning.
Even if the court were to find that FCCL § I and § II satisfies heightened scrutiny, this
issue can be resolved through statutory interpretation, because the regulation is facial vague and
unconstitutional under the void-for-vagueness doctrine. When a regulation requires “exaction of
obedience to a rule or standard that is so vague and indefinite to be really no standard at all” the
regulation is invalid, as “[t]hese general words and phrases are so vague and indefinite that any
penalty prescribed for their violation constitutes a denial of due process of law.” Champlin Ref.
Co. v. Corporation Com’n of State of Okl., 286 U.S. 210 (1932). A statute is facially vague when
the law is “impermissibly vague in all of its applications.” High Ol’ Times Inc. v. Busbee, 673
F.2d 1225 (11th Cir. 1982) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
445 U.S. 489 (1982)). However, if a reasonably intelligent person can derive some “core
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meaning” from the statute, then the regulation may only be applied within that meaning. High Ol’
Times Inc., 673 F.2d at 1228.
Such challenges of facial vagueness are only successful if the statute is vague in all its
applications; a challenger who engages in conduct that is clearly proscribed cannot bring a claim
that the statute is unconstitutionally vague, as applied to others. Vill. of Hoffman Estates, 445
U.S. 489 (1982). “Vague laws may trap the innocent by not providing fair warning,” and such
laws may lead to arbitrary enforcement, as police and judges are forced to make basic policy
decisions on an ad hoc and subjective basis. Grayned v. City of Rockford, 408 U.S. 104, 108
(1972). In High Ol’ Times Inc., the challenged statute banned the sale of any “drug related
object”. 673 F.2d at 1227. The court held that this language provided sufficient notice to owners
of smoke shops as two prior regulations had been enacted that banned the sale of “drug
paraphernalia”, and the phrase “drug related objects” is similar enough to give adequate notice.
Id. at 1232.
Here, the FCCL uses vague subjective language in defining what constitutes a “justifiable
need”, such as “special danger to applicant’s life” and “that cannot be avoided by means other
than by issuance of a permit to carry a handgun”. These terms and phrases are highly subjective
because what one citizen may feel is a special danger to their life another citizen may consider
only a danger. The FFCL fails to clarify this with the preceding phrase, “as evidenced by specific
threats or previous attacks,” because this attempted clarification itself is vague. Citizens could be
left asking: is a physical attack with a fist, bat, knife, or gun enough, must the attack be physical,
what types of threats are sufficient, do verbal threats suffice where there is no physical danger?
This type of guesswork is unacceptable when citizens are faced with prison time and large fines.
Furthermore, there is no definition as to what constitutes a “special danger” as opposed to a
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“danger,” which leaves citizens to perform similar guesswork to determine the requirements of
the FCCL.
Moreover, the FCCL does not effectively define “justifiable need” so that a person of
average intelligence would understand what experiences meet this requirement. Unlike in High
Ol’Times, Inc., the use of the phrase “justifiable need” in the FCCL, is the first time the phrase
has been used in a Froessel gun law. A non-exhaustive list of three factors that do not meet the
“justifiable need” requirement is insufficient because it does not alleviate guessing as to the
FCCL’s meaning. Therefore, since the definition of “justifiable need” uses vague language and
“justifiable need” appears nowhere else in legislation from which citizens could determine its
meaning, Froessel cannot contend that citizens have adequate notice as to its meaning.
Legislatures should draft a regulation with sufficient clarity so that an average citizen
understands what conduct is prohibited under the FCCL. By no means should all citizens carry
guns as a means of protection, as discussed in Heller bans on gun ownership against the insane
and felons should be upheld, however; Froessel has not met its duty to enact legislation that is
clear enough for an individual of reasonable intelligence to understand what actions are
prohibited by the FCCL. Thus, the FCCL should be held to be invalid for its vagueness.
II. FCCL § III IS UNCONSTITUTIONAL AS APPLIED TO LIU BECAUSE THE
STATUTE SUBSTANTIALLY BURDENS HIS RELIGIOUS EXERCISE, FROESSEL
FAILS TO DEMONSTRATE ENFORCEMENT IS THE LEAST RESTRICTIVE MEANS
OF FURTHERING ITS COMPELLING STATE INTEREST, AND AN
ACOMMODATION IS CONSISTENT WITH THE ESTABLISHMENT CLAUSE.
A. The Religious Freedom Restoration Act To Restore The Compelling Interest Test,
Which Protects Liu’s Exercise of Religion Under Hobby Lobby.
1. Jeff Liu is entitled to RFRA protection under Hobby Lobby because Peace Keeper is a closelyheld company that can only operate through Liu.
The Froessel Religious Freedom Restoration Act protects Jeff Liu’s exercise of religion
because he is a small business owner and operator of Peace Keeper with a sincere religious belief.
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RFRA protects “a person’s exercise of religion.” Congress enacted the Religious Freedom
Restoration Act to provide religious liberty “very broad protection.” Burwell v. Hobby Lobby
Stores, Inc., 2014 U.S. LEXIS 4505, *16 (2014). Congress sought to restore the “balancing
interest test” which prohibits a government-imposed substantial burden on a person’s religious
exercise unless the government demonstrates that specific application of the burden to the person
is the “least restrictive means of furthering a compelling governmental interest.” Hobby Lobby,
at *18-20 (discussing Sherbert v. Verner, 374 U.S. 398, 406 (1963) and Wis. v. Yoder, 406 U.S.
205, 220 (1972)); see also, RFRA § (c)(2). Additionally, RFRA specifically forbids laws that
substantially burden a person’s religious exercise, even if the burden results from general
applicability. 374 U.S. 398, 406 (1963); see also, RFRA § (c)(1). State-imposed burdens on
religious exercise are governed by the laws and regulations of its jurisdiction. City of Boerne v.
Flores, 521 U.S. 507, 533 (1997) (holding constitutional authority invoked for federal and state
governments differ).
For-profit companies, such as sole proprietorships may assert a free-exercise claim under
RFRA. Braunfield v. Brown, 366 U.S. 599 (1961) (rejecting religious exemption on merits
unrelated to for-profit characteristics of business owners); see also, Hobby Lobby, at 46
(discussing Braunfield as to why a companies profit making aspect does not preclude them from
RFRA protection). While the Court in Hobby Lobby tailored its holding to the three plaintiff
companies, it conclusively held federal laws restricting the activities of “a for-profit closely held
corporation must comply with RFRA.” Hobby Lobby, at *63.
It is undisputed that Jeff Liu is an adherent of the Christian faith with a sincerely held
religious belief. The record conclusively demonstrates Liu’s commitment to operating his
business activities in accordance with his religious beliefs. As a “person” under RFRA, Jeff Liu
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is undistinguishable from three plaintiff companies in Hobby Lobby because Peace Keeper
operates only through Jeff Liu. Peace Keeper mirrors the exact kind of closely held for-profit
company emphasized in Hobby Lobby. Therefore, Jeff Liu, as owner of Peace Keeper, is entitled
to protection under RFRA.
B. FCCL § III Violates Liu’s Rights Under RFRA Because It Substantially Burdens Liu’s
Religious Exercise By Demanding He Provide Services Against His Fidelty, Restricts His
Ability To Operate His Business In Accordance With His religious Beliefs Or Pay
Substantial Fines For Noncompliance.
1. FCCL § III substantially burdens Liu’s exercise of religion because it imposes oppressive and
potentially crippling penalties for noncompliance.
FCCL § III substantially burdens Liu’s exercise of religion. The first step of an RFRA
inquiry is to determine whether the regulation at issue imposes a substantial burden on the
particular claimant’s free exercise of religion. Sherbert, 374 U.S. at 403. A law burdens the
exercise of religion when it demands a religious adherent sacrifice fidelity or engage in conduct
that violates those same religious tenents. That burden becomes an impermissible infringement
when the regulation forces one abandonment of even one precept of religious observation in
order to accept work or adhere to one’s faith but forfeit employment advantages. Thomas v.
Review Bd. of Ind. Emp’t. Sec. Div., 450 U.S. 707, 717-18 (1981) (discussing Sherbert, at 404)
(emphasis added).
RFRA prohibits the government from enacting laws that restrict an objecting individual’s
ability to conduct business in accordance with their religious beliefs. Hobby Lobby, at *63. In
Hobby Lobby, the Supreme Court found three closely held companies were exempted from a
federal mandate which requiring companies with other 50 employees provide four kinds of
contraceptives that could result in the destruction of an embryo. Id. at *61. In concluding that the
mandate imposed a substantial burden on the companies, the Court relied on the unavoidable
financial penalties for noncompliance. Id. at *74 (relying on the fact that companies that fail to
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comply must pay $100 per employee per day or $2,000 a year per employee if the company
drops coverage entirely).
Here, Jeff Liu has a sincere religious belief that prohibits him from transacting business
with Satanists. He therefore objects on religious grounds to provide mandatory firearm training
that would conflict with his religion. By commanding Liu and Peace Keeper provide such
services, FCCL § III forces him to engage in conduct that seriously violates his religious beliefs.
Standing alone, this is a burden on the exercise of religion. The burden rises to a level of
unconstitutional infringement because Liu’s only other options is to close business.
Failure to comply with the public accommodation mandate results in significant and
unlimited economic consequences. Violations of FCCL § III results “in a fine of $15,000” as
imposed by subsection VI. The State of Froessel failed to clarify the maximum fines a person or
facility operator is penalized for under FCCL § IV. The statute’s vagueness unquestionably
leaves any person or operator vulnerable to financial ruin. Should the Court find that FCCL § I is
unconstitutional but deny Liu a religious accommodation, he could face incalculable fines for
exercising his religious beliefs.
Hobby Lobby does not stand for the proposition that monetary penalties have a minimum
dollar amount in order to effectuate a substantial burden. The three plaintiff companies each
employed several hundred people and fines were imposed per individual. Thus, the penalties
were considerably larger. There is a total absence of case law where the Supreme Court has
placed a dollar amount on the exercise of religion. This case does not present such opportunity.
Therefore, FCCL § III substantially burdens Liu’s protected exercise of his religion
because noncompliance threatens the livelihood of Peace Keeper.
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2. FCCL § III is not a neutral law of general applicability because it coerces Liu into choosing
between his religious fidelity or pay incalculable fines.
FCCL § III is not a neutral law of general applicability because it substantially burdens
the free exercise of religion through compulsive and indirect threats of financial penalties that
could result in the termination of Peace Keeper. “Laws that are neutral towards may religion may
burden religious exercise equal to laws intended to interfere with religious exercise.” RFRA §
(a)(2). However, regulations neutral on its face may, in application, offend the constitutional
requirement for governmental neutrality if it unduly burdens the free exercise of religion. Yoder,
406 U.S. at 220; Thomas, 450 U.S. at 717. Thus, a statute’s coercion, even if indirect, is
nonetheless a substantial burden upon free exercise of religion. Thomas, at 718. In Thomas, the
Court found a burden on religion substantial because the statute placed inescapable pressure on
an adherent to modify his behavior against the tenents of his faith in order to receive employment
benefits. Id. at 717-18. Thus, a law relinquishes neutrality where the conduct at issue, once
acceptable only becomes religiously objectionable upon the state-imposed changes. Id. at 718
(discussing Sherbert, at 404).
Similar to monetary penalties, a law that inflicts punishment based solely on the exercise
of religion is paradigmatic of unconstitutional government pressure to refrain from that practice.
Sherbert, at 404; see also, Braunfeld, 366 U.S. at 603 (finding a statute’s compulsory mandate
that businesses close on Sundays a substantial burden because Sabbath observers were forced to
choose between economic disadvantages or adherence to religion). These cases cumulatively
support that a statute’s purported neutrality does not grant the government authority to impose
indirect, inescapable, or coercive burdens on the exercise of religion.
Liu, a life-long resident of Gotham, operates the only firing range within 120 miles of the
city. There is no evidence to suggest that Liu faced any other problems regarding the manner in
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which he operated his business prior to FCCL enactment. Yoder is authoritative because the facts
of this case reflect FCCL § III’s onerous and inescapable restriction on Liu ability to conduct his
business as he has prior to FCCL enactment. Like Thomas and Sherbert, Liu has been coerced
into a difficult and moral decision without his consent because he cannot operate Peace Keeper
in compliance with the FCCL without relinquishing his religious fidelity. By forcing a choice
between religion and livelihood, the FCCL mirrors the kind of laws the United States has long
held intolerable. Therefore, FCCL § III is not a neutral law because it imposes a substantial
burden on Liu exercise of religion by through coercive and inescapable penalties.
The State of Froessel argues that Liu’s burden is too attenuated to qualify as substantial
under RFRA because he could practice his religion in all but his commercial activities. Liu v.
Froessel, 665 F. Supp. 3d 5321, 5335 (13th Cir. 2014). If the Court were to adopt this philosophy,
it would grant the government would have the absolute authority to revoke any individual’s
religious beliefs solely because of commercial relationship with others. The RFRA exists to
prevent this exact government infringement on religious liberty. Thus, the FCCL § III is not a
neutral law and cannot burden Liu’s religious exercise unless it can satisfy strict scrutiny.
C. FCCL III Fails Strict Scrutiny Because The Substantial Burden Imposed On Liu Is Not
Justified By Froessel’s Enforcement To Achieve Its Compelling Interests Through The
Least Restrictive Means.
The Froessel Religious Freedom Restoration Act prohibits the State of Froessel from
enforcing FCCL § III against Liu because the government failed to justify its substantial burden
on Liu’s religious exercise by demonstrating application of the substantial burden is the “least
restrictive means” of furthering its compelling state interest. See RFRA § (c)(2). The State of
Froessel does not satisfy its burden under strict scrutiny, “the most demanding test known to
constitutional law.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997).
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1. The State of Froessel’s interest in ensuring access to the commercial marketplace is neither
specific nor compelling to justify infringement on Liu’s religious exercise.
The State of Froessel’s interest in ensuring the public’s equal access to the commercial
market place, uniform application, and compliance, while compelling in other contexts, fails to
justify the substantial burden it places on Liu’s religious exercise. RFRA demands a narrow
case-by-case inquiry, beyond “broadly formulated interests,” into the Government’s specific
justification for imposing a substantial burden on religious exercise. See, e.g., Hobby Lobby, at
*75; Gonzales v. O’Centro Espirita Beneficente Unia de Vegetal, 546 U.S. 418, 431 (2006);
Yoder, 406 U.S. at 221. The Government can satisfy the compelling interest prong only through
evidence relating to the application of challenged law to the particular claimant whose sincere
exercise of religion is being substantially burdened. Hobby Lobby, at *74-74 (quoting Gonzales,
546 U.S. at 430) (emphasis added).
Strict scrutiny, as expressly adopted by RFRA, carefully balances the harm to the
Government’s interests by granting an individual exemption to particular religious claimant
against religious liberties. RFRA § (a)(4). Only those interests of the highest priority that cannot
be served otherwise can outweigh an individual claim to free exercise of religion. See Bob Jones
Univ. v. United States, 461 U.S. 571, 604 (1983) (denying religious accommodation because the
Government’s fundamental interest in eradicating racial discrimination from education that
lasted for nearly 165 years); Prince v. Mass., 321 U.S. 158, 165 (1944) (denying religious
exemption because an accommodation would jeopardize the Government’s ability to protect a
nine-year old child from forced labor on public highways); Roberts v. United States Jaycees, 468
U.S. 609, 622 (denying religious exemption because the Government’s interest in eradicating
gender discrimination because it could not be achieved through any less restrictive means).
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These cases demonstrate that while the right to religious exercise is not absolute, the level of
importance the Government must meet is extraordinarily high and context specific.
General interests in uniformity do not justify a substantial burden alone. Gonzales, 546
U.S. at 435. Such interests may only qualify as compelling if the Government can provide
evidence showing total compliance is indispensible to the law’s viability. See, e.g., Hobby Lobby,
at *85 (finding a religious accommodation to for-profit employers with sincere religious
objections was not essential to the “comprehensive health-insurance scheme”); United States v.
Lee, 455 U.S. 252, 260 (1982) (finding religious exemptions from Social Security tax payments
would threaten the entire tax system from functioning). Further, the pro-offered evidence must
specifically explain why denied exemptions cannot be accommodated. Gonzales, 546 U.S. 418
(2006). In Gonzales, the Court rejected the government’s argument that exempting the sacrificial
use of hoasca, a tea consisting a hallucinogen listed on the Controlled Substances Act, would
undercut the Act’s effectiveness based on a total absence of evidence to suggest a compromised
ability. Id. Additionally, case law demands Government’s asserted interests in uniformity must
outweigh the harm imposed on religious exercise to justify exemption denial. Id. at 434.
Here, the State of Froessel’s “broadly formulated interests” in equality and preventing
discrimination in public accommodations does not justify the specific burden on Liu’s religious
exercise that RFRA demands. These interests, though honorable, lack specificity to the point a
meaningful application of strict scrutiny is untenable. Additionally, the government’s interest in
providing equal access to the marketplace is futile because the FCCL itself restricts this right by
demanding citizens satisfy a “justifiable need” that only 50 out of 20,000 applicants can
demonstrate. Thus, Froessel’s argument is nonsensical, as it cannot expect an individual citizen
to further its interests when the government itself obstructs it.
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The present case is distinguishable from Roberts, Bob Jones, and Prince, because
Froessel’s most narrow interests do not rise to the level of compelling to overbalance revocation
of Liu’s religious liberty. In each case, an individual exemption posed a cognizable and
significant threat to the government’s ability to achieve its compelling interests. Sigmund Yung,
being only one of 20,000 applicants who sought to obtain a conceal-carry permit, was denied
access because he was a Satanist. The statistics alone reveal an individual exemption has little to
no impact on the Froessel’s interest in equality and preventing discrimination while enforcement
has a tremendous impact on Lu’s right to free exercise of his religion. Froessel fails to meet its
burden under the compelling interest prong of strict scrutiny and therefore must grant Liu a
religious accommodation under RFRA.
The absence of statutory exemptions is not dispositive of the government’s compelling
interest. To adopt the contrapositive would be illogical, as it would undermine the contextspecific inquiry strict scrutiny commands. Therefore, the fact that the FCCL does not explicitly
excuse certain groups or individuals from its public accommodation is only factor in the entire
compelling interest analysis. In this case, lack of exemption bears little, if any, weight because
Froessel’s interests are so broad to satisfy any strict scrutiny inquiry. Therefore, the State of
Froessel has not carried its burden under the compelling interest test, and fails strict scrutiny.
2. FCCL § III does not satisfy the least-restrictive means test because Froessel has not offered
any evidence to demonstrate alternatives are not viable to justify its substantial burden on Liu’s
exercise of religion.
The State of Froessel’s has not met its burden by demonstrating application of FCCL §
III against Liu will achieve its interests through the “least-restrictive means.” The purpose of the
least-restrictive means prong is to ensure that infringement on the exercise of religion, like free
speech, is burdened no more than necessary to achieve its compelling government interest. see
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Ashcroft v. American Civil Liberties Union, 524 U.S. 656, 666, (2004) (upholding a preliminary
injunction against enforcement a federal statute that restricted online speech because that the
Government failed to provide any evidence that the proposed alternatives were less restrictive).
Further, the Government bears the ultimate burden to show that enforcement of the challenged
regulation is the least restrictive among available, effective alternatives. Gonzales, 546 U.S. at
429 (applying Ashcroft, 524 U.S. 656, 669). Thus, it is not enough to show that a challenged law
is effective but that the suggested alternatives are less so. Ashcroft, 524 U.S. at 669.
In some circumstances, the RFRA may require the Government to assume some financial
responsibility to accommodate the free exercise of religion. Hobby Lobby, at *79 (discussing
RFRA’s sister statute, RLUIPA). Additionally, the Government’s expectation that it is free from
expending any additional funds to achieve its compelling government interest may undermine
the Government’s least-restrictive means argument entirely. Id. Thus, cost can be a relevant
factor in determining whether the Government has satisfied the “least-restrictive means” prong
but does not resolve the analysis entirely. Id. The presence of a pre-existing program may serve
as a less-restrictive alternative to compelling citizen’s from engaging in conduct that violates
their religious beliefs. Id. at *81-82.
Froessel’s inability to offer any state funds towards achieving its compelling interest in
providing equal access to the commercial market demonstrates that FCCL § III is not applied
through the least restrictive means. Beyond the five other firing ranges that could provide the
required training, Froessel could own and operate its own facility. The State of Froessel has not
offered any evidence to demonstrate this is not a viable alternative. The absence of evidence
conclusively terminates the inquiry because Liu does not bear any burden to demonstrate
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enforcing the FCCL § III against him is not the least restrictive way to ensure access to the
commercial marketplace.
D. An Exemption Under RFRA Does Not Violate the Establishment Clause Because it Does
Not Demonstrate an “Establishment” of Religion, Provide Financial Support, Or Entangle
the Government With Liu’s Religious Beliefs.
Granting Liu a religious accommodation does not violate the Establishment clause
because it neither overrides other significant issues by refusal to transact business with Satanists.
The Government has the power and often the compulsion to accommodate religious exercise
without running afoul of the Establishment Clause. Corporation of the Presiding Bishop v. Amos,
483 U.S. 327, 334 (1987). The Supreme Court has consistently reiterated the permissible limits
of government-imposed exemption for religious exercise is “by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.” Id. (quoting Walz v. Tax Comm’n, 397
U.S. 664, 673 (1970). Thus, room exists between the Establishment Clause and Free Exercise
Clauses under the First Amendment to accommodate religious practice without sponsorship nor
interference. Id. at 338 (rejecting the argument that statutes granting special benefits to religious
groups are per se invalid) (emphasis added). Further, governments that exonerate “persons” from
regulation enforcement in order to relieve burdens on the exercise of religion are not required to
also provide benefits to secular entities. Amos, 483 U.S. at 338.
Religious accommodations under RFRA must be applied with particular sensitivity, in
consideration of the relevant context. Cutter v. Wilkson, 544 U.S. 709, 722-23 (2005)
(interpreting RFRA’s sister statute RLUIPA). The Supreme Court has confirmed the definitive
restrictions on the government’s relationship with public education bodies and church-sponsored
schools. Walz, 397 U.S. at 672. In Walz, the Court upheld a religious exemption for churches
and religious organizations because an accommodation would not establish, sponsor or result in
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the government’s excessive entanglement with religion. Id. at 673. (acknowledging that religious
exemptions reflect the Founding Father’s concerns about the inherent danger of property taxes).
Beyond the few defined areas, “establishment” of religion exists through “connoted sponsorship,
financial support, and active involvement of the sovereign in religious activity.” Amos, 483 U.S.
at 337 (quoting Walz, 397 U.S. at 668).
Here, Froessel would not violate the Establishment Clause by granting a Liu a religious
exemption because it would not intertwine the Government with any religion, provide financial
assistance, or indicate religious support. The facts of this case comfortably fall within the sphere
of permissible government accommodation. Similar to the concerns that plagued our
Constitutional drafters in Walz, the right to exercise religion free from substantial burden is
among the highest priorities. Further, exempting Liu from FCCL application does not evidence
Froessel’s “establishment” of any religion, let alone Liu sincere religious belief that his tenents
forbid him from engaging in commercial transactions with Satanists. An accommodation would
only demonstrate sponsorship of the fundamental rights long-established by the United States
Constitution.
CONCLUSION
For the foregoing reasons, we respectfully request this Court find FCCL §§ I and I are
facially unconstitutional and FCCL § III violates RFRA as applied to Jeff Liu.
Respectfully submitted,
Attorneys for Respondent
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