Posted by: Patricia Salkin | July 3, 2021


This post was authored by Edward J. Sullivan. Esq.

              Mast v. Fillmore County, 594 U.S. ___, No. 20–7028 (July 2, 2021) involved a long-running dispute between Defendant County and the Swartzentruber Amish community, a “traditional” group that eschewed most industrial age inventions. The County sought to enforce state administrative regulations concerning “greywater” (i.e., water used in dishwashing, laundry, and the like) so as to prevent pollution of water resources, insisting that the community install the required and more modern system. The Supreme Court vacated and remanded a lower court decision in the light of Fulton v. Philadelphia, 593 U. S. ___ (2021). Justice Alito concurred in the judgment, but Justice Gorsuch wrote separately to set out his views so as to “to highlight a few issues the lower courts and administrative authorities may wish to consider on remand,” and it is this opinion that received the most attention from court-watchers.

              Justice Gorsuch notes a wide variety of views in the Amish community as to how much accommodation may be made to the modern world. In the subject community, Water arrives through a single line and is either pumped by hand or delivered by gravity from an external cistern. The state rules require specific greywater treatment and the County threatened civil and criminal penalties and the denial of the use of those dwellings that had non-complying systems and rejected Amish requests for alternative treatments or accommodations that would respect their religious principles. The Amish then filed a declaratory judgment against the state agency and the county that their positions violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), while offering to install systems used elsewhere that clean gray water in large earthen basins filled with wood chips that filter water as it drains. 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. This and other actions were characterized by the Supreme Court as a challenge to the sincerity of community beliefs, in that the community did accommodate itself to certain other modern technology.

              Justice Gorsuch noted that Fulton, and RLUIPA, impose a strict scrutiny rule in these circumstances, where the public agency bears the burden to demonstrate that its regulations serve a “compelling” governmental interest—and that its regulations are “narrowly tailored” to achieve that interest. A general interest, such as clean water, is not sufficient – that interest must address the specific application of those rules to this community, so as to scrutinize ‘the asserted harm of granting specific exemptions to particular religious claimants’ to determine whether it has such an interest in denying an exception” from that requirement to that specific community.

              Additionally, Justice Gorsuch suggested that other exemptions to the general rule must be considered. Minnesota exempts those who “hand-carr[y]” their gray water to discharge it onto the land directly, so that ‘thousands of campers, hunters, fishermen, and owners and renters of rustic cabins are exempt from the septic system mandate.’ That inconsistency must be explained in terms of strict scrutiny. Justice Gorsuch added:

              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 interests in a manner that does not burden religion, it must do so.” Fulton, 593 U. S., at ___ (slip op., at 13).

Assumptions that the proposed system that relied on human labor was too burdensome and

not practical must also be considered against its allowance in other states, as well as in more

limited circumstances in Minnesota. The public agency must show the system will not work in

the present location. Justice Gorsuch concluded:

                             . . . 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. . . . In this country, neither the Amish nor anyone else should have to choose between their farms and their faith.

     Although this case involves a simple remand for reconsideration in light of a more recent

RLUIPA decision, the use of strict scrutiny in a land use and environmental context should give

pause to decision-makers and administrators in these fields in formulating and applying general

policies that affect daily life.

          Mast v. Fillmore County, 594 U.S. ___, No. 20–7028 (July 2, 2021).

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