American Friends Service Committee Corp. v. Thornburgh

941 F.2d 808, 1991 WL 143854
Court of Appeals for the Ninth Circuit·Decided August 2, 1991·No. No. 89-56095·Published·Cited by 1 cases

Opinion

CANBY, Circuit Judge:

The American Friends Service Committee (“AFSC”)1 appeals the district court’s dismissal of its suit for injunctive and declaratory relief. AFSC alleges that its free exercise of religion is violated by the “employer sanction” provisions of the Immigration Reform and Control Act (“IRCA”), 8 U.S.C. § 1324a(a)(l). Those provisions require, generally, that employers verify the legal immigration status of their employees. The district court dismissed the action for failure to state a claim. American Friends Service Comm. v. Thornburgh, 718 F.Supp. 820 (C.D.Cal.1989). We affirm.

BACKGROUND

The AFSC is a Quaker organization, whose activities include charitable and relief work. The employer sanction provisions of IRCA apply to the AFSC’s employment of approximately 400 persons. Those provisions prohibit an employer from hiring, or continuing to employ, an alien who the employer knows is not authorized to work in the United States. 8 U.S.C. § 1324a(a)(l)(A) & (a)(2). IRCA also requires an employer to attest (on a “Form I-9”) that it has verified the legality of an alien’s immigration status by examining documents which evidence identity and work authorization. 8 U.S.C. § 1324a(a)(l)(A). Failure to comply with these provisions can result in civil and criminal sanctions. 8 U.S.C. § 1324a(e) & (f).

AFSC has not complied with these provisions of IRCA because it believes that to do so would violate the religious beliefs and practices of its members. Those beliefs require that AFSC and its members “welcome — that they help and not show hostility to — the sojourner, the stranger, the poor, and the dispossessed in their midst.” Appellants’ Opening Brief, at 2. Thus, AFSC contends that it

can neither discharge brothers and sisters whose religious beliefs preclude their producing proof of secular work authorization, nor refuse human beings work — thus depriving them of the means to feed and clothe themselves and their children — simply because they may be strangers in our land.

Id. at 4.

The district court granted the government’s motion to dismiss for failure to state a claim, pursuant to Fed.R.Civ.Proc. 12(b)(6). The district court ruled that

plaintiffs are unable to state a claim under both the “wholly irrational” or “compelling interest standards.” Specifically, [810]*810the Court finds that, assuming IRCA has a substantial impact upon plaintiffs’ free exercise rights as alleged, the plaintiffs’ interests cannot overcome the government’s interest in immigration control as a matter of law.

American Friends Service Committee v. Thornburgh, 718 F.Supp. at 823.

ANALYSIS

Had we reviewed this case immediately after the district court’s ruling, we would have applied the balancing test articulated in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272 (9th Cir.1982). But after AFSC filed this appeal, the Supreme Court handed down its decision in Employment Division, Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). That case dramatically altered the manner in which we must evaluate free exercise complaints like that of AFSC, and requires that we affirm the district court’s dismissal.

Smith was an action brought by two members of the Native American Church who had been denied unemployment compensation by the State of Oregon. Compensation had been denied because the two workers had been discharged by their private employer for “misconduct.” The “misconduct” was the ingestion of peyote at a religious ceremony. Oregon law made the possession of peyote a crime, and provided no exception for religious use.

The two Church members claimed that the denial of unemployment benefits on that ground violated their first amendment right to free exercise of their religion. The Supreme Court ruled that the first amendment had not been violated because the Oregon law criminalizing the use of peyote was a “valid and neutral law of general applicability.” Id., 110 S.Ct. at 1600 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 1058 n. 3, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring)). The Court indicated that such free exercise claims must fail “if prohibiting the exercise of religion ... is not the object of the [law] but merely the incidental effect of a generally applicable and otherwise valid provi-sion_” Id. (emphasis added).

The present ease falls squarely within the rule announced in Smith. There is no allegation, nor does AFSC contend, that IRCA’s employer sanction provisions are directed at religious belief or the exercise of religion. See Intercommunity Center for Justice and Peace v. INS, 910 F.2d 42, 44 (2d Cir.1990) (rejecting, on the authority of Smith, a similar challenge by Catholic nuns to IRCA’s employer sanctions provisions: “[IRCA] neither regulates religious beliefs nor burdens acts because of their religious expression or motivation.”) Nor does AFSC assert, in this case, any defect in IRCA other than its infringement of AFSC’s free exercise of religion. Thus, for purposes of the analysis required by Smith, IRCA is a “valid and neutral law of general applicability.” Smith, 110 S.Ct. at 1600 (quoting United States v. Lee, 455 U.S. at 263 n. 3, 102 S.Ct. at 1058 n. 3).

AFSC contends, however, that its claim falls within two exceptions that the Court recognized to its rule in Smith. The first exception is that for “hybrid claims”— those claims which contain not only a free exercise challenge to governmental action, but also another substantive constitutional claim as well. Illustrative are Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (free exercise and freedom of expression violated by licensing system for religious and charitable solicitations), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (free exercise and substantive due process right of parents to direct the education of their children violated by compulsory school attendance statute).

AFSC contends that its claim is “hybrid” in that it combines a substantive due process “right to employ” with a free exercise claim. At least since the demise of Lo-chner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed.

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American Friends Service Committee Corp. v. Thornburgh, 941 F.2d 808, 1991 WL 143854 (9th Cir. 1991).

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