Third Cir. Characterizes "Hybrid-Rights Theory" as Dicta in Split from Other Circuits
Per Combs v. Homer-Center School Dist., --- F.3d ----, 2008 WL 3863701 (3rd Cir. Aug 21, 2008):
Smith's hybrid-rights theory has divided our sister circuits. Some characterize the theory as dicta and others use different standards to decide whether a plaintiff has asserted a cognizable hybrid-rights claim. The United States Courts of Appeals for the Second and Sixth Circuits have concluded the hybrid-rights language in Smith is dicta. See Leebaert v. Harrington, 332 F.3d 134, 143 (2d Cir.2003) (citing Knight v. Connecticut Dep't of Pub. Health, 275 F.3d 156, 167 (2d Cir.2001)); Watchtower Bible & Tract Soc'y of New York, Inc. v. Stratton, 240 F.3d 553, 561-62 (6th Cir.2001), rev'd on other grounds, 536 U.S. 150, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); Kissinger v. Bd. of Trs. of Ohio State Univ., Coll. of Veterinary Med., 5 F.3d 177, 180 (6th Cir.1993). Furthermore, the United States Court of Appeals for the Sixth Circuit views the hybrid-rights exception as "completely illogical," Kissinger, 5 F.3d at 180, and the United States Court of Appeals for the Second Circuit "can think of no good reason for the standard of review to vary simply with the number of constitutional rights that the plaintiff asserts have been violated," Leebaert, 332 F.3d at 144. Accordingly, when faced with a neutral law of general applicability, both appellate courts decline to allow the application of strict scrutiny to hybrid-rights claims and instead apply Smith's rational basis standard. See Leebaert, 332 F.3d at 144 (" '[A]t least until the Supreme Court holds that legal standards under the Free Exercise Clause vary depending on whether other constitutional rights are implicated, we will not use a stricter legal standard' to evaluate hybrid claims." (quoting Kissinger, 5 F.3d at 180)).
The United States Courts of Appeals for the First Circuit and District of Columbia have acknowledged that hybrid-rights claims may warrant heightened scrutiny, but have suggested that a plaintiff must meet a stringent standard: the free exercise claim must be conjoined with an independently viable companion right. See Henderson v. Kennedy, 253 F.3d 12, 19 (D.C.Cir.2001) (rejecting the "hybrid claim" argument that "the combination of two untenable claims equals a tenable one"); E.E. O.C. v. Catholic Univ. of Am., 83 F.3d 455, 467 (D.C.Cir.1996) (finding that the EEOC's violation of the Establishment Clause triggered the hybrid-rights exception); Gary S. v. Manchester Sch. Dist., 374 F.3d 15, 18-19 (1st Cir.2004) (citing Gary S. v. Manchester Sch. Dist., 241 F.Supp.2d 111, 121 (D.N.H.2003)) (affirming, for the same reasons, the district court's rejection of a hybrid-rights claim because the free exercise claim was not conjoined with an independently viable companion claim); Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 539 (1st Cir.1995) (rejecting a hybrid-rights claim because "[plaintiff's] free exercise challenge is ... not conjoined with an independently protected constitutional protection").FN21
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The United States Courts of Appeals for the Ninth and Tenth Circuits recognize hybrid rights and require a plaintiff to raise a "colorable claim that a companion right has been violated." San Jose Christian Coll. v. Morgan Hill, 360 F.3d 1024, 1032 (9th Cir.2004); see also Axson-Flynn, 356 F.3d at 1297.
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Until the Supreme Court provides direction, we believe the hybrid-rights theory to be dicta.