SCOTUS complicates the municipal landscape

From the Beacon, Summer 2022

In three separate rulings on controversial issues, the U.S. Supreme Court ended its recent term by issuing decisions that infringe on municipal discretion and effectiveness in advancing community interests on public safety, climate action and workplace management.

Each of these decisions marked a sharp turn by the court, and raises new concerns about the ability of cities and towns to manage their affairs and have the same impact going forward in the areas of gun violence prevention, carbon emissions reduction, and creation of safe spaces for students with diverse religious perspectives.

In the first decision, New York State Rifle and Pistol Association v. Bruen, the court ruled that states may not require “proper cause” to obtain a license to carry a handgun outside the home. The New York law that was struck down required concealed-carry gun license applicants to demonstrate a special need for self-protection greater than the general population. This is quite similar to the Massachusetts statute that gives local police chiefs — our issuing authority — the ability to require a “good reason” for gun permits. It is widely believed that this Massachusetts standard is the reason why our state has the lowest level of gun violence in the continental U.S. (only Hawaii is lower).

This decision, set by the new 6-3 majority on the court, was based on “historical tradition” throughout “modern Anglo-American history,” looking at five distinct time periods: “medieval to early modern England, the American Colonies and the Early Republic, antebellum America, Reconstruction, and the late-19th and early-20th centuries.” The court decided to eliminate the discretion of police chiefs to decide on firearms license applications with a rearview-mirror standard that ignores the modern context of rising gun violence in a country where guns outnumber the population.

In the second decision, West Virginia v. EPA, the court ruled that the U.S. Environmental Protection Agency lacked the authority to implement its 2015 Clean Power Plan, which required power plants to implement the best system of emissions reduction, designed to compel existing power plants to make technological changes, such as adding scrubbers, to reduce carbon emissions. The goal was to reduce the nation’s percentage of coal-generated electricity from 38% in 2014 to 27% by 2030. Plant operators could shift their generation by making changes in operations, or by investing in solar or wind generation through the cap-and-trade process.

The coal industry chafed at the new regulation and sued. Even though Congress delegated broad authority to the EPA in the Clean Air Act to implement systems and regulatory structures to reduce harmful emissions, the court has now ruled that when the Clean Air Act was passed, Congress did not envision the need to reduce carbon emissions via a Clean Power Plan, and thus the EPA cannot act on the newer climate change challenge without clearer congressional authorization.

With a stalemated U.S. Senate, this ruling means that local and state efforts to combat climate change through regulations on fossil fuel usage and emissions will be easily thwarted by other states that fail to act. High carbon emissions from West Virginia and other coal-heavy states will keep the Northeast from advancing a collective agenda to meet aggressive emissions reduction standards. Even as a number of cities and towns in Massachusetts are looking at implementing leading-edge stretch energy code standards, the impact of these local efforts will be more than offset by the coal industry’s ability to continue with business as usual, now that the EPA will be powerless to create minimum standards to reduce coal-generated emissions.

Policy areas such as environmental regulation require a coordinated effort at the municipal, regional, state and national levels. When the SCOTUS ruled that the EPA lacked sufficient authority, that cast municipalities and states on their own to deal with one of the greatest challenges of our time. This is one example of how a narrow perspective on government’s authority to act on modern challenges can impede progress in addressing vital issues. Again, this rearview-mirror fixation makes it harder to see and avoid dangers in the road ahead.

In the third decision, Kennedy v. Bremerton School District, the court reversed a school department’s suspension of an employee, the assistant football coach, for repeatedly engaging in a mid-field prayer after football games, gathering student players around him in a public display of his religion. The school department had asked the coach to stop the practice, out of concern that a reasonable observer would conclude that the district was endorsing his religion, and that students would feel pressured to participate even if they preferred not to or had different religious beliefs.

The court stated that it was adopting a changed interpretation of the Establishment Clause of the Constitution, that “accor[ds] with history and faithfully reflect[s] the understanding of the Founding Fathers” who were, of course, overwhelmingly Christian in their beliefs.

This ruling will make it more difficult for municipalities and school districts, who are exceedingly careful to maintain proper separation of church and state, to enforce personnel policies designed to protect religious minorities from forced religious expressions. When speaking as a government employee, individuals are not protected by the free speech doctrine when they seek to impose their religion or beliefs on others. This court ruling, however, has blurred the lines, by ruling that the coach could engage in a public display of religion on public property during his public employment, because he was acting as a private person.

Freedom of religion is a bedrock principle that we all take for granted. Respect for all religions is a corollary that enhances our communities and allows us to build welcoming and inclusive neighborhoods and governments. As the court based its ruling in this case on a narrow scope, it has created a much broader and more complex context for schools and municipalities. With this new precedent in place, communities will surely confront multiple situations that will challenge existing policies and practices designed to draw clear lines between the private beliefs of employees and the interactions of those same government employees in public settings.

Guns, climate, and religion. These are some of the most controversial and divisive topics of our time. Local officials across the state have wide-ranging views on these issues, and the MMA deeply respects all these viewpoints. The common theme here is that these three rulings by the SCOTUS reduce municipal discretion to address very real challenges that exist in our communities. Local police chiefs are weaker today, less able to exercise their judgment in issuing concealed-carry gun licenses. Municipal planners cannot build on the EPA’s coal-emission regulations and are acting on environmental agendas in greater isolation. Municipal managers have less authority today to proactively manage their workforces to create spaces that are less likely to spur conflict over competing private religious beliefs.

In other words, in a way that may not have been noticed last month, these rulings have made the jobs of municipal leaders more difficult on many of the more conflict-ridden issues that confront our communities.