The Volokh Conspiracy

So reports a prominent Turkish newspaper (thanks to Ed Grinberg for the pointer):

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.

So reports Nina Shea (National Review Online’s The Corner), writing about the case of “evangelical Pastor [Yousef] Nadarkhani,” who “was sentenced to death for apostasy because he converted to Christianity.” “According to the U.S. State Department, if carried out, Pastor Nadarkhani’s execution would be the first for apostasy since 1990 in Iran.”

The Mail Online reports:

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.

WKRG News reports:

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.

JTA reports:

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.

Mekbib Adgeh, who filed a Complaint / My Legal Right to Have More Than One Wife, has now been rebuffed by the Tenth Circuit, in Adgeh v. Oklahoma, which affirmed the District Court’s rejection of the claim. It’s an interesting question whether the Oklahoma Religious Freedom Restoration Act might provide the religious exemption that Adgeh seeks, and that the Free Exercise Clause doesn’t provide; but that is a story for another day and another court (presumably an Oklahoma state court), should Adgeh choose to file suit in that court.

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.

Der Spiegel (Germany) has an interesting and troubling story about this. Here’s an excerpt, though you should read the whole thing:

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 looking for a lawyer:

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.

So reports WFTV (thanks to Prof. Howard Friedman (Religion Clause) for the pointer. For more on the original story, see this post.

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.

I came across a story about this (thanks to InstaPundit for the pointer), and I asked Prof. Robin Fretwell Wilson (Washington & Lee) for her thoughts, since she has written on this Greek practice. (Note that the old Greek regime didn’t just enforce religious arbitration agreements entered by the parties. Rather, it specifically routed Muslim family law questions to Sharia courts, regardless of whether the parties had agreed to this.) Here’s Prof. Wilson’s comment:

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.

I just subscribed to the RSS feed of the CLR [Center for Law and Religion] Forum, run by the St. John’s University School of Law. The site mostly focuses on summaries of new scholarship about law and religion, though it should also have some original commentary on law-and-religion news. It looks like an excellent supplement to Prof. Howard Friedman’s excellent Religion Clause blog.

Agence France Press reports (thanks to Prof. Howard Friedman at Religion Clause for the pointer):

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.

I blogged about the case when it was filed, but I’m pleased to report that a judge has thrown it out. From The Guardian (London):

[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.

Schools, including K-12 schools, generally can’t discriminate against religious speech by students, outside the school curriculum (such as class assignments) or school-organized programs (such as graduations). If they allow extracurricular nonreligious clubs to form, they must let religious clubs form. If they allow nonreligious flyers to be distributed, they must allow religious flyers to be distributed. They may be able to limit a wide range of flyers (say, all flyers that aren’t directly related to school events), but they may not impose that limitation based on the religious content of the flyers. All this, I thought, had been well-settled by a long line of cases such as Lamb’s Chapel v. Center Moriches School Dist., Rosenberger v. Rector, Good News Club v. Milford Central School, and many lower court cases.

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.

Continue reading ‘Discrimination Against Student Religious Speech’ »

From Nampa Classical Academy v. Goesling (9th Cir. Aug. 15, 2011) (nonprecedential) (unsigned opinion by Judges Reinhardt and Willie Fletcher, with Judge Rawlinson concurring in the result only:

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