“And He Causeth All, Both Small and Great, Rich and Poor, Free and Bond, to Receive a Mark”

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Category: Federal Civil Litigation, Religion & Law
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So says Revelation 13:16. There are many interpretations of the wild events recounted in the Revelation to John. I am most familiar — and comfortable — with the view of the book as an allegory about persecution and redemption, but some folks think that it describes, in some more or less literal way, events that are still to occur.

I don’t know what the Amish view is but they — and certain other denominations — apparently read the text as calling for believers to resist receiving the forecast mark of the beast. This lawsuit, brought in federal court in Michigan, seeks relief from the federally sponsored program (voluntary for the states, but now adopted in Michigan) that requires the placing of RFID chips in cattle to facilitate the tracking of bovine and other livestock diseases. The plaintiffs make a variety of administrative law claims, as well as claims under the National Environmental Policy Act and the Fifth Amendment, but I’m interested in the claims made under the federal Religious Freedoms Restoration Act (RFRA) and a “supplemental” claim under the Michigan Constitution’s Free Exercise Clause. The requisite chips are claimed to require the plaintiffs to take the mark of the beast or to infringe their divinely ordained dominion over the cattle and all other living things. (Genesis 1:26-28.)

We know that the federal RFRA cannot be applied to the states. The plaintiffs try to get around that by arguing that Michigan is acting to implement federal law (and, it seems, receiving some type of federal grant in return for participation in the program, although the complaint is a bit unclear). If the feds are mandating this in some way as a condition of federal funding, then RFRA may apply.

In the context of this lawsuit, the state law claims almost certainly must be dismissed, with counsel risking sanctions if they refuse a request to do so. Under the Pennhurst line of cases, the Eleventh Amendment has been construed to bar federal courts from hearing requests for injunctive relief compelling state officials to comply with state law.

But the state law claims might, if they could be heard, have merit. Federal free exercise jurisprudence is currently ungenerous toward plaintiffs, holding, as a general matter, that neutral laws of general applicability are not subject to heightened scrutiny even if they substantially burden religious practice.

But some states interpret their own free exercise provisions differently, and Michigan is apparently one of them. So is Wisconsin. These states apply some form of heightened scrutiny to general laws that, when applied to particular religious groups, substantially burden their free exercise. The leading Wisconsin case (written by our own Janine Geske) held that the state could not compel the Amish to place those orange “slow moving vehicle” signs on their buggies.

I don’t know enough about the particular program to express a view on whether the RFRA may be applicable, but there are two lessons here for public interest litigants. First, be wary of the Pennhurst trap. Lawyers who add state law claims as afterthoughts often need to promptly withdraw them. Second, there is a tendency to assume — less pronounced now than in the past — that federal court is “where we ought to be.” This isn’t always the case.

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One Response to ““And He Causeth All, Both Small and Great, Rich and Poor, Free and Bond, to Receive a Mark””

  1. Norma Pressimone Says:

    The picture you depict on this page “And He Causeth All, Both Small and Great, Rich and Poor, Free and Bond, to Receive a Mark” does NOT refer to the Rev. 13:16 but rather refers to Revelation 13:1 (the SEA beast with 7 heads and 10 horns)

    The beast that gives the “MARK” is the 2-horned EARTH beast starting in Rev. 13:11. That’s the ‘antichrist’ – the one that seemed like a “lamb” but gradually becomes a “dragon”.

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