Mast v. Fillmore County

Cite as: 594 U. S. ____ (2021) 1
ALITO,AJ., , J., concurring
concurring
LITO in judgment
SUPREME COURT OF THE UNITED STATES
AMOS MAST, ET AL. v. FILLMORE COUNTY,
MINNESOTA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF APPEALS OF MINNESOTA
No. 20–7028. Decided July 2, 2021
The motion of petitioners for leave to proceed in forma
pauperis and the petition for a writ of certiorari are
granted. The judgment is vacated, and the case is re-
manded to the Court of Appeals of Minnesota for further
consideration in light of Fulton v. Philadelphia, 593 U. S.
___ (2021).
JUSTICE ALITO, concurring in the judgment.
I agree that we should vacate the judgment below and
remand for further consideration. The lower court plainly
misinterpreted and misapplied the Religious Land Use and
Institutionalized Persons Act.
Cite as: 594 U. S. ____ (2021) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
AMOS MAST, ET AL. v. FILLMORE COUNTY,
MINNESOTA, ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF APPEALS OF MINNESOTA
No. 20–7028. Decided July 2, 2021
JUSTICE GORSUCH, concurring in the decision to grant,
vacate, and remand.
The Swartzentruber Amish are religiously committed to
living separately from the modern world. Maintaining that
commitment is not easy. They grow their own food, tend
their farms using pre-industrial equipment, and make their
own clothes. In short, they lead lives of faith and self-reli-
ance that have “not altered in fundamentals for centuries.”
Wisconsin v. Yoder, 406 U. S. 205, 216–217 (1972).
In this long-running litigation, officials in Fillmore
County, Minnesota have insisted that the Amish must
adopt certain modern technologies or risk jail, fines, and
even losing their farms. Today, the Court grants the
Amish’s petition for review, vacates the lower court’s deci-
sions, and remands this case for further proceedings in light
of our recent decision in Fulton v. Philadelphia, 593 U. S.
___ (2021). I support this decision and write to highlight a
few issues the lower courts and administrative authorities
may wish to consider on remand.
*
Each Amish community has its own body of religious
rules, called an Ordnung. When a community must decide
whether its faith permits a certain action—say, using the
phone at a neighbor’s farm should a fire break out—it
makes that decision collectively. Sometimes there are dis-
agreements and communities fracture. Over time, this phe-
nomenon has led to approximately 40 different affiliations
2 MAST v. FILLMORE COUNTY
GORSUCH, J., concurring
within the broader Amish community across the United
States. The Swartzentruber Amish are among the most
traditional.
Today’s dispute is about plumbing, specifically the dis-
posal of gray water—water used in dishwashing, laundry,
and the like. The Swartzentruber Amish do not have run-
ning water in their homes, at least as most would under-
stand it. Water arrives through a single line and is either
pumped by hand or delivered by gravity from an external
cistern.
In 2013, Fillmore County adopted an ordinance requiring
most homes to have a modern septic system for the disposal
of gray water. See App. to Pet. for Cert. 3; Minn. Stat.
§115.55(2)(a) (2020); Minn. Admin. Rules 7080.1050–
7080.2550 (2019); Fillmore County, Sub-Surface Sewage
Treatment System Ordinance §§501–502 (2013). Respond-
ing to this development, the Swartzentruber Amish submit-
ted a letter explaining that their religion forbids the use of
such technology and “ ‘asking in the name of our Lord to be
exempt’ ” from the new rule. App. to Brief in Opposition for
Respondent Minnesota Pollution Control Agency 78 (MPCA
App.). Instead of accommodating this request or devising a
solution that respected the Amish’s faith, the Minnesota
Pollution Control Agency filed an administrative enforce-
ment action against 23 Amish families in Fillmore County
demanding the installation of modern septic systems under
pain of criminal penalties and civil fines. Id., at 79.
Faced with this action, the Amish filed their own declar-
atory judgment suit in state court against Fillmore County
and the Minnesota Pollution Control Agency (collectively,
the County), alleging that the County’s septic-system man-
date violated the federal Religious Land Use and Institu-
tionalized Persons Act (RLUIPA). But the Amish also of-
fered an alternative. They offered to install systems that
clean gray water in large earthen basins filled with wood
chips that filter water as it drains. These wood chip basins
Cite as: 594 U. S. ____ (2021) 3
GORSUCH, J., concurring
may be more primitive than modern septic systems, but
other jurisdictions permit their use for the disposal of gray
water. See App. to Pet. for Cert. 4; id., at 73–74.
Evidently, none of this pleased the authorities. The
County replied by filing a counterclaim seeking an order
displacing the Amish from their homes, removing all their
possessions, and declaring their homes uninhabitable if the
Amish did not install septic systems within six months.
MPCA App. 80. The County even unsuccessfully sought a
court order authorizing its agents to inspect the inside of
Amish homes as part of an investigation into what “types of
modern technologies and materials” they might be using.
Id., at 81. Apparently, this was part of an effort to amass
“evidence” to “attack the sincerity of [the Amish’s] religious
beliefs.” Ibid., n. 5.
Eventually, the case proceeded to trial. There, the state
trial court rejected the County’s most aggressive argu-
ments, including (1) its claim that the Amish’s “limited use
of telephones” proved that their objection to modern septic
systems was contrived, App. to Pet. for Cert. 43; (2) its ar-
gument that the Bible commands the Amish to submit to
“secular authority,” id., at 44, n. 16; and (3) its assertion
that installing septic systems represented only a de mini-
mis burden on the Amish’s religious beliefs because they
sometimes “use various items of ‘modern’ technology,” such
as “some rubber tires” or “power tools,” id., at 50. At the
same time, however, the trial court sided with the County
on the merits, requiring the Amish to install modern septic
systems. The Minnesota Court of Appeals affirmed and the
Minnesota Supreme Court denied review. Id., at 2, 76.
*
Fulton makes clear that the County and courts below
misapprehended RLUIPA’s demands. That statute re-
quires the application of “strict scrutiny.” Under that form
of review, the government bears the burden of proving both
4 MAST v. FILLMORE COUNTY
GORSUCH, J., concurring
that its regulations serve a “compelling” governmental in-
terest—and that its regulations are “narrowly tailored.”
Fulton, 593 U. S., at ___ (slip op., at 13); 42 U. S. C.
§2000cc(a)(1) (“No government shall impose or implement
a land use regulation in a manner that imposes a substan-
tial burden on the religious exercise of a person . . . unless
the government demonstrates that imposition of the bur-
den . . . is in furtherance of a compelling government inter-
est; and is the least restrictive means of furthering that
compelling governmental interest”).
Perhaps most notably, the County and courts below erred
by treating the County’s general interest in sanitation reg-
ulations as “compelling” without reference to the specific
application of those rules to this community. As Fulton ex-
plains, strict scrutiny demands “a more precise analysis.”
593 U. S., at ___ (slip op., at 14). Courts cannot “rely on
‘broadly formulated’ ” governmental interests, but must
“ ‘scrutinize[ ] the asserted harm of granting specific exemp-
tions to particular religious claimants.’ ” Ibid. (quoting
Gonzales v. O Centro Espírita Beneficente União do Vegetal,
546 U. S. 418, 431 (2006)). Accordingly, the question in this
case “is not whether the [County] has a compelling interest
in enforcing its [septic system requirement] generally, but
whether it has such an interest in denying an exception”
from that requirement to the Swartzentruber Amish specif-
ically. Fulton, 593 U. S., at ___ (slip op., at 14) (emphasis
added); see also Holt v. Hobbs, 574 U. S. 352, 362–363
(2015) (RLUIPA requires courts to “scrutiniz[e] the as-
serted harm of granting specific exemptions to particular
religious claimants” (internal quotation marks omitted; em-
phasis added)).*
——————
*Before this Court, the County argues chiefly that the Amish forfeited
this aspect of the law’s protections by failing to press it sufficiently below.
That is incorrect. The Amish asked the Minnesota Supreme Court to
review whether the County had proved the absence of any “alternative
Cite as: 594 U. S. ____ (2021) 5
GORSUCH, J., concurring
Separately, the County and lower courts erred by failing
to give due weight to exemptions other groups enjoy. For
example, in Minnesota those who “hand-carr[y]” their gray
water are allowed to discharge it onto the land directly.
Minn. Admin. Rule 7080.1500, §2. So thousands of camp-
ers, hunters, fishermen, and owners and renters of rustic
cabins are exempt from the septic system mandate. Under
strict scrutiny doctrine, the County must offer a compelling
explanation why the same flexibility extended to others
cannot be extended to the Amish. As Fulton put it, the gov-
ernment must offer a “compelling reason why it has a par-
ticular interest in denying an exception to [a religious
claimant] while making [exceptions] available to others.”
593 U. S., at ___ (slip op., at 15). Or as this Court has said
elsewhere, it is “established in our strict scrutiny jurispru-
dence that a law cannot be regarded as protecting an inter-
est of the highest order when it leaves appreciable damage
to that supposedly vital interest unprohibited.” Church of
Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547
(1993) (internal quotation marks and alteration omitted);
see also Holt, 574 U. S., at 367 (“[T]he Department has not
adequately demonstrated why its grooming policy is sub-
stantially underinclusive”); O Centro Espírita, 546 U. S., at
436 (“The Government’s argument echoes the classic rejoin-
der of bureaucrats throughout history: If I make an excep-
tion for you, I’ll have to make one for everybody, so no ex-
ceptions”).
——————
means for adequately disposing of household gray water that is less re-
strictive on Petitioners’ freedom to exercise their religious beliefs.”
MPCA App. 41 (boldface omitted; emphasis added). And they argued in
the Minnesota Court of Appeals that “RLUIPA requires the court to scru-
tiniz[e] the asserted harm of granting specific exemptions to particular
religious claimants.” Id., at 112 (internal quotation marks omitted). In
any event, this Court has now vacated and remanded the decisions be-
low, affording the County and courts below alike another opportunity to
consider this issue.
6 MAST v. FILLMORE COUNTY
GORSUCH, J., concurring
Relatedly, the County and lower courts failed to give suf-
ficient weight to rules in other jurisdictions. Governments
in Montana, Wyoming, and other States allow for the dis-
posal of gray water using mulch basins of the sort the
Amish have offered to employ. App. to Pet. for Cert. 73–74.
Given that, the County in this case bore the burden of pre-
senting a “compelling reason why” it cannot offer the Amish
this same alternative. Fulton, 593 U. S., at ___ (slip op., at
15). To be sure, the County stresses the fact that the “rec-
ord contains no evidence of a single, properly working
mulch basin system in Minnesota.” App. to Pet. for Cert.
74. But that is not enough. It is the government’s burden
to show this alternative won’t work; not the Amish’s to show
it will. “[S]o long as the government can achieve its inter-
ests in a manner that does not burden religion, it must do
so.” Fulton, 593 U. S., at ___ (slip op., at 13).
Finally, despite acknowledging that mulch basins could
“theoretically” work, the County and lower courts rejected
this alternative based on certain assumptions. They as-
sumed that suitable sites for mulch basins could not be
found on the Amish’s farms—and that maintaining the ba-
sins would prove too much work. See, e.g., App. to Pet. for
Cert. 67 (“It is questionable whether one could even find
sites on the Plaintiffs’ farms in Fillmore County that would”
satisfy the technical requirements for an effective mulch
system); ibid. (“[S]ites that would satisfy that requirement
may simply not be available to the Plaintiffs”); id., at 68
(“[T]he maintenance required to keep such a system
properly operating would be so burdensome as to render it
unfeasible”); ibid. (“[I]n Dr. Heger’s opinion, this mainte-
nance requirement makes the mulch basin concept unwork-
ably labor intensive”); id., at 69 (“ ‘I don’t think it’s practi-
cal’ ”). But strict scrutiny demands more than supposition.
The County must prove with evidence that its rules are nar-
rowly tailored to advance a compelling state interest with
respect to the specific persons it seeks to regulate. Here,
Cite as: 594 U. S. ____ (2021) 7
GORSUCH, J., concurring
that means proving that mulch basins will not work on
these particular farms with these particular claimants.
Again, if “the government can achieve its interests in a
manner that does not burden religion, it must do so.” Ful-
ton, 593 U. S., at ___ (slip op., at 13) (emphasis added); see
also Tandon v. Newsom, 593 U. S. ___, ___ (2021) (per cu-
riam) (slip op., at 3) (“The State cannot ‘assume the worst
when people go to worship but assume the best when people
go to work’ ” (quoting Roberts v. Neace, 958 F. 3d 409, 414
(CA6 2020) (per curiam))).
*
RLUIPA prohibits governments from infringing sincerely
held religious beliefs and practices except as a last resort.
Despite that clear command, this dispute has staggered on
in various forms for over six years. County officials have
subjected the Amish to threats of reprisals and inspections
of their homes and farms. They have attacked the sincerity
of the Amish’s faith. And they have displayed precisely the
sort of bureaucratic inflexibility RLUIPA was designed to
prevent. Now that this Court has vacated the decision be-
low, I hope the lower courts and local authorities will take
advantage of this “opportunity for further consideration,”
Lawrence v. Chater, 516 U. S. 163, 167 (1996) (per curiam),
and bring this matter to a swift conclusion. In this country,
neither the Amish nor anyone else should have to choose
between their farms and their faith.