NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION

NEW YORK LAW SCHOOL MOOT COURT ASSOCIATION
38th ANNUAL CHARLES W. FROESSEL
INTRAMURAL MOOT COURT COMPETITION
______________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STAT
OCTOBER TERM, 2014
DOCKET NO. 666/14
______________________________________________________________________
STATE OF FROSSEL,
Petitioner ,
-againstJEFF LIU,
Respondent.
______________________________________________________________________
On Writ of Certiorari to the United States Court of Appeals
for the Thirteenth Circuit
QUESTIONS PRESENTED:
I. Whether FCCL § I, which regulates the open and conceal carry of handguns in public
requiring applicants to demonstrate a “justifiable need”, violates the Second Amendmen
bear arms for self-defense as recognized in District of Columbia v. Heller, 554 U.S. 570
II. Whether FCCL § III, which requires firing ranges to accommodate members of the p
without discriminating on the basis of, inter alia, religious affiliation, violates the Relig
Freedom Restoration Act (“RFRA”) as applied to Jeff Liu (“Respondent”).
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………………………………………
STATEMENT OF THE CASE
Procedural History…………………………………………………………………
Statement of the Facts……………………………………………………………
SUMMARY OF THE ARGUMENT………………………….…..………………………
ARGUMENT POINT HEADINGS- QUESTION I:
I. FCCL § I VIOLATES THE PROTECTIONS THAT THE SECOND AMENDM
GUARANTEES, BECAUSE THE JUSTIFIABLE NEED REQUIREMENT DEST
THE ABILITY FOR A LAW ABIDING CITIZEN TO EXERCISE THEIR INHE
RIGHT TO POSSESS AND CARRY FIREARMS FOR LAWFUL SELF-DEFENS
A. The protection provided by the Second Amendment encompasses the right to carry
outside of the home……………………………………………………………………
B. The justifiable need requirement of FCCL § I is per se unconstitutional, because it d
the core right protected under the Second Amendment………………………………
C. FCCL does not pass constitutional muster under intermediate scrutiny, because it fa
serve a substantial state interest and it burdens the rights of the Second Amendment
than substantially......…………………………………………………………………
D. FCCL does not survive the “intrests-balancing” test put forth in Breyer’s dissent, be
weight of the burdens to the second amendment outweigh the effects of the law on p
safety…………………………………………………………………………………
ARGUMENT POINT HEADINGS - QUESTION TWO
II. FCCL § III’S PUBLIC ACCOMODATION REQUIREMENT IS UNCONSTITUTIONAL AS APPLIED TO MR. LIU, BECAUSE IT IMPOSES A
SUBSTANTIAL BURDEN UPON HIS FIRST AMENDMENT RIGHT TO FREE
EXERCISE HIS SINCERELY HELD RELIGIOUS BELIEFS………………………
A. MR.
LIU
SINCERELY
BELIEVES
THAT HIS DEVOTIO
CHRISTIANITY PROHIBITS HIM FROM TRANSACTING BUSINESS
C. FCCL § III’S PUBLIC ACCOMODATION REQUIREMENT IS
UNCONSTITUTIONAL AS APPLIED TO MR. LIU BECAUSE IT FAILS
SCRUTINY……………………………………………………………………
I. THE GOVERNMENT’S ASSERTED INTERESTS OF
UNIFORMITY, EQUALITY, AND PREVENTION OF
DISCRIMINATION ARE NOT COMPELLING INTEREST
II. EVEN IF THE STATE’S ASSERTED INTERESTS ARE COMP
THE MEANS CHOSEN ARE NOT NARROWLY TAILO
FURTHER THE GOVERNMENTAL INTEREST…...27
D. THERE IS NO ESTABLISHMENT CLAUSE ISSUE PRESENT, BECAU
NONE OF THE LEMON TEST FACTORS WERE SATISFIED……………
Table of Authorities
Question 1 Cases:
District of Columbia v. Heller, 554 U.S. 570 (2008)
McDonald v. City of Chicago, 130 S. Ct. 3020 (2010)
Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)
Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014)
Kachalsky v. County of Westchester, 701 F.3d 81 (2nd Cir. 2012)
Drake v. Filko, 724 F.3d 426, 430 (3rd Cir. 2013)
State v. Reid, 1 Ala. 612 (1840)
Nunn v. State, 1 Ga. 243 (1846)
United States v. Marzzarella, 614 F.3d 85 (3rd Cir. 2010),
Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009)
Woollard v. Gallagher, 712 F.3d 865
Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)
Question 2 Cases:
Everson v. Board of Education, 330 U.S. 1 (1947)
Cantwell v. Connecticut, 310 U.S. 296 (1940)
Lemon v Kurtzman, 403 U.S. 603 (1971).
Braunfeld v. Brown, 366 U.S. 599, 603 (1961)
Reynolds v. United States, 98 U.S. 145, 164 (1878)
Sherbert v. Verner, 374 U.S. 398 (1963)
United States v. Lee, 455 U.S. 252 (1982)
City of Boerne v. Flores, 521 U.S. 507 (1997).
Wisconsiv v. Yoder, 406 U.S. 205 (1972) at 218
Gonzales v. O’Centro, 546 U.S. 418 (2006)
Burwell v. Hobby Lobby Stores, Inc., 2014 LEXIS 4505 (June 30, 2014)
Hernandez v. Commissioner, 490 U.S. 680, 700 (1989)
STATEMENT OF THE CASE
PROCEDURAL HISTORY
On September 2013, Petitioner below and Respondent before this Court, Jeff Li
(“Respondent”), filed an action against the State of Froessel in the United States Distric
for the District of Froessel (“USDCF”). Respondent’s action challenged three sections o
Froessel Conceal Carry Law (“FCCL”). First, Respondent sought a declaratory judgmen
FCCL § I and II are facially unconstitutional. He alleged that the “justifiable need” and requirements under § I and II, respectively, infringe on his Second Amendment right to
arms for self-defense. Second, Respondent sough a declaratory judgment that, as applie
the public accommodation requirement pursuant to FCCL § III violates his right to relig
exercise under the Froessel Religious Freedom Restoration Act (“RFRA”). The State of Froessel moved for summary judgment on both claims. The USDC
a briefing on the State’s summary judgment motion. On January 28, 2014, after making
factual findings, the USDCF granted summary judgment to the State of Froessel, conclu
the FCCL violated neither Respondent’s Second Amendment rights nor those arising un
RFRA.
On February 17, 2014, Respondent appealed that judgment to the United States
Appeals for the Thirteenth Circuit (“The Thirteenth Circuit”). The Thirteenth Circuit re
and remanded the case back to the USDCF. Specifically, the Thirteenth Circuit held (1)
“justifiable need” requirement under FCCL § I is unconstitutional on its face, (2) that th
invalid as applied to Respondent, and (3) that granting the RFRA exemption is consiste
the Establishment Clause.
The State of Froessel appealed the Thirteenth Circuit’s judgment the Supreme C
the United States. This Court granted the State’s petition for writ of certiorari. The follo
issues are before the Court:
1. Whether FCCL § I, which regulates the open and concealed carry of handgun
public by requiring applicants to demonstrate a “justifiable need”, violates th
Amendment right to bear arms for self-defense as recognized in District of C
v. Heller, 554 U.S. 570 (2008).
2. Whether FCCL § III, which requires firing ranges to accommodate members
public without discriminating on the basis of, inter alia, religious affiliation,
the Religious Freedom Restoration Act (“RFRA”) as applied to Jeff Liu (“Respondent”).
STATEMENT OF THE FACTS
Facts Giving Rise to the Second Amendment Claim.
Jeff Liu, a law-abiding, business owner seeking and failing to exercise his right
self-defense under the Second Amendment. The reason for his failure is the “justifiable
requirement under FCCL I, which requires he show an urgent necessity for self-protect
evidenced by specific threats or previous attacks which demonstrate a special danger to
In 2011 Jeff was the tragic victim of two horrible crimes. The first time Jeff was
he was on his way home when he his assailant threw him brutally down a staircase and
proceeded to rob him at gunpoint. The second, even more horrific attack arose out of a
traffic accident. When Jeff moved to the shoulder of the road to check on the other driv
pulled a gun from their jacket and depravedly sprayed Jeff’s car with bullets, lodging se
bullets into Jeff’s grandmother, who was sitting next to him in the passenger seat. Jeff w
able to escape the scene with his life, as he rushed his injured grandmother to the hospit
Tragically she died in route and was pronounced dead upon arrival at the hospital
A recent article in The Daily Prophet, Gotham’s most popular newspaper, highli
that while over 20,000 residents have applied for conceal-carry permits since 2007, onl
applicants were found to satisfy the “justifiable need” requirement. The article also disc
two recent studies by Gotham University’s Institute of Statistics (“GUIS”). One study i
that from 2007 to 2013, all homicides occurred in public and were committed with firea
study further reported that between 2007 and 2013, the number of homicides remained
at 6,000 per year. (Taken directly from fact pattern)
Facts Giving Rise to the Religious Exercise Claim
The Respondent is a life-long resident of Gotham, Froessel, and is a devout Chr
Christian beliefs and practices limit who he transacts business with. The same beliefs an
practices drive him to promote those beliefs through the Peace Keeper—the only firing
Gotham—which he owns. The Peace Keeper is a vehicle used by Respondent to promo
which requires him to refrain from any transaction, commercial or otherwise, with Sata
other individuals whose faith offends his Christian values.
The FCCL is a gun control regulation which provides for conceal-carry permits.
firing ranges are licensed to train applicants and issue a certificate in order that the
superintendent of the State Police may then issue a permit to applicants under the statute
condition precedent to acquiring a permit. See FCCL § I and II. Further, the Froessel le
sought to prohibit these privately owned and operated ranges from discriminating again
applicants on the basis of race, gender, and religious affiliation. See FCCL § III.
FCCL §VI institutes a $15,000 fine for any private firing range that violates the
accommodation requirement in §III. As the only firing range in Gotham, the Peace Kee
only facility in Gotham that can issue the requisite training certificate. The next closest
range to the Gotham which is authorized to issue this certificate is 120 miles North of G
There are four other authorized firing ranges.
In January 2013, Sigmund Yung, a Satanist and an active member of Gotham’s Church, visited the Peace Keeper for the purposes of obtaining the Training Certificate.
accordance with the directives imposed by his Christian beliefs, Respondent refused to
the transaction and instructed Mr. Yung to leave. Two weeks later, as a result of adherin
religious imperatives, Respondent received a $15,000 citation for violating the public
accommodation provision of FCCL § III.
FCCL’s absolute ban on open carry in combination with its effective ban on concealed
destroys the core of the Second Amendment right of lawful self-defense. Even if the co
not find that FCCL § I to be unconstitutional per se, it must find that it fails constitution
under either intermediate scrutiny or Breyer’s “interest-balancing” test. FCCL does not constitutional muster under intermediate scrutiny, because it fails to serve a substantial
interest and it burdens the rights of the Second Amendment far more than substantially.
I affects a complete ban on the ability to publicly carry weapons, while yielding slim to
evidence of any measure of increased public safety. Therefore, it must be struck down.
II. Respondent Jeff Liu respectfully asserts that this Court should uphold the judgment o
Thirteenth Circuit and find that the public accommodation requirement in the Froessel C
Carry Law (“FCCL”) § III is unconstitutional as applied to Mr. Liu, because it substanti
burdens his First Amendment1 free exercise rights, as protected by Froessel’s Religious
Restoration Action (“Froessel’s RFRA”) § (c)(2)(ii).
First, Respondent’s sincerely held religious belief is not at issue. Second, Respo
was coerced by FCCL § III and § VI to either abandon this religiously held belief or
repeatedly face the already once-imposed statutory $15,000 fine. This amounts to a
substantial burden under the RFRA.
Third, the State of Froessel cannot demonstrate an individualized compelling go
interest. Its asserted government interests of uniformity and the prevention of discri
are generalized and overbroad. Moreover, even if the State of Froessel could demon
Therefore, the Respondent’s Free Exercise of his sincerely held religious belief substantially burdened and under the RFRA he is entitled to an exemption from the public accommodation requirement. Moreover, this exemption does not run afoul of
Amendment’s Establishment Clause because there is no impermissibly significant b
upon third parties; precedents focused on wholesale religious accommodation do no
the resolution of a case, such as the case at bar, that requires a case-by-case balance
ARGUMENT
I. FCCL § I VIOLATES THE PROTECTIONS THAT THE SECOND AMENDM
GUARANTEES, BECAUSE THE JUSTIFIABLE NEED REQUIREMENT DEST
THE ABILITY FOR A LAW ABIDING CITIZEN TO EXERCISE THEIR INHE
RIGHT TO POSSESS AND CARRY FIREARMS FOR LAWFUL SELF-DEFENS
A. The protection provided by the Second Amendment encompasses the right to ca
firearms outside of the home
The protections set out under the Second amendment extend beyond the home i
public sphere. The Second Amendment provides: "A well regulated Militia, being nece
the security of a free State, the right of the people to keep and bear Arms, shall not be in
A proper textual and historical analysis of the Second Amendment shows that it guarant
the pre-existing, individual right to possess and carry weapons in case of confrontation.
“central component of the Second Amendment right”). Moreover, to limit the right to b
to just the home is “to divorce the Second Amendment from the right of self-defense de
Heller and McDonald”. Moore v. Madigan, 702 F.3d 933, 937 (7th Cir. 2012). It cannot
denied that the right to self defense is strongest within the home. Heller, at 635. Howev
equally undeniable that a situation that would require the use of lawful self-defense is “
menacing (and likely more so) beyond the front porch as it is in the living room”. Perut
County of San Diego, 742 F.3d 1144, 1188 (9th Cir. 2014) (quoting Moore, at 936). Jus
the holding of Heller focuses on the right to self-defense in the home (the statute in que
concerned the right to keep an operable pistol in the home) does not mean the Second
Amendment is strictly limited to the home; quite the opposite. See, e.g., Kachalsky v. C
Westchester, 701 F.3d 81, 89 n.10 (2nd Cir. 2012) (stating the plain text of the Second
Amendment does not limit the right to bear arms to the home); Drake v. Filko, 724 F.3d
(3rd Cir. 2013) (reasoning although Heller does not explicitly identify a right to publicly
arms for self-defense, it is possible to conclude that Heller implies such a right). Just as
abiding citizens may “keep Arms”, have weapons, in the home for self defense, they als
“bear Arms”, carry weapons, in nondomestic settings. Peruta, at 1121. If the word “bea
limited to the home, then “keep” and “and” would be superfluous;; as it would be impos
bear arms in the home without keeping them there. Lastly, just as the opportunity of har
not disappear at the doorway of your home, neither should the availability of lawful sel
the core component guaranteed by the Second Amendment. This is especially true in G
B. The justifiable need requirement of FCCL § I is per se unconstitutional, becaus
destroys the core right protected under the Second Amendment.
Assuming Respondent’s position holds and the Second Amendment right of self
extends to the public sphere, FCCL § I effectively obliterates that right with its “justifia
requirement, making it per se unconstitutional. A law that, "under the pretence of regula
amounts to a destruction of the right" cannot survive under any of the standards of scrut
applied to constitutional rights. Peruta, at 1167 citing Heller, at 628-29. It is further con
that when a law destroys, and not merely burdens, a core right of the Second Amendmen
be struck down. Id. No amount of interest-balancing under a heightened form of means
scrutiny can justify such a regulation. Peruta, at 1167 (ruling that the San Diego County
cause” requirement (which is very similar to the language of the FCCL’s “justifiable ne
effectively destroyed the Second Amendment’s guarantee to lawful self-defense).
“To reason by analogy, it is as though San Diego County banned all politi
speech, but exempted from this restriction particular people (like current or form
political figures), particular places (like private property), and particular situatio
(like the week before an election). Although these exceptions might preserve sm
pockets of freedom, they would do little to prevent destruction of the right to fr
speech as a whole. As the Court has said: "The Second Amendment is no differen
Heller, 554 U.S. at 635. It too is, in effect, destroyed when exercise of the right
limited to a few people, in a few places, at a few times.”
Id. Here, like in Peruta, FCCL limits the carrying of weapons to law enforcement or mil
private property, or to those with an “urgent necessity”. FCCL goes even further by req
prohibition on keeping arms is no better than a near-total prohibition on bearing them.
Historically courts have held that while a State may prohibit the open or concealed carr
firearms, it may not ban both. Drake, 724 F.3d at 449 (Hardiman, J., dissenting); see als
v. Reid, 1 Ala. 612 (1840) (holding that banning concealed carry was acceptable as long
carry was still permitted); Nunn v. State, 1 Ga. 243 (1846) (holding that a law banning
carry is valid, but if it contained a prohibition against open carry as well it is “in conflic
Constitution and void”). Thus the FCCL’s absolute ban on open carry in combination w
effective ban on concealed carry, destroy the Second Amendment right of lawful self-d
C. FCCL does not pass constitutional muster under intermediate scrutiny, because
to serve a substantial state interest and it burdens the rights of the Second Amendm
more than substantially.
Heller explicitly rejects both the interest-balancing test and a rational basis revie
Heller, at 629-634. There are no other enumerated constitutional rights whose core prot
have been subjected to a freestanding "interest-balancing" approach. The rights are too
fundamental to be decided on a case-by-case basis Id. at 634. If a rational basis test wer
to the Second Amendment, it would be found redundant and have no effect Id. 629 Fn 2
stated above, the limitations placed on the ability to exercise Second Amendment rights
FCCL would not pass constitutional muster under any form of heightened scrutiny. How
the court deems such analysis necessary, below is our argument that the restrictions FC
suggested in Heller for adjudicating Second Amendment issues. First, it must be shown
challenged law imposes a burden on the rights protected by the Second Amendment. Id
case before us, it is quite established that FCCL not merely burdens, but obliterates the
protected under the Second Amendment. Next, the court must evaluate the law under so
of means-end scrutiny. The decision in Heller is adamant that any rational basis review
unsuitable (see above). Consequently, we are left with intermediate scrutiny and strict s
Strict scrutiny is a higher, content-based standard of review reserved for the most funda
enumerated rights. Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009). Thus inter
scrutiny is the most appropriate standard of review for Second Amendment issues. See,
Kachalsky, 701 F.3d 81; Drake, 724 F.3d 426; Woollard v. Gallagher, 712 F.3d 865.
Intermediate scrutiny requires that regulations serve “an important or substantial
interest and not “burden substantially more” of the constitutional right “than is necessar
further that interest. Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994). We, like the Thir
Circuit, believe it is without question that public safety is a very important and substant
interest. Where the FCCL fails is in its ability to serve that interest, and do so without b
Second Amendment rights anymore than necessary.
There is little to no evidence to suggest that limiting the number of firearms that
abiding citizens can legally carry serves in the interest of public safety. By placing such
strict guidelines on who qualifies as having a “justifiable need”, the only interest served
ration the availability of self-defense. Since the enactment of FCCL, homicide rates hav
enactment. This horrifyingly suggests that not only has FCCL not improved public safe
that it has actually been a detriment to it. Furthermore, it suggests that criminals wishin
have shifted their sights from the victim’s home, where citizens are legally allowed to k
bear arms, to the streets, where the majority of Gotham remains vulnerable. Also by its
design, FCCL § I limits who can show a justifiable need to those who either cannot wad
through the bureaucratic process quickly enough to obtain the self-defense they need or
likely to be involved in public violence. This inherently is against public safety.
There is even less evidence that FCCL does not burden the rights of the second
amendment anymore than is necessary. Since its enactment in 2007, only 50 out of the
applicants were found to qualify under the “justifiable need” requirement. That is astou
far from not substantially more than necessary (The Daily Prophet). That leaves 19,500
that, unless denied for, or granted permit under, other grounds, are denied the right guar
under the Second Amendment of lawful self-defense. In the case before us today, Jeff L
very man responsible for training people under FCCL was denied a carry permit. There
logical explanation for how this is not substantially more of a burden than necessary.
Thusly, FCCL does not pass constitutional muster under intermediate scrutiny, b
fails to serve a substantial state interest and it burdens the rights of the Second Amendm
more than substantially.
D. FCCL does not survive the “interest-balancing” test put forth in Breyer’s disse
If the court decides to overturn the majority’s opinion in Heller that explicitly re
the use of Breyer’s interest balancing test (see above) for the purpose of Second Amend
analysis, then further discussion will be needed. The freestanding interest-balancing tes
similar to intermediate scrutiny, but with less definition; falling somewhere between rat
basis review and strict scrutiny. Heller, 554 U.S. at 689-90 (Breyer, J., dissenting). Its c
principal is to strike an acceptable proportion between constitutional burden and protec
state interest. Id. In the immediate case before us, we have Jeff Liu, a law-abiding, busi
owner seeking and failing to exercise his right to lawful self-defense under the Second
Amendment. The reason for his failure is the “justifiable need” requirement under FCC
requires he show an urgent necessity for self-protection, as evidenced by specific threat
previous attacks which demonstrate a special danger to the applicant’s life that cannot b
by means other than by issuance of a permit to carry a handgun. In 2011 Jeff was the tra
victim of two horrible crimes. The first time Jeff was attacked, he was on his way home
his assailant threw him brutally down a staircase and proceeded to rob him at gunpoint.
second, even more horrific attack arose out of a simple traffic accident. When Jeff move
shoulder of the road to check on the other driver, they pulled a gun from their jacket and
depravedly sprayed Jeff’s car with bullets, lodging several bullets into Jeff’s grandmoth
was sitting next to him in the passenger seat. Jeff was barely able to escape the scene w
life, as he rushed his injured grandmother to the hospital. Tragically she died in route an
pronounced dead upon arrival at the hospital. It is for these reasons Jeff sought to obtain
need”. It is difficult to imagine what someone must suffer in order to gain the pre-existi
to bear arms in lawful self-defense. Without any definitions or guidelines to what qualif
“urgent necessity”, “specific threats”, “previous attacks”, “special danger”, or “cannot b
avoided by means” how can any decision the superintendent makes not be arbitrary and
capricious. The vagueness and overbreadth of FCCL § I is alarming.
There are two main interests being weighed here. The first is the ability to lawfu
protect and defend both yourself, loved ones, and others, as guaranteed under the Secon
Amendment, from the violence of a crime-ridden city. The other is the ineffective and
uncorrelated measures of an arbitrary and capricious standard masquerading as an intere
public safety. It is not a difficult to see which side tips the scale. FCCL § I affects a com
on the ability to publicly carry weapons, while yielding slim to no evidence of any meas
increased public safety. Therefore, FCCL § I fails Breyer’s interest-balancing test, and
struck down.
II.
FCCL § III’S PUBLIC ACCOMODATION REQUIREME
UNCONSTITUTIONAL AS APPLIED TO MR. LIU, BECA
IMPOSES A SUBSTANTIAL BURDEN UPON HIS FIRST AMEN
RIGHT TO FREELY EXERCISE HIS SINCERELY HELD REL
BELIEFS.
The First Amendment of the Constitution states, in relevant part, “Congress shal
no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
the free exercise clause and the establishment clause protections have been incorporated
states via the Due Process Clause of the Fourteenth Amendment. 3 Although both clause
the religious freedom of the People, the two operate in tension with each other. On the o
when the government facilitates the free exercise of religion, it can exceed its constitutio
permissible bounds and violate the establishment clause. On the other hand, if the gove
attempts to comply with the establishment clause by only granting special religious exe
it could violate the free exercise clause. 4
Under the Lemon test, the government action runs afoul of the establishment cla
when: (1) the government’s primary purpose is to advance religion, or (2) where the pri
effect of government action is to aid religion, or (3) where there is excessive governmen
entanglement with religion.5 Conversely, the determination of whether an individual’s f
exercise rights have been infringed depends on the magnitude of the burden placed on t
rights. An individual’s free exercise rights have been infringed upon when: (1) their ass
religious belief is “sincerely held,” 6 and (2) the government action at issue imposed a s
burden on the individual’s freedom to exercise this belief. 7 If both elements are satisfied
government action will only be upheld if it satisfies strict scrutiny by demonstrating tha
compelling governmental interest, (2) the means chosen are narrowly tailored to further
interest, and (3) that the means chosen are the least restrictive means possible. 8
A. MR. LIU SINCERELY BELIEVES THAT HIS DEVOTION TO CHRIS
PROHIBITS HIM FROM TRANSACTING BUSINESS WITH SATANIST
The Judiciary can only determine whether a religious belief is sincerely held, no
it is true or false.9 Further, an individual’s religious belief may be sincerely held, despit
misaligned with religious doctrine.10 Here, Mr. Liu is a devout Christian, who sincerely
that his religion prohibits him from transacting business with Satanists and similarly sit
individuals.11 This issue has not been raised on appeal, so Mr. Liu’s religious beliefs are
as sincere.
B. MR. LIU’S RIGHT TO FREELY EXERCISE HIS BELIEF IN CHRISTIA
SUBSTANTIALLY BURDENED BY FCCL § III’S PUBLIC ACCOMMO
REQUIREMENT BECAUSE IT FORCES HIM TO EITHER COMM
PROHIBITED BY HIS RELIGION OR PAY LARGE FINES.
However, there is a notable difference between the First Amendment’s protectio
beliefs versus its protection of conduct. See Employment Division v. Smith, 494 U.S. 8
n.13 (1990) (noting the “distinction between the absolute constitutional protection again
governmental regulation of religious beliefs on the one hand and the qualified protectio
the regulation of religiously motivated conduct.”);; See also Braunfeld v. Brown, 366 U.
603 (1961)(“the freedom to hold religious beliefs and opinions is absolute”). It is plain legislation inherently regulates conduct. See generally Reynolds v. United States, 98 U.
164 (1878)(“Congress was deprived of all legislative power over mere opinion, but was
to reach actions”). However, in this difference there is no implication that regulation of does not trigger the Free Exercise clause. See supra Thomas, 450 U.S. 707 (1981) (hold
the clause is triggered when individuals claim that a law or regulation burdens or makes
religious observances more difficult); Sherbert v. Verner, 374 U.S. 398 (1963) (holding
government impermissibly burdens religion if it denies benefits to individuals who quit
for religious reasons). Moreover, as the Thirteenth Circuit noted below, under Burwell
Lobby Stores, Inc., 2013 U.S. LEXIS 4505 (June 30, 2014), a court may find a substant
burden on a business owner’s religious beliefs where a mandate forces them to pay an e
sum of money if they decided to continue exercising their religious beliefs in the course
business.
Quite plainly, Mr. Liu’s free exercise rights were substantially burdened. He ref
engage in the subject transaction, and he was fined $15,000. He now faces a quintessent
Hobson’s Choice, one which creates the requisite substantial burden under RFRA (c)(1
Mr. Liu’ first option is to choose to exercise his sincerely held religious belief w
Satanist or another individual whose belief is offensive to his seeks a training certificate
accept a predictably large but currently unknown number if individual $15,000 fines. G
there have been 20,000 applications for conceal-carry permits since 2007 in Gotham alo
$15,000 fine for exercising his firmly held religious belief might very well bankrupt Mr
cause him to lose his firing range. The ultimate sum he pays may be less than the millio
dollars at issue in Hobby Lobby v Burwell, where there was a nationwide chain of store
vast revenue, but the sum in the instant case is extraordinarily significant in the context
Peace Keeper, which is a single firing range.
The second option is to succumb to the government’s punitive coercion and eng
respondents’ practice of religion is not only severe, but inescapable, for it affirmatively them, under threat of criminal sanction, to perform acts undeniably at odds with fundam
tenets of their religious beliefs.” Yoder, 406 U.S. at 218. Here, the statute is not part of
code, but the $15,000 draconian punitive fine per violation affirmatively compels Mr. L
perform acts fundamentally at odds with his religious beliefs.
Therefore, Mr. Liu’s free exercise of his sincerely held religious belief that his C
faith prohibits him from transacting business with Satanists and similarly situated indiv
whose faith offends his Christian values is substantially burdened. As the Thirteenth Ci
decided, his free exercise is substantially burdened because “it compels him to engage i
that his religion forbids.” If this Hobson’s Choice does not satisfy the substantial burden
requirement, then Mr. Liu respectfully asserts that the requirement would be practically
impossible to meet. As such, the next step in the Free Exercise analysis is to ascertain th
government’s asserted interest. C. FCCL § III’S PUBLIC ACCOMODATION REQUIREMENT IS
UNCONSTITUTIONAL AS APPLIED TO MR. LIU BECAUSE IT FAILS
SCRUTINY.
Even when the free exercise clause is triggered, the law at issue is not per se
unconstitutional as applied to the individual(s). 12 In Sherbert v. Verner,13 the Supreme C
applied strict scrutiny to a government’s act of denying unemployment benefits to a Sev
Adventist, who felt compelled to turn down job opportunities that required her act contr
religious beliefs that prevented her from working on Saturdays. After noting that the ind
conscientious objection to Saturday work does not constitute conduct “prompted by rel
principles of a kind within the reach of State legislation,” the Court began its analysis b
If… the decision of [the government] is to withstand appellants constitution
challenge, it must be either because her disqualification as a beneficiary represe
no infringement by the State of her constitutional rights of free exercise, or becau
any incidental burden on the free exercise of appellant’s religion may be justifi
by a “compelling state interest in the regulation of a subject within the State
constitutional power to regulate.” 14
However, in Employment Division v. Smith, Justice Scalia distinguished the fac
issue and rejected the use of strict scrutiny analysis in free exercise claims that arise out
the unemployment compensation context. 15 The Court found, “the right of free exercise
relieve an individual of the obligation to comply with a valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his religi
prescribes (or proscribes).” 16 The Court also noted that the First Amendment only bars t
application of such laws in hybrid situations involving the infringement of another cons
right, as well.17 Based upon this reasoning, the Court rejected the argument that Sherber
to an exemption claim.18
Justice O’Connor concurred with the majority’s judgment, which allowed Orego
the claimant unemployment benefits when their dismissal resulted from the ostensibly r
use of peyote, but took issue with Scalia’s reasoning. 19 In O’Connor’s view, “a person w
barred from engaging in religiously motivated conduct is barred from exercising his rel
14
15
Id.
Moreover, “the First Amendment does not distinguish between laws that are generally a
and laws that target particular religious practices.” 21 Finally, “laws neutral toward religi
coerce a person to violate his religious conscience or intrude upon his religious duties ju
effectively as laws aimed at religion.” 22
Justice O’Connor’s concurrence noted that Sherbert’s strict scrutiny analysis giv
to free exercise under the First Amendment, and she expressly disavowed the majority’s
categorical rule, “[I]f prohibiting the exercise of religion…is…merely the incidental eff
generally applicable and otherwise valid provision, the First Amendment has not been
offended.”23 She reasoned, “If the First Amendment is to have any vitality, it ought not construed to cover only the extreme and hypothetical situation in which a State directly
religious practice.”24
In 1993, Congress enacted the federal Religious Freedom Restoration Act (“RFR
eliminate the Smith test and require the wholesale application of strict scrutiny to Free E
claims. While RFRA was declared unconstitutional as applied to state and local governm
was never expressly upheld or struck down as applied to the federal government. 26 Ther
is within the states’ power to enact their own versions of RFRA.
Because Froessel’s RFRA adopted this strict scrutiny standard, we must apply th
standard of review to the government’s actions.
i.
21
The Government’s Asserted Interests Of Uniformity, Equality, And Prev
Discrimination Are Not Compelling Interests.
The analysis calls for a determination of whether the State has a compelling inte
enforcing its mandate against Mr. Liu in particular. The State interest cannot be broadl
formulated. Here, the State of Froessel asserts its interest in equality, uniformity of app
and prevention of discrimination. While these may be compelling state interests in gene
other contexts, that generality does not suffice to make them compelling as applied to M
individually. The RFRA restored Sherbet and Yoder. As such the State’s argument igno
requisite context-specific inquiry. In sum, forcing responding to carry out the State’s mi
the exclusion of his First Amendment right and under threat of drastic penalties so that
individuals can save time and transportation costs is constitutionally unacceptable.
The uniformity argument fails immediately because the State of Froessel may st
administer the statute without serious compromise. Simply put, there are four other firin
The State does not have to travel to them, the individual seeking the training certificate
permit them. Mr. Liu fails to ascertain how this state of things would seriously comprom
State’s ability to administer the statute. Sherbert, codified in the RFRA, operates here to
the State’s slippery slope argument. That argument is that the four alternative firing ranges would file similar exemp
claims. There is no evidence in the record to support such a claim. Indeed, Mr. Liu is th
admit that his sincerely held religious belief is a unique one. Therefore the uniformity a
is without merit on the facts and has no basis in the Sherbert test.
his sincerely held religious belief. There are no facts in the record indicating his “discri
(i.e., his exercise of his beliefs) ever affected the State’s general interest in preventing discrimination. Even if there were such evidence, the general nature of this asserted inte
because, again, and for the same reason: because the interest must be compelling as to M
Moreover, Mr. Liu respectfully asserts that the Court should consider this argum
an outcome-oriented approach. Namely, there is nothing preventing Satanists or others
offend Mr. Liu’s sincerely held religious belief from ultimately getting the requisite trai
certificate. They simply have to go elsewhere. Merely because the State of Froessel, wh
passed its own version of the RFRA, also elected to use private firing ranges to carry ou
legislative initiative, it is not a constitutionally permissible result to compel Mr. Liu to a
his religious beliefs under threat of recurring $15,000 fines and the loss of his business.
forcing responding to carry out the State’s mission to the exclusion of his First Amendm
and under threat of drastic penalties so that other individuals can save time and transpor
costs is simply unacceptable. If the Second Amendment right to bear arms in self-defen
important to these other individuals, and if it is at all important to the State of Froessel,
either or both must make the necessary accommodations. This burden should not evisce
Liu’s First Amendment right of free exercise.
Assuming, ad arguendo, that the State is able to color one of these attenuated a
generalized compelling interests, then the remaining issue is whether the means chosen is
tailored to fit the compelling governmental interest.
Although Respondent refuses to concede the compelling interest prong, FCCL §
the punitive provision, § VI are not narrowly tailored to further either “uniformity” or “
and prevention of discrimination.” As the Thirteenth Circuit noted below, although the show a compelling interest in uniformity of application by demonstrating and exemptio
seriously compromise its ability to administer the statute. See, e.g, Hernandez v. Comm
490 U.S. 680, 700 (1989). Also noted below by the Thirteenth Circuit, a State may that
accomodation requirement furthers a State’s compelling interest in preventing discrimin
ensuring public access to public accommodations. However, importantly, this is a gener
individualized means. Finally, as in Hobby Lobby, supra, relieving religious exercise o
substantial burdens will almost always exact some cost on society.
Here, uniformity in application would result in nothing but repeated fines impos
Liu. There is no evidence in the record to support an assertion that any of the other certi
firing ranges have been or will be fined for a violation of the public accommodation req
When that happens, if that happens, then the Courts will have to entertain that case on i
facts, as the RFRA requires.
Indeed, here, this perverse version of uniformity amounts to nothing but a drasti
inflicted on one business owner whose hand the state is trying to force and whose First
Amendment right it is eviscerating. It would actually eliminate the ability for anyone to
training certificate in Gotham because the Peace Keeper would have to go out of busine
might result in what Respondent asserts as an alternative in the prevention of discrimina
police training facilities are already equipped with firing ranges to train police officers;
can use the closest one to Gotham. An additional alternative is to arrange for public
transportation on specific days, at specific times, to the four other licensed firing ranges
State or the City can compensate the relevant types of individuals for the margi nal cost
traveling 120 miles north.
In these ways, Jeff Liu avoids the substantial burden on his First Amendment ri
individuals who offend his Christian values would be able to get the training certificate
being discriminated against, and the State would accomplish its goal. Any of these optio
the State’s interest without burdening Jeff Liu’s religious beliefs. Where the protection religious freedom is implicated, especially under a statute such as the RFRA which affo
protection to the right, there are going to be costs.
Another option, which Respondent seeks as a last resort, is to cancel the outstand
$15,000 penalty and revoke Jeff Liu’s license to issue the training certificate, thereby p
him to go on about his business as he has for years before the passage of the FCCL—in
accordance with his religious beliefs. However, Respondent would like to point out that
result of this measure is that all applicants seeking the training certificate, not just those
offend his beliefs, would then have to seek it at least 120 miles north.
D. THERE IS NO ESTABLISHMENT CLAUSE ISSUE PRESENT, BECAU
NONE OF THE LEMON TEST FACTORS WERE SATISFIED.
Because FCCL § III’s public accommodation requirement has the effect of infri
CONCLUSION
For the foregoing reasons, we respectfully request that this Court uphold the holding of
Thirteenth Circuit that the “justifiable need” requirement of FCCL § 1 is unconstitutiona
further request that this Court maintain the holding that FCCL § 3 is invalid as applied
and that the resulting exemption is consistent with the establishment clause. We respect
assert that this requires eliminating the fine of $15,000 against Jeff Liu.