July 4, 2021

"The Swartzentruber Amish do not have running water in their homes, at least as most would understand it."

"Water arrives through a single line and is either pumped by hand or delivered by gravity from an external cistern. In 2013, Fillmore County adopted an ordinance requiring most homes to have a modern septic system for the disposal of gray water. Responding to this development, the Swartzentruber Amish submitted a letter explaining that their religion forbids the use of such technology and “ ‘asking in the name of our Lord to be exempt’ ” from the new rule.  Instead of accommodating this request or devising a solution that respected the Amish’s faith, the Minnesota Pollution Control Agency filed an administrative enforcement action against 23 Amish families in Fillmore County demanding the installation of modern septic systems under pain of criminal penalties and civil fines. Faced with this action, the Amish filed their own declaratory judgment suit... But the Amish also offered an alternative. They offered to install systems that clean gray water in large earthen basins filled with wood chips that filter water as it drains...."

Wrote Justice Gorsuch, concurring in Amos Mast v. Fillmore County, where the Supreme Court granted cert., vacated the judgment, and remanded the case for consideration in light of Fulton v. Philadelphia.

At Reason, Josh Blackman, in "Justice Gorsuch Sketches The Post-Fulton Roadmap in Amish Septic System GVR," says: "I think Justice Gorsuch has sketched a three-part roadmap for Free Exercise Clause claims after Fulton. Lower courts, take notice." 

First, Justice Gorsuch explains that the government must establish its interest with specificity. This analysis must be "precise," rather than "broadly formulated."...

Second, Justice Gorsuch considers the sorts of exemptions the state gives to other groups.... The Court must consider other jurisdictions that have exempted people of faith.... I don't think this principle follows from Fulton. But it could potentially be a game-changer for Free Exercise cases. States that are overly protective of religious liberty will now set the floor for states hostile to free exercise claims....

Third, the state must demonstrate that its policy is narrowly tailored "with evidence." Not "supposition."...

The County must prove with evidence that its rules are narrowly tailored to advance a compelling state interest with respect to the specific persons it seeks to regulate. Here, that means proving that mulch basins will not work on these particular farms with these particular claimants."


Ann Althouse said...

Thomas writes:

"It happens that I live about 20 miles east of Fillmore County and about 35 miles east of a plot of 15 acres owned by Amos and Mattie Mast. What is remarkable is that the first I have heard of this case is on your blog. The only local news coverage I can find is the report of the Supreme Court decision in the Rochester (MN) Post Bulletin. However, the La Crosse (WI) Tribune, the Winona (MN) Daily News, and the Houston County (MN) News did have excellent coverage of President Biden's ice cream cone purchase during his recent visit to La Crosse. President Joe Biden ordered an ice cream cone with one scoop of strawberry and one scoop of cookies and cream during his Tuesday visit to the Pearl ice cream parlor. Never mind "Amos Mast v Fillmore County" or who shot Ashli Babbitt. "

Ann Althouse said...

Skeptical Voter writes:

"Having now read the Supreme Court opinion, along with bits and pieces of earlier newspaper accounts one thing seems apparent. Regulatory authorities don’t like to be disobeyed. There’s a distinct flavor here that the authorities had a “hard on” for the Amish—not necessarily because of their religion, but rather because of their non compliance. “That’s a nice little farm house you got there—it would be a shame if we had to come in, take out the windows, remove the stove and make it otherwise uninhabitable”.

"There’s an increasing tendency of state governments to “come the heavy” when approaching citizens. This case is an example—but goodness knows there have been a lot of other examples on offer in last year’s Kung Flu lockdowns. We have a lot of wannabe Napoleons in government today."

Ann Althouse said...

Skeptical Voter also writes:

"Fillmore County is rural—in fact the population today is less than it was in say 1950. Dishwater, clothes washing water (although I could be surprised—maybe the Amish wash their clothes in the river)—whatever the quantity of gray water can’t be so great that it can not just be spread on the ground. The difference between spreading gray water on top of the ground, and spreading gray water through a septic tank leach field is about two feet. That is the pipes in the leach field are buried about two feet below the surface of the ground. Ask me how I know—having made some repairs to a leach field on my father’s property circa 1962 when I was a freshman in college.

"I have no idea why the Fillmore County Amish folks are opposed to a septic tank system—but there are stranger beliefs in this world. And it does sound like they tried to make some accommodation with the county (straining gray water through a vessel filled with wood chips) that should satisfy both sides."