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.

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

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.

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.

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….

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.

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.

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.

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.

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.

(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.

[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.

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.

1. To begin with, I think it’s entirely proper to have binding arbitration, by religious authorities applying religious law, of disputes within a religious organizations related to the governance or property of the organization. Members of religious organizations, whether Presbyterians, Anglicans, Catholics, Muslims, Jews, or anyone else — naturally have disputes about how the organization is to function. Those disputes often turn on their understanding of what their religion requires. American courts are constitutionally barred from resolve such religious disputes. They may resolve disputes involving religion-neutral principles of law, for instance the interpretation of secular terms of contracts, trusts, bylaws, and the like. But often the dispute is about the religious terms of the provisions, and considering religious law is the only way of resolve it with an eye towards the true understanding of the parties to the original documents.

This is why, in cases involving hierarchical churches, the Supreme Court has held that secular courts must defer to the decisions of “the highest ecclesiastical tribunals of the hierarchical church.” When the religious organization is not hierarchically organized, letting the parties to the dispute select an arbitrator or arbitrators who would resolve disputes using religious law (whether the selection is done at the time of the dispute or before), is functionally similar to deferring to a hierarchical church’s adjudicatory body. Let the imam/rabbi/minister/etc. resolve the question, as per the parties’ agreement to arbitrate. Then enforce the result of the arbitration. That’s just the neutral application of neutral principles of contract law, applied to the contract to arbitrate.

2. Nor does the fact that this involves Islamic law, as opposed to Jewish law or Christian law as understood by particular Christian arbitrators, affect the analysis. Islamic law has provisions that are contrary to American public policy, as does Leviticus — part of the body of Jewish and Christian law — and for that matter English law, French law, Canadian law, and so on. No American court would enforce an arbitral decision ordering thieves to have their hands cut off or adulterers to be put to death, just American courts wouldn’t apply English libel law or Canadian “hate speech” law. But none of this should prevent American courts from enforcing arbitral decisions rendered under foreign or religious law, where the decisions do not involve any court action that would be contrary to American public policy, but simply resolve commercial disputes or disputes related to the governance of a religious body.

3. But despite this, I think the court erred, not in being open to enforcing a religious arbitration decision, but in proposing to use “ecclesiastical Islamic law” to evaluate the validity of the “dispute resolution procedures” that were used. If there is a contract that provides, in secular terms, for certain procedures — that this particular person is to be the arbitrator, or that the proceeding is to happen at a particular time in a particular place — or for certain preconditions (e.g., as one side says, that “Dr. Bahraini had to agree to Mr. Shabiri serving as the arbitrator and second, the other side in the dispute had to dismiss their lawsuit”), then a court may decide if those terms can be met. But a secular court may not resolve terms that can only be interpreted by determining what “Islamic law” calls for, since that would involve taking sides as to the proper meaning of Islamic law.

I discuss this in more detail in this post, but the short summary is that I think this rule is called for by the same constitutional decisions I mentioned in item 1 above. Secular courts may not be arbiters of religious law, either as to the substance of a religious dispute, or as to whether the proper religious procedures were followed in a private arbitration of the dispute. And while this might indeed be inconvenient for parties that do want their disputes resolved through religious law, the First Amendment requires that any religious controversies be resolved outside the secular court system — for instance, through contractually provided-for arbitration — and any controversies about the resolution of those controversies be resolved using neutral principles of law that don’t require religious decisionmaking (e.g., a contract about the arbitration procedures that is written entirely in secular terms).

4. Now let me shift from Islamic law to Jewish law, and from religious bodies to divorces. As it happens, a week before the Florida court decision, an Illinois appellate court handed down a decision in Schneider v. Schneider, which suffers from the same problem. Schneider in turn relied on In re Marriage of Goldman (Ill. App. Ct. 1990), and both cases dealt with a common problem among religious Jews: A couple gets divorced in civil court, and the husband refuses to give the wife a religious divorce (called a get). This means that, under Jewish law, the wife can’t get remarried; and it also means — if the woman wants to remain a part of a Jewish religious community that cares about such matters — that the husband can use his power to give a get as a bargaining chip in divorce negotiations.

Because of a concern about husbands’ not giving gets, some states have passed special laws on the subject (which I think are likely unconstitutional, for reasons I discuss here). But the Illinois courts had a different approach to the matter.

Religious Jewish wedding include a contract called a ketubah, which has, as one of its normal provisions, “Be thou my wife according to the law of Moses and Israel.” The courts in Goldman and Schneider concluded that the ketubah is not just a religious symbol, but is actually a binding contract, that the contract called for the application of Orthodox Jewish law, that Orthodox Jewish law required the husband to give a get, and that secular courts could therefore enforce this contract:

[T]he trial court properly found that the parties intended the ketubah to be a contract that the status and validity of their marriage would be governed by Orthodox Jewish law. The uncontroverted expert testimony presented at trial established that Orthodox Jewish law requires the husband to obtain and deliver to his wife an Orthodox get upon dissolution of the marriage. Rabbi Schwartz testified that although the giving of a get is ordinarily a voluntary act on the part of the husband, a certain degree of compulsion is acceptable under the circumstances presented here, where Kenneth abandoned Annette and refused to cohabit with her and support her according to the terms of the marriage contract. Kenneth Goldman presented no expert testimony to the contrary. Before ordering specific performance of a contract, a court must find that its terms are sufficiently certain and definite that the court can require the specific thing contracted for to be done. We believe that the court’s order of specific performance was justified by the evidence before it.

Naturally, Schneider and Goldman differ in some respects from Mansour, the Islamic arbitration case, but the core point is similar: A court concludes that, based on the terms of a contract and the perceived intention of the parties, the parties wanted the contract to be enforced using religious law. It then decides, based on expert evidence, what the religious law — “ecclesiastical Islamic law” or “Orthodox Jewish law” — requires, and then enforces this understanding of the parties’ agreement (again, unless it is somehow contrary to some specific public policy of the state).

Now for the reasons I mentioned in item 3, I don’t think this is constitutionally permissible. As they say, Three Jews, Four Opinions, and I suspect the same is true to a large extent about Muslims, Christians, and pretty much everyone else. Different Jews have different views about what Orthodox Jewish law “really” calls for, and different Muslims have different views about “ecclesiastical Islamic law.” A court may not take sides in those religious disputes.

To be sure, a court can say that it’s not trying to decide what the religious law “really” requires (though note that Mansour and Goldman both did speak in terms of applying the religious law, presumably as it “really” is), but just what the parties thought it required, so that the court is simply enforcing the parties’ agreement. But in practice the parties will often not have thought about the particular details of the religious law provision, and how it would play out with regard to some future dispute. The court’s decision would thus in practice be an attempt to determine the true meaning of the religious law. And that, I think, is something that secular courts may not do under the Supreme Court’s First Amendment jurisprudence.

But in any case, I mention Schneider and Goldman chiefly to highlight what I’ve often said before — many of the disputes about accommodations of Islamic religious practice, about enforcing of Islamic arbitrations, and so on are just special cases of much broader disputes that the American legal system has dealt with for over two centuries. There’s nothing specially shocking or even highly novel about them. They’re not some special new monkey wrench that Muslims are throwing into our legal system; Christians, Jews, and others have routinely raised such issues before, and continue to do so today.

Sometimes the Muslim claimants should prevail (again, whether it comes to religious exemptions from generally applicable laws or employer practices, or to enforcement of religious arbitrations). Sometimes they should lose. Sometimes they should prevail, but do lose, and sometimes they should lose, but nonetheless prevail. But that is no different from what we’ve been seeing with regard to other religious claimants for many years.

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.

Baruter’s caricature depicted an imam and believers praying in a mosque. One of the characters is talking to God on his cellphone and asking to be pardoned from the last part of the prayer because he has errands to run.

Within the wall decorations of the mosque, Baruter hid the words, “There is no Allah, religion is a lie.” The cartoon was published in the weekly “Penguen” humor magazine.

The cartoon is available at the linked-to site; I would have included it, but its message isn’t understandable to people who don’t know Turkish.

Police have threatened a Christian cafe owner with arrest –- for displaying passages from the Bible on a TV screen….

The Salt and Light cafe in Blackpool has for years repeatedly played the entire 26-hour-long Watchword Bible, a 15-DVD set produced in America in which a narrator reads the whole of the New Testament, on a small flatscreen TV on the back wall….

The sound is turned down but the words flash on to the screen against a series of images….

Mr Murray said the two uniformed officers from Lancashire Constabulary arrived at lunchtime on Monday, the cafe’s busiest time of day. WPC June Dorrian, the community beat manager, told him there had been a complaint and he was breaching the Public Order Act 1986….

[Mr Murray said.] ‘I said, “Are you really telling me that I am facing arrest for playing the Bible?” and the WPC fixed me with a stare and said, “If you broadcast material that causes offence under the Public Order Act then we will have to take matters further. You cannot break the law.” ’ …

Murray said that he suspected the offending passage was from Romans 1:26-28, “God let them follow their own evil desires. Women no longer wanted to have sex in a natural way, and they did things with each other that were not natural. Men behaved in the same way. They stopped wanting to have sex with women and had strong desires for sex with other men. They did shameful things with each other, and what has happened to them is punishment for their foolish deeds.” The police, according to the Mail Online article, “said they had received a complaint on Saturday afternoon from a female customer who was ‘deeply offended’ by the words she had seen on the screen,” and “[a] spokesman said they were ‘duty bound’ to respond to the complaint and had concluded the cafe could be in breach of Section 29E of the Public Order Act, which warns that people who play images or sounds that stir up hatred against homosexuals could be guilty of an offence.” According to the police spokesman,

At no point did the officer ask the cafe owner to remove any materials or arrest the man and we took a commonsense and objective approach in dealing with the complaint. We believe our response and the action we took was completely proportionate and our officers are always available should the cafe owner want to discuss the matter or need any advice in the future.

The Constabulary is respectful of all religious views. However, we do have a responsibility to make sure that material that communities may find deeply offensive or inflammatory is not being displayed in public.

No complaint has been received about the conduct of the officer in question and we are satisfied that they performed their duties professionally.

For examples of how the “hostile public accommodations environment” theory could be used in America to accomplish similar results see the Tom English’s Bar case and the various other cases mentioned here, as well as my former student Daniel Koontz’s Hostile Public Accomodations Laws and the First Amendment article. I think liability on such a theory in the U.S. would violate the First Amendment, but so far there has been little discussion of this question in the cases (partly because such cases are still comparatively rare).

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

Operation Restore Our Community or “ROC”…begins next week. The city judge will either let misdemenor offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.

If offenders elect church, they’re allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender’s case will be dismissed.

The trouble is that this is clearly unconstitutional, under the Establishment Clause caselaw. Both conservative and liberal Justices agree that coercion of religious practice violates the Establishment Clause. And while they disagree on what counts as coercion of religious practice (e.g., does being exposed to prayer, and socially pressured to stand and remain silent, at a high school graduation ceremony that isn’t legally required, qualify as coercion?), this is not a close case: Just as it would coerce religious practice to say someone who hasn’t been convicted of a crime, “go to church or we’ll send you to jail,” so it coerces religious practice to say someone who has been convicted of a crime, “go to church or you’ll stay in jail.” Police chief Mike Rowland is quoted as saying the program “doesn’t violate separation of church and state issues because it allows the offender to choose church or jail … and the church of their choice,” but that’s a parody of the concept of “choice” — again, one might as well say that a law that tells everyone, “go to church every week or you’ll go to jail” is constitutional because it lets citizens “choose” whether to go to church or to jail.

Some constitutional rights, to be sure, are largely lost for the duration of one’s criminal sentence — free speech rights, the right to bear arms (which is often limited even beyond one’s sentence), the normal limits on searches and seizures, and such. But the Establishment Clause right to be free from coercion of religious practice remains.

Indeed, many courts have held that letting inmates get extra privileges or reduce their sentences by going to Alcoholics Anonymous violates the Establishment Clause (see, among many other cases, Griffin v. Coughlin (N.Y. 1996)), because Alcoholics Anonymous has a religious dimension. It’s even clearer that letting people avoid jail by going to church violates the Establishment Clause. Indeed, the Mississippi Supreme Court has recently held that a judge’s decision to order people to attend church as a condition of bail is not just unconstitutional, but merits a 30-day suspension from the bench.

The new practice also violates the Alabama Constitution, which expressly provides (art. I, § 3) that, among other things, “no one shall be compelled by law to attend any place of worship.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

A made-in-France iPhone app called “Jew or Not Jew?” was removed from the French app store, its creator, Johann Levy, told JTA….

French Jewish and human rights groups argued that the application, which came out in early August and allows users to guess whether public personalities are Jewish or not, violates French law forbidding the collection of personal data such as a person’s religion or ethnicity without permission from the individual.

The law was largely founded on the principle that Nazi occupiers used similar methods to round up Jews during World War II and send them to death camps….

“I did it out of healthy intentions. I am Jewish myself,” Levy said Tuesday on French radio Europe 1. “The goal was just to bring a feeling of pride to Jews when they see that such-and-such a businessman or celebrity is also Jewish.”

According to French law, Levy’s actions could technically cost him five years in prison and about $412,000 in fines, and SOS Racism announced it would file an official complaint for “an illicit” database by the end of this week….

The Apple Store also was facing legal responsibility for approving the sale of the application for about $1, but SOS Racism said it would only pursue the store if it refused to remove the program from sale….

Levy said he found all his information concerning the more than 3,500 individuals on the Internet and argued the data was already public.

It seems to me that talking about who’s Jewish and who’s not — or who’s a Scientologist, or who’s an atheist, or who’s an evangelical Christian — is something that people should be free to do, whether they do it on an iPhone or otherwise, and whether or not they create a list of the people they think belong to that religious group. That such lists were once made by evil people bent on evil acts, or even that such lists could be abused in the future, does not, I think, suffice to justify punishing them. But French law seems to disagree.

If you know more about the details of the law, and about whether Levy’s critics are right to say that his actions are illegal, please post about this in the comments. Likewise, if you know how the law would apply to, say, Wikipedia entries, whether biographical entries on individual people or entries that list famous Jews (or famous members of other groups), please post about that as well. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

There is also the question whether, given Lawrence v. Texas, a state may outlaw plural religious marriages where the parties don’t try to make any legal claims based on those religious ceremonies; for more on that, see the majority and the dissent in State v. Holm (Utah 2006). And there is the question of who, if anyone, would want to marry Mr. Adgeh, given the reasoning in his Complaint.

According to police, the victim’s and the perpetrator’s families had met at a restaurant in the presence of an Islamic “justice of the peace,” an arbitrator who mediates conflicts between Muslims. The two families had reached a compromise: Fuat would drop the charges, and in exchange be relieved of part of his debt.

According to Bernhard Mix, the public prosecutor in charge of the case, Fuat’s false testimony was part of a deal between the families. “It’s difficult to establish the truth using legal means, when the perpetrator and the victim reach an agreement,” he says….

These justices of the peace don’t wear robes. Their courtrooms are mosques or teahouses. They draw their authority not from the law, but from their standing within the community. Most of them are senior members of their families, or imams, and some even fly in from Turkey or Lebanon to resolve disputes. Muslims seek them out when families argue, when daughters take up with nonbelievers or when clans clash. They often trust these arbitrators more than they trust the state….

In [a recent book on the subject], judges and prosecutors tell of threats toward public officials and systematic interference with witnesses. “We know we’re being given a performance, but the courts are powerless,” says Stephan Kuperion, a juvenile court judge in Berlin. Federal public prosecutor Jörn Hauschild warns, “It would be a terrible development if serious criminal offences in these circles could no longer be resolved. The legal system would be reduced to collecting victims.”

[The arbitrators] operate in a gray area between conflict resolution and obstruction of justice. [One arbitrator], for example, claims to work closely with authorities, but investigators suspect him of preventing witnesses from giving statements to the police. So far they’ve never been able to prove an obstruction of justice….

If these arbitrators would limit themselves to containing conflicts, there would be no reason to object, says legal and Islamic studies expert Mathias Rohe in the Bavarian city of Erlangen. German law, after all, allows for arbitration. What Rohe finds unacceptable is the exertion of influence over criminal proceedings. “Criminal prosecution is a privilege of the state,” he says.

The state justice system, though, is having a hard time shaking off the shadow system….

For a similar story from the U.S., though apparently involving only a small Orthodox Jewish community, see this post.

I generally support the right to engage in religious arbitration of civil disputes, if the parties agree to such arbitration by contract. Such arbitrations should generally be legally enforceable, like other contractually provided-for arbitrations are enforceable, and subject to the general limits that govern other contractually provided-for arbitrations (though there may or may not be some legal problems with that if the arbitrators enforce sex- or religion-discriminatory rules with regard to witnesses). In most states, for instance, parties can provide by binding contract for a marital property settlement, subject to some limitations, but not for a child custody decision (since that involves the rights of people other than the parties). Likewise, arbitration of such disputes should be permitted on similar terms.

I recognize that sometimes the contracts might be the result of social, economic, or emotional pressure, but generally speaking that isn’t a reason to set aside contracts: Businesses and individuals routinely enter into deals as a result of economic pressure, and sometimes social and emotional pressure, and we generally don’t try to rescue people from such deals (again, with some exceptions) — the same should be true if the individuals involved are members of religious groups who call for religious arbitrators rather than secular ones.

But this having been said, the practices described in the Der Spiegel article are quite different, and seem to be crimes, not contracts. Working out a deal through which someone testifies falsely is conspiracy to commit perjury. Working out a deal through which a witness is paid not to testify is conspiracy to obstruct justice. (Sometimes prosecutors may agree to drop minor charges if the underlying harm has been properly compensated for, but that is a decision for prosecutors to make.) Even if the parties have concluded — with or without social pressure — that they don’t want the crime to be prosecuted, the rest of us still have an important interest in making sure that the criminal is incapacitated or deterred from committing such future crimes, and that others are deterred as well.

In any event, some of what the article describes constitute serious crimes, which should be prosecuted and punished as such. Of course, proving such crimes is often difficult, because once the deal is made, the witnesses refuse to testify. But in at least some cases, there should be enough evidence to prove guilt; and a few such prosecutions can have a considerably broader deterrent effect, it seems to me. Thanks to Dan Gifford for the pointer.

The Becket Fund is seeking an attorney to serve as senior legal counsel in Washington, DC. Becket Fund attorneys litigate cutting-edge cases involving religious liberty across the country and around the world. The ideal applicant will have an appellate clerkship, at least 2-6 years of top-level litigation experience, including experience in a supervisory capacity or working with minimal supervision, and a strong personal commitment to defending religious liberty for people of all faiths. Applicants should send a cover letter, CV, writing sample, and references to Marie Peralta at mperalta@becketfund.org.

I’ve known the Becket Fund people for a long time, and respect them greatly. They’re one of the nation’s leading religious freedom litigation public interest firms, which has litigated on the behalf of a wide range of religious groups, from the Amish to Zoroastrians and with lots of other letters in between. I don’t agree with all their views (for instance, I support Employment Division v. Smith when it comes to the Free Exercise Clause, and my sense is that they don’t), but I think they’re an excellent organization, and the job they’re trying to fill sounds like a fascinating opportunity.

The Orlando Sentinel also reports that the teacher (Jerry Buell) has been ordered by the school to remove certain statements by Buell on his school materials:

[T]he school district questioned statements on Buell’s webpage and syllabus that expressed his belief in God.

On his school webpage, Buell wrote that he tries to “teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself.”

His syllabus also offered this warning to students: “I teach God’s truth, I make very few compromises. If you believe you may have a problem with that, get your schedule changed, ’cause I ain’t changing!” On a separate document, he also said the classroom was his “mission field.”

[Buell's lawyer, Harry Mihet of Liberty Counsel] said the webpage was since removed and Buell has been instructed to remove some parts of his syllabus.

On August 21st, Greek Newspapers reported that new Family Law reforms jettison the practice of allowing Sharía Law to govern family matters for a Muslim enclave of over 110,000 living in Western Thrace. This is a good thing (as I argue in a new chapter entitled “The Perils of Privatized Marriage, forthcoming in Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion (Joel A. Nichols, ed., Cambridge University Press, 2011) because women in systems of religious deference frequently get a raw deal.

Prior to this change, fundamentalist religious understandings were given the force of law by delegating jurisdiction to religious groups to decide family disputes, with nominal State oversight. As a result of the Treaty of Lausanne, signed by Turkey and Greece in 1923, Muslims in Greece enjoyed unique independence from the Greek government. They maintained their own religious and legal institutions, headed by three Muftis who “conduct[ed] all matters related to civil law” using Sharía law, specifically Hanafi law.

As I document here, Hanafi law departs significantly from the Greek civil law that would otherwise protect Muslim women upon divorce in a number of important ways. A 2008 study of divorce within Western Thrace explained that

[U]nder Islamic law the wife must compensate her husband for the termination of the marriage … by returning the dower (mahr) … [and] by waiving her right to alimony or even her right to the custody of the children.”

If the husband did not agree to the divorce, the wife could terminate the marriage only for important reasons pertaining to the husband’s fault. While the Greek Muftis sometimes accepted a fault-based reason, like a husband’s violence, “the Mufti[s] often rejected divorce applications filed by women, who thus remain[ed] trapped in non-functioning marriages.”

Prior to the new Greek reforms, Muslim women could seek to divorce through the Greek courts, but almost no one disputed the authority of the Muftis, even when facing an unfavorable outcome. On the rare occasion that someone did dispute a Mufti’s decision, Greek courts routinely found it enforceable. One study found that Greek civil courts denied enforceability in less than one-half of one percent of cases. That low rate is not surprising since civil review of the Muftis’ judgments was limited to “whether the Mufti re¬mained within his field of competence and whether the law applied contravenes the [Greek] Constitution.”

A number of problems followed from this lack of review. A Muslim woman who was disadvantaged by it effectively had no recourse from the Mufti’s judgment, nor was there any guarantee that like cases would be treated alike.

As I argued in a 2007 Washington & Lee Law Review Symposium, in some instances, the harsh consequences to a woman of divorcing, including “the prospect of certain poverty … will surely … force [some women] to stay in an abusive relationship.”

Ironically, however, a movement has gained momentum in pockets across the world to allow the harsh religious norms rejected by Greece to govern family matters not only upon divorce, but also upon death. In 2008, the British government “quietly sanctioned the powers for Sharía judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence.” This system of religious arbitration took root despite a fire¬storm of controversy that erupted in early 2008 when the Archbishop of Canterbury called for a “plural jurisdiction” in which Muslims could choose to resolve family disputes in religious tribunals or in British courts. The Bishop of Rochester predicted that “[i]t would be impossible to introduce a tradition like Sharía into [the] corpus [of British law] without fundamentally affecting its integrity.” Nick Clegg, Britain’s Liberal Democrat leader, stated that “[e]quality before the law is part of the glue that binds our society together. We cannot have a situation where there is one law for one person and different laws for another.”

Despite the controversy, eighty-five Sharía courts now operate in Great Britain, serving a Muslim population of more than 1.5 million people. These Islamic tribunals capitalize on Great Britain’s Arbitration Act, pursuant to which the judgments reached in binding arbitration are civilly enforced. And like in Western Thrace, the effect of such arbitrations is to leave women significantly worse off than they would have been under British law.

Since the Archbishop of Canterbury’s call for a “plural jurisdiction,” I have argued that courts should refuse to enforce any ruling from a religious tribunal that leaves a woman worse off than she would have been in a conventional divorce. On June 7, 2011, proposed legislation introduced in the British House of Lords by Baroness Cox would force Islamic courts to acknowledge the primacy of British law.

While some U.S. academics are a lot less concerned about the risks to women and children than I am, I believe states should weigh carefully the risks to vulnerable groups before ceding jurisdiction over family matters to bodies that may be unwilling or unable to vindicate their rights. The movement to introduce religious fundamentalism into the family can have dire consequences for women and children who are deserving of the State’s protection, as Greece recognized this week.

I’m not sure that I agree with Prof. Wilson about whether courts should enforce religious arbitration agreements (especially when those agreements deal only with property settlement, and not with child custody). But I do think that the Greek system, in which Muslim disputes were automatically sent to Islamic tribunals, is probably bad, and is certainly not the sort of thing that would be permissible in America.

Cairo police arrested a man who allegedly … posted [statements on Facebook] ‘that were insulting to the Koran and the Prophet Mohammed and Islam and Muslims.’ …

The youth was referred to the prosecution, which may charge him under a law that penalises ‘insulting religion.’

I couldn’t find more details on the story; please let me know if you know more.

[Judge Krzysztof Wieckowski] has found [death metal singer Adam Darski, of the band Behemoth,] not guilty of offending religious feeling … [by] ripping up a Bible during a show [in Poland] ….

He had been cleared by a court last year but prosecutors appealed that verdict…. According to the Polish news agency PAP, [Darksi] also called the Bible “a deceitful book” and the church a “criminal sect” ….

[The judge's ruling] said it considered Darski’s actions “a form of art” consistent with the style of his band [and] that the court had no intention of limiting freedom of expression or the right to criticise religion.

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

UPDATE: Sorry, forgot to say this originally: Though I’m pleased at the result, I certainly think that expression shouldn’t be punishable on grounds of its anti-religious nature whether or not it is seen as “a form of art,” and whether or not it’s consistent with the style of the band.

But many schools — even schools in very religious parts of the country — still haven’t gotten the message. The latest example I saw was Wright v. Pulaski County Special School Dist. (E.D. Ark. Mar. 25, 2011, just posted on Westlaw in the last few days). An excerpt:

Wright filed this case on her own behalf and on behalf of her child, A.W., a third grade student at Sherwood Elementary School. In October 2009, Wright contacted A.W.’s teacher and requested permission to send home with students and post in the school’s literature rack, flyers for a church-sponsored swimming event. Wright was directed to contact Brazil, the Principal of Sherwood Elementary, to obtain permission. Brazil denied Wright’s request because the flyers were “church related.” This position was affirmed when Wright contacted Harnish, the Director of Elementary Education. Wright then contacted McGill, the Acting Superintendent of Pulaski County, who maintained that A.W. could not send students home with the flyers or post them in the literature rack…. Defendants cited to their district wide policies for support of this position.

Three school district policies are at issue. The first is Article V, Section M.2 of the Pulaski County Handbook for Student Conduct and Discipline, which states: [“]Students have the right to distribute or post-printed [sic] material (pamphlets, posters, leaflets, newspapers, brochures, circulars and petitions) subject to individual building procedures and accordance [sic] with Board of Education policies….[“]

The second policy in question is Policy KHA/KHB, “Public Solicitation/Advertising in the Schools,” which states in pertinent part: [“]The Board directs schools to avoid exploiting students and employees whether by advertising or otherwise promoting products or services, soliciting funds or information, or securing participation in non-school related activities and functions. At the same time, schools should inform and assist students and employees to learn about programs, activities or information which may be of help or service to them. Therefore, the principal may approve bulletins announcing programs or services by a nonprofit local agency or charitable organizations that are operated on a nation-wide basis.[“]

The third policy at issue is Policy KHC, “Distribution/Posting of Promotional Materials,” which states “[s]pecial interest materials submitted for grade level, school-wide or District-wide circulation are not to be distributed to students, used in classrooms or sent to homes unless authorized by the Superintendent.”

Wright maintains that under [school] policies, Pulaski County has permitted birthday invitations, end of year party invitations, community group flyers, business flyers, and advertisements to be distributed to students. Attached to Wright’s motion are several examples of such materials, including, but not limited to, a 4-H summer camp flyer, a Chick-Fil-A family night flyer, a Scholastic books advertisement, an invitation to the Sherwood Elementary PTA spring luau, a Humane Society newsletter and a Dell computers advertisement….

The motion for preliminary injunction is granted because A.W. and Wright are likely to succeed on the merits of their First Amendment free speech and expression claims….

Wright is likely to succeed on the merits of the First Amendment claims brought on behalf of A.W. because it is very clear that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Moreover, “students are entitled to freedom of expression of their views” absent a “specific showing of constitutionally valid reasons to regulate their speech. ”Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” … Defendants have presented no evidence that disseminating flyers regarding church sponsored activities will substantially interfere with the work of the school. In fact, the record is devoid of anything showing how the work of the school will be affected at all by the dissemination of flyers regarding church-sponsored activities, especially considering the vast array of materials presently circulated….

Wright is also likely to succeed on her own First Amendment claims based on viewpoint discrimination. Regardless of whether Sherwood Elementary School is classified as a nonpublic forum or limited public forum, defendants may not discriminate based on viewpoint….

Defendants maintain that the policies preventing Wright and A.W. from circulating flyers regarding the church-sponsored swimming event are unambiguous and reasonably related to the necessary and appropriate educational function of limiting the number of flyers distributed, and ensuring the distribution of only those flyers that deal with a special or symbiotic relationship to the school or school district. The record, however, does not support defendants’ argument because defendants seem to permit almost any organization, with the exception of churches, to circulate material. Indeed, the record clearly shows that defendants’ regulations, as presently enforced, merely stamp out certain viewpoint-based speech….

Nampa Classical Academy (“NCA”), along with plaintiffs Moffett, Kosmann and M.K., sued the Idaho Public Charter School Commission, alleging that its policy prohibiting the use of sectarian or denominational texts in public schools violated the First and Fourteenth Amendments as well as Idaho state law. Sometime after the district court dismissed all of plaintiffs’ claims, the state revoked NCA’s charter for a lack of financial viability. We affirm the dismissal.

NCA, as a political subdivision of the state, “has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator.” While NCA itself is a private non-profit corporation, Idaho law contains numerous provisions that, when taken as a whole, demonstrate that Idaho charter schools are governmental entities. Idaho charter schools are also subject to state control that weighs in favor of a finding that they are governmental entities. Like other political subdivisions, Idaho charter schools are creatures of Idaho state law that are funded by the state, subject to the supervision and control of the state, and exist at the state’s mercy. NCA is therefore a government entity incapable of bringing an action against the state.

The district court erred in concluding that Moffett lacked capacity to sue the state. Because Moffet’s claim that his rights as a teacher were violated by the Commission’s policy is neither an official capacity claim on behalf of the school nor a non-justiciable assertion of a generalized public interest, Moffett has standing to pursue this claim.

The First Amendment’s speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. [Footnote: The school's speech is the state's speech even if, under Idaho law, NCA is the equivalent of a school district, and school districts have broad discretion over public school curriculum. School districts enjoy broad discretion over curricula not because the school district is a crucial part of the American constitutional design with inherent rights over public school curriculum, but because states authorize the existence of school districts as political subdivisions and delegate to them the state government's authority to run state public schools.]

The government’s own speech is exempt from scrutiny under the First Amendment’s speech clause. A public school’s curriculum … is “an example of the government opening up its own mouth,” because the message is communicated by employees working at institutions that are state-funded, state-authorized, and extensively state-regulated. Because the government’s own speech is not subject to the First Amendment, plaintiffs have no First Amendment right to compel that speech.

Plaintiffs allege that the state has retaliated against NCA, and not against the other plaintiffs. Because NCA is a political subdivision of the state, it has no constitutional right to sue the state itself; further, a political subdivision has no constitutional protection against the actions of the state.

The Commission’s policy does not violate the Establishment Clause, which generally prohibits governmental promotion of religion, not governmental efforts to ensure that public entities, or private parties receiving government funds, use public money for secular purposes. Nor does the policy as applied violate the Equal Protection Clause of the Fourteenth Amendment, which does not apply to the state’s disparate treatment of its own political subdivisions….

Strikes me as quite correct, given Ysursa v. Pocatello Educ. Ass’n and other cases that the opinion cites (see the full opinion text for those citations).

UPDATE: Some commenters questioned whether the court was right in concluding that the charter schools were indeed government agencies. I think the court was right, given Idaho law. You can check out those provisions for yourself, but note that they are explicitly called “public charter schools,” and described as being “part of the state’s program of public education.” Their boards of directors “shall be deemed public agents authorized by a public school district, the public charter school commission, or the state board of education to control the public charter school”; they are also subjected to the same laws that government public officials with regard to bribery, ethics in government, open public meetings, and public records, and given the same immunities as public schools get. Likewise, “[c]ertified teachers in a public charter school shall be considered