A Ninth Circuit panel said no in June, and I thought its ruling was correct, though I disapproved of San Francisco’s resolution on nonconstitutional grounds. But yesterday, the Ninth Circuit agreed to rehear the case en banc, so it might be that the panel decision will be reversed (though I still think that it’s correct).
Thanks to Religion Clause for the pointer.
The recent UN Human Rights Council Resolution endorsed by the Obama Administration exemplifies a key weakness of international human rights law that John McGinnis and I have focused on in our academic work (e.g. here and here): the heavy influence of repressive authoritarian governments over its content. In this case, the resolution was initially promoted primarily by authoritarian Islamic governments who hoped that it would legitimize efforts to suppress “anti-Muslim” speech. The Obama Administration supported the resolution, I would guess, primarily in order to improve the US image with those governments and their traditionalistic Muslim and Islamist sympathizers.
For reasons indicated by co-blogger Eugene Volokh (here , here, and here), Jonathan Turley, and others, the resolution does indeed justify gross infringements on freedom of speech. As they point out, it threatens free speech not only in the authoritarian states that initially proposed it, but also (though to a much lesser degree) in those Western nations that tend to incorporate international human rights law into their domestic law. While the Resolution probably doesn’t count as international law in and of itself, it is the sort of document that many experts claim can be emobided in “customary international law” over time (see the discussion in this article, and also Eugene’s take here).
It is unlikely that the US and other Western nations would have agreed to this resolution if not for the influence of authoritarian Muslim states that they sought to appease. Thus, the influence of repressive regimes helped promote the enactment of “human rights” law that legitimate their abuses and could potentially weaken protection for freedom of speech and other important liberties in the West.
This danger is not unique to this particular resolution. Rather, as John McGinnis and I discuss in this article, it infects the entire body of modern international human rights law. For example, the Universal Declaration of Human Rights — generally considered the most important international human rights treaty — includes repressive elements introduced at the behest of the Stalinist USSR and its allies. Even when a particular human rights proposal has been endorsed by liberal democracies, it often reflects dubious compromises with repressive states, and thus promotes principles that undermine freedom more than democratic governments would if left to decide for themselves, free of authoritarian influence. The HRC resolution is a good example of this phenomenon, as is the Universal Declaration.
Given the great influence of repressive regimes over its content, it is likely that international human rights law, as currently developed, does more to legitimize repression than to protect freedom. This is especially likely in light of the fact that repressive regimes can usually disobey those aspects of such law that might genuinely weaken their grip on power. By contrast, liberal democratic states are likely to take the rule of law more seriously and therefore to actually obey repressive elements of human rights treaties that they ratify and commit to incorporating into their domestic law.
None of this proves that every aspect of international human rights law is harmful. Even the worst governments might sometimes support relatively beneficial legal rules. It does, suggest, however, that we should view the current body of law in this area with great suspicion, and be very reluctant to allow it to override or influence the domestic law of liberal democracies.
UPDATE: I have changed the title of this post to make it clearer.
UPDATE #2: I previously blogged about the influence of repressive regimes over international law in this series of posts.
Occasionally I hear people condemning the tax-exempt status of churches, on the grounds that the tax exemptions — both the exemptions from property and income taxes, and the tax deductions given to people who contribute to the church — are subsidies to the churches. This is especially common when a church says or does something bad; people ask, “Why are we subsidizing them?”
The answer is, generally speaking, that we “subsidize” a wide range of nonprofit entities this way, including churches. Private universities, private schools, public radio stations, advocacy groups (except those branches of advocacy groups that participate in electoral campaigns or do a substantial amount of lobbying), hospitals, soup kitchens, and so on all get tax-exempt status. Churches get slightly preferential treatment in certain circumstances (and I generally oppose such preferential treatment). But the bulk of the tax treatment that they get is the same treatment that is given to other nonprofit organizations, including speaking organizations such as universities, schools, and advocacy groups. And of course that tax treatment is likewise available to advocacy groups that advocate for bad ideas, just as it’s available to churches that teach bad doctrines.
Moreover, excluding churches from such generally available tax-exempt treatment would itself likely be unconstitutional, so long as similar secular groups keep getting such treatment. (It’s conceivable, under a very broad reading of Locke v. Davey, that such discrimination against religious institutions would be constitutionally permissible, though certainly not constitutionally mandated. But I doubt that Locke v. Davey would or should be read that way, especially given that case’s reliance on tradition, and the fact that here tradition cuts in favor of allowing tax exemptions.)
So if you oppose all tax exemptions for nonprofits (and for contributions to nonprofits), or for all nonprofits that specialize in speaking — such as advocacy groups, schools, universities, public radio stations, and churches — then churches would naturally be included in your opposition. But so long as charitable nonprofits, under a very generous standard of what constitutes a suitable charitable purpose, are tax-exempt, the same would cover churches.
I should note that there’s a separate debate about whether tax exemptions should be treated as tantamount to subsidies. But for purposes of this post, I assume that exemptions from generally imposed taxes are indeed subsidies — and there is indeed good economic reason to treat them this way — since I am arguing that even if the exemptions are a form of subsidy, churches should be as entitled to them as are other nonprofits.
From Stavig v. Stavig, No. 05–0464 (S.D. Cir. Ct. Aug. 28, 2008), recently affirmed by the South Dakota Supreme Court:
[Father] is a little more able to [provide for the 6-year-old son’s “temporal, mental and moral welfare”] than [mother]....
- Both have the ability to give [son] love, affection, guidance, education and to impart the family’s religion or creed. [Father] is inclined to impart the family’s religion or creed, as he regularly takes the child to Sunday school and at one time enrolled [son] in a church-sponsored pre-school. Conversely, [mother] does not take the child to church or Sunday school, and without any apparent reason or explanation, removed the child from a church-sponsored pre-school to send him to an Interlakes Community Action Program.
Father gets physical custody even though mother had been the “primary caretaker since birth,” a factor that would normally cut in favor of the mother. And, as the court said, the decision was close; the father’s greater religious observance thus may well have changed the result. Note also that the court wasn’t talking about enforcing some agreement between the parties, which might have called for a particular kind of religious upbringing; the court was asking what was most conducive to the child’s “temporal, mental and moral welfare,” and apparently concluded that regular churchgoing is better for the child.
Now it might well be that regular churchgoing is indeed in a child’s best interests. Or maybe regular churchgoing is against a child’s best interests. It seems to me, though, that the First Amendment keeps the government — including courts — from taking a stand on this in deciding people’s parental rights, at least in the absence of actual evidence of imminent harm to the child (as opposed to speculation about whether religiosity is good or bad). For more examples of this happening in other states, see this set of posts. For more general thoughts on the Constitution in child custody cases, see this post. If you’re really interested, you could have a look at my article on Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006), which discusses the Religion Clauses issues as well as the Free Speech Clause issue. Finally, for cases holding (in my view correctly) that a parent’s lack of religiosity generally ought not be a factor in custody decisions, see Placencia v. Placencia, 3 S.W.3d 497, 502 (Tenn. Ct. App. 1999); In re Marriage of Oswald, 847 P.2d 251, 253 (Colo. Ct. App. 1993); Burrows v. Brady, 605 A.2d 1312, 1317 (R.I. 1992); Elbert v. Elbert, 579 N.E.2d 102, 110 (Ind. Ct. App. 1991); Eastes v. Eastes, 590 S.W.2d 405, 408 (Mo. Ct. App. 1979); Wilson v. Wilson, 473 P.2d 595, 598–99 (Wyo. 1970); Welker v. Welker, 129 N.W.2d 134, 138 (Wis. 1964); Maxey v. Bell, 41 Ga. 183, 185–86 (1870).
I read with great interest Eugene’s post below on the Obama administration, free speech, and human rights. As it happens, I’m trying to finish up a manuscript on the UN and “values” at this very moment, and so alas don’t have time to comment more than a few paragraphs about this. Here are a couple of observations that I don’t propose to defend here; I throw them out unsupported, and I’ll try to go back and add something else later. Many of them are about the intellectual community of international law, which I take as relevant here in part because Eugene is trying to sort out what various international law experts say is or is not the import of the free speech drafts in the UN Human Rights Council; I think it matters to have a sense, even if it’s just my personal and idiosyncratic one, of the baseline of international law experts. (I don’t promise that I have re-read this closely despite some aggressive characterizations here; I’m simply out of time.)
This whole process of “engagement” on an issue like free speech by the US at the HRC or anywhere else in the international system is a mistake from the beginning. Among the many reasons is, first, that a process like that of the HRC is designed to lead to consensus, which in practice will mean some kind of compromise. But the whole point of freedom of speech under the First Amendment is that it is not open to compromise, and certainly not in the sense of elaborating standards from the outside for a sovereign people who govern themselves under a constitution.
Even to “engage” in the process, as a consequence, leads to tears no matter where it goes. A compromise on the issue will inevitably mean that the first amendment is weakened in its substantive American understanding. If the US engages in the process, however, but then does not accept the result, then it is understandably accused of negotiating in bad faith.
But that’s the consequence of a policy of “always, or nearly always, engage” with the UN or with international institutions. There are certain institutions in which the US should always engage; the Security Council is one of them. There are certain institutions or processes with which it should never engage and actively seek to undermine; Durban I and II come to mind. The HRC is another institution with which engagement is a mistake, and an obvious one. The decision to engage or not engage is one that by itself is an exercise in political capital. I admit to finding unpersuasive the position of some (HRW made these arguments around Durban, but it is a fairly common trope) that
This is looking to have it both ways. Which is it to be? Does symbolic engagement matter or doesn’t it? Continue reading ‘Globally Managing American Speech?’ »
in Freedom from Religion Foundation v. Hanover School District (D.N.H., decided yesterday).
An opinion released today by the Arkansas Attorney General says “no.” Like most states, Arkansas allows adults to obtain a permit to carry a concealed handgun for lawful purposes, after passing a background check and safety class. Like a few states, Arkansas prohibits licensed carry in “Any church or other place of worship.”
In short, the AG opinion says that there is no Free Exercise violation because the statute does not (at least facially) hinder the exercise of religion. Further, the statute is one of general applicability, and does not single out religion for different treatment, because the Arkansas conceald handgun license (CHL) statute also bans CHL in some other locations. The opinon suggests that what these disparate places have in common is that they are likely to be crowded.
There is no Establishment Clause violation because the CHL in churches ban does not appear, facially, to favor one sect or denomination over another. (The AG opinion and this post both use “churches” to include synagogues, mosques, and all other houses of worship of various religions.)
The AG opinion strongly emphasizes that the issue is one of first impression, and that a full legal resolution of the issue might well require fact-finding. The purpose of an Attorney General opinion is only facial review, and not the kind of fact-finding that a court might engage in.
Given the self-declared limited scope of the AG opinion, its tentative legal conclusions are plausible. However, I think that if we broaden our view a little bit–in either a court of law, or the court of public opinion–there do appear to be some potential violations of the Establishment and Free Exercise clauses.
Two preliminary caveats: First, neither the AG opinion nor this post address whether the church ban violates the right to arms clause of the Arkansas Constitution, or the Second Amendment. I expect that an argument on right to arms grounds would probably involve the rights of almost any landowner to choose to allow licensed carry on his/her/its property; the argument would not be specific to churches as landowners.
Second, as demonstrated by litigation in Minnesota, some churches consider it an intolerable burden on their free exercise of religion if, in order to exclude licensed gun owners, they must post a “no guns” sign similar to signs that ordinary businesses in the state routinely post in order to exclude licensed carry. I presume that a way can be found to accomodate their twin desires for “no guns” and “no signs” and that this accomodation does not require banning guns from churches that want to allow carry. For example, a statute could presumptively ban guns at churches, and then allow individual churches to opt out by posting a “licensed gun owners are welcome” sign. Or a church could be allowed to authorize carry by specific persons who received a letter of authorization from the church.
One test for Free Exercise violations involves whether the statute imposes a significant burden on the free exercise of religion, even if the legislature had no malign intent to create a burden. A complete ban on CHL at churches, even at churches which strongly desire licensed carry on their premises, does burden free exercise. Churches, by their very nature as religious institutions, are more likely to be the targets of attacks by persons motivated by religious hatred. If the law prevents congregations from protecting themselves, then the state government is making church-goers defenseless at precisely the time when they are especially likely to be attacked by a criminal acting out of religious hatred. In my forthcoming Connecticut Law Review article Pretend “Gun-free” School Zones: A Deadly Legal Fiction, I describe the case of a December 2007 attack on a church in Colorado Springs by a person who earlier that day had murdered people at a Christian youth group. Dozens of lives were saved because one of the parishioners at that the New Life Church, Jeanne Assam, was using her Colorado CHL to lawfully serve as a volunteer security guard at the church that Sunday.
Obviously not all churches have the same beliefs about the legitimacy of self-defense and defense of others as does the New Life Church. This brings use to the second violation of the First Amendment. The morality of using deadly force when necessary to protect innocent lives is a strongly debated topic among various denominations. The early Christians disagreed on the topic. Historically, the standard Jewish and Catholic view was that self-defense was a right and defense of others was often a duty. Some Christians, particularly since the 20th century, take an opposite view. Likewise, many adherents of the major religions of Asia also support self-defense, while some (especially some Therevada Buddhists) do not. These doctrinal differences about self-defense represent very important, sincerely-held differences in religious beliefs. A religion is, after all, not just about the forms of ritual; religion is especially concerned about providing guidance for moral conduct at moments when a person may face decisions involving the end of life.
The state, of course, must be neutral between the various religious beliefs. The state should not compel a Quaker to shoot someone who is trying to kill her, nor should the state forbid a Baptist from saving her own life. The CHL prohibition in churches violates the Free Exercise clause because it prevents self-defense by members of a religious community, when they are gathered as a community, even if key tenet of the religion is the communal duty of the adherents to protect their fellow adherents.
Moreover, the CHL ban also violates the Establishment clause because it favors some denominations over others. In effect, the statute privileges pacifist denominations over non-pacifist ones, by forcing the non-pacifist religions to obey pacifist standards of conduct in their own houses of worship. This is not only a Free Exercise violation, it is an Establishment clause violation, because it plainly creates the message that the pacifist way of being is the only way of being which the state will allow in any church, anywhere in the boundaries of the state.
Establishment clause jurisprudence pays attention to the audience and context of the various messages that the government sends. A government message which is directed, for example, at tax accountants, may be less likely to be construed by the audience as an endorsement of a particular religion than that same message would be if delivered by a public school principal to a class of first graders. Churches are quintessential places for family activity; if children know (as many do) that their parents carry handguns lawfully in many places on Monday through Saturday, and on Sunday afternoon, and that the government forbids the parents from carrying the licensed, concealed handguns on Sunday morning at church, then some of those children may perceive a government message expressing an incompatibility between self-defense and religion. The de facto result is government favoritism of pacifist religion over non-pacifist.
None of the above analysis depends in any way on a finding of an expressed desire of legislators to favor pacifism over non-pacifism. First Amendment religion jurisprudence is not limited to a search for bad motives. A statute can violate the Free Exercise or Establishment clause solely because of its effects, including effects that legislators may not have considered or foreseen.
Of course the above analysis is just a sketch of an argument. Law journal students who are interested in the interplay of First and Second Amendment rights might find the issue to be a good topic for a Note.
Update: In response to various thoughtful comments...Yes, if you apply Employment Division v. Smith the way that the Attorney General did, this would defeat a Free Exercise claim. I suggest that such an application of Smith is not necessarily mandatory. Smith says that if you ban peyote (or defensive handgun-carrying) everywhere, then the general ban can apply in churches, without violating Free Exercise. Even if the ban is an essential part of a religious ceremony (peyote) or a matter of life and death for religious people who are at heightened risk of hate crimes (my argument above). This would be Smith applied to Illinois, where handgun carry in general is prohibited (with certain exceptions), and there is no statutory provision to even issue a CHL.
Arkansas is, I suggest, different. It allows CHL in general, and selects churches as part of a small group of places where CHL is prohibited. Pursuant to Arkansas Code Annotated section 5–73-306, the only places (other than government property) where CHL is banned notwithstanding the wishes of the property owner, are churches, bars, sporting events, and religious or independent schools or colleges. The Attorney General suggests that these are all tied togethether by the common characteristic of being likely to be crowded. If crowdedness is the rationale, the list is both under-inclusive and over-inclusive. Accordingly, it appears that at least some further analysis would be required before rejecting a Free Exercise claim. In addition, not all states have adopted Smith’s restrictive test for their own state constitution’s Free Exercise jurisprudence, but that’s a separate issue.
