The Volokh Conspiracy

Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports here and here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.

In somewhat related news, Exorcist author William Peter Blatty is suing Georgetown University in Catholic court alleging the school has abandoned its Catholic faith and violating church teaching. According to this report, the “last straw” was Georgetown’s invitation to HHS Secretary Kathleen Sebelius to address graduating students.

An interesting case in Michigan, in which a Tax Tribunal decision was reversed by Camp Retreats Foundation, Inc. v. Township of Marathon (Mich. Ct. App. May 15, 2012). The question is whether a camp was exempt from property taxes; the camp was rentable by the general public (and sometimes rented by the public), but it was mostly used by Muslim groups, “because (i) the facilities were constructed so that separate ‘villages’ are available to boys and girls such that a ‘conducive environment’ is created to ‘manage the two genders,’ and (ii) word of mouth of the availability of the subject facilities was generated through Muslim lines of communication.” The main user was a summer camp that had a pretty clearly Muslim focus, with a good deal of time devoted to prayer and study of the Koran, and with the rules providing that:

All participants must observe Islamic laws, which includes but is not limited to, good moral standards, maintaining proper hijab, keeping away from backbiting and gossiping, presenting oneself with respect and dignity, maintaining decency with appropriate clothing and more. Brothers and sisters must show respect for each other. Any misconduct may lead to expulsion from the camp if deemed necessary.

Under Michigan law, a property-owning organization is treated as a charitable organization and can therefore claim tax-exempt status for its property when it is organized “for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government” and at the same time “does not offer its charity on a discriminatory basis by choosing who, among the group it purports to serve, deserves the services.” The Township argued that Camp Retreats didn’t qualify, because, in relevant part,

1) it discriminates in determining who can use the subject property, 2) participation in the Tawheed Summer Camp, sponsored by Petitioner’s parent organization, and the primary user of the subject facilities, is conditioned specifically on observance of Islamic laws and management, [and] 3) Petitioner has not established by testimony or exhibits that Petitioner’s purpose is to “bring people’s minds or hearts under the influence of education or religion,” nor do they “relieve people’s bodies from disease, suffering or constraint[.]“

The Tax Tribunal concluded that Camp Retreats was indeed not a charity, because it was “is chiefly organized for recreational purposes rather than for charitable purposes.” The Tribunal’s opinion didn’t discuss the “bringing … minds or hearts under the influence of … religion” part of the test, and relied on the fact that the articles of incorporation for the camp focused on recreation rather than religion.

The Michigan Court of Appeals reversed, reasoning that the tax tribunal should have looked at how the property was actually used rather than focusing on what the articles of incorporation said, and that the actual use of the property was indeed charitable under Michigan law:

In reaching [its] conclusions, the Tribunal disregarded its own factual determination that the facility was chiefly used as camp for children and families of the Muslim faith, and in so doing misapplied the law. We find that the property fulfills the requirements of a charity because its primary use focuses on “bring[ing] people’s minds or hearts under the influence of … religion,” and it offers this charity on a nondiscriminatory basis.

Continue reading ‘Tax Exemption Law and Camp Predominantly Used by Muslims’ »

In R. v. Belghar (New South Wales Ct. Crim. App. Apr. 11, 2012), Ismail Belghar is being prosecuted for attempted murder of his sister-in-law (labeled “complainant” in the opinion). The government alleges:

On a day in October 2009, the complainant, her sister Hanife and a female friend went to the beach without the respondent’s knowledge. When Hanife returned home, the respondent demanded to know where she had been and whom she had been with. When she told him, the respondent telephoned the complainant and said, “You slut, I’m going to kill you. I’m going to fuck you up. I’m going to find you and kill you. You fucking slut, how dare you take my wife to the beach.”

[Two months later, Belghar ran into complainant at a shopping mall.] The respondent walked out of the shopping centre and towards the complainant with a key in his right hand. He stood in front of her and put his face against hers and said, “I’m going to kill you. I’m going to fucking kill you.” The respondent slapped the complainant once with an open right hand to the left side of her face. The respondent then bent down, put his arms around the complainant’s legs and waist and picked her up from the railing. He carried her to the railing on the boundary of the car park (“the external railing”) and held her over it to the extent that she could see the roadway below. The complainant was crying uncontrollably and believed she was going to die.

Complainant’s brother interceded and saved her. Belghar was arraigned for trial, and asked for a trial without a jury, but the government insisted on a jury. Under Australia law, when a defendant waives trial by jury and a prosecutor disagrees, “the court may make a trial by judge order if it considers it is in the interests of justice to do so”; and the trial judge reasoned (emphasis added),

[T]he attitude of the [respondent] regarding the sister-in-law victim is based on a religious or cultural basis and in light of the fact that there has been adverse publicity regarding persons who hold extreme Muslim faith beliefs in the community, I am of the view that the apprehension by the [respondent] that he may not receive a fair trial is a reasonable apprehension….

The reason for the animosity between the applicant and the victim as suggested by the Crown will be that the victim took the applicant’s wife to the beach where the applicant’s wife displayed her body because she was seen by the applicant to be sunburnt in her certain places on her body and this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife’s family having some authority over her….

In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre….

In this particular case it really relates insofar as the Crown case is concerned as to his state of mind, and the rage created by his either faith (sic) or the culture that he had absolute control over the wife….

I feel that the application should be granted … and I do so on the basis that the Crown has not been able to demonstrate to me any prejudice that the Crown faces or any prejudice that the community faces in relation to the granting of the application.

The appeals court disagreed (emphasis added) (some paragraph breaks added):

Continue reading ‘Australian Juries and Muslim Defendants Accused of Attempted Honor Killings’ »

So holds Rivers v. Mohr (N.D. Ohio Apr. 5, 2012, just posted on Westlaw today):

Plaintiff alleges that Muslim inmates sued the ODRC seeking accommodation of their religious dietary restrictions. He contends Gary Mohr issued a statement on May 1, 2011 indicating the ODRC settled this lawsuit, and as part of the settlement, agreed to eliminate pork from all meals served to Ohio prison inmates. Plaintiff asserts that this part of the agreement violates the Establishment Clause of the First Amendment, subjects him to cruel and unusual punishment in violation of the Eighth Amendment, denies him substantive and procedural due process, and denies him Equal Protection…

[T]here is no objectively reasonable indication that the ODRC’s decision to eliminate pork from prison diets was to establish the religion of Islam. While the removal of pork from prison meals may benefit Muslim as well as Jewish inmates, it also creates a meal that can be eaten by all inmates regardless of faith, and eliminates the need to provide specialized meals for each religious group. Plaintiff has not alleged facts to support his suggestion that the ODRC made its decision for the primary purpose of promoting the practice of Islam….

[Nor would] a reasonable person … conclude that the menu change endorsed the Muslim faith. The choice is neutral to religion. Several faiths prohibit the consumption of pork. The ODRC’s decision merely makes accommodating a multitude of religious practices and beliefs easier and more economical for the prison….

[And] the ODRC’s decision has very little entanglement with a particular religion. Although some inmates may find it easier to eat observe dietary restrictions, the ODRC has not become involved in the actual practice of a religion, nor is there any indication that it intends to take on a more active role in religious observances….

The Eighth Amendment affords protection against conditions of confinement which constitute health threats, but not those which cause mere discomfort or inconvenience…. Removing one food item from the menu does not result in a threat to Plaintiff’s health nor does it rise to the level of deprivation of essential food. Pork is not one of the necessities of life. Inmates cannot expect the amenities, conveniences and services of a good hotel or five star restaurant. There is no Eighth Amendment right to be served food according to taste preferences….

Plaintiff has not alleged any facts or cited any law which suggest he has a constitutionally protected interest in eating pork as part of his prison diet. At best, it would be a de minimis interest that is not protected by the Fourteenth Amendment [Due Process Clause]. Absent a protected interest in this privilege, the Court need not decide what process must be given to Plaintiff before deprivation may occur….

Plaintiff’s substantive due process claim is based on conduct alleged to be so severe that it shocks the conscience. Where a specific Amendment provides an explicit source of constitutional protection against a particular sort of governmental conduct, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Plaintiff asserted a substantially similar claim under the Eighth Amendment, which was already considered by this Court. His substantive due process claim is dismissed as duplicative of his Eighth Amendment claim….

[As to the Equal Protection Clause], Plaintiff has not alleged disparate treatment. To the contrary, Plaintiff objects to being treated the same as all other inmates. He does not allege he was denied pork while all other inmates were served this dish. Instead, he complains that all inmates are treated the same, regardless of whether they have a religious dietary restriction of this nature. Without a showing of different treatment, Plaintiff fails to state a claim for denial of equal protection.

So holds Stand Up For America Now v. City of Dearborn (E.D. Mich. Apr. 5, 2012). Plaintiffs (including Terry Jones, the Koran-burning pastor) asked for a permit to “speak[] to the public from the grassy across from the Dearborn Islamic Center on Saturday, April 7, 2012 [the day before Easter] regarding the dangers of Sharia law and how it threatens American freedoms,” and “to distribute a flyer which includes Stand Up America Now’s contact information and a quotation from the Holy Bible: ‘Jesus answered, ‘I am the way and the truth and the life. No one comes to the Father except through me.’ John 14:6.’” They “estimate approximately 20-25 people will attend the event” (I take it they refer to attendance by their sympathizers, and don’t include any possible critics or counterdemonstrators).

A Dearborn ordinance “requires the sponsor of an event to sign an indemnification agreement with terms established by the legal department,” and “leaves unfettered discretion with the legal department” as to the terms. In this instance, the legal department said it would grant a demonstration permit, but only if the group signed a release that said,

In consideration for the right to utilize City of Dearborn property, Standup America! and Wayne Sapp, their employees, representatives, agents, and participants agree to RELEASE AND FOREVER DISCHARGE the City of Dearborn, a municipal corporation, and its officers, employees, and agents, from any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property.

The opinion did not say whether this was the standard agreement used for all demonstration permits, or whether other groups were given permits without having to sign such a broad waiver. In any case, the court said requiring the waiver was unconstitutional:

The clause encompasses not only liability for physical harm to the permittees, but also for deprivation of permittees’ constitutional rights. “We think it obvious that permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech.” Long Beach Area Peace Network, 574 F.3d at 1040. The clause also requires permittees to assume legal and financial responsibility even for those activities at the event that are outside of the permittee’s control, including activities of the City. Id. The ordinance requiring the indemnity agreement and the “Hold and Harmless” presented to Plaintiffs are unconditional [likely a typo for "unconstitutional" -EV] and violate the First Amendment to the United States Constitution as to Plaintiffs and others who wish to exercise their rights to speak and assemble in the public fora.

The court thus granted a temporary restraining order allowing the demonstration without plaintiffs’ having to sign the release. Seems correct to me. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

There’s an interesting Slate article discussing the question. An excerpt:

Rep. Dave Camp, the Republican chairman of the House Ways and Means Committee, is Roman Catholic, and he represents a district, the Michigan 4th, with few Jews. But as anyone with access to Twitter, Facebook, or the rest of the Internet can learn, Rep. Camp has a big Jewish problem. And it’s one he may be powerless to solve.

The congressman is under attack because of his aide, Aharon Friedman, an Orthodox Jewish graduate of Harvard Law School. Friedman has been legally divorced from another Orthodox Jew, Tamar Epstein, since 2010 — but has refused to give his ex-wife a get. In Orthodox Judaism, this is the document that a man must give to his wife in order for a religious divorce to go into effect. So long as Friedman refuses to give a get, Epstein cannot remarry within the faith and is considered an agunah, or chained wife.

Epstein’s limbo status has sparked an outcry in the Orthodox world…. Insisting that Friedman’s conduct amounts to domestic abuse, [Epstein's supporters] have used the Internet, including social media and the petition site change.org, and the national media to demand that Rep. Camp pressure Friedman to religiously divorce Epstein….

Note that Congressmen, as employers, are bound by the constitutional constraints that apply to the government generally. See, e.g., Davis v. Passman (1979). And while high-ranking Congressional employees are excluded from the normal constitutional protections against government discrimination based on employees’ political activity, I don’t know of any authority for the proposition that such employees are excluded from the normal protections against government compulsion of religious conduct.

This perennial question came up again on an academic e-mail discussion list that I’m on, so I thought I’d blog about it (though I said much the same thing 10 years ago, in another blog post). I think the answer is not just “no,” but “hell, no” — I think it would be an outrageous discrimination against religious believers to have such a constitutional rule, and fortunately nothing in the history or the precedents of the Establishment Clause supports this position.

My most recent brush with the argument happened with regard to rules against recognizing same-sex marriage, but others have raised the same argument as to cloning bans, abortion bans, and the like: Isn’t it illegitimate for the government to ban cloning, or fail to recognize same-sex marriages, when most of the arguments for that position are essentially religious? Isn’t that an unconstitutional violation of the separation of church and state, or at least a violation of some democratic norm that people ought not force their religious views on others?

But most of the coercive laws that we hotly debate involve the forcing of a majority’s views on the minority. That’s true of laws protecting endangered species, antislavery laws, antidiscrimination laws, animal cruelty laws, environmental laws, intellectual property laws — or for that matter bans on infanticide, child sexual abuse, or more generally murder, rape, or theft. Some of these laws may be sound on the merits, and others unsound. But the fact that they force one group’s views on another doesn’t make them wrong.

Religious people have moral views just like secular people do, and they’re just as entitled as secular people to use the political process to enact their views into law. True, religious people’s moral views may rest on unproven and probably unprovable metaphysical assumptions — but the same is generally true as to secular people’s moral views.

To say that religious arguments must be excluded from public debate, while equally unprovable secular moral arguments may continue to be made, would be to turn into second-class citizens those people whose basic moral views come from their religion. Neither the Constitution nor sound political morality require this.

In fact, many important political movements — the antislavery movement, the civil rights movement, and various antiwar movements — were composed in large part of religious people who acted for explicitly religious reasons, and justified their positions using explicitly religious arguments. Would we say that opposition to slavery was illegitimate because it was mostly overtly religious? If not, then we also can’t condemn opposition to cloning or abortion or same-sex marriage on these grounds.

But what about the Establishment Clause? Well, the Supreme Court has explicitly held that the Establishment Clause doesn’t invalidate laws simply because their supporters backed them for religious reasons. See, e.g., McGowan v. Maryland, 366 U.S. 420, 442 (1961); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Harris v. McRae, 448 U.S 297, 319-20 (1980). And for the reasons I mention above, the Court’s decisions here were correct. True, the First Amendment does bar the government from teaching religion, from requiring religious practices such as prayer, and (generally) from singling out conduct for better or worse treatment because it’s religiously motivated (e.g., punishing religious animal sacrifices but not secularly motivated animal killing, or giving a sales tax exemption to religious publications but not secular ones). But it doesn’t bar the government from implementing religiously-motivated prohibitions on people’s conduct, whether as to murder, theft, slavery, civil rights, cloning, or abortion.

Nor do I know of any evidence that the Establishment Clause was generally understood in 1791, in 1868, or any time in between or since as discriminating against religious believers this way. It may be convenient for secularists — and I myself am not religious — to have their moral reasons for lawmaking be permitted, and have their religious rivals’ moral reasons declared unconstitutional or otherwise illegitimate. But there’s no basis for thinking that the Constitution embodies any such discriminatory rule.

There are lots of good arguments to oppose cloning bans, abortion bans, or bans on homosexual conduct. The supporters of such prohibitions may be wrong on moral or pragmatic grounds. But the bans aren’t made invalid by the fact that many of their supporters act for religiously influenced moral reasons, as opposed to secularly influenced moral reasons.

Today’s Jabri v. Holder (1st Cir. Mar. 16, 2012) is an interesting illustration of how these cases sometimes go; the immigration judge held against the asylum applicant on the grounds of supposed inconsistencies in his testimony (and the Board of Immigration Appeals affirmed), but the First Circuit reversed, suggesting that the inconsistencies are more apparent than real. In any case, here’s a summary of the applicant’s allegations:

Jabri’s applications center around his claimed conversion from Islam to Christianity in late 2008. In an affidavit and at a hearing held before an IJ, Jabri explained that although he was born into a Muslim family, he grew up in a predominantly Christian community where he was routinely exposed to Christian teachings and customs. He stated that as he explored his religious identity, first as a boy of high school age and then as a young adult, he felt increasingly drawn to the tenets of Christianity. He testified to attending Bible studies and Christian church services and holiday celebrations intermittently beginning in 2004. Following a year of intensified exploration, and feeling that he “was falling off track” and “needed a permanent faith in his life,” Jabri claims that he officially converted to Christianity on December 2, 2008, when he recited a sinner’s prayer and took communion at a Pentecostal church.

Jabri asserts that he will be persecuted on account of his conversion if returned to Jordan. There was evidence that the Jordanian constitution stipulates that Muslims’ personal status is governed by Islamic law, according to which apostasy may be punished by an inability to own property, find employment, marry, or maintain custody of one’s children. Jabri fears that his paternal grandfather, who Jabri says is a strongly religious and prominent member of the Muslim community with strong ties to the Jordanian government, will wield his influence to ensure that the full panoply of such consequences come to bear. Moreover, he testified that he fears that his grandfather may provoke an honor killing to protect the well known family name. These concerns, Jabri avers, are based on multiple threats that his grandfather made upon learning of his interest in and eventual conversion to Christianity.

In support of his claim, Jabri submitted testimony and an affidavit from his father as well as an affidavit from his mother. Both parents described their son’s religious journey, the grandfather’s threats in response, and the power that the grandfather has to ensure that his threats are carried out. Jabri also provided affidavits from family friends and church leaders attesting to his Christian faith, as well as country conditions evidence illustrating the dangers faced by Christian converts in Jordan.

The IJ denied Jabri’s applications on the grounds that he and his father were not credible witnesses. The IJ found to be problematic differences between the testimony of Jabri and that of his father. The IJ focused on inconsistencies regarding a Bible that Jabri claimed to have kept, and regarding the details of how the grandfather learned of and reacted to Jabri’s alleged conversion. The IJ noted that such inconsistencies “may be considered minor when taken alone, but are significant when considered in the aggregate.” The IJ did not dispute the potential consequences of apostasy but, on the basis of these perceived inconsistencies, disbelieved that Jabri had in fact converted to Christianity. The IJ further found that the supporting affidavits and documentary evidence were insufficient to overcome these discrepancies. The negative credibility finding, in turn, proved fatal to Jabri’s ability to demonstrate that he fell within the statutory definition of “refugee” or, for purposes of his CAT claim, would be in danger of being subjected to torture upon return to Jordan.

For some other cases along these lines, see “Miami Is Worth a Mass?”, plus this follow-up post.

From BK v. New Hampshire Dep’t of Health and Human Services (D.N.H. Mar. 7, 2012):

This case raises the potentially important issue of whether state authorities violate the free exercise rights of children, or their parents, under the First Amendment by placing the children with foster families who subject them to practices abhorrent to their faiths. In this case, the plaintiffs are Hindi who allege that the foster families fed the children beef and took them to Christian religious services.

The court, however, has not yet dealt with this issue; the March 7 decision deals only with the state sovereign immunity question, and concludes that some defendants are entitled to such immunity and others aren’t.

From Radio Free Europe:

Since the start of this year, death squads have been targeting two separate groups — gay men, and those who dress in a distinctive, Western-influenced style called “emo,” which some Iraqis mistakenly associate with homosexuality.

At least 14 young men have been bludgeoned to death in the last three weeks in east Baghdad, an area dominated by Shi’ite Muslims, according to local security and medical sources who spoke to Reuters on condition of anonymity.

Killings have been reported by other methods and in other cities as well. Since national authorities are not recording the incidents as a special category, the total is not known.

In recent days, members of Shi’ite militias, mainly in the Sadr City district, have circulated lists of names of people targeted for killings. The threats refer to “obscene males and females,” understood to refer to both gays and “emos,” an American teenage subculture of distinctive hairstyles and black clothes that has spread to Iraq….

Iraq’s Shi’ite-dominated government may not be helping. The Interior Ministry last month released a statement that labeled the emo culture “Satanism.” It said a special police force would stamp it out.

Thanks to Robert Dittmer for the pointer.

As I note below, I highly disapprove of the judge’s comments in the “zombie Mohammed” affair. But the suggestion that anti-Sharia laws would help avoid this (see also here) doesn’t make much sense to me.

This is not a situation where the judge “applied Sharia law” in any normal sense of the phrase. The judge claimed that he simply didn’t find enough evidence against the defendant. Perhaps the judge was biased against the victim because of the victim’s anti-Muslim speech, but an anti-Sharia law wouldn’t have helped avoid that. More broadly, a law banning judges from “consider[ing] … Sharia Law” (in the words of the Oklahoma anti-Sharia amendment) wouldn’t keep judges from concluding that someone who insults members of other religious groups should be admonished, punished, or even stripped of the right to legal protection — they would just conclude this based on their own notions of refraining from offending other groups.

Even a judge who wants to give a break to a defendant who attacks an alleged blasphemer, on the grounds that the defendant comes from a culture where such blasphemy is illegal, could do that without “consider[ing] … Sharia Law.” He could just consider the actual practices of the foreign country, just as an immigration judge who gives asylum to a convert from Islam who faces a possible death sentence for apostasy back home could make an observation about actual practices in the foreign country without “consider[ing] … Sharia Law.”

The same is true with regard to the rightly infamous New Jersey trial court decision accepting a cultural defense with regard to nonconsensual sex in a domestic restraining order case. (I might be mistaken, but I think this blog was the blog that first reported on that case.) The court there did consider the Muslim defendant’s religious beliefs, but no more so than a court would consider a claimant’s religious beliefs when he seeks a Title VII-based religious exemption from an employer’s no-headgear policy. The problem in the New Jersey case wasn’t that the court considered the defendant’s Islamic religious beliefs, but what it did with its conclusion regarding those beliefs.

As posts such as the one about the zombie Mohammed, about the New Jersey case, and about a wide range of other controversies show, I certainly don’t approve of people’s religious beliefs — including Islamic religious beliefs — being used as a justification for violating others’ rights. But anti-Sharia laws don’t solve those problems, and instead risk creating unnecessary problems of their own.

Minn. Stat. Ann. § 211B.07 makes it a gross misdemeanor — I think unconstitutionally, at least as to the “spiritual injury” element — to

directly or indirectly use or threaten force, coercion, violence, restraint, damage, harm, loss, including loss of employment or economic reprisal, undue influence, or temporal or spiritual injury against an individual to compel the individual to vote for or against a candidate or ballot question.

SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions.  The Court was unanimous in the judgment.  Chief Justice Roberts wrote the opinion for the Court.  Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!).  I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan.  More background on the case can be found here.

Also, FWIW, the Court today also issued another 8-1 opinion in Perry v. New Hampshire.

The decision is Awad v. Ziriax (10th Cir. Jan. 10, 2012), which upholds the trial judge’s decision to issue a preliminary injunction. I hope to have more on this later this afternoon. Thanks to Opher Banarie for the pointer.

UPDATE: The court basically said that the Oklahoma ban on courts’ use of Sharia law violates the Establishment Clause no-discrimination-against-religion principle, set forth by the Court in Larson v. Valente (1982), and that plaintiff has standing to challenge the law because it “expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment.”

As I argued when the district court decision was handed down, I’m not sure that this is right, because

1. I think that even without the amendment’s Sharia law ban provision secular courts can’t consider Sharia law — or any other religious law ([UPDATE: except insofar as they are trying to determine the law of a foreign country that incorporates Sharia law on this point, which the Oklahoma amendment's separate ban on the use of foreign law would preclude]) — and
2. in the absence of any tangible discrimination, government praise or condemnation of religion in a statute or other government statement somewhere on the books (as opposed to in a monument or display that the public generally sees) doesn’t suffice to grant standing to offended parties.

But the court didn’t take the view I note in item 1 (on which my point in item 2 depends), perhaps because the very fact that the state enacted the law suggests that it was intended to do something tangible, and the court may well have assumed that the law would indeed have had the intended effect.

Under Jewish law, at least as understood by many Jews, a civil divorce decree isn’t enough to terminate the marriage from a religious standpoint — unless the husband gives the wife a bill of divorce, called a Get (pronounced just like the word “get”), she may not remarry. If she civilly remarries before receiving a Get, her sexual relations with her new husband are seen as adulterous, notwithstanding her civil divorce; also, any children born of such a civil remarriage are treated as illegitimate, and may not marry freely within the Orthodox Jewish community (and possibly also among many Conservative Jews). A recalcitrant wife may cause somewhat similar problems for the divorcing husband if she refuses to accept the Get.

Of course, all these impairments are purely a matter of Jewish law; American secular law does not at all enforce them. Nonetheless, they are taken seriously by many observant Jews, and women who have been refused Gittin (that’s the plural of “Get”)and the smaller group of men whose ex-wives have refused to accept Gittin are put in a difficult position. The ability to impose this position can also give a spouse substantial leverage to try to negotiate a more favorable settlement as a condition of giving (or receiving) the Get.

This had led some courts to order divorcing husbands to give Gets, and some legislatures to enact statutes providing for such orders. Compare Megibow v. Megibow, 612 N.Y.S.2d 758 (1994) (ordering husband to give get, and not discussing the First Amendment question) with Aflalo v. Aflalo, 295 N.J. Super. 527 (1996) (holding that such an order would violate the First Amendment). See generally Lisa Zornberg, Beyond the Constitution: Is the New York Get Legislation Good Law?, 15 Pace L. Rev. 703 (1995).

My sense, though, is that such Get laws or Get orders generally violate the Establishment Clause, because they impermissibly coerce the performance of a religious act. (See Lee v. Weisman (1992), where all the Justices agreed that coercing a religious act violates the Establishment Clause.) It’s true that the religious act has important social effects among members of that religion, and that refusing to give it could be used as a bargaining chip in property settlement or child custody negotiations. But it seems to me that these social effects within the religious community, whether as a result of the performance or nonperformance of religious acts (whether divorce, excommunication, refusal to baptize, or whatever else), or for that matter as a result of practices such as shunning, must be beyond the scope of civil law. (The argument about shunning is subtly different from the others, but they’re related, and the others all focus on the principle that the Establishment Clause bars the government from coercing the performance of a religious act.)

I was thus glad to see the most recent entry in the debate, Lowy v. Lowy (N.J. Super. Ct. App. Div. Dec. 21, 2011), which holds that orders that a husband give a Get are unconstitutional, unless the husband has contractually agreed to give the Get (or to abide by the outcome of a religious arbitration, which ends up ordering him to give a Get):

The parties were divorced on September 20, 2004 when the Family Part issued a dual final judgment of divorce, which, by agreement of the parties, incorporated the August 4, 2004 decision of a Bais Din (rabbinical court) located in Monsey, New York…. [But] the August 2004 decision of the Bais Din … did not … require defendant to provide his ex-wife with a Jewish divorce … [and t]he judge’s reliance here on the purported decision of the Bais Din was [therefore] flawed ….

Once the Bais Din decree is eliminated as a source of authority for the judge’s August 27, 2010 enforcement order — as it must be — the order cannot be sustained because it constitutes impermissible judicial involvement in a matter of religious practice. Simply stated, the judge lacked the authority to compel defendant to “give the Get” where, under the facts presented here, defendant was not bound by any contractual agreement to do so.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: I originally accidentally wrote that a woman who has not gotten a “get” “may not marry freely within the Jewish community”; I’ve revised the post to reflect that this is generally true among Orthodox Jews and possibly also many Conservative Jews, but it probably isn’t true among most Reform Jews.

So reports OnIslam.net:

Bowing to protests pressures, the Maldives has ordered hundreds of luxury hotels to close their spas, a decision expected to affect tourism industry which forms a vital foreign exchange source for the Indian Ocean country.

“An Islamic party has been agitating against spas hoping to embarrass the government,” a senior government figure told Agence France Presse (AFP) by telephone asking not to be named.

The official confirmed Thursday’s ministry order following the protests that erupted in the country last Friday.

Answering a protest call by the opposition Adhaalat, or Justice, Party and several other groups, more than 3,000 people accused President Mohammed Nasheed’s government of compromising principles of Islam and call for Islamic law.

The government bowed to the pressure less than a week after President Nasheed called for a “tolerant” form of Islam in his nation.

The Maldives is a cluster of 1,200 islands renowned for its luxury resorts.

The tourism industry is a vital foreign exchange earner and employer in the Maldives, a popular high-end destination for honeymooners and celebrities where luxury rooms can cost up to $12,000 a day.

The Indian Ocean country [population 400,000] this year received more than 850,000 tourists, drawn to its secluded islands known for turquoise blue lagoons, as well as corals and reefs filled with multi-colored fish….

Considering the huge revenue earned from the business, tourism industry sources said they expected the government to revoke the decision on spas soon….

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: Thanks to commenter CockleCove, I saw an article from Minivan News, a Maldivean publication, that gives some of the explanation for the closing (CockleCove reports, by the way, that “Minivan” means “Independent,” and has nothing to do with minivan):

After thousands of protesters gathered last Friday and demanded the government “close the spas and massage parlors and such places where prostitution is conducted”, the Tourism Ministry has today published a circular asking all the resorts to shut down their spas and massage parlors….

Speaking at a press conference held yesterday, [President Mohamed] Zuhair said the protesters did not specify where exactly the prostitution was conducted but mentioned that prostitution was conducted inside spas and massage parlors.

He said the government does not know how to differentiate between the spas and massage parlors that are complicit with prostitution and those which are not.

Therefore, Zuhair said the government has decided to shut down all such locales because Maldivians, including high-profile individuals, have been visiting tourist resorts and having spa treatments.

He said the government does not want those high-profile individuals’ good names being damaged by visiting places accused of such crimes.

Zuhair added that some of the individuals making these demands last Friday also conduct business in the tourism industry. Therefore, the government believes that, given their insider understanding of the resort and spa industry, their accusations are well-founded and there is not much to investigate.

This week, five spas run in five resorts owned by opposition Jumhoory Party (JP) Leader ‘Burma’ Gasim Ibrahim were asked by the Tourism Ministry to shut down operations over similar allegations.

The company subsequently sued the government….

As reported by the Maldivian newspaper Haveeru, “President Mohamed Nasheed yesterday called on citizens to reject religious extremism and continue to support the ‘traditional form’ of Islam that has been practiced in the Maldives for the past 800 years,” and in particular said,

Should we ban music? Should we mutilate girls’ genitals? Should we allow nine year-olds to be married? Should we forbid art and drawing? Should we be allowed to take concubines? Is this nation building? ….

This is an old country, people have lived here for thousands of years and we have practised Islam for more than 800 years. In 2011, we are faced with a question, how should we build our nation: what we will teach our children, how should we live our lives and what we will leave for future generations? …

Some people are saying that the government is going against religion because we won’t deviate from the traditional form of Islam ….

[I] asked you to come here in support of the middle, tolerant path. And I believe that most citizens want to continue our traditional form of Islam.

The AP reports that the President also said:

To build our economy we need foreign investments and we need to create an environment in which foreigners can invest ….

We can’t achieve development by going backwards to the Stone Age or being ignorant.

But the president seemed to be speaking out against a fairly popular rival movement; also from the AP story:

Thousands in the Maldives protested Friday, calling on the government to halt what they called “anti-Islamic” activities, including a plan to allow direct flights to Israel….

The protesters want authorities to stop the sale of alcohol in the islands, shut down brothels operating in the guise of massage parlors and demolish monuments gifted by other countries marking a South Asian summit last month because they see them as idols….

Debates on religious issues have emerged since a group vandalized a monument gifted by Pakistan marking a South Asian summit last month with the image of Buddha. Buddhism was part of the present Islamic republic’s history.

And note that existing Maldivian law, while perhaps not as strongly Islamic as the protesters suggested, is still quite restrictive: “The Indian Ocean archipelago of 300,000 Muslims prohibits practicing any other faith.” “An angry protest last month followed a call by United Nations High Commissioner for Human Rights Navi Pillay for the Maldives to end the punishment by flogging of women who are found to have had sex outside marriage.” “One blogger who has called for religious tolerance has been detained for more than a week by authorities who accuse him of blasphemy and of promoting anti-Islamic concepts such as gay rights.” For an earlier Maldives story, see the post titled Maldives: “Islamic Foundation Calls for Death Sentence if Apostate Fails to Repent”. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Reader Ted McClure pointed me to an interesting post on the subject on the MuslimLawProf blog (written by Prof. Haider Ala Hamoudi at the University of Pittsburgh School of Law); here’s an excerpt:

If I had to summarize modern views on slavery in Islam among modern Muslims who know something of the subject, it would go something like this:

Slavery was a deeply abhorrent practice, a repulsive one fundamentally at odds with basic principles of justice and fairness brought by the Divine. But it is also a practice that predominated in human civilizations prior to modernity, and its prevalence caused Islam not to ban the practice outright, but to regard it with deep distaste, to mitigate its effects and humanize it to the extent possible, and most importantly of all to set the seeds of its own destruction, so that it would not last in the Muslim world. We did all of that, and so not only is slavery gone, but even when it existed, it was better than Western slavery.

Now let’s be clear before proceeding to the important parts worth discussing. Some of this is apologetic nonsense, and should be dispensed as such quickly. The Arab slave trade killed about as many Africans as the Western slave trade, and we are talking in the tens of millions. Nothing “better” about that as a historical matter. Besides, the notion of reforming an institution and seeking to end an institution lie at some tension with one another. If you, as I do, tend to regard slavery as abhorrent and repulsive and you pray for its end, you don’t seek to reform it, and you don’t seek to trumpet how much better you’ve made it than some other culture did. You have reduced a human being to the status of livestock, you have claimed a right to buy and sell her, and when you do so, you steal her humanity. You want to reform drug laws, fine, but you can’t reform slavery.

So I want to leave aside that piece of it and concentrate on the other piece. Effectively, this Islamic argument indicates you have to accept Lincoln’s bargain. You may as a modern Muslim say slavery is a wrong, a deep and fundamental one. You can say not only is it and should it be criminal, but it should be prosecuted severely. But when and where it is prevalent and widespread as it was in Lincoln’s South and in Muhammad’s Medina, you won’t quite ban it. You won’t encourage it, you won’t even be neutral towards it, you’ll hate it and discourgage so much that you won’t even say it is sanctioned. (Qur’an never does, all is implication). But what you’ll do is neutralize its effect as much as you can through liberal manumission rules, stop its spread (Islamic rules on enslavement are restrictive, as was the American ban on the slave trade) completely and totally, and wait for it to die out….

[But though y]ou can claim the Qur’an regards slavery as Lincoln did in 1858 as per above, you can make that argument quite plausibly, … you have to piss all over the classical law to do it. because the fiqh of the classical jurists does no such thing. I don’t mean to suggest that a ban on slavery is incompatible with classical doctrine, you can make it compatible. But the meta ethical position that this is an abhorrent, repulsive, disgusting practice and we’re going to make it die is not a even close to a fair reflection of the fiqh….

But then, the question arises, if you’re willing to declare the classical doctors engaged in profound and fundamental error on this point, if you’re willing to argue that this was a fundamental and total breach of their function as interpreters of the Word, as betrayal of their human instincts, a gutting of deep and fundamental principle, a figurative spitting in the eye of the very purposes for which God broke the veil separating humanity from the Divine, well if you’ll do that for slavery, the central example often used throughout the rules on sale under classical Islamic doctrine, then just how much deference should you afford the jurists on other questions. It’s worth a thought anyway.

What struck me as especially interesting about this is that of course three other legal systems have also had to deal with the question of slavery — the Jewish legal systems, the Christian tradition that seeks to tailor secular law (in many respects) to Biblical judgments about right and wrong (not the only Christian tradition but an important one), and of course the American legal tradition.

The American legal tradition had a legally simple, though famously militarily complicated way, of dealing with this: Article V, which produced the Thirteenth Amendment. End of story; what Madison thought about slavery need no longer detain us in passing judgment on the legality of slavery (though there is of course a debate about the extent to which it should affect our passing judgment on Madison).

The Christian tradition, I think, has dealt with it in complicated ways, but my sense is that it boils down to (1) a good deal of flexibility in the interpretation of the Bible as such, coupled with (2) the sense that old scholarly interpretations of the Bible are not strongly binding on Christians today (though many Christians do find them important though not binding). I note that I am not at all an expert on the subject, but that this is just my own highly oversimplified summary of what I understand to be the situation — one reason I’m blogging about this is to solicit more knowledgeable commentary.

The Jewish and Muslim legal systems, though, have long seen ancient teachings as important, and the most orthodox branches of Judaism and Islam have treated those teachings as extremely important, to the point of indeed being pretty close to binding. And in a case like slavery, the very strength that the orthodox often attribute to those traditions — that by creating a rich and binding set of legal rules, the religious traditions help avoid people from being led into error by their own preferences and the passions of the moment (or even of the modern era) — becomes a weakness: One can accept the ancient teachings as to slavery, but few are willing to do so (and rightly so, in my view). One can say “times have changed, so those teachings, though correct for their time, no longer apply today,” but there goes the supposed anchor of tradition as a means of resisting modern temptation and error; and in any event, many are unwilling to accept that slavery was ever correct.

Or one can say that the ancient teachings were wrong from the outset, which makes one have to face the MuslimLawProf’s question: “[I]f you’re willing to declare the classical doctors engaged in profound and fundamental error on this point, if you’re willing to argue that this was a fundamental and total breach of their function as interpreters of the Word, as betrayal of their human instincts, a gutting of deep and fundamental principle, a figurative spitting in the eye of the very purposes for which God broke the veil separating humanity from the Divine, well if you’ll do that for slavery, … then just how much deference should you afford the jurists on other questions”? I’d love to hear what people who are more knowledgeable than I am on this question, whether as to Islam, Judaism, Christianity, or other traditions, have to say about this.

The Daily Mail reports:

A woman convicted of practising magic and sorcery has been executed by Saudi authorities…. The London-based al-Hayat daily … quoted Abdullah al-Mohsen, chief of the religious police who arrested the woman, as saying she had tricked people into thinking she could treat illnesses, charging them $800 (£500) per session.

If this was fraud, it should be punishable as fraud. But it seems pretty clear that she was punished not for stealing money from people by lying, but for what the legal system views as the independent crime of witchcraft or attempted witchcraft.

UPDATE: Some commenters expressed some skepticism about the Daily Mail but other news sources say much the same; see, for instance, this AP story and this South Asia News Agency story (though the latter doesn’t have the fraud details). Also, I forgot to thank Prof. Howard Friedman (Religion Clause) for the pointer.

The Tampa Bay Times reports:

Circuit Judge Richard Nielsen ruled last week that the Constitution barred the court from getting involved in a dispute between the mosque — the Islamic Education Center of Tampa — and several ousted trustees.

The order is something of an about-face for Nielsen, whose earlier ruling that he would use “ecclesiastical Islamic law” to decide an issue in the case triggered national publicity and criticism from some commentators.

In a brief two-page order, Nielsen cited an earlier, precedent-setting ruling by another court in a different case that found “the trial court could not intervene in an internal church governance dispute.”

Quoting that decision, Nielsen wrote that the Constitution “permits hierarchical religious organizations to establish their own rules and regulations for internal discipline and governance, and to create tribunals for adjudicating disputes over these matters.”

Nielsen concluded, “Once such matters are decided by an ecclesiastical tribunal, the civil courts are to accept the decision as binding on them.” …

For more on the earlier decision, see this post. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: The judge’s order and the parties’ arguments are here.

Regarding Eugene Volokh’s post below about an NYU L. Rev. article, “The People” of the Second Amendment: Citizenship and the Right To Bear Arms. I just scanned the article, and there appears to be only a single footnote which directly cites any state statutes from before 1800. Note 125, accurately cites standard statutory compilations from Massachusetts and Connecticut for laws against selling firearms to Indians. Although the author is apparently unaware that by 1661 (Connecticut) and 1688 (Massachusetts) the laws were changed to allow gun sales (and even gun carrying in towns) by friendly Indians. The article suffers very severely from its near-exclusive reliance on secondary sources for the pre-1800 period, especially since some of those sources are highly tendentious.

To summarize the information from Chapter 3 of my forthcoming textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen Publishers, available in late Jan. 2012) regarding American law pre-1800:

Women: No restrictions. Of course they did not serve in the militia. Laws requiring “householders” (whether or not they were in the militia) to have arms were common, and these usually included a woman who was the head of the house (e.g., a widow).

Free blacks: Some states had no restrictions, some states had bans on their owning guns. Free blacks served in some state militia, not in some other states, and in some states policies changed depending on military necessity. They were excluded from the federal militia by the Second Militia Act of 1792.

Slaves: Several states banned gun ownership, or allowed ownership only with the master’s permission.

Poor whites: To claim that they were excluded from gun ownership or from militia service is absurd. There were absolutely no property or wealth restrictions on gun ownership, nor on service in the militia. To the contrary, many states had programs to supply poor people with guns (“public arms”) for militia service, if they could not afford their own. Further, the laws requiring householders to be armed often required that the household provide arms to adult male servants. State laws also required that when an indentured servant finished his or her term of service, the master must provide the former servant with “freedom dues” so that the servant could begin independent life. The freedom dues were specified set of goods; in Maryland, Virginia, and North Carolina, freedom dues for male servants included a firearm. In short, the state laws of the 17th and 18th centuries in America were generally prescriptive about gun ownership by poor people, and the prescriptions were to put guns into the hands of the poor.

The author of the NYU article asserts that “arms bearing was considered congruent to voting, holding public office, or serving on juries.” That’s incorrect for “bearing” in the sense of carrying a gun for personal use, since there were no wealth, sex, age, or citizenship restrictions on carrying. And the claim is even more incorrect if “bearing” is meant in the restrictive sense of “bearing for militia service.” Militia laws always mandated service by all males (except, sometimes Blacks or Indians) in a certain age range. Period. The only exemptions were for specified professions (e.g., clergy). Militia duty was generally required starting at age 16 or 18 (which was before voting eligibility). Indeed, during the end of the 18th century and the early 19th century, one of the standard,successful, arguments for broadening the franchise by eliminating the property requirement for voting was that anyone who served in the militia deserved to vote. E.g., “Let every man who fights or pays, exercise his just and equal right in their election.” Thomas Jefferson letter to Samuel Kercheval, July 12, 1816.

Catholics: In Maryland, temporarily barred from gun ownership during the French & Indian War.

Dissenters: During the Revolution, there were plenty of instances of confiscating guns (sometimes with compensation) for militia use from people who would not take a loyalty oath to the new nation, or who would not serve in the militia (this included plenty of religious pacifists in Pennsylvania). During the early theocratic days in Massachusetts, 75 supporters of the religious dissident Anne Hutchinson were disarmed.

The author’s thesis is that illegal aliens and legal non-resident aliens should be allowed to own guns. Part of his argument is to construct and then criticize the supposedly historical “gendered,and class-stratified understanding of persons permitted to own guns.” The author could have made a stronger historical argument for his position if he had accurately described the gun laws of 17th and 18th century America.

Mehrab No. 1. Corp. v. United States (N.D. Ill. Nov. 23, 2011) deals with a legal question that touches on two interesting issues:

(1) To what extent should the law try to protect religious or linguistic minority groups from generally applicable rules that have an unusually large impact on those minority groups?

(2) To what extent should penalties be softened when the penalty indirectly affects innocent third parties, whether that might be a criminal defendant’s children or a business’s customers?

The issue in Mehrab No. 1 came up in an area I know little about — food stamp law — but the questions recur in many fields, so I thought this might be an interesting case to discuss.

Here’s the situation, as best I understand it: Food stamp recipients can pay for particular kinds of products using the food stamps, and the seller can then turn in the food stamps for real money. But if a store’s employees accept food stamps for ineligible items, the food store could be permanently or temporarily disqualified from the program, even if the store’s owners didn’t know of their employees’ misbehavior. Such a disqualification could be devastating for the store, because many stores find it necessary to accept food stamps in order to stay in business.

Because of this, a federal regulation (which, I believe, was originally created pursuant to a statutory requirement, though a requirement that has now been repealed), provides that the government “may impose a civil money penalty as a sanction in lieu of [temporary] disqualification when … the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.” So this regulation deliberately eases the penalty on the store in order to prevent harm to the store’s customers.

Now the regulation, I assume, was originally enacted to protect poor customers generally. But the question then arises: What if the store is one of many stores in the neighborhood that sell cheap staple food items, but the only one that sells halal meat (the issue in Mehrab No. 1), kosher food, Glatt kosher meat, products guaranteed suitable for Buddhist vegetarians, or products guaranteed suitable for purist vegetarians generally? Or what if it is the only store in which the clerks speak Spanish, Arabic, Cambodian, or some other language that many non-English-speaking local residents speak?

Say that there are two stores in the neighborhood whose employees have violated food stamp rules: John Smith’s Grocery, which sells ordinary food that’s much like what most other stores sell, and Mehrab, which sells halal meat that is sought by the local observant Muslim community. John Smith’s Grocery is disqualified, and no relief is available because there are lots of other “authorized retail food store in the area selling as large a variety of staple food items at comparable prices.” Should Mehrab also be disqualified? Or should it be eligible for relief, because the other food stores don’t sell halal food?

In Mehrab No. 1, the court took the view that Mehrab could prevail if no other food-stamp-accepting store “in Mehrab’s vicinity offers an equivalent variety of Zabiha Halal items at comparable prices.” The court implicitly interpreted “as large a variety of staple food items” as meaning as large a variety of the sorts of items that the customers specially want because of their felt religious obligations — not just as large a variety of staple food items generally.

To my knowledge, this is the first decision under these regulations confronting this particular question, though I also found another case dealing with a related question: Phany Poeng v. United States (S.D. Cal. 2001), which involved a store that catered to customers with particular linguistic limitations, and which rejected the hardship argument, because “[a]lthough the competing stores’ employees may not speak Cambodian, the FNS is not required to guarantee the existence of an authorized store that caters to food stamp participants of every minority language. Moreover, the Court is hard-pressed to identify a reason why a food stamp participant would necessarily have to converse with a cashier at the time of purchase.”

I’m inclined to say that the Mehrab court interpreted the regulations in a sensible way, and that looking to whether there are stores that provide as large a variety of products that are adequate to the customers’ particular felt religious needs is a sound way of reading the regulation. (I’m not as confident about Phany Poeng‘s interpretation, which reached the opposite result as to linguistic minorities, though it’s possible that both cases are correct given the regulation’s focus on “as large a variety of staple food items,” which seems to refer to the adequacy of the goods and not the adequacy of the services.) But in any case, this struck me as an interesting question that I thought I’d flag for our readers.

So reports the Jessica Heslam (Boston Herald):

[Michael Casey] went to [Upton's] three selectmen last month with a simple request: to hold a peaceful prayer vigil on the town common. It was supposed to be part of about 7,500 “rosary rallies” held nationwide by America Needs Fatima, a nonprofit Catholic group.

The selectmen put their feet down. No way, they told Casey, invoking the Constitution’s separation of church and state.

Here’s the item from the town meeting minutes, which supports the newspaper’s story:

3. Rosary Prayer Vigil on the Town Common

Selectmen Picard stated he is uncomfortable with this request, he understands the person’s desire but persons of other religions could feel slighted if we do not also open it up to them. Selectmen Brochu also is uncomfortable with the request and agrees with Selectmen Picard. Chairman Fleming stated the Board has been generous allowing religious group’s use of town property providing it was not a religious type service. He did state the law does require separation of Church and State and to use the Town Common area for a religious function does tip toe in violation of the constitution. He also stated the Town is careful to allow holiday events on the common but they are very generic and refrain from imposing anything on a citizen that they would not want on their property and it is town property.

But the Establishment Clause, as interpreted by the Supreme Court, bars only government speech endorsing religion. It doesn’t bar private religious speech in generally accessible public property, and especially in a traditional public forum (which the Upton Common seems likely to be). And in fact the Free Speech Clause protects such speech against content-based exclusion from such places; see Capitol Square Review & Advisory Bd. v. Pinnette (1995). Fortunately, the Selectmen have now changed their decision:

“They realized that this was an unfortunate decision and a misunderstanding of the law,” [Town Manager Blythe] Robinson said. “I’m going to work with them to put together a policy to make sure we take care of this in the future.”

Thanks to Victor Steinbok for the pointer.

The St. Petersburg Times reports that the Florida Court of Appeals has affirmed, without opinion, the trial judge’s order in this case (thanks to Prof. Howard Friedman [Religion Clause] and Victor Steinbok for the pointer); so I thought I’d repost the item I wrote about the trial court decision in March:

There’s been much talk about the trial court decision in Mansour v. Islamic Education Center, a Florida trial court case. I think the court erred, for reasons I discuss in item 3 below, but I think the matter is more complex than some suggest. Here’s an excerpt from the court decision:

This action was filed in 2008 to resolve issues relating to the corporate governance of the Islamic Education Center of Tampa, Inc. (“IEC”). The IEC is a learning center and community center for Muslims in the Tampa Bay area. The dispute began in the early 2000s, but was exacerbated by disagreement concerning control of the cash proceeds from an eminent domain settlement [and a purported binding arbitration of the matter –EV]….

From the outset of learning of the purported arbitration award, the court’s concern has been whether there were ecclesiastical principles for dispute resolution involved that would compel the court to adopt the arbitration decision without considering state law. Decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque….

The court has concluded that as to the question of enforceability of the arbitrator’s award the case should proceed under ecclesiastical Islamic law. Based upon the testimony before the court at this time, under ecclesiastical law, pursuant to the Qur’an, Islamic brothers should attempt to resolve a dispute among themselves. If Islamic brothers are unable to do so, they can agree to present the dispute to the greater community of Islamic brothers within the mosque or the Muslim community for resolution. If that is not done or does not result in a resolution of the dispute, the dispute is to be presented to an Islamic judge for determination, and that is or can be an A’lim.

The court will require further testimony to determine whether the Islamic dispute resolution procedures have been followed in this matter. When the hearing was recessed to reconvene at a later date the defense was presenting its case. Counsel advised that he anticipated calling between five and seven witnesses.

Continue reading ‘“The Case Should Proceed Under Ecclesiastical Islamic Law” / Jews, Ketubahs, and Gets’ »

Yesterday, the Supreme Court held oral arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a key religious freedom case that Eugene Volokh blogged about here. SCOTUSblog has a round-up of coverage of the argument. I found this exchange particularly telling, as the federal government did itself no favors by taking the extreme position that the Free Exercise Clause of the First Amendment isn’t even implicated when the state uses antidiscrimination law to challenge the firing of church employees – even if the latter are ministers or have religious duties:

At one point, Justice Elena Kagan asked Ms. Kruger whether she believed that a church has a right grounded in First Amendment religious protections to hire and fire employees without government interference.

Kruger answered that the government was basing its argument on the freedom of association, rather than the parts of the First Amendment that deal with religious freedom.

“We don’t see that line of church autonomy principles in the religion clause jurisprudence as such,” Kruger replied. “We see it as a question of freedom of association.”

The position surprised several justices, including Justice Kagan, the Obama administration’s former solicitor general, who said she found the comment “amazing.” After the hearing, one representative of a religious association called the government’s position a “full frontal assault on religious liberty.”

Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything “special about the fact that the people involved in this case are part of a religious organization.”

Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.

“That’s extraordinary. That is extraordinary,” Justice Antonin Scalia declared. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”

We don’t think that the job duties of a particular religious employee are relevant to the inquiry,” she said.

Even former Obama Solicitor General Elena Kagan was “amazed” by the Administration’s position. Obviously, however, the justices could potentially rule in favor of the EEOC on narrower grounds, though I am cautiously optimistic that they won’t.

Since this issue is at the outer edge of my range of expertise, I think I will leave the real heavy lifting on this case to the law and religion experts, lest I violate my own rules about choosing blogging topics. But I did want to highlight this part of the oral argument for interested readers.

FULL DISCLOSURE: I participated in a moot session for University of Virginia Law professor Doug Laycock, who represented the Lutheran Church in this case. I thought he did a great job at both the moot and the actual oral argument itself.