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

Docket No. 666/14
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2014
THE STATE OF FROESSEL,
Petitioner,
-againstJEFF LIU,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
THIRTEENTH CIRCUIT
______________________________________________________________________________
BRIEF FOR THE RESPONDENT
_______________________
1
2
QUESTION PRESENTED
I.
Whether FCCL § III, which requires firing ranges to accommodate members of the
public without discriminating on the basis of, inter alia, religious affiliation, violates
the Religious Freedom Restoration Act (“RFRA”) as applied to Jeff Liu
(“Petitioner”).
i
TABLE OF CONTENTS
QUESTION PRESENTED .............................................................................................................. i
TABLE OF AUTHORITIES ......................................................................................................... iii
OPINIONS BELOW ....................................................................................................................... 1
SUMMARY OF THE CASE .......................................................................................................... 1
Procedural History ...................................................................................................................... 1
Statement of the Facts ................................................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................................. 4
ARGUMENT .............................................................................................................................. 4
Applicability of RFRA ............................................................................................................ 4
Substantial Burden to exercise of religion .............................................................................. 5
No Compelling Governmental Interest ................................................................................... 6
Least restrictive means ............................................................................................................ 9
CONCLUSION ............................................................................................................................. 10
ii
TABLE OF AUTHORITIES
Cases
United States v. Lee, 455 U.S. 252 (1982) ................................................................................... 14
Braunfeld v. Brown, 366 U.S. 599 (1961) ...................................................................................... 9
Burwell v. Hobby Lobby Stores, Inc., 2014 U.S. LEXIS 4505 (U.S. 2014), ............................... 10
Carey v. Brown, 447 U.S. 455 (1080) .......................................................................................... 13
District of Columbia v. Heller, 554 U.S. 570 (2008)...................................................................... 7
Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 430 (2006)........... 11
Liu v. Froessel, 665 F. Supp 3d 5321 (2014)................................................................................ 10
Sherbert v. Verner, 374 U.S. 398 (1963) ...................................................................................... 12
Thomas v. Review Bd. Of Ind. Emp’t Sec. Div., 450 U.S. 707 (1981)........................................ 10
United States v. Salerno, 481 U.S. 739 (1987) ............................................................................. 13
Wisconsin v. Yoder, 406 U.S. 205 (1972) .................................................................................... 12
Statutes
Dictionary Act. 1 U.S.C.S. § 1........................................................................................................ 9
FCCL § III..................................................................................................................................... 10
iii
OPINIONS BELOW
In an unpublished opinion, the District Court of Froessel granted summary judgment to the State
of Froessel. The opinion of the court of appeals is reported at 665 F. Supp. 3d 5321 (13th Cir.
2014).
SUMMARY OF THE CASE
Procedural History
In September 2013, Respondent Jeff Liu brought an as-applied challenge to FCCL § III, alleging
that the public accommodation requirement violates his right to religious exercise under the
Froessel Religious Freedom Restoration Act (“RFRA”). The District Court granted summary judgment to the State of Froessel and found that Mr. Liu was not entitled to a religious
exemption from FCCL § III because the accommodation requirement satisfies strict scrutiny
under RFRA. The court reasoned that the public accommodation requirement as it applied to
Mr. Liu, serves Froessel’s compelling interest in preventing discrimination in public
accommodations and is narrowly tailored to further that compelling interest.
On February 17, 2014 Mr. Liu appealed the judgment of the District Court to the United States
Court of Appeals for the Thirteenth Circuit. The Court of Appeals reversed and remanded. The
Court of Appeals held that the State of Froessel failed to show that the non-exemption of Mr. Liu
from FCCL § III’s anti-discrimination requirements satisfies strict scrutiny under FCCL § III.
The Court of Appeals held FCCL § III invalid, as applied to Mr. Liu, and that granting his
exemption was consistent with the Establishment Clause.
1
Statement of the Facts
In 2007, the State of Froessel enacted Froessel Carry and Conceal Law (“FCCL”). FCCL is Froessel’s only firearm regulation and was implemented to address Froessel’s ongoing crime epidemic. FCCL prohibits residents from openly carrying firearms, and requires residents to
demonstrate a justifiable need and obtain a Training Certificate from a firing range in order to
receive a conceal-carry permit. The conceal-carry permit allows residents to carry a concealed
firearm in public. FCCL § I defines “justifiable need” as the urgent necessity for self-protection,
as evidenced by specific threats or previous attacks. FCCL was enacted in response to the rise of
firearm related homicides in Froessel capital, Gotham; which increased from 3,000 in 2001 to
6,000 in 2007. Gotham homicides remained at 6,000 per year, from 2007 to 2013. Handguns
sold in Froessel, have steadily decreased from 70,000 in 2007 to 10,000 in 2013.
Jeff Liu is a Gotham resident and owner of the Peace Keeper, the only firing range in Gotham.
FCCL § III sets forth a public accommodation requirement which proscribes denying public
access to the firing range, based on race, gender, and religious affiliation. FCCL III reflects
Froessel’s interest in ensuring the public’s equal access to the marketplace. Jeff Liu’s firing range is the only firing range in Gotham that can issue the training certificate required by FCCL.
There are five other firing ranges in Froessel, however the closest one to Gotham, other than Jeff
Liu’s, is 120 miles north of Gotham.
Jeff Liu is a self-professed Christian who seeks to promote his religious beliefs through his firing
range business. Mr. Liu offers his customers pro-life leaflets to protest abortion in Froessel. Mr.
Liu also has a Ten Commandments monument at the entranceway of his firing range. Mr. Liu
2
interprets his Christian faith as prohibiting him from transacting business with Satanist and
similarly situated individuals whose faith offends his Christian values.
Sigmund Yung is an ardent Satanist and an active member of Gotham’s Satanist Church. In January 2013, Mr. Yung visited Mr. Liu’s firing range to inquire about the training requirements for the Training Certificate. Mr. Liu informed Mr. Yung that training would not be available to
Mr. Yung, because Mr. Yung is a Satanist, and that Mr. Liu does not provide training services to
Satanists, Atheists, Wiccans or others whose faith offends his Christian values. Mr. Yung
insisted, that regardless of religious disagreement, Mr. Liu was required by law to accommodate
any individual seeking a Training Certificate under the FCCL. Mr. Liu communicated to Mr.
Yung, that under RFRA, he has a right to deny service based on his own religious beliefs.
Two weeks later Mr. Liu was penalized $15,000 by the Froessel Law Department for violating
the public accommodation provision of FCCL § III. The following facts were found undisputed
by the District Court:
1. Jeff Liu is a “law-abiding, responsible citizen” within the meaning of District of
Columbia v. Heller, 554 U.S. 570 (2008), 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 Mr. Yung’s Satanic beliefs constitutes religious-affiliation discrimination within the meaning of
FCCL § III
3
SUMMARY OF THE ARGUMENT
FCCL § III, as applied to Jeff Liu (Respondent), violates the respondent’s protection afforded to him by the Froessel Religious Freedom Restoration Act, because the State of Froessel
substantially burdens his exercise of religion without substantiation of a compelling state interest
and that Froessel has other less restrictive means available in serving Froessel’s interests and
FCCL § III.
ARGUMENT
The Froessel Religious Freedom Restoration Act (RFRA) prohibits the Government from
substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the Government demonstrates that the burden to the person: (1) is in
furtherance of a compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest. RFRA-(b)(1), (2).
Applicability of RFRA
Jeff Liu is a small business owner of one gun-firing range in Gotham, who chose to enter the
commercial marketplace to offer the services of his gunnery range, as a for-profit enterprise. Mr.
Liu is not a government regulated business, is not funded by the State of Froessel; he is free of
governmental regulation in carrying out his business operations. Even if Mr. Liu was a for profit
or a not for profit corporation, his business would be considered a person in accordance with the
Dictionary Act. 1 U.S.C.S. § 1. The word "person” includes corporations, companies,
associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Id.
Across the spectrum from Braunfeld v. Brown, 366 U.S. 599 (1961), that recognized that a sole
4
proprietorship has protection under the RFRA, to Burwell v. Hobby Lobby Stores, Inc., 2014
U.S. LEXIS 4505 (U.S. 2014), where for-profit corporations were held to be protected under
RFRA, companies may assert a free exercise of religion claim;; therefore, Mr. Liu’s enterprise qualifies as a “person” under Froessel RFRA, and is afforded it’s protection.
Substantial Burden to exercise of religion
Mr. Liu’s exercise of religion is substantially burdened by FCCL § III. Mr. Liu is a selfprofessed Christian, who interprets his Christian faith as prohibiting him from transacting
business with Satanists and similarly situated individuals whose faith offends his Christian
values.
An asserted belief must be sincere in order to qualify for RFRA protection; pretextual assertions
of a religious belief in order to obtain an exemption would fail. Hobby Lobby, 2014 U.S. LEXIS
at 4558 n. 28. Whenever the state compels an individual, under threat of penalties, to engage in
conduct that that his religion forbids, a substantial burden on her religion exists. Liu v. Froessel,
665 F. Supp 3d 5321, 5334 (13th Cir. 2014) (citing Thomas v. Review Bd. Of Ind. Emp’t Sec. Div., 450 U.S. 707, 717-18 (1981).
Mr.Liu has a sincere belief that it violates his religious belief to engage in any transaction,
commercial or otherwise, with Satanists or other individuals whose faith offends his Christian
values. Liu, 665 F. Supp 3d at 5325.
5
FCCL § III makes it unlawful for Mr. Liu to refuse service to Satanist or other individuals whose
faith offends his Christian values. FCCL § III.
FCCL § VI imposes a financial penalty for refusing to commercially render service Satanist.
FCCL § III substantially burdens Mr. Liu’s exercise of religion.
No Compelling Governmental Interest
The first prong of analysis concerns determining whether the Government has a compelling
interest in enforcing its mandate against the particular claimant whose sincere belief of religion is
being substantially burdened. Liu, 665 F. Supp 3d at 5335 (citing Hobby Lobby, 2014 U.S.
LEXIS at 4575). The analysis focuses on whether the Government has a compelling interest in
enforcing its mandate against “the particular claimant whose sincere exercise of religion is being substantially burdened. Id. (citing Hobby Lobby, 2014 U.S. LEXIS at 4577). The analysis is not
focused on the general enforcement of the law. Id.
The RFRA strict scrutiny test requires the Government to demonstrate that the compelling
interest is satisfied through the application of the challenged law “to the person”—the particular
claimant whose sincere exercise of religion is being substantially burdened. Gonzales v. O
Centro Espirita Beneficente Uniao de Vegetal, 546 U.S. 418, 430 (2006) (citing 42 U.S.C. §
2000bb-1(b)) (which has the identical language as Froessel RFRA). The Supreme Court directs
the analysis to go beyond broadly formulated interests justifying the general applicability of
6
government mandates and to scrutinize the asserted harm of granting specific exemptions to
particular religious claimants. Espirita, 546 U.S. at 431.
In determining whether the Government has a compelling interest in this particular application,
the compelling interest test of Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder,
406 U.S. 205 (1972), requires a case-by-case analysis. See RFRA § (b)(1). A government
interest is compelling when the interest justifies the substantial burden on the fundamental right
of religious exercise, only in interests of highest order and to avoid the gravest abuses
endangering paramount interests. Yoder, 406 U.S. at 215, 228-29.
Even if the analysis determines that there is a compelling government interest, it may be
outweighed by another even weightier consideration. Hobby Lobby, 2014 U.S. LEXIS at 4576
In Yoder, the government’s interest in children attending the first two years of high school did
not justify the substantial burden on the religious conviction of the Amish people that children be
taught at home, 406 U.S. at 228-29. In Sherbert, the Government’s interest in preventing fraudulent unemployment claims, did not justify denying a person’s right of refusal to work on a
Saturday because of her religious beliefs, 374 U.S. at 407.
FCCL § II requires applicants to obtain a Training Certificate from a firing range as a
prerequisite to applying for a gun conceal-carry permit. The training requirement serves an
important public interest in public safety because it ensures that that those wishing to publicly
carry a firearm are trained to properly operate it in case of confrontation. Liu, 665 F. Supp 3d at
5332 (citing Moore, 702 F.3d at 941).
Froessel’s interest in curbing gun violence, in light of the violence it has experienced, does not justify using any means necessary in furtherance of that
7
goal. Id. “Even the most legitimate goal may not be advanced in a constitutionally
impermissible manner” Carey v. Brown, 447 U.S. 455, 464-65 (1080).
Froessel’s interest in preventing crime may be compelling if the risk presents a grave risk to
public safety. See United States v. Salerno, 481 U.S. 739, 749 (1987) (where action to prevent
future imminent harm to others by indicted suspects was deemed a compelling state interest).
The training requirement of FCCL § II is a regulation which, when carried out in concert with
other regulatory components of FCCL §§ I – VII, intends to curb handgun violence. FCCL §§
III and VI serve to promote the availability of the required training to the public, by reinforcing
public accommodation and penalizing noncompliance. The specific training requirement
component of FCCL § II imposes a burden to those commercially offering training, however, the
need to impose the burdens is justified only by the need to facilitate providing the required
training to the public. The societal consequences of a specific commercial entity’s noncompliance, does not increase the risk of grave public danger or an imminent threat to the public.
A compelling state interest in preventing crime exists when the risk to the public is grave or the
risk to the public is imminent; here, Froessel suggests that in order to curb handgun violence,
handgun training be made available to the public by penalizing commercial entities that are in
non-compliance with public accommodation. In this particular case, FCCL § II infringes upon
Mr. Liu’s free exercise of religion, which requires Froessel to show that it does so because of a
compelling interest. Froessel can only assert a compelling state interest in preventing crime if the
imposed burdens are to address imminent risk to the public or mitigate a grave risk of public
safety. FCCL § I-VII are regulatory components which do not rise to the level, by themselves, of
a compelling state interest which justify infringement of Mr. Liu’s exercise of religious expression.
8
Least restrictive means
If societal conditions changed, or if the regulatory components of FCCL §§ I – VII, were
modified in order to address Mr. Liu’s exercise of religion, imposition of FCCL upon Mr. Liu’s exercise of religious expression would also need to be the least restrictive means of furthering
that compelling government interest of preventing crime. Hobby Lobby, 2014 U.S. LEXIS at
4577. The least-restrictive means standard is exceptionally demanding, and it is Froessel’s burden to show that it lacks other means of achieving its goal of providing Gotham’s residents the ability to obtain a Training Certificate. Hobby Lobby, 2014 U.S. LEXIS at 4577 (citing City
of Boerne v Flores, 521 U.S. 507, 532 (1997).
In Hobby Lobby, the least-restrictive means assessment found that not only did there exist other
means available, there were other avenues not explored, and therefore the state was not able to
show that their did not exist other avenues to address the state’s interest, 2014 U.S. LEXIS at
4578. In Lee, this court found that although possible alternative means were available, the state
was able to show that no less restrictive means were available, 455 U.S. 252 (1982).
Here, Froessel has not shown that other avenues have been explored to be able to provide
Training Certificates for their citizens. There is nothing on the record which Froessel has
provided to allow the court to assess that no other means are available, much less any least
restrictive means.
9
At a minimum, Froessel could provide other training methods, training sites, subsidize or
construct their own firing range, or license firing licenses so that operational licenses require
conforming with FCCL § III.
Without any other means to consider, Froessel cannot show that it lacks other means of
achieving its desired goal without imposing a substantial burden on Mr. Liu’s exercise of religion.
CONCLUSION
FCCL § III, as applied to Jeff Liu (Respondent), violates the respondent’s protection afforded to him by the Froessel Religious Freedom Restoration Act, because the State of Froessel
substantially burdens his exercise of religion without substantiation of a compelling state interest
and that Froessel has other less restrictive means available in serving Froessel’s interests and FCCL § III.
Respectfully Submitted,
Attorneys for Respondent
August 10, 2014
Team 49
10