Court Rejects Lawsuit Alleging Religious Liberty Commission Isn't "Fairly Balanced"

From Interfaith Alliance v. Trump, decided Monday by Judge John Cronan (S.D.N.Y.):

[A.] [T]he Federal Advisory Committee Act (“FACA”) … reflects a compromise: Congress was concerned about advisory committees being dominated by special interests, but also realized that such committees could be useful sources of advice and ideas. So instead of saddling advisory committees with endless red tape, Congress imposed relatively light requirements, [including that] a committee’s membership must be “fairly balanced” in light of the functions it performs….

This case presents a FACA challenge to the Religious Liberty Commission (the “RLC” or the “Commission”), an advisory committee established last year by President Donald J. Trump. The RLC consists of up to fourteen voting members appointed by the President and is tasked with producing a report on the foundations of religious liberty in America and the current threats to its exercise.

Plaintiffs argue that the Presidentially-appointed members of the RLC are not fairly balanced ….

[B.] Plaintiffs … fail to state a claim … [in part because] the RLC’s membership has a fair balance of viewpoints given the functions it performs….

Because the Court disposes of this case on those grounds, it assumes, for the sake of argument, that whether an agency’s membership is fairly balanced is reviewable under the APA because it is not “committed to agency discretion.” … [T]his question has deeply divided the courts ….

FACA requires that a “[c]ommittee’s members represent a fair balance of viewpoints given the functions to be performed,” but it does not define what constitutes a “fair balance.” As such, the statute leaves unanswered three sets of questions regarding whether a committee is appropriately balanced. First, “even before the points of view on an advisory committee can be balanced at all,” one must ask: “which points of view should be balanced[?]” Is a single member representing each view enough, or does a committee need more? And finally, “which kind of organization or individual legitimately represents” a viewpoint by being a member of a committee? For example, what kind of individual would hypothetically speak for an “interfaith perspective”?

Lacking clear answers to these questions, courts have been “highly deferential” in reviewing a committee’s composition. FACA is properly read as requiring such strong deference for two reasons. First, determining whether a committee is fairly balanced is largely “a political task not properly undertaken by life-tenured, unelected federal judges,” so it is doubtful that Congress wished to leave that question entirely to the courts. Instead, Congress more likely intended for courts to police only the “extreme cases” of imbalance, such as if an agency “were to announce that [it will] exclude all points of view except one.”

Second, it is notable that “as part of [a] compromise [in FACA's enactment], Congress deleted from the Act any specific standards” governing committee membership. [Details omitted. -EV] …

Under this deferential standard, the RLC’s membership is fairly balanced. Its members include workers in the public, private, and nonprofit sectors, have widely varying life experiences—from a former host of a popular television show to a State Lieutenant Governor, are religious leaders as well as rank-and-file congregants, and—to the extent that it matters—encompass adherents of at least five different religions. {Although the religious beliefs of each RLC member are not clear, Rabbi Meir Soloveichik is an Orthodox Jew, Pastor Franklin Graham is an Evangelist, Pastor Paula White is a non-denominational Christian, Cardinal Timothy Dolan is a Catholic, and Scott Turner is a Baptist.} …

[C.] Plaintiffs fault the RLC for “not represent[ing] religious communities aside from Christianity and Judaism,” which Plaintiffs attribute to President Trump’s “Judeo-Christian framework.” The Court disagrees with this argument for three reasons.

First, the faith of RLC members is not relevant to the Commission’s function, which is to “produce a comprehensive report” on issues such as “the foundations of religious liberty in America, the impact of religious liberty on American society, [and] current threats to domestic religious liberty.” After all, “faith is a personal matter,” and the particular deity a person worships, if any, need not affect one’s views on public policy issues such as the status of religion in America or the appropriate policies with respect to religion. It was certainly within President Trump’s discretion to decide that it was comparatively more important to prioritize balancing whether the RLC’s members were “representatives of various sectors of society, including the private sector, employers, educational institutions, religious communities, and States.”

The Court also rejects the premise that there is a single “Judeo-Christian” viewpoint. There is a wide diversity of both Christian (Catholic, Baptist, Lutheran, Greek Orthodox, etc.) and Jewish (Reform, Conservative, Orthodox, etc.) religious denominations, and there are extensive disagreements between and among these faith traditions on important issues. Given the wide diversity of Christian and Jewish beliefs, there is no reason to think that an Evangelical member would “balance out” a Catholic member any less than a Buddhist member would. And if an unavoidable reality of a fourteen-member commission is that some groups will be left out, Plaintiffs do not justify why leaving out non-”Judeo Christian” religions is any more imbalanced than leaving out religions within that group.

Finally, it is not clear where the logic of Plaintiffs’ argument ends. If the RLC is not fairly balanced as to the viewpoints of the Sikh American Legal Defense and Education Fund, even though there are only around 70,000 Sikh-Americans based on the most recent U.S. Census data, does President Trump need to appoint adherents from every single religious denomination in America? And if the President does include a Sikh member, would it then be unfair to give the relatively small Sikh community the same number of representatives as, for example, the much larger Muslim community? Taking this to its logical extreme, would Plaintiffs’ position suggest that the President must employ a quota system to select members for a committee on an issue of national importance? Fortunately, these questions need not be asked because the RLC must only be “fairly” balanced—not perfectly balanced…. “[F]airness is a capacious concept.” …

{The Court notes that the RLC is not entirely devoid of non-Judeo-Christian input. Ismail Royer, a Muslim who works as the Director of the Islam and Religious Freedom Action Team for the Religious Freedom Institute, serves on an advisory board to the RLC, and in that capacity “advise[s] members of the [RLC].”} …

[D.] Plaintiffs argue that the RLC is unfairly balanced because “each member of the Commission has expressed the view that the law should protect the exercise of religious beliefs over the civil rights of minority groups.” The Court disagrees.

First, the President was not required to select members who believe that the laws which Plaintiffs call “civil rights protections” should trump constitutionally protected religious exercise. As articulated in the EO, the RLC was created in response to a perceived “emerging threat[ ]” from “opponents of religious liberty” who seek to “characterize religious liberty as inconsistent with civil rights.” So just as a committee to combat climate change would not need to include climate-change deniers, a commission to combat “policies [that] have threatened America’s unique and beautiful tradition of religious liberty” does not need to include individuals supporting such policies. That sort of self-sabotage would not be a fair balance “in terms of … the functions to be performed by the advisory committee.”

Moreover, Plaintiffs do not allege facts showing that the RLC members are imbalanced in their perspective on the regulation of religious exercise. Although Plaintiffs state that “each member of the Commission has expressed the view that the law should protect the exercise of religious beliefs over the civil rights of minority groups” and that “several Commission members have … argued that religious liberty should include the right to discriminate against members of the LGBTQ community,” these allegations lack specificity about what each RLC member supposedly said, improperly “lumping [actors] together … and providing no factual basis to distinguish their conduct.”

Plaintiffs’ remaining allegations are that (1) two RLC members are “affiliated” with an organization that has “sought to overturn antidiscrimination and antiharassment laws on religious grounds,” and (2) seven other members of the RLC oppose either abortion or same-sex marriage on religious grounds. But even accepting that these allegations plausibly suggest that these nine members share a single viewpoint that prioritizes religion over civil rights, that still leaves the RLC’s other four voting members, as well as its three ex officio members. A ratio of nine voting members to four voting members (plus three non-voting members) is far from the “extreme case[]” of imbalance that might qualify as unfair….

[E.] [Plaintiffs argue] that the RLC has a skewed “representation of views on … the separation of church and state” because “many members [of the RLC] have … argu[ed] that religion, specifically what they would term ‘Judeo-Christian’ values, should be promoted by the government.” The factual allegations in Plaintiffs’ Complaint do not support this bold assertion.

To be sure, Plaintiffs allege that various RLC members have (1) stated that “[t]here is no separation of church and state … in our constitution” and that “our nation” is “undergirded” by “Judeo-Christian beliefs,” (2) argued that the United States “is a religious nation whose very governmental institutions proclaim the existence of God” and that Church and State should “work together to promote godly principles,” (3) advocated for “expressions of religion in the public space and in civil life” and that faith be “brought back to where it always belongs and that is center,” and (4) opposed a “completely secular state.” But these one-line soundbites do not reflect anything close to a single shared worldview.

In fact, these quotations from RLC members do not even concern the same topics—the statements range from opinions concerning constitutional law, to arguments about American history, to beliefs about the importance of religious values. Someone who believes that there is no separation of Church and State in our Constitution might still disagree, as a policy matter, with someone who believes that there should be expressions of religion in the public space and in civil life.

And even more importantly, the statements that Plaintiffs cite are taken completely out of context, and in most cases, appear to give scant indication of the speaker’s current beliefs. For example, Plaintiffs attempt to characterize Rabbi Meir Soloveichik’s present views on the separation of Church and State by quoting a question he posed in an article published in the Torah U-Madda academic journal two decades ago … (“Should Jews join Scalia in affirming that the United States is a religious nation, whose very governmental institutions proclaim the existence of God?”) …

{Plaintiffs also mischaracterize past statements from Dr. Ben Carson and Dr. Ryan Anderson. Plaintiffs allege that Dr. Carson has stated that “church and state should ‘work together to promote godly principles.’” But Dr. Carson actually began this 2019 statement by noting that “separation of church and state means that the church does not dominate the state, and it means the state does not dominate the church,” and only then added: “It doesn’t mean that they cannot work together to promote godly principles.” Similarly, Plaintiffs allege that Dr. Anderson “opposes a ‘completely secular state,’” but the words “completely secular state” were actually used by Benedictine College to describe Dr. Anderson’s assessment of the effects of a 1960 campaign speech by President John F. Kennedy. In fact, the same source quotes Dr. Anderson as agreeing with “[t]he institutional separation of church and state.”}

Another problem with Plaintiffs’ reliance on one-off statements made by RLC members is that there is no indication in the text of FACA that whether a committee is “fairly balanced” turns on the personal opinions of individual committee members…. “Congress intended ‘balance’ to be judged by the members’ employment status and background.” …

An inquest into members’ personal beliefs is often more obfuscating than it is probative. For example, consider a product safety committee that must be evenly balanced between consumer advocates and industry representatives. If personal opinions were fair game, opponents of the committee could always challenge its work by pointing to isolated “pro-industry” statements made by the committee’s consumer advocates or stray “pro-consumer” remarks made by the industry representatives, making it all the more hopelessly difficult for courts to “determine whether the views of a particular committee member are sufficiently close to those of [a particular group] to deem them ‘representative.’”

[F.] The foregoing discussion illustrates why courts are so “highly deferential” in reviewing whether a committee’s membership is fairly balanced, and thus find a violation of that requirement only in “extreme cases” such as if an agency “were to announce that [it will] exclude all points of view except one.” Here, second-guessing the President’s selection of RLC members would require making “quintessentially political” judgments about whether particular RLC members are “representative” of a viewpoint, whether a not-quite-even balance of viewpoints on an issue is “fair,” and whether certain viewpoints need to be balanced at all in light of the RLC’s functions.

If Congress had intended for courts to engage in this sort of scrutiny, it surely would have provided clearer standards to employ. But of course, the lack of standards is by design: FACA was enacted due to a compromise wherein “Congress deleted from the Act any specific standards” for committee membership. Respecting that compromise means accepting the Executive’s choices about membership balance in relatively close cases such as this….

Carly Iris Weinreb and Dana Walsh Kumar (DOJ-United States Attorney’s Office) represent the government.

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