The Volokh Conspiracy

From Montana Code § 13-35-218, titled “Coercion or Undue Influence of Voters,” first enacted by referendum in 1913 and still in effect:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person’s religious duty or the interest of any corporation, church, or other organization.

Today, this would be pretty clearly seen as an unconstitutional speech restriction, but apparently in 1913 it was seen as a good government measure. Similar laws were enacted in Nevada and Oregon around the same time.

State v. Rogers, 38 S.E. 34 (N.C. 1901) (paragraph breaks added); I would suspect that today there wouldn’t even be a prosecution in such a case, even if the statute were more broadly worded:

The defendants were indicted under section 2715 of the Code …: “Any person who shall discharge from employment, withdraw patronage from, or otherwise injure, threaten, oppress or attempt to intimidate any qualified voter of the state, because of the vote such voter may or may not have cast in any election, shall be guilty of a misdemeanor.”

The indictment charges the defendants with having injured, threatened, oppressed, and attempted to intimidate the prosecutor, a duly-qualified voter, by expelling him from the church of which he and they were members, on account of his having voted the Democratic ticket at the election held in August, 1900. The statute, being penal, must be construed strictly, not by implication, or otherwise than by its strict words and plain signification.

The object of the statute is to secure to the voter the exercise of the elective franchise free from pecuniary loss, personal injury, or physical restraint, neither element of which is embraced in his expulsion from the church. The injury or oppression, if any, done to the voter, was not of a physical nature. While he may have felt mortified or humiliated in being excluded from the fellowship of his associates in the exercise of the rites of that body of Christian believers holding the same creed and acknowledging the same ecclesiastical authority, and to that extent injured and oppressed, yet he suffered no loss of property or gain, nor was he in any way restrained of his liberty or otherwise controlled in the exercise of his personal conduct…. [Quashing of the indictment a]ffirmed.

UPDATE: By the way, it turns out that North Carolina was closely split in 1900, with 54% of voters voting for the Democrats. The expulsion was thus likely based on the particular views of this church, and not on some broad social anti-Democrat sentiment.

FURTHER UPDATE: I just ran across a 1891 Arkansas statute that did ban threat of expulsion from a church based on one’s vote: “No person shall coerce, intimidate or unduly influence, any elector to vote for or against the nominee of any political party, or for or against any particular question or candidate, by any threat or warning of personal violence or injury, or by any threat or warning of ejectment from rented or leased premises, or by the foreclosure of any mortgage or deed of trust, or of any action at law or equity, or of discharge from employment, or of expulsion from membership in any church, lodge, secret order or benevolent society, or by any oath, or affirmation or secret written pledge.” I could find no cases, though, applying this statute.

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

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

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

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

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

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

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

The AP reports that the President also said:

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

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

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

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

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

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

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

Reuters reports. “Islamist militant group Boko Haram … claimed responsibility.” UPDATE: The Washington Post reports 39 deaths; I’ve updated the post title accordingly. Here’s more from the Washington Post:

The EEOC reported a couple of weeks ago:

A Philadelphia-area security company will pay $50,000 and furnish significant equitable relief to settle a federal religious discrimination lawsuit, the Equal Employment Opportunity Commission (EEOC) announced today.

The EEOC charged that Imperial Security, Inc. failed to accommodate the religious beliefs of Julie Holloway-Russell, who is Muslim, and terminated her instead. Holloway-Russell wore a khimar, religious garb which covers her hair, ears, and neck, as required by her religious beliefs, when she interviewed for the job of security guard. However, when she reported to her first work assignment wearing her khimar, she was told to remove it. Holloway-Russell respectfully refused to do so because her religious beliefs mandated that she wear the religious head covering….

Sounds right to me under existing federal employment law. I discuss the relevant legal regime here, but the basic principle is that an employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee’s sincerely felt religious obligations and (2) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). The “undue hardship” standard isn’t hard for the employer to meet — any “more than … de minimis cost” to the employer would qualify as an undue hardship. But here the only cost was letting plaintiff wear the scarf, something that was highly unlikely to impose any more than de minimis cost on the employer. (To be sure, dealing with individual exemption requests always involves some cost, just in processing the request and deciding whether to grant it, but such a cost obviously isn’t enough to warrant denying requests, or else the statutory duty of religious accommodation would never be triggered.)

Indeed, courts have commonly found that employers must give religious exemptions from dress code or grooming requirements, unless this would interfere with safety or with the public mission of the employer (such as a police department that requires uniforms). Thus, for instance, a man who feels a religious obligation to wear a beard is generally entitled to an exemption from an employer’s no-beard policy, absent some evidence that such an exemption would pose an undue hardship on the employer. See, e.g., Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993). A woman who feels a religious obligation not to wear pants is likewise generally entitled to such an exemption, again unless there’s some good reason (such as safety) for barring her from wearing a skirt or a dress. The same principle should apply to this case, especially since the arguments in favor of denying police officers the right to such accommodations — that such a no-religious-headgear policy is necessary to foster public “perception of [the police department's] impartiality by citizens of all races and religions whom the police are charged to serve and protect” — don’t generally apply to private security guards.

One can debate whether it’s good policy to require private employers to give employees special religious exemptions (or conscientious examples motivated by deeply held secular philosophical beliefs, which the EEOC and many courts have held are likewise covered by the religious accommodation requirement). But that’s the law.

I have no sympathy for police officers who simply disapprove of Islam and therefore don’t want to go to Law Enforcement Appreciation Day events at mosques. Here, though, is the hard question: Say that law enforcement wants to send an agent to infiltrate a religious group — assume there is ample reason to justify such an undercover surveillance assignment — and that this infiltration would necessarily require the agent to participate in prayers and other religious events.

If the agent objects, would requiring him to go despite his objections that violate the Establishment Clause, because it would involve coercion of religious practice (something that both the liberal and conservative Justices think the Clause prohibits)? Or is the Establishment Clause no-coercion principle less binding on the government as employer than on the government as sovereign, just as some other constitutional rules (such as the Free Speech Clause and the Fourth Amendment) but not all other constitutional rules (consider the Equal Protection Clause) are less binding?

I suspect the issue would rarely come up, because if an agent mentions his religious objections to his superiors, they will usually conclude that the operation would go better if they send someone who has no such compunctions; and since the operation likely requires only a few participating undercover officers, they would probably have a long list of possible targets. But it still strikes me as an interesting question.

From Fields v. City of Tulsa (N.D. Okla. Nov. 29, 2011):

This suit arises out of a dispute between Officer Fields and the Tulsa Police Department. Fields was instructed to have officers under his command attend a “Law Enforcement Appreciation Day” being hosted by the Islamic Society of Tulsa at a local mosque. Officer Fields refused to attend the event, and refused to require his subordinates to attend. Officer Fields was subject to discipline as a result….

Under the Oklahoma Religious Freedom Act (“ORFA”), “no governmental entity shall substantially burden a person’s free exercise of religion” unless that burden passes strict scrutiny. 51 Okla. Stat. § 253. The ORFA defines “substantially burden” as “to inhibit or curtail religiously motivated practice.” 51 Okla. Stat. § 252.4 The Oklahoma Court of Civil Appeals addressed a claim brought under the ORFA in Steele v. Guilfoyle, 76 P.3d 99 (Okla. Civ. App. 2003).5 The court found no substantial burden when an incarcerated Muslim plaintiff was forced to share a cell with a non-Muslim. The Muslim plaintiff “complained his cellmate eats pork and has photographs of beings with souls hanging in their cell. This, Plaintiff contended, defiles his cell and prevents angels from entering” Id. at 100. Despite the plaintiff’s objections to spending time in a cell with someone whose religious beliefs he did not share, the court found “Defendant’s actions in no way prohibit Plaintiff from practicing his religion, [and] praying or meeting with fellow Muslims.” Id. at 100-01.

Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing “to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion).” (Dkt. #22, p.10). However, nothing in Fields’ proposed Second Amended Complaint suggests that Defendants’ actions in any way inhibited or curtailed Fields from practicing his religion.

First, the order directing Fields to attend the event did not inhibit or curtail Fields’ religiously motivated practice. Exhibit 1 to Fields’ Proposed Second Amended Complaint is a flyer inviting “All Tulsa Law Enforcement to LAW ENFORCEMENT APPRECIATION DAY.” It invites law enforcement to a “Casual Come & Go Atmosphere” from 11:00am-5:30pm to “[c]ome enjoy a Buffet of American & Ethnic Foods,” to take a Mosque Tour “15 minutes or an hour- it’s up to you!”, to “[w]atch the 2-2:45pm weekly congregational prayer service,” and “[m]eet Local Muslims & Leadership.” It also contains the following statement: “Presentations upon request: beliefs, human rights, women[.] All questions welcome!” Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs.

Second, the adverse employment actions alleged in the Proposed Second Amended Complaint cannot be said to have violated Fields’ rights under the ORFA. The ORFA protects Oklahomans from government action inhibiting or curtailing religiously motivated practice. It does not provide a police officer a claim against his employing city for requiring him to attend a Law Enforcement Appreciation Day hosted by a faith other than his own or for disciplining him for his refusal to do so.

Continue reading ‘Police Captain Who Refused Order to Go to a Mosque for a “Law Enforcement Appreciation Day”’ »

The allegations are in this FBI affidavit; here is the summary, from Prof. Howard Friedman (Religion Clause):

And from the Plain Dealer article [UPDATE: link fixed]:

“You’ve got Amish all over the state of Ohio, Pennsylvania and Indiana that are concerned,” said Jefferson County Sheriff Fred Abdalla. “We’ve received hundreds and hundreds of calls from people living in fear. They are buying Mace. Some are sitting with shotguns. They’re putting locks on their doors — because of Sam Mullet.”

Plus this:

The hair and beard cuttings, bizarre in today’s culture, are meant to degrade Amish men, who grow their beards after marriage based on their religious beliefs. In some of the attacks, Mullet’s followers used a camera to capture the images of the cut beards, a further attempt to insult the victims, authorities said.

These are not your Harrison Ford’s Amish.

Note that the law criminalizes polygamy, rather than just refusing to recognize polygamous marriages. Here’s the summary from Prof. Howard Friedman (Religion Clause):

In Canada, [a British Columbia trial court] today upheld most of Canada’s anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province’s attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions….

In today’s decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), [the trial judge] concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17…. [EV notes: This means that those children can't be prosecuted for violating the law when they have entered into polygamous marriages -- people who enter into polygamous marriages with them can still be prosecuted.]

The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans — as protected by Sec. 2 of the Charter — but that this infringement is justified by Sec. 1 of the Charter that allows “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion — which runs 1367 numbered paragraphs in length — includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.

U.S. courts have likewise concluded that laws criminalizing polygamy are constitutional; I discuss that in this earlier post, and cite to two recent cases that have discussed the issue. I think it’s not clear 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). But in any event, so far U.S. courts, like the Canadian court, have not accepted any such constitutional argument.

Here’s what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff’s allegations:

1. Hyatt’s employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required “to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift” (I’m quoting the Complaint here).

2. “As the number of safely worked days crept into the range of the 600’s, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number ’666′ on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs.”

3. Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that “Mr. Hyatt’s beliefs were ridiculous, and that Mr. Hyatt could go to work with a ’666′ on his safety sticker or face a three (3) day suspension.” Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.

Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.

If plaintiff’s account of the facts is accurate and complete, then he ought to win under the law. I discuss the relevant legal regime here, but the basic principle is that an employer must give religious employees special exemptions from generally applicable job requirements if (1) the requirements interfere with an employee’s sincerely felt religious obligations and (2) such an exemption doesn’t impose “undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j); TWA v. Hardison, 432 U.S. 63 (1977). The “undue hardship” standard isn’t hard for the employer to meet — any “more than … de minimis cost” to the employer would qualify as an undue hardship. But here the only cost was letting plaintiff not wear the sticker for one day, something that was highly unlikely to impose any more than de minimis cost on the employer. (To be sure, dealing with individual exemption requests always involves some cost, just in processing the request and deciding whether to grant it, but such a cost obviously isn’t enough to warrant denying requests, or else the statutory duty of religious accommodation would never be triggered.)

Indeed, courts have commonly found that employers must give religious exemptions from dress code or grooming requirements, unless this would interfere with safety or with the public mission of the employer (such as a police department that requires uniforms). Thus, for instance, a man who feels a religious obligation to wear a beard is generally entitled to an exemption from an employer’s no-beard policy, absent some evidence that such an exemption would pose an undue hardship on the employer. See, e.g., Carter v. Bruce Oakley, Inc., 849 F. Supp. 673 (E.D. Ark. 1993). A woman who feels a religious obligation not to wear pants is likewise generally entitled to such an exemption, again unless there’s some good reason (such as safety) for barring her from wearing a skirt or a dress. The same principle should apply to this case.

One can debate whether it’s good policy to require private employers to give employees special religious exemptions (or conscientious examples motivated by deeply held secular philosophical beliefs, which the EEOC and many courts have held are likewise covered by the religious accommodation requirement). But that’s the law, and under the law the Beast-phobic are entitled to an exemption, regardless of how “ridiculous” their beliefs might seem to others.

UPDATE: Let’s not forget the zip code of the beast and many other similar items.

A Justice Department press release, issued yesterday, reports:

The Department of Justice announced today that it has entered into a consent decree with the Board of Education of Berkeley School District 87 in Berkeley, Ill. that, if approved by the court, will resolve a religious accommodations lawsuit filed in December 2010. In its lawsuit, the United States alleged that the school district violated Title VII of the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of Safoorah Khan, a Muslim teacher at McArthur Middle School.

“Employees should not have to choose between practicing their religion and their jobs,” said Thomas Perez, Assistant Attorney General for the Civil Rights Division. “The facts of this case show the consequences of an employer refusing to engage in any interactive process to understand and work with an employee to find an accommodation of the employee’s religious beliefs that will not cause undue hardship to the employer. We are pleased that Berkeley School District has agreed to implement a training program that puts into place an interactive process to ensure that each request for a religious accommodation will be considered on a case-by-case basis and granted if it poses no undue hardship on the school district.”

The government’s complaint, filed in the U.S. District Court for the Northern District of Illinois in Chicago, alleged that Ms. Khan requested an unpaid leave of absence in December 2008 to perform Hajj, a pilgrimage required by her religion, Islam. According to the complaint, Berkeley School District denied Ms. Khan a reasonable accommodation of her religious practice, compelling Ms. Khan to choose between her job and her religious beliefs, thus forcing her discharge. The United States also alleged that the school district maintains a policy under which it refuses to grant leave to non-tenured teachers as an accommodation for their religious practices if the leave requested is not already provided for in the school district’s leave policy….

Under the terms of the consent decree, Berkeley School District will pay $75,000 to Ms. Khan for lost back pay, compensatory damages and attorneys’ fees. Berkeley School District also is required to develop and distribute a religious accommodation policy consistent with Title VII’s requirement to reasonably accommodate the religious beliefs, practices and/or observances of all employees and prospective employees. In addition, Berkeley School District is required to provide mandatory training on religious accommodation to all board of education members, supervisors, managers, administrators and human resources officials who participate in decisions on religious accommodation requests made by its employees and prospective employees….

For more on this case, including some past cases involving Justice Department lawsuits over refusals to give leave — usually 8 to 10 days’ worth — for a Worldwide Church of God religious convocation, see here. For the Justice Department’s Complaint in the case, see here. Thanks to Education Week’s School Law Blog for the pointer.

UPDATE: Note that the Seventh Circuit, where the case was filed, takes the view that failure to engage in an interactive process is not itself an antidiscrimination law violation. (Other circuits might take the same view as well; I just haven’t checked.) From Rehling v. City of Chicago (7th Cir. 2000), which dealt with accommodations under the Americans with Disabilities Act; my sense is that the rule as to this question is the same for religious accommodations and disability accommodations:

[T]he ADA does envision a flexible, interactive process by which the employer and employee determine the appropriate reasonable accommodation, and we have stated that this process requires “a great deal of communication.” However, we have also stated that “[t]he interactive process the ADA foresees is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought.” Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1023 (7th Cir.1997). Because the interactive process is not an end in itself, it is not sufficient for Rehling to show that the City failed to engage in an interactive process or that it caused the interactive process to break down. Rather, Rehling must show that the result of the inadequate interactive process was the failure of the City to fulfill its role in “determining what specific actions must be taken by an employer” in order to provide the qualified individual a reasonable accommodation.

Although the interactive process is not an end itself, we recognize that this Court has previously upheld judgments against employers, or precluded summary judgment for employers, in cases where there was an issue as to whether the employer engaged in an appropriate interactive process or caused such a process to break down. However, those cases did not involve reasonable accommodation claims based solely on the employer’s failure to engage in an interactive process, nor did those cases hold that the breakdown of an interactive process could render an otherwise reasonable accommodation unreasonable. Rather, in those cases this Court found potential liability based on an employer’s failure to engage in an interactive process in circumstances where the plaintiff alleged that the result of that breakdown was the employer’s failure to provide a reasonable accommodation.

Our conclusion that a plaintiff cannot base a reasonable accommodation claim solely on the allegation that the employer failed to engage in an interactive process is consistent both with this Court’s assertion that the interactive process is a means and not an end in itself, and with the remedial purposes of the ADA, see 42 U.S.C. § 12101(a)(8) (“[T]he Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.”). The ADA seeks to ensure that qualified individuals are accommodated in the workplace, not to punish employers who, despite their failure to engage in an interactive process, have made reasonable accommodations. To hold employers liable for the failure of an interactive process regardless of whether a reasonable accommodation was made would not serve the underlying purposes of the ADA, and would, contrary to our own precedent, elevate the ADA’s interactive process requirement to an end in itself.

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

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

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

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

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

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

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

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

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

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

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

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

Amin Farah Al, on trial in federal court for “allegedly funneling money to a terrorist group in Somali” (AP), has been found in contempt of court for refusing to stand for the judge and jury. The judge sentenced her to fifty days in jail: “The Court hereby finds that on this day, October 3, 2011, Defendant Ali failed to rise on ten occasions. Defendant Ali shall be sentenced to five days for each incidence of contempt, to be served consecutively, and after the trial in this matter is completed.” USA Today reports that, “[i]f Ali decides to rise for the court, her attorney can ask that the contempt charges be purged,” which means that her sentence would presumably be lifted.

The judge also revoked her pretrial release, so that she has to stay in jail during the trial: “On August 5, 2010, Defendant Ali was released pending trial, subject to certain conditions, including that the Defendant Ali not violate any federal, state or local law. As Defendant Ali has violated 18 U.S.C. § 401 by failing to rise when Court is called to Order, the Court hereby revokes release.”

Ali had argued that she had a First Amendment right not to stand, because she is “doing this for religious reasons”: “I am not going to stand up for anyone except Allah.” But the judge disagreed:

There is a long‐standing tradition in the court system which requires all participants to stand when the Court is called to Order or called in Recess (referred to herein as the “rising requirement”). The function of the rising requirement is to mark the beginning and the end of the court sessions, to show respect for the court system, to assist judges in maintaining order, and to remind all that attention should be paid to the court proceedings. [The court later quoted a court of appeals case, In re Chase, 468 F.2d 128 (7th Cir. 1972), which gives a bit more detail on the rationale for this requirement. –EV]

The Defendant has refused to comply with the rising requirement [which the court had specifically provided for in an earlier court order –EV], stating that her religious beliefs prohibit such compliance. While freedom of religion is a protected right under the First Amendment, the Defendant has not demonstrated to the Court that her First Amendment rights take precedence over the rising requirement, especially in light of the fact that she is exercising such right inconsistently. Evidently, the Defendant’s professed religious beliefs did not prevent her from standing when she was introduced to the prospective jurors. [Sentence moved: When the Defendant was identified for the prospective jurors ... she immediately stood when her name was called.] Accordingly, the Court finds that Defendant Ali’s failure to rise when Court is called constitutes criminal contempt….

Failure to rise when the judge or jury entered the courtroom has been found to constitute criminal contempt, even where the defendant had claimed that his refusal to stand was based on his religious beliefs. In re Chase, 468 F.2d 128 (7th Cir. 1972). See also Evans v. Ciccone, 377 F.2d 4, 6 (8th Cir. 1967) (finding that freedom of religion cannot be made superior to reasonable rules of conduct, in or out of prison).

I suspect the judge’s actions likely violate the federal Religious Freedom Restoration Act (RFRA), because the standing requirement is probably not necessary to serve a compelling government interest (which is the test the Act prescribes). Requirements that people stand as a gesture of respect, like requirements that they salute the flag, also generally violate the Free Speech Clause (see West Va. Bd. of Ed. v. Barnette (1943)). But the rule may be different for in-court behavior, where restrictions on speech and symbolic expression are generally much more acceptable than outside court, and where compulsions of speech and symbolic expression might likewise be constitutional, which is why I think Ali’s strongest claim would likely be under RFRA.

Beyond this, though, I thought it was worth noting the connection between this incident and a famous incident from Anglo-American legal history — the 1670 trial of William Penn, who of course would go on to found Pennsylvania. Penn was a Quaker, and because of his beliefs refused to uncover his head in court. Much like Ali, the Quakers of the era saw such uncovering of the head as a “token[] of reverence due to the Almighty alone.” The court found Penn to be in contempt, and fined him 40 marks. (Penn had actually entered the courtroom with his head uncovered, and an official put the hat back on Penn’s head; but the court’s objection seemed to be to Penn’s refusal to remove the hat at that point.) The jury in the underlying case — the prosecution of Penn for unlicensed preaching — later refused to hand in a verdict that the court saw suitable, which led to the landmark jury rights decision in Bushel’s Case.

This incident doesn’t, of course, dispose of what the rule is or even ought to be in the U.S. today. But it does provide a bit of perspective on how modern-seeming objections by religious groups that are mostly new to the country — such as Muslims — often echo religious objections that have been considered by Anglo-American law for centuries.

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

Wednesday, the Court will be hearing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important religious freedom case.

Federal and state antidiscrimination laws ban discrimination in employment based on race, ethnicity, religion, sex, age, disability, and other characteristics (some of which vary from state to state), such as sexual orientation and marital status. But many religious groups hold beliefs that limit the ministry in certain ways: Catholics exclude women. Some groups insist that their ministers be of a particular race. Some might reject gays and lesbians as ministers. Catholics discriminate based on marital status. (Of course, nearly all religious groups also insist that ministers belong to the religion, but there’s a special statutory antidiscrimination law exemption that expressly allows religious groups to discriminate based on religion when choosing any employee, minister or not.)

Moreover, even when there are no such official belief-based requirements — for instance, when someone claims he was rejected as an applicant for a job as minister because of race, and the church denies that race was a factor in the decision — a discrimination claim by a minister may require courts to evaluate things that courts shouldn’t be evaluating, such as a person’s fitness for the ministry. After all, if someone claims he was discriminated against based on (say) race, a standard way of showing such discrimination is that he was treated worse than people of another race who were equally or less qualified. Relatedly, one could argue that the hiring decision can’t be plausibly explained by the application of hiring criteria other than race. Yet the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant’s explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can’t do. “We prayed, and we feel God told us to hire one applicant rather than another” is an argument that’s hard for secular courts to reasonably evaluate.

More broadly, a church’s decision about who is to speak for it is a foundation for the church’s ability to promulgate its teachings the way church members or leaders want to see them promulgated. For all these reasons, courts have generally held that churches have a constitutional right to discriminate based on any criteria they wish — not just religion, but also race, sex, and other criteria — in hiring ministers or employees who have at least some minister-like duties. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).

The main question in Hosanna-Tabor is how far this “ministerial exception” to antidiscrimination law extends to employees who aren’t primarily ministers in the sense of people who perform the sacraments or preach sermons. In Hosanna-Tabor itself, the employee was a schoolteacher who taught some religious subjects (but not exclusively religious subjects), and who was herself a member of the clergy, in a job category where clergy members were preferred as teachers (though the church at times hired non-clergy for the task as well). [UPDATE: To quote the petitioner's brief, "Perich taught religion classes four days a week, led students in prayer three times a day, led students in daily devotional exercises, and attended a school-wide chapel service with her students every week."]

I was happy to sign on to an amicus brief in the case that proposed a rather broad definition of the ministerial exception; it’s the amicus brief that is chiefly on behalf of the National Council of the Churches of Christ, the Baptist Joint Committee for Religious Liberty, the Queens Federation of Churches, the National Association of Evangelicals, and the Christian Legal Society, drafted by Profs. Rick Garnett, Tom Berg, Carl Esbeck, as well as K. Hollyn Hollman and Melissa Rogers of the Baptist Joint Commitee and Kim Colby of the Christian Legal Society. If you’re interested in the case, have a look at the brief, or at the other briefs, collected by SCOTUSblog. (For part of my thinking about why the ministerial exception is sound even after Employment Division v. Smith, see this section of my A Common-Law Model for Religious Exemptions article, though I think one could supplement that with arguments based on the Establishment Clause and the freedom of expressive association.)

UPDATE: I originally said, in the second paragraph, “As I understand it, some streams of Judaism insist that a rabbi be ethnically Jewish, and exclude converts to Judaism,” but it now appears that I was mistaken, so I deleted the sentence. The removal of this example doesn’t change the analysis.

So reports Pakistan Today:

The Lahore High Court Justice Sh Azmat Saeed on Monday ordered ministry of information and technology to block access to all websites in Pakistan especially American social networking website “Facebook”, spreading religious hatred on internet and to submit a compliance report by October 6. The judge, however, made it clear that no search engine including “Google” would be blocked.

The court issued this order while hearing a petition seeking a permanent ban on the access to American social networking website “Facebook” for hosting competition featuring blasphemous caricatures.

Muhammad & Ahmad, a public interest litigation firm, through chairman Muhammad Azhar Siddique advocate filed this petition and prayed for a permanent ban on access to Facebook for hosting a fresh blasphemous caricature drawing contest world over under a title “2nd Annual Draw Muhammad Day-May 20, 2011″….

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

See here for a report on a controversy involving such objections. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The L.A. Times reports on a religious leader’s refusal to testify against coreligionists, based on his interpretation of religious law. The courts seem unlikely to give the leader a religious exemption from the duty to testify, though. (For a related scenario, including a citation to the only case I know of — outside the context of clergy refusing to testify about confidential communications from their congregants — in which a court granted a religious exemption from a duty to testify, see here.) Thanks to Paul Mendlowitz for the pointer.

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.

This week and next, SCOTUSblog is hosting an online symposium on various aspects of the litigation challenging California’s Proposition 8 and the Defense of Marriage Act.  The expected contributors are well-known combatants in the ongoing national debate over gay marriage:  Carlos Ball, Bob Barr, Thomas Berg, Erwin Chemerinsky, David Cruz, William C. Duncan, John Eastman, William Eskridge, Maggie Gallagher, Charles Fried, Andrew Koppelman, Pamela Karlan, Robert Levy, Laurence Tribe, Brian Raum, Ruthann Robson, Robin Wilson, Kenji Yoshino, and me.  My first contribution is here.  It should be an interesting couple of weeks.

And manages to do what nobody else has done: unite supporters and opponents of same-sex marriage.  Marriage Equality Rhode Island says it establishes “second-class citizenry.”  The National Organization for Marriage says it is “disappointing and dangerous.”  Caught in the middle were legislators, including the openly gay head of the state house, and Governor Lincoln Chafee (expected to sign the bill), who predicted this was the most they could do for at least a couple of years. 

The main issue for the major national gay-rights groups, expressed in a letter to the governor urging a veto, is the breadth of the religious-objector exemptions in the bill.  Every new state proposal to recognize same-sex relationships seems to raise the bar higher for these exemptions, and it appears the bar is now too high for these groups.  I haven’t seen the language yet so I won’t offer an opinion here on the weight of their concerns.

The Sydney Morning Herald reports on this. Apparently, Carnita Matthews filed a complaint with the police, alleging that a Sydney police officer who was trying to pull her over tried to rip off her burqa to check her identity. But an in-car camera seemed to show that she wasn’t telling the truth. She was then prosecuted for making a false statement to the police.

But the complaint was filed by someone wearing a burqa and (according to the newspaper’s paraphrase of the judge’s decision) “the signature on the declaration was different to the one on Mrs Matthews’s licence.” The judge therefore said that, ”I am not satisfied beyond reasonable doubt that she made the complaint,” though he also concluded that “even if I was [satisfied as to the complainant's identity,] … I would not be satisfied beyond reasonable doubt that it was knowingly false,” presumably because he thought she might have been honestly mistaken about the officer’s intentions.

The Herald articles goes on to say that, “The Police Minister, Mike Gallacher, said he would ask the Police Commissioner, Andrew Scipione, to recommend strategies to improve identification standards. Laws would be ‘tidied up’ to allow alternative identification methods, such as the taking of fingerprints, for people who for social or religious reasons, could not show their face.” It’s not clear how those methods would work in situations where the identity needs to be checked more quickly than is possible with fingerprints (though I should acknowledge that visual checks of identity have their own imperfections).

9News (Australia) reports that there were “violent scenes outside the Local Downing Centre courts, where a large group of [the defendant's] supporters clashed with police and media.” Thanks to Opher Banarie for the pointer.

A commenter on the goth cat thread wrote:

So there are laws against mutilating non-consenting cats but not against mutilating non-consenting infant humans [alluding to male circumcision]? I suppose you could mutilate cats if that were part of your religion and you had a book from god to prove it?

Another commenter responded, “yes you could — Church of Lukumi Babalu Aye v. City of Hialeah.”

That turns out not to be the right answer. Lukumi Babalu holds only that a government may not selectively ban religious sacrifice of animals precisely because of its religiosity. Under Employment Division v. Smith, there’s no constitutional problem with applying generally applicable animal cruelty bans to religious behavior.

Still, about half the states do generally provide that religious objectors are entitled to exemptions from generally applicable laws, unless denying the exemption is necessary to serve a “compelling government interest.” For more on that, see here (and see also this religious exemption map of the United States). But even under those regimes, it’s possible that courts will find that there’s a compelling government interest in protecting animals against undue pain, and that uniform application of generally applicable cruelty bans — bans that don’t single out religious sacrifice for special restrictions that aren’t applicable to analogous secularly motivated behavior — is indeed necessary to serve that interest.

Here, by the way, is what Justice Blackmun (joined by Justice O’Connor) said about this in Lukumi, discussing his view that the Free Exercise Clause presumptively mandated exemptions from generally applicable laws:

A harder case would be presented if petitioners were requesting an exemption from a generally applicable anticruelty law. The result in the case before the Court today, and the fact that every Member of the Court concurs in that result, does not necessarily reflect this Court’s views of the strength of a State’s interest in prohibiting cruelty to animals. This case does not present, and I therefore decline to reach, the question whether the Free Exercise Clause would require a religious exemption from a law that sincerely pursued the goal of protecting animals from cruel treatment. The number of organizations that have filed amicus briefs on behalf of this interest, however, demonstrates that it is not a concern to be treated lightly.

In its recent decision in Elijah Group v. City of Leon Valley, the federal Court of Appeals for the Fifth Circuit invalidated a city zoning ordinance that forbade churches in an area where very similar secular land uses are permitted. The court ruled that the ordinance violates the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Here is the key passage in the opinion:

In articulating the reasoning behind and criteria to be used for creating the retail corridor on Bandera Road, the text of the [zoning] ordinance does not mention religion. The City’s real problem lies in the ordinance’s “Permitted Use Table,” which lists many types of buildings by use and then specifies the zone or zones in which each is or is not permitted. Specifically, the use table notes that “Churches” are not allowed in B-2 zones at all, but that many nonreligious, nonretail buildings, e.g., “Club or Lodge (private),” are allowed to request SUPs [special use permits] and, if granted, to occupy a B-2 zone. Try as we may, we cannot reconcile the ordinance’s facial treatment of a church differently than a private club in light of the way that B-2 zones are defined….

At bottom, the ordinance treats the Church on terms that are less than equal to the terms on which it treats similarly situated nonreligious institutions. We conclude therefore that the imposition of the City’s ordinance violates the RLUIPA’s Equal Terms Clause.

I think the decision is correct, though it must be said that it does very little to clarify the ongoing debate over the application of RLUIPA to different kinds of zoning ordinances. In this case, the double standard applied to churches as compared with secular land uses was so blatant that it violated almost any plausible reading of RLUIPA’s requirement that religious land uses may not be regulated on “less than equal terms” with secular ones.

CONFLICT OF INTEREST WATCH: I played a very minor role in the case by helping the Becket Fund for Religious Liberty (which represented the Elijah Group) prepare for the oral argument. I was not a paid consultant, but helped out on a pro bono basis.

UPDATE: I have changed the title of this post to make it more clear.

So holds Teesdale v. City of Chicago (N.D. Ill. May 26, 2011) (earlier ruling here), in a decision that is much like the one in the Dearborn, Michigan incident, though of course with a different religious group as the target:

Plaintiffs … alleged that defendants interfered with their distribution of religious literature and related proselytizing during the July 2008 St. Symphorosa Family Fest held on the grounds of St. Symphorosa Church and surrounding public streets….

This case was filed three days before the July 2009 Fest began. Two days before the Fest began, plaintiffs filed and served a motion for temporary restraining order and preliminary injunction which they presented in court on the same day that the four-day 2009 Fest began. The day after the filing of that motion, the City filed its opposition to preliminary relief. In that opposition, the City argued that it

did not violate the First Amendment by enforcing its permit scheme to allow St. Symphorosa to hold its permitted event and to allow it to exclude the Plaintiffs who wished to convey a message antithetical to St. Symphorosa or the Catholic Church. The Plaintiffs could convey their message elsewhere or at another time or outside of the boundaries of the permit granted to St. Symphorosa [T]he City has a significant interest in preserving St. Symphorosa’s right to have its message heard, rather than the anti-Catholic sentiments of Plaintiffs.

Continue reading ‘Court Upholds Baptists’ Right to Proselytize (and Criticize) on Sidewalks at a Religious Festival’ »