April 27, 2009

Questions I Can’t Answer (About the ICR)

Posted in Atheism, Creationism, Law tagged , , , , , , , at 10:07 am by Andrew

In the discussion of the Institute for Creation Research’s (“ICR”) lawsuit against the Texas Higher Education Coordination Board (“THECB”), as well as the ICR’s press release, commenter Quinn asks a question that I (mostly) can’t answer:

Why are these guys in Federal Court? Wouldn’t they be much better off using Texas’s mini-RFRA (http://www.legis.state.tx.us/tlodocs/76R/billtext/html/SB00138F.htm)?

Great question.

My first impulse (before reading the statute) was to suggest that the Texas RFRA might not provide the ICR with the relief that it wants. But no, a quick look at the statute itself shows that’s not the case:

* Sec. 110.002 provides that the statute applies “to any ordinance, rule, order, decision, practice, or other exercise of governmental authority.” The THECB’s determination not to award a Certificate of Authority to the THECB clearly falls within this section.

* Moreover, sec. 110.005 entitles a plaintiff under the TRFRA to seek, inter alia both injunctive and declaratory relief, which is all the ICR is seeking in its 1983 action.

* As an added bonus, the TRFRA expands upon Supreme Court jurisprudence regarding the free exercise clause, effectively distinguishing the Employment Division v. Smith standard I discussed in my last post on the subject. Specifically, section 110.003(b) places the burden on the government to demonstrate that the action challenged:

(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that interest.

[emphasis added]

That’s a huge difference from the Smith standard that applies in 1983 cases, in which all the government need do is show that a law is facially neutral and designed to further a legitimate (not “compelling”) governmental interest.

In sum: Quinn has found a much stronger indictment of the ICR’s incompetence than I raised in my first two posts on the subject. On face, it appears that the TRFRA is a much better vehicle for advancing the ICR’s claims than 42 U.S.C. 1983.

I should add that the TRFRA does not solve many of the initial weaknesses I highlighted in the ICR’s lawsuit; it doesn’t appear to waive the requirement for administrative exhaustion, so that’s still a problem. And it doesn’t solve the massive, open-ended scope of the “injunction” the ICR seeks. But certainly the ICR would have been no worse off (and potentially, much better off) adding a TRFRA claim to their initial complaint.

Finally, I should clarify that ICR could bring a state law claim under the Texas statute in federal court alongside their sec. 1983 claim; that’s called “pendent” jurisdiction, and generally, so long as the claims arise out of the same set of facts, a federal judge will also keep state law claims in federal court so as to avoid having two lawsuits proceeding at the same time in two different jurisdictions. So the dichotomy isn’t quite what Quinn suggests; the ICR could stay in federal court and still bring a complaint alleging both federal and state law claims.

Of course, this only begs yet another question (that I can’t answer) — why does the ICR want to be in federal court in the first place? In general, federal courts are more defense-friendly, they’re more willing to dismiss cases, the judges are smarter, and they’re less likely to entertain nonsense suits. Plus, I’m assuming that Mr. Johnson, J.D.’s family law practice has probably brought him into more contact with the state bar and the judges who sit on the various state District Courts than it has with the federal judges. So I’m left scratching my head as to why the ICR would want to be in federal court at all.

Great question, Quinn. Sorry I can’t answer it!


  1. Quinn said,

    I’m a law student at UT taking a Church and State constitutional law course, so I can’t help kicking myself for forgetting about pendant jurisdiction. [i]Smith[/i] was the centerpiece of our discussion about free exercise, and our professor thinks it was wrongly decided. One of the takeaways is that no one is bringing free exercise cases without distinguishing from [i]Smith[/i] by citing to [i]Lukumi[/i]) or finding statutory mechanisms for relief (e.g. RFRA in federal cases or RLUIPA).

    I’m glad I discovered your blog!

    • Andrew said,


      Don’t be silly — even UT isn’t going to expect you to be thinking about a Civ Pro question in Con Law. 🙂 You’ll get plenty of practice evaluating these kinds of issues when you graduate. Let me say that my praise for you in this thread is genuine — I assumed you were a lawyer with that kind of insight.

      One thing I want to clarify is that the academic question of whether Smith was rightly or wrongly decided is, in the context of a 42 U.S.C. 1983 lawsuit in federal district court, entirely academic. A federal district court judge is not going to try and effectively overrule the Supreme Court (unless he’s some sort of grandstanding idiot with no ambitions to ever serve on an appellate court); he’s going to apply the law as clearly established through precedent. So (yes, this is a theme) the ICR’s decision remains a head-scratcher.

      I don’t think Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), would be of much help here to the ICR, because they’d have to prove that the THECB’s review process was specifically designed to target Christians. I suppose you could tease that allegation out of the Complaint if you were so inclined, but it’s clearly false as a matter of fact.

      Welcome to the blog; enjoy!

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