The Jewish Coalition for Religious Liberty and the National Committee for Amish Religious Freedom filed a so-called amici curiae brief on March 5. An amici curiae brief allows those who are not directly involved in a case, but would have an interest in the outcome, to submit arguments to the court in support of a party that is directly involved.
Through their attorney Brian Lipford, four members of the Fillmore County Swartzentruber Amish community filed a petition with the U.S. Supreme Court on Jan. 20, 2021, asking the high court to consider two questions under the Religious Land Use and Institutionalized Persons Act: Does the government have a compelling interest in regulating the disposal of “gray water,” which includes laundry, bath and dishwater; and is a septic system the least restrictive method when 20 states allow mulch basin systems?
The petition comes after years of legal battles in Minnesota’s courts against the Minnesota Pollution Control Agency and Fillmore County over concerns that the agency and county were requiring the Amish to install wastewater systems for gray water that go against their religious beliefs.
The Minnesota Pollution Control Agency filed a waiver of response with the nation’s high court stating it did not intend to respond to the petition. Fillmore County did not respond. Neither party is required to respond to the petition.
The petition is scheduled to be discussed at a judicial conference on March 26. At that point, the high court could grant or deny the petition or ask the government to respond before making a decision.
Amicus curiae brief
The 31-page brief argues that the district court’s ruling, and the Minnesota Court of Appeal’s decision to uphold it, failed to hold the county and MPCA to their burden under the Religious Land Use and Institutionalized Persons Act.
The act, also known as RLUIPA, was unanimously passed by Congress and signed into law by President Bill Clinton in 2000 and subjects any land-use regulation imposing a substantial burden on religious exercise to strict scrutiny, permitting application of the regulation only if the government demonstrates that the imposition is in furtherance of a compelling government interest and that it is the least restrictive means of furthering that interest.
“From before the Founding, the United States has offered succor for adherents of uncommon or disfavored faiths,” the petition reads. “In the United States, practitioners of diverse faiths are not merely ‘tolerated,’ but welcomed as members of the community and fellow citizens. To be sure, we have at times fallen short of our ideals of religious freedom.”
The brief argues that the county and the MPCA failed to show “that their generic interests in public health and environmental protection were so compelling in this specific application as to justify trampling Petitioner’s religious beliefs,” the brief states.
The brief also notes that the county and the MPCA failed to prove that the mulch basins proposed by the Amish as an alternative, and used in 20 other states, were not an acceptable option.
When strict scrutiny is abandoned or misapplied, the brief states, the results can gravely undermine sincerely held religious beliefs.
“This case presents exactly the scenario Congress anticipated in RLUIPA, and the Court should clarify that RLUIPA strict scrutiny forbids the effective exclusion of the Amish from Fillmore County,” the brief reads.