Slattery v. Hochul

21-911
Slattery v. Hochul

In the
United States Court of Appeals
FOR THE SECOND CIRCUIT

AUGUST TERM 2021
No. 21-911

CHRISTOPHER T. SLATTERY, A NEW YORK RESIDENT, AND THE
EVERGREEN ASSOCIATION, INC., A NEW YORK NONPROFIT
CORPORATION, DOING BUSINESS AS EXPECTANT MOTHER CARE AND
EMC FRONTL INE PREGNANCY CENTERS,
Plaintiffs-Appellants,
v.
KATHLEEN C. HOCHUL, IN HER OFFICIAL CAPACITY AS THE
GOVERNOR OF THE STATE OF NEW YORK; ROBERTA REARDON, IN HER
OFFICIAL CAPACITY AS THE COMMISSIONER OF THE LABOR
DEPARTMENT OF THE STATE OF NEW YORK; AND LETITIA JAMES, IN
HER OFFICIAL CAPACITY AS THE ATTORNEY GENERAL OF THE S TATE
OF NEW YORK,
Defendants-Appellees. *

On Appeal from the United States District Court
for the Northern District of New York

ARGUED: NOVEMBER 29, 2021
DECIDED: FEBRUARY 27, 2023

* The Clerk of Court is directed to amend the caption as set forth above.
Before: PARK, NARDINI, and MENASHI, Circuit Judges.

The Evergreen Association, Inc., doing business as Expectant
Mother Care and EMC FrontLine Pregnancy Centers, and its
president Christopher Slattery (collectively “Evergreen”) bring this
action against New York state officials to enjoin their enforcement of
New York’s Labor Law § 203-e against Evergreen. Among other
things, the statute prohibits employers from taking adverse
employment actions against employees for their reproductive health
decisions. Evergreen argues that the statute unconstitutionally
burdens its right to freedom of expressive association—as guaranteed
by the First and Fourteenth Amendments—by preventing it from
disassociating itself from employees who seek abortions. Evergreen
contends that the statute undermines its anti-abortion message as a
crisis pregnancy center because associating with such employees
contradicts its central message. Evergreen also raises freedom of
speech, free exercise of religion, and void for vagueness challenges to
the statute. The district court granted the state’s motion to dismiss all
claims at the pleading stage. We hold that the district court erred in
dismissing the expressive association claim.

STEPHEN M. CRAMPTON, Thomas More Society, Chicago,
IL (Mary Catherine Hodes, Thomas More Society,
Chicago, IL, Timothy Belz, J. Matthew Belz, Clayton
Plaza Law Group, St. Louis, MO, on the brief), for
Plaintiffs-Appellants.

FREDERICK A. BRODIE, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, Andrea Oser,

2
 Deputy Solicitor General, on the brief), for Letitia James,
Attorney General of the State of New York, Albany, NY,
for Defendants-Appellees.

Geoffrey T. Blackwell, American Atheists, Inc.,
Washington, DC, for Amicus Curiae American Atheists.

Gabriella Larios, Katharine Es Bodde, Allison S. Bohm,
Robert Hodgson, Molly K. Biklen, New York Civil
Liberties Union Foundation, New York, NY, for Amicus
Curiae New York Civil Liberties Union.

Richard B. Katskee, Alex J. Luchenitser, Adrianne M.
Spoto, Americans United for Separation of Church and
State, Washington, DC, for Amici Curiae Americans United
for Separation of Church and State, Catholics for Choice,
Central Conference of American Rabbis, Covenant Network of
Presbyterians, Disciples Center for Public Witness, Disciples
for Choice, Disciples Justice Action Network, Equal Partners
in Faith, Hadassah, the Women’s Zionist Organization of
America, Hindu American Foundation, Men of Reform
Judaism, Methodist Federation for Social Action, Muslim
Advocates, Muslim Public Affairs Council, National Council
of Jewish Women, Reconstructionist Rabbinical Association,
Union for Reform Judaism, Unitarian Universalist
Association, and Women of Reform Judaism.

MENASHI, Circuit Judge:

The Evergreen Association, Inc., doing business as Expectant
Mother Care and EMC FrontLine Pregnancy Centers, and its
president, Christopher Slattery (collectively, “Evergreen”), bring this
action against New York state officials to enjoin their enforcement of
New York Labor Law § 203-e against Evergreen. The statute prohibits

3
employers from taking adverse employment actions against
employees for their “reproductive health decision[s].” N.Y. Lab. L.
§ 203-e(2)(a). Evergreen argues that the statute unconstitutionally
burdens its right to freedom of expressive association—as guaranteed
by the First and Fourteenth Amendments—by preventing it from
disassociating itself from employees who, among other things, seek
abortions. Evergreen contends that the statute undermines its
anti-abortion message as a crisis pregnancy center because
associating with such employees contradicts its central message.
Evergreen also raises freedom of speech, free exercise of religion, and
void for vagueness challenges to the statute. The district court granted
the state’s motion to dismiss all claims at the pleading stage.

We hold that Evergreen stated a plausible claim that the labor
law unconstitutionally burdens its right to expressive association. We
affirm in part and reverse in part the district court’s dismissal of
Evergreen’s complaint and remand for further proceedings consistent
with this opinion.

BACKGROUND

I

The New York Legislature enacted Senate Bill S660, popularly
known as the “Boss Bill” and codified as New York Labor Law
§ 203-e, on November 8, 2019. 2019 N.Y. Laws Ch. 457. The law
provides that “[a]n employer shall not … discriminate nor take any
retaliatory personnel action against an employee with respect to
compensation, terms, conditions, or privileges of employment
because of or on the basis of the employee’s or dependent’s
reproductive health decision making.” N.Y. Lab. L. § 203-e(2)(a). The
Boss Bill additionally forbids employers from “accessing an

4
employee’s personal information regarding the employee’s …
reproductive health decision making.” Id. § 203-e(1). “[R]eproductive
health decision making” is defined as including, but is not limited to,
“a decision to use or access a particular drug, device or medical
service.” Id. § 203-e(2)(a). The statute’s severability clause provides
that, should a court declare any part of the statute invalid, the court
should not declare the rest of the statute invalid. See id. § 203-e(7).

Unlike other antidiscrimination statutes, the Boss Bill contains
no express exemption for religious employers or for small employers
with objections to abortion. Compare N.Y. Lab. L. § 203-e, with 42
U.S.C. § 2000e-1(a) (exempting religious employers from Title VII’s
prohibition against religious discrimination in hiring).

In addition to government enforcement, the Boss Bill
authorizes a private right of action. “An employee may bring a civil
action in any court of competent jurisdiction against an employer
alleged to have violated the provisions of [§ 203-e]” and may seek
damages (including attorneys’ fees), injunctive relief, an order of
reinstatement, and/or liquidated damages. N.Y. Lab. L. § 203-e(3).
Section 21(1) of New York’s Labor Laws provides that the
commissioner of the New York Department of Labor “[s]hall enforce
all the provisions of this chapter [including § 203-e(1)] and may issue
such orders as he finds necessary directing compliance with any
provision of this chapter, except as in this chapter otherwise
provided.”

II

The Evergreen Association, Inc. is a New York nonprofit
organization that operates as Expectant Mother Care and EMC
FrontLine Pregnancy Centers. It is opposed to abortion and,

5
consistent with that belief, it has operated a network of pregnancy
crisis centers throughout New York City since 1985. These centers
discourage abortion and provide pregnant women with ultrasounds,
counseling, and information on adoption. Slattery founded the
Evergreen Association, Inc. and continues to serve as its president.

Because of moral and religious objections, Evergreen hires only
employees who oppose abortion and extramarital sexual
relationships. Evergreen asks each prospective employee whether he
or she is “pro-choice or pro-life,” and it will not consider for
employment an applicant who expresses support for abortion.
J. App’x 50. Evergreen explains that, through its employees, it
“professes and promotes the moral and religious belief that all human
life is equally valuable and deserving of protection, from fertilization
to natural death.” Appellant’s Br. 7. For that reason, Evergreen will
retain only those personnel who can credibly communicate to patients
its “opposition to abortion and to sexual relationships outside of
marriage and related use of potentially abortifacient contraception.”
Id. at 8.

Evergreen represents that it intends to continue these hiring
practices. It plans to state in employment advertisements that “it is
seeking only pro-life candidates” and will not hire or retain
employees who violate its policies against procuring abortions or
engaging in extramarital sexual relations. J. App’x 50-51.

III

In January 2020, Evergreen filed a complaint for declaratory
and injunctive relief, naming state officials as defendants in their
official capacities. Evergreen sought a declaration that the Boss Bill
was unconstitutional and an injunction prohibiting the state from

6
enforcing the Boss Bill against Evergreen. Evergreen argued that the
statute violated the federal Constitution in four ways. First, it violated
Evergreen’s First and Fourteenth Amendment right to freedom of
expressive association. Second, it violated Evergreen’s First and
Fourteenth Amendment right to freedom of speech. Third, it violated
Evergreen’s First and Fourteenth Amendment right to the free
exercise of religion. Fourth, it violated Evergreen’s Fourteenth
Amendment right to due process because it was unconstitutionally
vague.

The state moved to dismiss the complaint, arguing that the Boss
Bill was a constitutional exercise of the police power in furtherance of
the state’s interest in nondiscrimination. The state said that it acted to
protect its citizens’ federal constitutional right to privacy in the
confidentiality of their medical information and autonomy in
“decisions relating to their bodies, health and family planning.”
J. App’x 81. The state further argued that because the Boss Bill was
generally applicable, “all New York employers, including religious
based ones … must comply with it.” Id.

The district court granted the state’s motion to dismiss,
rejecting all four of Evergreen’s arguments. Slattery v. Cuomo, 531
F. Supp. 3d 547 (N.D.N.Y. 2021). First, the district court rejected
Evergreen’s claim that the statute prohibits the free exercise of its
religion. Id. at 559-62. The district court concluded that the law was
both religion-neutral and generally applicable and that it did not
“target[] religious conduct in an impermissible way.” Id. at 561-62.
When the state “seeks to enforce a law that is neutral and of general
applicability, it need only demonstrate a rational basis for its
enforcement.” Id. at 562 (alteration omitted) (quoting Fortress Bible
Church v. Feiner, 694 F.3d 208, 220 (2d Cir. 2012)). The district court
7
concluded that “the statute bears a rational relationship” to the state’s
interests in protecting “individuals’ right to privacy and personal
autonomy as it relates to health-care decisions surrounding
reproduction” and “in protecting against workplace discrimination.”
Id.

Second, the district court held that the statute did not abridge
the freedom of speech. Id. at 565-66. Because it concluded that the
statute was content-neutral, the district court applied intermediate
scrutiny. Id. at 565. The district court determined that the statute
survived such scrutiny because the regulations of speech “are
reasonable, are narrowly tailored to serve a significant governmental
interest, and leave open ample alter[n]ative channels for
communication of … information.” Id. (quoting Mastrovincenzo v. City
of New York, 435 F.3d 78, 98 (2d Cir. 2006)). The statute neither
“prevent[s] employers from speaking on the issue and explaining the
views and standards of the organization” nor “prevent[s] employers
from advocating for their views to the general public.” Id. at 565-66.

Third, the district court decided that Evergreen failed to state a
claim that the Boss Bill infringed its right to freedom of expressive
association. Id. at 569. The district court said that Evergreen had
adequately alleged that it “engage[s] in expressive association,” id. at
567, and therefore it has the right not to “accept members it does not
desire,” id. at 568 (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623
(1984)). The district court also explained that the plaintiffs “are
somewhat correct to complain that they may be forced to associate
with employees or prospective employees whose actions indicate that
they do not share their views on abortion and other family planning
issues.” Id. But the district court concluded that the “incidental
limitations on the Plaintiffs’ associational rights” did not “place a
8
restriction on their ability to advocate against abortion or
contraception.” Id. at 569. It posed only a “danger that others could
call the Plaintiffs hypocrites” and, “[g]iven the way that our political
discourse currently works, such allegations are surely a feature of
advocacy in the highly charged area in which the Plaintiffs engage.”
Id. The district court ruled that the statute “needs only to survive
rational basis scrutiny” and that it “does so.” Id.

Fourth, the district court rejected Evergreen’s argument that
the statute was unconstitutionally vague. According to the district
court, an “ordinary employer” would understand that the statute
prohibits “accessing an employee[’s] medical record to determine
whether that employee had used birth control or not, or had an
abortion or carried a child to term,” and “discrimination against or
retaliation against an employe[e] for decisions made about birth
control or pregnancy.” Id. at 571-72.

Evergreen timely appealed.

STANDARD OF REVIEW

“We review a district court’s grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint and drawing
all reasonable inferences in the plaintiff’s favor.” Henry v. County of
Nassau, 6 F.4th 324, 328 (2d Cir. 2021) (internal quotation marks
omitted). “[A] complaint will survive a motion to dismiss under Rule
12(b)(6) if it alleges facts that, taken as true, establish plausible
grounds to sustain a plaintiff’s claim for relief.” Cornelio v. Connecticut,
32 F.4th 160, 168 (2d Cir. 2022).

9
 DISCUSSION

Evergreen argues that it plausibly alleged that New York Labor
Law § 203-e (1) violates its right to freedom of expressive association,
(2) violates its right to freedom of speech, (3) violates its right to the
free exercise of religion, and (4) is impermissibly vague. We hold that
Evergreen plausibly alleged that § 203-e significantly burdens its right
to freedom of expressive association and does not survive strict
scrutiny. Accordingly, we reverse the district court’s dismissal of this
aspect of the complaint. We otherwise affirm.

I

Evergreen argues that § 203-e impermissibly burdens its First
and Fourteenth Amendment right to freedom of expressive
association. The district court acknowledged that Evergreen
“engage[s] in expressive association” and that § 203-e imposes
limitations on its expressive associational rights. Slattery, 531
F. Supp. 3d at 567. Even so, the district court characterized those
limitations as “incidental” and held that § 203-e was subject only to
rational basis scrutiny. Id. at 569.

We agree with the district court that Evergreen is engaged in
expressive association. But we hold that the district court erred in
concluding that § 203-e does not significantly affect Evergreen’s
expressive activity. Instead, the district court should have applied
strict scrutiny. And because the state has not at this stage
demonstrated that § 203-e is the least restrictive means to achieve a
compelling governmental interest, we reverse the district court’s
dismissal of Evergreen’s expressive association claim.

10
 A

The First Amendment provides that “Congress shall make no
law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.” U.S. CONST. amend. I. The
Supreme Court “has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amendment”
because “[a]n individual’s freedom to speak, to worship, and to
petition the government for the redress of grievances could not be
vigorously protected from interference by the State unless a
correlative freedom to engage in group effort toward those ends were
not also guaranteed.” Roberts, 468 U.S. at 618, 622. The Court has
accordingly “long understood as implicit in the right to engage in
activities protected by the First Amendment a corresponding right to
associate with others in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends.” Id.; see also
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (“Effective
advocacy of both public and private points of view, particularly
controversial ones, is undeniably enhanced by group association.”).
This “freedom of expressive association,” the Court has explained,
“presupposes a freedom not to associate” because “[t]here can be no
clearer example of an intrusion into the internal structure or affairs of
an association than a regulation that forces the group to accept
members it does not desire.” Roberts, 468 U.S. at 622-23. 1

1 The Supreme Court has held that the Fourteenth Amendment
incorporates the protections of the First Amendment against state

11
 In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme
Court set forth a three-part inquiry for evaluating expressive
association claims. Citing Dale, the Third Circuit has laid out the test
succinctly: “First, [we] conside[r] whether the group making the claim
engaged in expressive association. [Second, we] analyz[e] whether
the state action at issue significantly affected the group’s ability to
advocate its viewpoints. [Third, we] weig[h] the state’s interest
implicated in its action against the burden imposed on the
associational expression to determine if the state interest justified the
burden.” Pi Lambda Phi Fraternity, Inc. v. Univ. of Pittsburgh, 229 F.3d
435, 442 (3d Cir. 2000) (citations omitted). If we determine that the
state action imposes “severe burdens on associational rights” at the
second step, we apply “strict scrutiny, in which case the restriction
survives only if it is narrowly drawn to advance a compelling state
interest,” at the third step. Jacoby & Meyers, LLP v. Presiding Justices,
852 F.3d 178, 191 (2d Cir. 2017).

At the first step, “[a]n association must merely engage in
expressive activity that could be impaired in order to be entitled to
protection.” Dale, 530 U.S. at 655. As the district court correctly found,
Evergreen has “alleged facts sufficient to make plausible [the] claim
that [it] engage[s] in expressive activity.” Slattery, 531 F. Supp. 3d at
567. The district court explained that “the allegations in the
Complaint clearly indicate that Plaintiffs aim to share their pro-life

governments. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 305 (1940) (free
exercise of religion); De Jonge v. Oregon, 299 U.S. 353, 364 (1937) (right of the
people peaceably to assemble); Gitlow v. New York, 268 U.S. 652, 666 (1925)
(freedom of speech and of the press). It follows that the right to freedom of
expressive association also applies against state governments. See Boy
Scouts of Am. v. Dale, 530 U.S. 640, 655-56 (2000).

12
message with the world.” Id. And “[w]hile they also offer health-care
services to pregnant women, Plaintiffs clearly explain that they do so
in the context of sharing with those women their message concerning
abortion, sex outside of marriage, and contraception.” Id. For these
reasons, we agree with the district court that Evergreen engages in
expressive association.

B

Next, we consider whether § 203-e “significantly burden[s]”
Evergreen’s right to freedom of expressive association. Dale, 530 U.S.
at 653; see also Jacoby & Meyers, 852 F.3d at 191 (“Strict scrutiny applies
only when a challenged regulation imposes ‘severe burdens’ on
associational rights.”). The district court recognized that under the
state law, the plaintiffs would be “forced to associate with employees
or prospective employees whose actions indicate that they do not
share their views.” Slattery, 531 F. Supp. 3d at 568. But the district
court decided that this burden on Evergreen’s expressive association
rights was incidental rather than severe. We disagree. A “regulation
that forces the group to accept members it does not desire … may
impair the ability of the original members to express only those views
that brought them together.” Roberts, 468 U.S. at 623.

This case resembles New Hope Family Services v. Poole, 966 F.3d
145, 179 (2d Cir. 2020). In New Hope, we reviewed a district court’s
dismissal of an adoption ministry’s expressive association claim
against the New York State Office of Children and Family Services
(“OCFS”). See id. at 148-49. The adoption ministry—a voluntary,
privately funded Christian ministry—had a policy against
recommending “adoption by unmarried or same-sex couples because
it [did] not think such placements are in the best interests of a child.”

13
Id. at 149. Instead, New Hope would refer these couples to other
adoption agencies. Id.

OCFS informed New Hope that this policy violated state
antidiscrimination law and gave the adoption ministry a choice:
conform to the antidiscrimination law or shut down the adoption
agency. Id. New Hope maintained that OCFS’s actions in applying
New York law would force “it to include unmarried or same-sex
couples in its comprehensive evaluation, training, and placement
programs and adoptive-parent profiles,” thus altering “New Hope’s
message and counseling to adoptive families and birthparents.” Id. at
178 (internal quotation marks and alterations omitted). Moreover,
New Hope complained that OCFS, in enforcing the state law, “may
require New Hope to correct or discipline employees who, sharing
New Hope’s religious beliefs, act on, or even express, those beliefs in
interacting with birthparents or prospective adoptive parents.” Id. at
179 (internal quotation marks and alterations omitted).

We reversed the district court’s dismissal of New Hope’s
expressive association claim. We held it was “premature” to
conclude—as the district court in that case did—that these
requirements constituted merely a “slight impairment.” Id. We
explained that “[c]ompelled hiring, like compelled membership, may
be a way in which a government mandate can affect in a significant
way a group’s ability to advocate public or private viewpoints.” Id.
(internal quotation marks and alterations omitted).

The district court here declined to apply strict scrutiny because
it decided that the burden on Evergreen’s expressive association
rights was incidental rather than severe. That determination was
erroneous. After weighing all reasonable inferences in Evergreen’s

14
favor, we conclude that Evergreen plausibly alleged that § 203-e
imposes severe burdens on Evergreen’s right to freedom of expressive
association. The statute forces Evergreen to employ individuals who
act or have acted against the very mission of its organization.
Evergreen alleged that it “provides counseling, education,” and
“information to … women during their decision-making processes in
an untimely pregnancy” and that it provides such counseling “from
a life-affirming, abstinence-promoting perspective only.” J. App’x 49-
50. To that end, Evergreen “hires or retains only personnel” who
“effectively convey” its “mission and position regarding
‘reproductive health decisions.’” Id. at 50. The right to expressive
association allows Evergreen to determine that its message will be
effectively conveyed only by employees who sincerely share its
views. To decide whether someone holds certain views—and
therefore would be a reliable advocate—Evergreen asks whether that
person has engaged or will engage in conduct antithetical to those
views. Evergreen has plausibly alleged that, by foreclosing
Evergreen’s ability to reject employees whose actions suggest that
they believe the opposite of the message it is trying to convey, § 203-e
severely burdens Evergreen’s First Amendment right to freedom of
expressive association. See Roberts, 468 U.S. at 622 (noting that
“forc[ing a] group to accept members it does not desire … may impair
the ability of the original members to express only those views that
brought them together”). For this reason, strict scrutiny applies.

C

Still, “[t]he right to associate for expressive purposes is not …
absolute. Infringements on that right may be justified by regulations
adopted to serve compelling state interests, unrelated to the
suppression of ideas, that cannot be achieved through means
15
significantly less restrictive of associational freedoms.” Roberts, 468
U.S. at 623. 2 As we have described this standard, “[p]recision of
regulation must be the touchstone,” Sanitation & Recycling Indus., Inc.
v. City of New York, 107 F.3d 985, 997 (2d Cir. 1997) (quoting NAACP
v. Button, 371 U.S. 415, 438 (1963)), and “[a]n infringement of the First
Amendment right to expressive association—even if in pursuit of a
compelling government objective—is justified only if there is no less
restrictive means of achieving that end,” id.

We hold that at this stage of the litigation, New York has not
shown that § 203-e satisfies this standard. As an initial matter, when
applying tiers of scrutiny higher than rational basis, “the norm is to
wait until the summary judgment stage of the litigation to address the
ultimate question of whether the [regulation] should stand.” Cornelio,
32 F.4th at 172 (quoting Graff v. City of Chicago, 9 F.3d 1309, 1322 (7th
Cir. 1993)). At this stage, New York cannot show that § 203-e is the
least restrictive means to achieve a compelling objective.

It may be the case that preventing discrimination based on
one’s choice to engage in certain, legally authorized conduct is a
compelling state interest. 3 But we need not decide that question here.

2 But cf. David E. Bernstein, The Right of Expressive Association and Private
Universities’ Racial Preferences and Speech Codes, 9 Wm. & Mary Bill Rts. J.
619, 625 (2001) (“[O]nce the infringement upon the right to expressive
association has been recognized, the party asserting the right will win,
unless the government can assert the type of truly compelling interest that
(almost never) trumps First Amendment rights in other contexts.”).
3 According to the state, § 203-e is justified by compelling interests “in
protecting its residents’ right to privacy in ‘personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing,

16
Even if we answer in the affirmative, that interest cannot overcome
the expressive rights of an association dedicated to outlawing or
otherwise opposing that specific conduct. For this step of the inquiry,
Dale instructs us to engage in a balancing of interests, setting “the
associational interest in freedom of expression … on one side of the
scale” and “the State’s interest on the other.” 530 U.S. at 658-59. Here,
drawing all inferences in Evergreen’s favor, the state’s interest cannot
overcome the expressive association right of an organization such as
Evergreen. On one side of the scale is the individual’s right not to be
discriminated against for certain reproductive choices, such as having
an abortion. On the other side is the First Amendment right of a
particular association—in this case, Evergreen—to advocate against
that conduct. If Evergreen had the right to exclude employees who
have had an abortion, the right to be free of discrimination for having
an abortion will be impaired only to the limited extent that a person
cannot join the specific group or groups that oppose abortion. But if
the state could require an association that expressly opposes abortion
to accept members who engage in the conduct the organization
opposes, it would severely burden the organization’s right of
expressive association. “It would be difficult,” to say the least, for an
organization “to sincerely and effectively convey a message of
disapproval of certain types of conduct if, at the same time, it must
accept members who engage in that conduct.” Christian Legal Soc’y v.
Walker, 453 F.3d 853, 863 (7th Cir. 2006). Evergreen’s beliefs about the
morality of abortion are “its defining values; forcing it to accept as
members those who engage in or approve of [that] conduct would
cause the group as it currently identifies itself to cease to exist.” Id.

and education,’” Appellees’ Br. 35 (quoting Lawrence v. Texas, 539 U.S. 558,
559 (2003)), and in “[e]radicating discrimination,” id. at 36.

17
Accordingly, the balancing of interests favors the expressive
association that opposes the conduct the state would protect against
discrimination.

“The conduct at issue—i.e., discrimination in membership and
leadership—is of First Amendment concern not simply because it is
freighted with or motivated by ideas, but because it goes to the
structure and identity of the association as an association.”4 For that
reason, one must “distinguish for First Amendment purposes”
between requiring—for example—the National Organization for the
Reform of Marijuana Laws “to comply with laws prohibiting the
distribution of controlled substances,” on the one hand, and requiring
that same organization “to admit anti-drug crusaders” to its
membership, on the other, because the latter requirement would
“undermine or transform their values and message.” 5

The district court concluded that § 203-e imposed only
“incidental limitations on [Evergreen’s] associational rights” because
it would not “place a restriction on their ability to advocate against
abortion or contraception.” Slattery, 531 F. Supp. 3d at 569. It posed
only a “danger that others could call the Plaintiffs hypocrites” and
Evergreen could always respond by “draw[ing] a distinction for the
public between what they believe and what the State requires.” Id.
This reasoning, which could always justify a state’s forcing an
association to accept members it does not desire, devalues
Evergreen’s interest in expressive association. The right of Evergreen
to choose those who promote its views “is not protected by the First

4 Richard W. Garnett, Jaycees Reconsidered: Judge Richard S. Arnold and the
Freedom of Association, 58 Ark. L. Rev. 587, 606 (2005).
5 Id.

18
Amendment simply because it ‘communicates’ a message, but
because an expressive association’s membership and leadership is
integral to its ability to play an important role in nurturing the
‘freedom of speech.’” 6 The “freedom of speech protected by the First
Amendment includes, and is well served by, protections not only for
associations’ members—their privacy rights, their own speech rights,
and so on—but also for their own identity, distinctiveness, and
message.” 7 An “individual’s freedom to speak, to worship, and to
petition the government for the redress of grievances could not be
vigorously protected from interference by the State unless a
correlative freedom to engage in group effort toward those ends were
not also guaranteed.” Roberts, 468 U.S. at 622.

Freedom of expressive association vindicates the “important
structural role” that “expressive associations play … in our civil
society and discourse.” 8 For an expressive association that opposes
certain conduct, the government’s general interest in bolstering the
legal right to engage in that conduct gives way to the freedom of those
in the association to join together to express a different view. Here,
Evergreen has a right to limit its employees to people who share its
views and will effectively convey its message.

Thus, the district court erred in dismissing Evergreen’s
expressive association claim. At this stage of the litigation, Evergreen
has sufficiently stated a claim that enforcing § 203-e against it would

6 Garnett, supra note 4, at 606 (alteration omitted).
7 Id.
8 Garnett, supra note 4, at 606.

19
violate its First Amendment right to freedom of expressive
association. We reverse the district court’s dismissal of this claim.

II

Evergreen raises three other constitutional challenges to the
Boss Bill. According to Evergreen, § 203-e violates its First
Amendment rights to freedom of speech and the free exercise of
religion, even apart from the freedom of expressive association right.
Evergreen also argues that § 203-e is impermissibly vague under the
Fourteenth Amendment. The district court dismissed these claims.
We affirm.

A

Apart from its freedom of expressive association claim,
Evergreen argues that § 203-e infringes its right to freedom of speech.
Evergreen notes that its “uniquely expressive nature means that the
people [it] hires affect its message,” likening itself to film and news
companies. Appellant’s Br. 34. Evergreen further argues that the “no
waiver” provision of the Boss Bill, § 203-e(2)(b), “prevents Evergreen
from setting an expectation that employees will act consistently with
organizational beliefs” because that provision forbids Evergreen from
requiring employees to waive the right to avoid employment
consequences for reproductive healthcare decisions. Id. at 37.
Evergreen contends that § 203-e is therefore a content-based speech
regulation subject to strict scrutiny. We disagree.

“It is possible to find some kernel of expression in almost every
activity a person undertakes … but such a kernel is not sufficient to
bring the activity within the protection of the First Amendment.” City
of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). To determine whether

20
“particular conduct possesses sufficient communicative elements to
bring the First Amendment into play,” courts consider “whether an
intent to convey a particularized message was present, and whether
the likelihood was great that the message would be understood by
those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404 (1989)
(internal quotation marks and alterations omitted). “[I]t is the
obligation of the person desiring to engage in assertedly expressive
conduct to demonstrate that the First Amendment even applies.”
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984).

Evergreen has not shown that the acts of hiring, terminating, or
continuing to employ persons are themselves expressive conduct that
communicates its views. The Supreme Court has rejected “the view
that an apparently limitless variety of conduct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to
express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968).

“When … an individual engages in conduct that does not
manifest an intent to convey a particularized message, the First
Amendment does not come into play.” United States v. Thompson, 896
F.3d 155, 164 (2d Cir. 2018) (internal quotation marks omitted). While
we recognize that Evergreen’s freedom to make personnel decisions
affects its ability to advocate its views and thereby implicates its
freedom of expressive association, see supra Part I, we are not
persuaded that the state’s attempt to regulate those personnel
decisions is itself a regulation of speech. We affirm the district court’s
dismissal of this claim.

B

We turn next to Evergreen’s claim that § 203-e violates its rights
under the Free Exercise Clause, as incorporated by the Fourteenth

21
Amendment. Evergreen argues that the Boss Bill is neither religion-
neutral nor generally applicable. The district court dismissed the Free
Exercise Clause claim after concluding that § 203-e is religion-neutral
and generally applicable. We agree and affirm.

The Free Exercise Clause provides that “Congress shall make
no law respecting an establishment of religion, or prohibiting the free
exercise thereof.” U.S. CONST. amend. I. That clause, however, “does
not relieve an individual of the obligation to comply with a valid and
neutral law of general applicability.” Agudath Israel v. Cuomo, 983 F.3d
620, 631 (2d Cir. 2020) (quoting Emp. Div. v. Smith, 494 U.S. 872, 879
(1990)). “Official action burdening religious conduct that is not both
neutral and generally applicable, however, is subject to strict
scrutiny.” Id. (internal quotation marks omitted).

“A law is not neutral … if it is specifically directed at a religious
practice.” Cent. Rabbinical Cong. of the U.S. v. N.Y.C. Dep’t of Health &
Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (internal quotation
marks and alteration omitted). To be neutral, a law must not “facially
regulate a religious practice without a secular meaning discernible
from the language or context” and must also be “neutral in operation,
as assessed in practical terms.” Id. at 194 (internal quotation marks
omitted). In assessing operational neutrality, a court “must consider
‘the historical background of the decision under challenge, the
specific series of events leading to the enactment or official policy in
question, and the legislative or administrative history, including
contemporaneous statements made by members of the
decisionmaking body.’” New Hope, 966 F.3d at 163 (quoting Church of
Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 540 (1993)).

22
 In this case, the statute is facially neutral. Section 203-e
“appl[ies] equally to all [employers], both secular and religious.” Id.
And Evergreen has not shown that § 203-e is operationally
discriminatory. Evergreen contends that the legislative history of
§ 203-e shows that it was intended to “target[] religious conduct for
distinctive treatment.” Lukumi, 508 U.S. at 546. There may be some
merit to this argument. The bill’s sponsor in the State Senate, Senator
Jen Metzger, said that § 203-e was necessary because the Supreme
Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682
(2014)—which recognized that a privately held, for-profit corporation
could claim protection under the Religious Freedom Restoration
Act—had created “a dangerous, slippery slope” in which “lawsuits
have been filed by employers determined to deny workers coverage
of reproductive health services and products based on the employer’s
own personal and political beliefs.” N.Y. State Sen., Floor Transcript
of Regular Proceedings, Jan. 22, 2019, at 433-34. “The Boss Bill seeks
to prevent this further encroachment by employers into the private
decisions of employees.” Id. at 434. The bill’s sponsor in the State
Assembly, Assemblywoman Ellen Jaffee, explained that the bill was
necessary because “[e]mployers should not be allowed to use their
personal beliefs to discriminate against their employees.” N.Y. State
Assembly, Transcript of Session Part II, Jan. 22, 2019, at 132.

These statements could be read to suggest hostility on the part
of some legislators to the religious exercise of employers. But the
statements do not establish that the purpose of the legislature was to
target religion. “What motivates one legislator to make a speech about
a statute is not necessarily what motivates scores of others to enact it,
and the stakes are sufficiently high for us to eschew guesswork.”
O’Brien, 391 U.S. at 384; see also Michael M. v. Superior Court, 450 U.S.

23
464, 470 (1981) (“[I]ndividual legislators may have voted for the
statute for a variety of reasons.”); cf. Stormans, Inc. v. Wiesman, 136
S. Ct. 2433, 2437 n.3 (Alito, J., dissenting from the denial of certiorari)
(“It is an open question whether a court considering a free exercise
claim should consider evidence of individual lawmakers’ personal
intentions, as is done in the equal protection context.”). The legislative
debate, and the legislation itself, was generally directed at
discrimination in the workplace and employee privacy. A sponsor of
the bill also affirmed that because of the ministerial exception, § 203-e
would not apply to religious employers who fire employees for
religious reasons. See N.Y. State Assembly, Transcript of Session Part
II, Jan. 22, 2019, at 127 (Statement of Assemblywoman Jaffee) (“[T]he
First Amendment’s ministerial exception may be used as a defense …
in court, but is not a jurisdictional bar for bringing a discrimination
complaint against an employer. And the court would then determine
whether or not the employee is considered a minister for the purposes
of [the] religious organization that is being accused of this … kind of
a discrimination.”).

The Boss Bill is also generally applicable. “The general
applicability requirement prohibits the government from ‘in a
selective manner imposing burdens only on conduct motivated by
religious belief.’” Cent. Rabbinical Cong., 763 F.3d at 196 (alteration
omitted) (quoting Lukumi, 508 U.S. at 543). Section 203-e applies to
any employer that takes adverse action against an employee for a
reproductive health decision. The statute does not provide for
individualized exemptions. See Smith, 494 U.S. at 884 (“[W]here the
State has in place a system of individual exemptions, it may not refuse
to extend that system to cases of ‘religious hardship’ without
compelling reason.”); see also Fulton v. City of Philadelphia, 141 S. Ct.

24
1868, 1877 (2021); Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality
opinion). Because § 203-e is a neutral law of general applicability, it
need only satisfy rational basis review to survive Evergreen’s claim
under the Free Exercise Clause. Cent. Rabbinical Cong., 763 F.3d at 193. 9

For these reasons, we affirm the district court’s dismissal of
Evergreen’s Free Exercise Clause challenge.

D

Evergreen also challenges § 203-e as unconstitutionally vague.
“It is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined.” Grayned v. City
of Rockford, 408 U.S. 104, 108 (1972). This doctrine “guards against
arbitrary or discriminatory law enforcement” and “guarantees that
ordinary people have ‘fair notice’ of the conduct a statute proscribes.”
Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018) (quoting Papachristou v.
City of Jacksonville, 405 U.S. 156, 162 (1972)). “A statute can be
impermissibly vague for either of two independent reasons. First, if it
fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second, if it
authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).

9 Evergreen further argues that the ministerial exception exempts it from
§ 203-e. Evergreen raised this argument for the first time on appeal, and
“[a]rguments raised for the first time on appeal are deemed waived.” Millea
v. Metro-N. R.R. Co., 658 F.3d 154, 163 (2d Cir. 2011). If Evergreen is ever
subject to suit under § 203-e, it may raise the ministerial exception as a
defense to a suit concerning a particular employee. See Hosanna-Tabor
Evangelical Lutheran Church v. EEOC, 565 U.S. 171, 193, 195 n.4 (2012) (“[T]he
exception operates as an affirmative defense to an otherwise cognizable
claim.”).

25
 Evergreen argues that it “and others similarly situated have no
way to know whether and to what extent their speech or conduct
actually violates the law.” Appellant’s Br. 52. Evergreen suggests that
four statutory terms render § 203-e impermissibly vague:
“reproductive health decision making,” “employee,” “employer,”
and “proposes to commit a violation.” Id. (quoting § 203-e). We
disagree.

The terms “reproductive health decision making” and
“proposes to commit a violation” are sufficiently clear that an
ordinary reader would know what each term entails. The statute
clarifies that the term “reproductive health decisions” includes, but is
not limited to, a decision to use or to access “a particular drug, device
or medical service.” N.Y. Lab. L. § 203-e(1), (2)(a), (2)(b). As the
district court observed, “the statute permits an ordinary employer to
understand that the law prohibits accessing an employees’ medical
record to determine whether that employee had used birth control or
not, or had an abortion or carried a child to term.” Slattery, 531
F. Supp. 3d at 571.

The term “proposes to commit a violation” does not
encompass—as Evergreen argues that it might—such scenarios as
(1) “employers contemplating aloud whether they can comply with
Section 203-E, even if they eventually decide to do so”; (2) “seek[ing]
legal protection from having to comply with Section 203-E”; or
(3) “discuss[ing] with prospective or current employees their views
on ‘reproductive health decision making.’” Appellant’s Br. 54-55.
Proposing “to commit a violation” involves a contemplated violation
of the statute; it is not equivalent to considering the feasibility of
compliance or the seeking of legal advice as to whether compliance is
required. Nor could this language encompass discussing employees’
26
views on reproductive health issues. As the state acknowledged at
oral argument, § 203-e does not prohibit Evergreen from requiring
employees to express its stated position on those issues. The state
conceded that “nothing in this statute prevents an employer from
asking an employee, ‘Are you pro-life or pro-choice?’ And nothing in
this statute prevents an employer from hiring only pro-life
employees.” 10 Moreover, the state recognized that even under
§ 203-e, “[i]f the employee does not effectively communicate the
employer’s message, they can be fired for that, because their job is to
communicate a message.” 11 We rely on the state’s interpretation of
the statute to conclude that § 203-e does not prohibit an employer
from discussing the views of prospective or current employees with
respect to reproductive health decision making. To “propose[] to
commit a violation,” Evergreen would need to express an intent to
violate § 203-e.

The terms “employee” and “employer” are not vague either.
New York’s labor laws provide that “‘[e]mployee’ means a mechanic,
workingman or laborer working for another for hire.” N.Y. Lab. L.
§ 2(5), and that “‘[e]mployer’ means the person employing any such”
employee, id. § 2(6). Evergreen suggests that the definition “appears
to address manual labor.” Appellant’s Br. 54. Yet while the words
“mechanic” and “workingman” might typically connote manual
labor, the overall definition indicates that “an employee is any person

10 Oral Argument Audio Recording at 27:12.
11 Id. at 37:16.

27
who has been hired to work.” Bessa v. Anflo Indus., Inc., 10 N.Y.S.3d
835, 839 (N.Y. Sup. Ct. 2015).12

We affirm the district court’s dismissal of Evergreen’s
vagueness challenge.

CONCLUSION

For these reasons, we reverse the judgment of the district court
with respect to Evergreen’s expressive association claim, affirm the
judgment in all other respects, and remand to the district court for
further proceedings consistent with this opinion.

12The state also takes the position that, “as used in the Labor Law, the term
‘employee’ ‘does not apply to a volunteer who performs a service
gratuitously.’” Appellees’ Br. 59 (quoting Stringer v. Musacchia, 11 N.Y. 3d
212, 215 (2008)).

28