The Volokh Conspiracy

It's Navajo Nation v. U.S. Forest Service; I haven't yet read the whole opinion (I'm on a trip), but here are the opening paragraphs:

In this case, American Indians ask us to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain sacred in their religion. At the heart of their claim is the planned use of recycled wastewater, which contains 0.0001% human waste, to make artificial snow. [Footnote: It appears that some of the Plaintiffs would challenge any means of making artificial snow, even if no recycled wastewater were used.] The Plaintiffs claim the use of such snow on a sacred mountain desecrates the entire mountain, deprecates their religious ceremonies, and injures their religious sensibilities. We are called upon to decide whether this government-approved use of artificial snow on government-owned park land violates the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. §§ 2000bb et seq., the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321 et seq., and the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 et seq. We hold that it does not, and affirm the district court’s denial of relief on all grounds.

Plaintiff Indian tribes and their members consider the San Francisco Peaks in Northern Arizona to be sacred in their religion. They contend that the use of recycled wastewater to make artificial snow for skiing on the Snowbowl, a ski area that covers approximately one percent of the San Francisco Peaks, will spiritually contaminate the entire mountain and devalue their religious exercises. The district court found the Plaintiffs’ beliefs to be sincere; there is no basis to challenge that finding. The district court also found, however, that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would be physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted; no places of worship made inaccessible, or liturgy modified. The Plaintiffs continue to have virtually unlimited access to the mountain, including the ski area, for religious and cultural purposes. On the mountain, they continue to pray, conduct their religious ceremonies, and collect plants for religious use.

Thus, the sole effect of the artificial snow is on the Plaintiffs’ subjective spiritual experience. That is, the presence of the artificial snow on the Peaks is offensive to the Plaintiffs’ feelings about their religion and will decrease the spiritual fulfillment Plaintiffs get from practicing their religion on the mountain. Nevertheless, a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a “substantial burden” -- a term of art chosen by Congress to be defined by reference to Supreme Court precedent -- on the free exercise of religion. Where, as here, there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no “substantial burden” on the exercise of their religion.

Were it otherwise, any action the federal government were to take, including action on its own land, would be subject to the personalized oversight of millions of citizens. Each citizen would hold an individual veto to prohibit the government action solely because it offends his religious beliefs, sensibilities, or tastes, or fails to satisfy his religious desires. Further, giving one religious sect a veto over the use of public park land would deprive others of the right to use what is, by definition, land that belongs to everyone.

“[W]e are a cosmopolitan nation made up of people of almost every conceivable religious preference.” Braunfeld v. Brown, 366 U.S. 599, 606 (1961). Our nation recognizes and protects the expression of a great range of religious beliefs. Nevertheless, respecting religious credos is one thing; requiring the government to change its conduct to avoid any perceived slight to them is quite another. No matter how much we might wish the government to conform its conduct to our religious preferences, act in ways that do not offend our religious sensibilities, and take no action that decreases our spiritual fulfillment, no government -- let alone a government that presides over a nation with as many religions as the United States of America -- could function were it required to do so. Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 452 (1988).

So the California Court of Appeal holds, interpreting California statutes, and reversing its earlier statutory decision in the Rachel L. case.

The court also holds there's some sort of constitutional right to home-school — again, seemingly contrary to its conclusion in Rachel L. — but that this right may be limited in this case to protect against a specific threat to the children's health and safety, because the children "have already been found dependent due to abuse and neglect of a sibling." For more on the general constitutional question, see here.

On the road now, can't blog more, but thought I'd note this.

My post on religious accommodations, and in particular the statement, "But requests from minority religious groups (including recent immigrant groups) for accommodation are a longstanding and respectable part of the American tradition of religious freedom," drew this response from a commenter:

Correction: It's not part of American tradition but part of a U.S. Supreme Court adventurism under the faulty disguise it has the power to dictate social religious preferences within states.

Actually:

1. None of the examples I gave are U.S.-Supreme-Court-mandated religious accommodations; all were done by the democratic process.

2. While from 1963 to 1990, the U.S. Supreme Court read the Constitution as mandating some sorts of religious accommodations, the 1990 Employment Division v. Smith decision almost entirely rejected that doctrine. The rule right now is that the Free Exercise Clause almost never mandates religious exemptions from generally applicable laws. (I have written in support of the Smith constitutional rule.)

3. Following the Smith decision, it was Congress that enacted the Religious Freedom Restoration Act, which provided that governments have to exempt religious objectors from generally applicable laws that burdened their religious practices (unless applying the law to the objector was necessary to serve a compelling government interest). Congress voted in favor of RFRA by a 97-3 vote in the Senate and by voice vote with no objection in the House.

4. It was then the Supreme Court, in 1997, that struck down RFRA as it applied to states. State legislatures in about a dozen states, and state voters in Alabama, have since enacted state-level RFRAs that do apply to state laws. (State supreme courts in about a dozen more states have also read their state constitutions as mandating some sorts of exemptions from generally applicable laws.)

So you can fault the Court for lots of things, but don't turn hostility to the Court -- or even to constitutional constraints on legislative action more broadly -- into a macro (ctrl-shift-A for "activism") that becomes a blanket response to everything. The American tradition of religious accommodation has generally been a tradition of accommodation precisely by the political branches of government.

So reports Fox News:

A 5-year contract approved by members of the Retail, Wholesale and Department Store Union at the Shelbyville, Tenn., [Tyson Foods] plant last November includes the change [of paid holidays to exclude Labor Day and instead include the Muslim Eid al-Fitr holiday] to accommodate Muslim workers....

The seven additional paid holidays are the employee's birthday, New Year's Day, Martin Luther King Jr. Day, Memorial Day, Independence Day, Thanksgiving and Christmas, Mickelson said....

Tyson officials said that approximately 250 of the plant's 1,200 employees are Somalis who entered the United States as political refugees. Most, if not all, are believed to be Muslim ....

Tyson officials said the contract was agreed to by 80 percent of the union's 1,000 members at the plant.

This year Eid al-Fitr falls on Oct. 1.

English First, in a seemingly non-English-related objection (or is it that they just don't like the Arabic name?), complains:

English First today denounced as multiculturalism run amok a decision by a Tennessee Tyson Foods poultry plant to eliminate Labor Day as a paid holiday for employees and replace it with a paid observance of a Muslim holy day....

A new immigrant to America, legal or illegal, enjoys more rights than taxpaying American citizens, Boulet said. The notion that immigrants should adapt to America is being destroyed one bilingual education class, one press one for English, and one ACLU-approved Muslim foot-washing bath at a time.

Bill Poser's post at Language Log brought this to my attention, and I agree with him that this is entirely fine. "You might think that this is the kind of thing that labor unions are supposed to do: negotiate holidays that are convenient for their members." The business wins, the Muslim members win, and it seems like the non-Muslim members are generally quite happy, too, judging by the vote.

But more importantly, America was expressly not founded on the notion that immigrants should adapt to America's religious beliefs. Indeed, some of the most important early colonies were settled by people who didn't want to adapt to English religious beliefs, and while some of them did promptly try to expel or exclude people who wouldn't accept the colonies' new religious orthodoxy, thankfully that largely disappeared by the Founding of the nation, and religious tolerance -- including accommodation of minority religious groups -- continued to increase since then. Jews were allowed to come to America without rejecting their own religious beliefs (for an early and surprising legal accommodation of Jewish religious beliefs, see here). Quakers' and other groups' opposition to swearing oaths is expressly accommodated by several provisions in the Constitution, which allow affirmations instead of oaths. More recently, businesses and schools with large Jewish workforces or student bodies have set up some Jewish holy days as days off. The same should apply to Muslims.

Not all religious beliefs, of course, have been accommodated, and not all should be accommodated. But requests from minority religious groups (including recent immigrant groups) for accommodation are a longstanding and respectable part of the American tradition of religious freedom. Where religious pluralism goes, multiculturalism is indeed a traditional American value. And the union vote at the Tyson plan is not "multiculturalism run amok" -- it's the American tradition of religious tolerance and religious accommodation working as it should be.

Finally, just to respond to the anticipated complaints about Islam being special because of the violence of some Muslim extremists, or even the endorsement of religious violence by substantial numbers of Muslims around the globe: None of this has anything to do with whether Somali immigrant Muslims working at a meatpacking plant should get a day off. When someone suggests religious accommodations aimed at letting people (of whatever religion) contribute to terrorist organizations, or engage in suicide bombings, I'll happily agree that they should be rejected -- just as religiously motived attacks on abortion clinics and other sorts of religious violence should remain fully punishable. But that some of the Somali-born meatpackers' coreligionists are doing bad things based on bad ideas doesn't make it the desire to have Eid al-Fitr off any less legitimate.

I'm writing an article on symbolic expression and the original meaning of the First Amendment, and in the process -- partly just for color -- I've collected some especially interesting forms of symbolic political expression from that era, chiefly from America but also from Britain.

My colleague Steve Yeazell pointed me to one item yesterday that struck me as particularly amusing (though I suppose it wasn't so amusing at the time): During the customary toasts to the king, some would pass their glass over a water decanter before drinking. This symbolically changed the toast from a toast to the king into a toast to the "king over the water," which is to say the Pretender. Cute.

This in turn led me to this bit of nonsymbolic expression, from John Byrom:

God bless the King, I mean the Faith's Defender;
God bless -- no harm in blessing -- the Pretender;
But who Pretender is, or who is King,
God bless us all -- that's quite another thing.

U.S. v. Robinson (E.D. Wis. July 23) (Adelman, J.):

[D]efendant fails to show that Heller renders his prosecution [for being a felon in possession of a firearm] constitutionally infirm....

First, defendant fails to demonstrate that Heller applies to felons. The Court specifically stated in that case:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose....

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Defendant claims that this is dicta, but I cannot so quickly dismiss this explicit limitation on the Court’s holding. Further, defendant cites no authority in support of his claim that the Second Amendment right extends to felons. To my knowledge, no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect. E.g., United States v. Emerson, 270 F.3d 203, 262-63 (5th Cir. 2001) (finding that the Second Amendment protects individual rights, but nevertheless upholding § 922(g)(8)); [also citing some post-Heller district court and unpublished circuit court cases]. Finally, the Seventh Circuit regularly rejected such challenges pre-Heller, see, e.g., United States v. Price, 328 F.3d 958, 961 (7th Cir. 2003) (noting that even advocates of an individual rights interpretation of the Second Amendment excluded felons), and nothing in Heller persuades me that the court of appeals is likely to change course now.

Second, defendant can find little support in Heller given the circumstances of his case. Heller’s actual holding is:

that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

Defendant contends that he was accosted by police on the porch of his home and found to be in possession of a firearm, which he claims he possessed to protect himself and his family in the high crime area in which they lived. However, he glosses over the circumstances of his encounter with the police. [Details omitted. -EV] Even under its broadest possible reading, Heller does not sanction a felon carrying a gun in his pocket in public, then pulling that gun on a police officer [which is what the court concludes happened here -EV]. The Second Amendment interests in self-defense and protection of the home discussed in Heller cannot reasonably be extended to cover defendant’s conduct here.

from the U.S. Court of Appeals for the Third Circuit in DeJohn v. Temple Univrsity (thanks to How Appealing for the pointer). Temple had revised its policy on January 15 of this year, but the court still held that it had the jurisdiction to hold the earlier one unconstitutional.

The code was framed as a ban on, among other things, "sexually harassing" speech (labeled "expressive[ or] visual conduct of a sexual or gender-motivated nature") that creates an "intimidating, hostile, or offensive environment" based on sex; but the rationale of the decision would apply equally to speeches that supposedly harasses based on religion, race, sexual orientation, and the like. Here are some key passages:

In Saxe [an earlier case that involved high schools], we noted that there is no “harassment exception” to the First Amendment’s Free Speech Clause; that is, “we have found no categorical rule that divests ‘harassing’ speech as defined by federal anti-discrimination statutes, of First Amendment protection.” We explained that while there is no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause, “[w]hen laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications. ‘Where pure expression is involved,’ anti-discrimination law ‘steers into the territory of the First Amendment.’” Id. at 206 (quoting DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 596 (5th Cir. 1995) [a case noting possible First Amendment problems with hostile work environment law -EV]).

Recognizing, then, that some “harassing” speech may be worthy of First Amendment protection, we look to see whether Temple’s Policy on Sexual Harassment reaches too much expression that is constitutionally protected. The relevant portion of Temple’s challenged sexual harassment policy reads:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment. [emphasis added by court -EV] ...

[T]he policy’s use of “hostile,” “offensive,” and “gender-motivated” is, on its face, sufficiently broad and subjective that they “could conceivably be applied to cover any speech” of a “gender-motivated” nature “the content of which offends someone.” This could include “core” political and religious speech, such as gender politics and sexual morality. [Footnote: Indeed, in the instant case, the Plaintiff, a graduate student pursuing a master’s degree in Military and American History, argues that he felt inhibited in expressing his opinions in class concerning women in combat and women in the military.] Absent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work -- the policy provides no shelter for core protected speech.

I think even bans that do require that the speech be "severe or pervasive" in order to be punished unacceptably deter some constitutionally protected speech, for reasons I discuss here and here. Among other things, such bans will naturally lead to punishing even individual instances of speech, that create a supposedly hostile environment when aggregated with speech by other speakers. I'm therefore troubled by the potential approval of the seemingly narrower "severe-or-pervasive"-based policy. And I'm troubled by the court's ambiguous suggestion that the Tinker disruption standard applies not just to K-12 schools but also to universities; for more on the ambiguousness of this suggestion, but see PDF pp. 28-29, suggesting university student speech should be much more protected than K-12 student speech.

Still, at least the panel is right in striking down the broad policy here. I'm also pleased that the panel declined to expressly approve of workplace harassment law, noting that Third Circuit precedent "does not pass on whether the EEOC language [endorsing workplace harassment liability under a standard similar to Temple's] is or is not constitutional," and that the panel expressly acknowledged that

some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. It is difficult to cabin this phrase, which could encompass any speech that might simply be offensive to a listener, or a group of listeners, believing that they are being subjected to or surrounded by hostility. Certainly speech amounting to “fighting words” would not be protected, but the policy covers much more speech than could be prohibited under Tinker’s substantial disruption test as well as speech that does not rise to the level of “fighting words.”

For my view of what sort of speech would be protected against workplace harassment liability, see here, though I would think that even more protection should be offered in the university context.

Colorado has announced that it will not contest the Tenth Circuit decision striking down exclusion of "pervasively sectarian" institutions from government-paid student scholarships. One more reason that "it's [not] likely that the Supreme Court will review this decision," though not one I was relying on when making my prediction ....

Thanks to Marc Stern of the American Jewish Congress for the tip.

The discussion last week of unusual names led a couple of people to e-mail me their personal unusual name stories. Here's one, from a very smart and successful former student of mine:

[Another former student] passed along your very entertaining piece for Slate.com on the case law of various funny names. I thought you might like to know that my middle name is "c" -- as in the scientific abbreviation for the speed of light.

I probed further, and learned that it was indeed c, lower case, in italics, and with no period. What's more, this was the name the student's parents gave her, on her birth certificate. The reasons for the name:

I come from a family of scientists, my mother's maiden name begins with a "C," and I was born very very quickly. My father has this to add: "I don't think you have a middle name. You have a middle symbol. Something simple, ethereal, brief, fast, and different."

And my ex-student's experience with the name, which "over time has become [her preference] as well [as her parents']:

[I]t's a pain -- class rings, diplomas, passports, etc. are almost always printed incorrectly, despite my efforts to get it right. I omit it from my resume, etc. to eliminate the possible perception that I've made a typo spelling my own name. On the other hand, it's a great ice breaker.

My sense from our correspondence is that the person is quite happy with the name, the (modest) effect it has had on her life, and with her parents' decision to assign the name to her.

I should note, of course, that much of this has to do with this being (1) the person's middle name, which can usually easily be included or omitted as the person prefers, and (2) a middle name that's similar to normal middle initials, so that it can be turned into a "C." with no questions asked if some institution demands a middle initial. Being "Jane 5 Doe" or "c Doe" would be much harder, I think, than being "Jane c Doe."

I've written about private economic retaliation against speakers (see PDF pp. 11-30) in the past, including on this blog. I don't want to repeat all that here, but I want to point to a new such incident: A decision by the Legal Writing Institute to refuse to patronize a hotel because its owner contributed to an anti-same-sex-marriage ballot initiative.

Naturally, the hotel owner is unlikely to be bankrupted by this one incident; but I take it that people who engage in such refusals to deal often hope that many others will join in, and put still more pressure on the speaker or political contributor. And of course the Dixie Chicks didn't have their careers ended as a result of the boycott. So the analogy seems quite close, and in my article and posts I pointed to still more such incidents, such as boycotts or proposed boycotts of businesses that contribute to Operation Rescue, to pro-life candidates and ballot measures, to Planned Parenthood, and to anti-race-preferences initiatives. In any case, I thought this was worth highlighting, as an interesting example of a broader practice.