The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

VIKRAM DAVID AMAR, ALAN E. BROWNSTEIN

Illinois law dean Vikram David Amar and UC Davis law professor emeritus Alan Brownstein comment on a largely unacknowledged clash between religious accommodations and exemptions on the one hand, and core free speech principles which the U.S. Supreme Court has repeatedly recognized, on the other. Amar and Brownstein describe this apparent conflict and suggest that the Court begin to resolve the conflict when it decides two cases later this term presenting the question of the scope of the “ministerial exception.”

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Chittenden County Sheriff's Department v. Department of Labor

Citation: 2020 VT 4

Opinion Date: January 24, 2020

Judge: Eaton

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

The Chittenden County, Vermont Sheriff’s Department (CCSD) appealed the Vermont Employment Security Board’s ruling that the CCSD was not entitled to relief from several weeks of unemployment compensation benefits which it paid to a former CCSD employee, Michael Major, due to an alleged erroneous determination by a Board claims adjudicator. The CCSD and the State both appealed a claims adjudicator’s decision to an Administrative Law Judge (ALJ), who, following a hearing, reversed the claims adjudicator’s determination and found that Major had voluntarily quit and was therefore not entitled to unemployment benefits. As part of that determination, the ALJ waived any requirement that Major repay the benefits he had received because the ordered payments were not a result of any nondisclosure or material misrepresentation on his part. The ALJ also refused to allow the CCSD or the State relief from benefits already paid to Major as a result of the claims adjudicator’s determination. Although the ALJ concluded the State was Major’s last employing unit, the ALJ further determined that neither Major nor the sheriff made any distinction between Major’s employment by the State or the CCSD and that, in practice, Major’s position as a State transport deputy and his duties from the CCSD were one and the same. The ALJ refused to allow the CCSD and the State to be relieved of benefits they had paid to Major because both employers had chosen not to pay quarterly unemployment insurance tax, but instead elected to make reimbursement payments to the unemployment compensation fund for benefits they were ordered to pay. As a result of being a reimbursing employer, rather than a contributing one, the CCSD was liable to reimburse the unemployment fund, and could not be relieved of those charges. The Vermont Supreme Court affirmed, finding the plain language of 21 V.S.A. 1321(f) made it “abundantly clear to all eligible employers” that, should they select reimbursing status, they would assume responsibility for benefits paid but denied on appeal. “Having availed itself of this advantage, the CCSD cannot now avoid the financial obligations, including the risk of liability for benefits paid in error, it accepted in exchange.”

Vermont v. Sarkisian-Kennedy

Citation: 2020 VT 6

Opinion Date: January 24, 2020

Judge: Eaton

Areas of Law: Constitutional Law, Criminal Law

Following a jury trial, defendant Venessa Sarkisian-Kennedy was convicted of operating a vehicle under the influence of alcohol, second offense (DUI-2), and criminal refusal of an evidentiary breath test (refusal). She appealed, arguing that the trial court erred in: (1) admitting, subject to what she contended was an ineffective limiting instruction) the results of a horizontal gaze nystagmus (HGN) test offered by the State absent scientific, foundational testimony from an expert witness; and (2) allowing the State to present evidence of her refusal to consent to a preliminary breath test (PBT) on the theory that it was relevant to consciousness of guilt. After review, the Vermont Supreme Court concurred with defendant’s first contention, but not the second. The Court therefore reversed and remanded the refusal conviction and affirmed the DUI-2 conviction.