The Volokh Conspiracy

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

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

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments

The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:

B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.

C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.

And “exercise of religion” is defined (in § 41-1493.01) very broadly:

“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:

Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s … [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological beliefs and certainly on their past actions. People who discriminate based on race or religion or sexual orientation in their companies – whether such discrimination is civilly actionable or not – might not be selected for membership on a human rights commission. Notorious advocates of the use of faith healing instead of traditional medicine might not be selected for a medical regulatory board.

Lawyers who have violated bar rules (for instance, by breaching client confidences, even for powerful moral reasons) might not be selected for membership on bar disciplinary committees. People who live in households that are essentially polygamous (but don’t try to engage in a formal polygamous marriage) might not be appointed as family court judges. [UPDATE: Likewise, people who have publicly stated that they oppose the death penalty under all circumstances might not be appointed to the Board of Executive Clemency.] The list could go on.

Yet, if taken seriously, this law would bar all such selection decisions, if the person’s discriminatory conduct, public support for faith healing, breach of client confidences, [UPDATE: public opposition to the death penalty], or polygamy were religiously motivated. Even if the appointing official is not at all motivated by the prospective appointee’s religiosity, but is focused solely on the appointee’s past conduct, the law bars discrimination even based on that conduct, so long as the appointee engaged in that conduct for religious reasons.

This seems to me to be wrong. There are good arguments for having laws that authorize presumptive exemptions for people who have religious objections (or, I think, secular conscientious objections) to generally applicable laws. But (1) those arguments are much weaker, I think, when we’re not talking about the government acting as sovereign, restricting what we do, but are talking about the government acting as employer of high-level decisionmakers. (Note that “public office” in Arizona refers not to all public employment, but to certain kinds of relatively high-level decisionmaking appointments.) And (2) they make sense only to the extent that they call for a presumptive exemption that can be overcome by a showing of sufficient government need, not a categorical exemption.

Thus, for instance, federal religious accommodation law requires employers (private and governmental) to accommodate employees’ religiously motivated behavior when such accommodation doesn’t impose “undue hardship” on the employer. State Religious Freedom Restoration Acts (including such an act that has been the law in Arizona for some years) could be read as imposing similar protection, or as providing higher protection that can only be overcome by a showing that the government has a “compelling interest” in restricting its employees’ religiously motivated behavior.

But this law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law.

I posted a draft of this article a few months ago, and I thank VC readers for some helpful comments in improving it. The final version has been published by the Charleston Law Review, and is available on SSRN. Here’s the abstract:

This Article chronologically reviews the British gun control which precipitated the American Revolution: the 1774 import ban on firearms and gun powder; the 1774-75 confiscations of firearms and gun powder, from individuals and from local governments; and the use of violence to effectuate the confiscations. It was these events which changed a situation of rising political tension into a shooting war. Each of these British abuses provides insights into the scope of the modern Second Amendment.

From the events of 1774-75, we can discern that import restrictions or bans on firearms or ammunition are constitutionally suspect — at least if their purpose is to disarm the public, rather than for the normal purposes of import controls (e.g., raising tax revenue, or protecting domestic industry). We can discern that broad attempts to disarm the people of a town, or to render them defenseless, are anathema to the Second Amendment; such disarmament is what the British tried to impose, and what the Americans fought a war to ensure could never again happen in America. Similarly, gun licensing laws which have the purpose or effect of only allowing a minority of the people to keep and bear arms would be unconstitutional. Finally, we see that government violence, which should always be carefully constrained and controlled, should be especially discouraged when it is used to take firearms away from peaceable citizens. Use of the military for law enforcement is particularly odious to the principles upon which the American Revolution was based.

Readers interested in more detail on the role of gun rights and gun control in period leading up to the Revolution, and in the remainder of 18th century America, are encouraged to read Stephen Halbrook’s excellent book The Founders’ Second Amendment, which is the result of decades of work by Halbrook in finding primary sources of the period, including newspapers, correspondence, and diaries.

On a related topic, some readers might also be interested in my 2005 article The Religious Roots of the American Revolution and the Right to Keep and Bear Arms, detailing the role of Congregationalist and other ministers in inciting the Revolution, by explaining collective self-defense of natural and civil rights as a moral and religious obligation.

The Wisconsin State Journal reports:

A Dane County judge on Thursday denied a motion to dismiss charges against a Black Earth pastor convicted of conspiracy to commit child abuse for advocating the use of wooden rods to spank children as young as 2 months old.

Philip Caminiti, 55, pastor of the Aleitheia Bible Church, was convicted in March of eight counts of conspiracy to commit child abuse for instructing church members to punish children by hitting them on the bare buttocks with wooden dowels to teach them to behave correctly, in keeping with the church’s literal interpretation of the Bible.

The motion to dismiss the charges alleged Caminiti had been deprived of his constitutional right to religious freedom.

Circuit Judge Maryann Sumi found that Caminiti had “a sincerely held religious belief” as a Christian fundamentalist that requires using a rod to discipline children beginning at a young age. But Sumi said Caminiti failed to show the state’s child abuse statute “places a burden on his sincerely held religious belief.”

“Scripture doesn’t specify how and when the rod should be used,” Sumi said, adding that Caminiti also was willing to modify the church’s practices to comply with the law….

If Caminiti had simply preached the propriety of such behavior in the abstract, I think such a conviction would likely be unconstitutional under the Free Speech Clause without regard to any special religious freedom claim, given Brandenburg v. Ohio (1969), even if the hitting of the children would indeed be a crime. (It probably would be; note that, according to the sheriff’s department, “the dowels were described as being 12-18 inches long with a diameter about the size of a quarter.”)

Teaching that it’s proper or even obligatory to commit a crime is generally constitutionally protected unless it’s intended to and likely to yield imminent crime, which is to say crime some time in the immediate future, likely within a few hours or at most days, and not “at some indefinite future time.” That’s why it’s not a crime to teach that it’s proper or even religiously obligatory to use marijuana, or to refuse to register for the draft, or to engage in jihad. And it sounds from news accounts that the minister’s teachings were not intended to yield such imminent conduct, but instead were meant as guidance for “some indefinite future time.”

But if Caminiti had specifically counseled particular parents about what to do with their particular children in particular contexts — “minister, my child did this-as-such; should I beat him tonight for it?” — this might qualify as either incitement of imminent criminal conduct, or as constitutionally unprotected solicitation of crime (see United States v. Williams (2008)). The line between solicitation, which is unprotected even when it calls for action in the indefinite future (e.g., “please send me some child pornography, whenever you happen to have some”) and incitement, which is protected unless it calls for imminent action, is unclear. Urging people that some general course of action is morally obligatory, without reference to a particular proposed action dealing with a particular person or a particular item, would be a classic example of material covered under Brandenburg (general advocacy) rather than Williams (solicitation). But the more specific the advocacy, the more likely it is to be seen as unprotected solicitation (or as unprotected incitement, if it’s advocacy of what the parent is to do right away).

Note that Wisconsin courts have interpreted the Wisconsin Constitution to require, in some situations, religious exemptions from generally applicable laws, under the Sherbert/Yoder regime. But it’s not clear to me that, even so, the best argument for the minister is a religious freedom argument. The protection offered by free speech law in such cases should, I think, be rather greater than the protect offered by religious exemptions law. And if the pastor’s speech is unprotected by the Free Speech Clause, I doubt that courts would find it protected even under the state constitution’s religious freedom guarantee, even using the Sherbert/Yoder test.

If anyone can point me to any reasoned opinions on the judge’s part in this case — or to more facts on the subject — I’d love to see them. All I could find myself online is the docket sheet, which doesn’t have the documents. Note that “Caminiti was not charged with having committed any abuse himself.” Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The bill is SB 1172, and it bans “psychotherapy” of under-18-year-olds “aimed at altering the sexual or romantic desires, attractions, or conduct of a person toward people of the same sex so that the desire, attraction, or conduct is eliminated or reduced or might instead be directed toward people of a different sex.” This so regardless of whether the patient or the patient’s parents want the therapy to take place.

The bill also regulates such psychotherapy for adults, but the outright prohibition applies only to under-18-year-olds.

That’s the question brewing in Lexington, Kentucky. The Gay and Lesbian Services Organization has filed the following complaint with the Lexington Human Rights Commission (paragraph breaks added):

The Pride Festival committee of the Gay and Lesbian Services Organization (GLSO) received a quote from Hands On Originals in December by phone (from an employee named Kaleb) to produce t-shirts for the 5th annual Pride Festival in Lexington. The quote from Hands On Originals was the lowest bid from a local company, and the committee intended to move forward with having them produce shirts. However, a committee member first called the business with the intention of finding out whether any lower price could be negotiated. He reached someone there who asked who he had previously talked to. At that moment, he could not remember their name, and when the name “Blaine” was suggested, he agreed. Numerous phone messages back and forth were exchanged before the committee member was finally able to speak with Blaine, who represented himself as an owner of Hands On Originals.

His inquiries were related to what the GLSO was, what our mission was, and what we were promoting. The committee member explained, including that the t-shirt would only contain a stylized number “5″ on the front and the name of the festival, and sponsors on the rear.

When Blaine learned that it was a gay pride festival, he asked, “You know we’re a Christian organization, don’t you?” He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival. He suggested that he could refer us to a different business who would print the shirts. Our committee member told them he would take that offer to the board, but that he felt that we would not want to do business with anyone who did business with Hands On Originals, based on their discrimination.

On March 25th, the GLSO board met in emergency session and agreed to file a complaint with the HRC under the Lexington Fairness Ordinance.

Here, by the way, is Blaine Adamson’s side of the story, which seems factually consistent with the GLSO’s allegations.

1. It seems to me that Hands On Originals didn’t violate the ordinance. The ordinance does, among other things, ban public accommodations discrimination based on sexual orientation (cf. Ky. Rev. Stat. § 344.120 and Ky. Rev. Stat. § 344.130, which it incorporates by reference), and Kentucky public accommodations discrimination law would cover T-shirt shops (since it covers “any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public”). But it defines “sexual orientation” to “mean an individual’s actual or imputed heterosexuality, homosexuality, or bisexuality.”

Hands On Originals was apparently discriminating based on the message on the T-shirt (“He then continued on to say that Hands On Originals would not print shirts related to a gay pride festival”), not based on the sexual orientation of the individual who called in the order, or of other individuals in GLSO. That doesn’t seem to be discrimination based on “an individual’s actual or imputed heterosexuality, homosexuality, or bisexuality,” and is thus not barred by the Ordinance.

2. But even if the Ordinance does prohibit what Hands On Originals did (for instance, if it’s interpreted the way Massachusetts courts interpreted the public accommodations ordinance in Hurley v. Irish-American Gay, Lesbian & Bisexual Group (1995)), then the Ordinance unconstitutionally compels speech, because it requires printers to print material that they do not want to print. Abood v. Detroit Bd. of Ed. (1977) and Keller v. State Bar (1990) reaffirmed that the government generally may not compel someone to give over money to a private or even quasi-public entity when that money will be used for political or ideological speech. (There is an exception for when the government is acting as employer or regulator of the bar, and the compulsory payments are germane to the collective bargaining functions of a union or a bar association, but that does not apply here.) If so, then requiring someone to actually physically print political or ideological speech is an even clearer First Amendment violation.

Indeed, speech on T-shirts is as protected as speech in books. Under the GLSO’s view, a book publisher that is opposed to (say) Scientology could be required to print pro-Scientology books. Likewise, a printer that hates Nazi ideology could be required to print pro-Nazi leaflets in those jurisdictions — such as Washington, D.C. and Seattle — that ban public accommodations discrimination based on political affiliation. That, it seems to me, can’t be constitutional: Though the publishers (or the T-shirt printer) would be required to produce speech, rather than utter or display it himself, the creation of speech is itself speech, and compelled creation of speech is a speech compulsion.

Readers of the blog might recognize this as much the same issue involved in Elane Photography v. Willock, the New Mexico wedding photographer case that is still pending before the New Mexico Court of Appeals. There, though, some people argued that such photographs aren’t sufficiently ideologically significant, and that therefore there isn’t a First Amendment problem with requiring a wedding photographer to photograph same-sex commitment ceremonies. Here, the printer is being required to produce T-shirts — or, as I said, it could just as well be books or leaflets — that express support for a clearly ideological event. I think both the photographer and the T-shirt printer should win, but in any event the T-shirt printer’s case strikes me as especially strong.

3. What about the free exercise of religion, assuming that Blaine Adamson sincerely believes that it would violate his religious obligations to print T-shirts that promote a gay pride event?

Continue reading ‘May the Government Force You to Print Ideological Materials You Don’t Want to Print?’ »

So reports Pakistan Today (thanks to Prof. Howard Friedman (Religion Clause) for the pointer. The defendant was a police officer, who allegedly “uttered blasphemy in a conversation with him and two other men, Javed Iqbal and Hafiz Shahid, on street crime. [The complainant] had alleged that the [defendant] called Hafiz a ‘Maulvi’ and used blasphemous words against [Muhammad].” If anyone can provide more context on this case, I’d love to hear it.

1. So reports the L.A. Times:

An orthodox rabbi [Moshe Zigelman] who refused to testify before a federal grand jury, saying his religious beliefs prohibit informing on fellow Jews, was ordered jailed Friday by a District Court judge for contempt of court … [u]ntil he chooses to testify ….

Zigelman has previously pleaded guilty and served a prison sentence for his role in a tax-evasion scheme by his Brooklyn-based orthodox sect, Spinka. After his release, he was subpoenaed to testify before a Los Angeles grand jury continuing its probe into the scheme….

As Prof. Howard Friedman (Religion Clause) notes, there is a split of views among Jews on the doctrine to which the rabbi is referring, “mesira.” The position that Jews should not testify against other Jews, at least as to not very serious offenses, is indeed apparently held by some observant Jews, but by no means all.

2. Of course, under the Free Exercise Clause as interpreted by Employment Division v. Smith (1990), any such religious belief would likely be constitutionally irrelevant — the duty to testify would likely be viewed as a generally religion-neutral law of general applicability, and even sincere religious objectors would not be entitled to a constitutional exemption. (I generally think this is the right approach.) There are some possible counterarguments: One might argue that the law is not generally applicable because the duty to testify includes a religious exemption for clergy (of any denomination) who refuse to testify about confidential communications that they feel religiously obligated to keep confidential. One might also argue that this case involves a “hybrid rights” claim, involving a supposed combination of a Free Exercise Clause claim and a freedom-from-compelled-speech claim.

But on balance I think these counterarguments are weak, and I suspect that courts would find no serious Free Exercise Clause issue here.

3. The federal Religious Freedom Restoration Act does create a statutory presumptive right to religious exemptions from federal laws. If a law — such as the duty to testify — substantially burdens religious practice, for instance by requiring someone to do something that he sincerely thinks is religiously forbidden, then the objector is presumptively entitled to an exemption. To rebut this presumption, the government would have to show that denying the exemption “passes strict scrutiny,” i.e., is the least restrictive means of serving a compelling government interest.

Yet I suspect that courts, if confronted with a RFRA claim in such a case, would conclude that strict scrutiny can be satisfied here. The interest in getting information for a criminal investigation would be seen as compelling. And while in some journalist privilege cases under the Free Press Clause, some circuit courts have held that strict scrutiny isn’t satisfied when the evidence can be gotten from other sources, I doubt that the courts will so rule here. First, giving any such exemption would be too likely to undermine confidence in the legal system (to the extent that religious people of certain groups are seen as being able to shield their coreligionists). Second, giving any such exemption and to lead to many more such exemption requests, whether sincere or not, since the exemption would be so tempting to many people who don’t want to testify. The case of United States v. Lee (1982), in which the Court held that evenhanded application of tax laws, with no tolerance for individualized religious exemption requests, passes strict scrutiny, seems to me quite on point here.

4. Interestingly, there is some caselaw on another kind of claim of a religious exemption from a duty to testify: Some Jews and at least one Mormon have argued that they are religiously obligated not to testify against their family members. One district court has held in favor of such a religious exemption claim, but two circuit courts have rejected them. Compare In re The Grand Jury Empaneling of the Special Grand Jury (3d Cir. 1999) (holding that the Free Exercise Clause didn’t allow a religiously motivated refusal to testify against a family member, at least in this case), and In re Doe (10th Cir. 1988) (same), with In re Greenberg, 11 Fed. R. Evid. Serv. 579 (D. Conn. 1982) (holding the opposite), and In re The Grand Jury Empaneling (McKee, J., dissenting) (same). Cf. Grossberg’s Parents Ask to Keep Talks Confidential, Newark Star-Ledger, Nov. 26, 1997, at 43 (“The parents of Amy Grossberg, the college student accused of killing her newborn in Delaware … argued in court papers that talks with their daughter should be kept secret and that it is a violation of their right to the free exercise of religion [for prosecutors] to force them to divulge information. Rabbi Joel Roth, a legal expert at the Jewish Theological Seminary [UPDATE: a prominent Conservative, not Orthodox, institution] in New York City, confirmed yesterday he wrote an affidavit for the Grossbergs, stating that ‘under Jewish law, a mother and/or a father are not allowed to give testimony against their child in any legal proceeding.’”). But I think the much broader claim of a right not to testify against coreligionists in a wide range of cases would be seen by courts as even less palatable.

The discussion of the Israeli postal workers who are refusing to deliver Bibles led some to bring up the examples of Muslim cab drivers in Minneapolis who don’t want to drive passengers who are carrying alcohol, and pharmacy owners and pharmacy employees who do not want to sell drugs that they view as abortion pills. I think these cases are in important ways different, so I thought I’d briefly blog some thoughts on the subject.

1. The value of accommodation: To begin with, I think it is often good to accommodate people who have religious, cultural, or philosophical objections to generally applicable rules. The rules will often have been designed with an eye towards the typical person, for whom the rules are no great burden. A no-headgear rule might be no big deal to most employees, or most people participating in some other activity; but to Orthodox Jews or to Muslim women it might feel like a very great burden indeed. It often makes sense to think about that burden, and to consider the possibility of exempting people from such a burden.

This doesn’t tell us that there should be a constitutional right to religious or philosophical exemptions from generally applicable laws (I have argued that there shouldn’t be); nor does it tell us whether the government should mandate that private employers and others create such exemptions (as American law does mandate, to a modest extent). And it certainly doesn’t mean that such exemptions should always be granted, regardless of the burden they impose on others. It just means that we can’t simply assume that such exemptions should always be denied, and that The Rules Must Always Be Followed with no exceptions.

Indeed, in our ordinary lives, we often create such an exemptions with little controversy. If an employee comes to you with a special request for an exemption, you’ll probably consider giving it, even without regard to whether the law requires this. For instance, say your business is too small to be covered by religious accommodation requirements, and an employee asks to be excused from a rare situation where he would have to help serve alcohol — for instance, if you’re asking some general office assistants to help out with a party for the business’s customers. If the employee is asking to be excused just because he doesn’t feel like staying late, you might say, “tough luck.” But if you sense that it would be mentally burdensome for him to participate, whether because he’s Muslim, Methodist, or just staunchly opposed to intoxicating substances (perhaps because of an alcohol-related injury to a close family member), I suspect that you probably wouldn’t just say, “no, rules are rules.” Instead, you’d consider whether there’s some way of making things work; perhaps some other employee will gladly switch this duty for some other. Fortunately, there’s often a good deal of room for flexibility.

The same is often true in some government programs and even statutory or constitutional rules — consider the exemption for sacramental wine during Prohibition, or the provision in the Constitution that people could affirm instead of swearing in various contexts, a rule that was created to accommodate some religious groups (such as Quakers) that opposed swearing. Again, this doesn’t mean that all accommodation requests should be granted, or that accommodations should be limited to religious objectors; the affirmation option, for instance, benefits atheists as well as Quakers. It just means that requests for accommodations should often be considered seriously.

Sometimes, of course, we might want to reject the requests because of a worry that allowing one request would lead to many more, some insincere and some insincere, and the cost of dealing with the flood of requests — including the upset that will be caused if one exemption is granted but another is denied — would be too great. That is one reason that the Supreme Court, even during the era when it took the view that the Free Exercise Clause mandated many religious exemptions, generally refused to allow religious exemptions from tax laws. But often, especially when the request will be personally costly to the person asking for the request, we can expect that future requests will be rare, and we can save for a later day the question of what to do if they become much more frequent. I suspect that here too our actual practices in our business lives reflect this: We often rightly see little cause to worry much about a flood of exemption requests, for instance when someone asks for a religious exemption from a no-headgear policy, or asks for a short unpaid leave, whether for important secular reasons (e.g., to go to a funeral) or for religious reasons (e.g., to go to some religious festivals).

2. Employer rules vs. governmental rules applicable to everyone: It also seems to me that the case for accommodation is, all else being equal, stronger when the government exercises its sovereign power to constrain our liberty than when the government or a private employer is exercising its power over its employees. When a self-employed cab driver wants to decline to transport a passenger who is visibly carrying alcohol (or when a non-self-employed cab driver wants the same, and his employer has no objection), the driver is basically asking for the same right that most small businesspeople have — the right to choose which behavior to promote (even indirectly) through his actions. An architect who opposes alcohol could refuse to take a job designing a saloon. A restaurant owner could refuse to deliver food to an abortion clinic. A independent contractor gardener who deeply believes in animal rights could refuse to tend plants at a company that sells meat. To be sure, various laws, such as antidiscrimination laws. limit our rights to choose whom to do business with. But that right to choose remains valuable to us; the cab driver is simply asking for the same right.

Continue reading ‘Accommodations (Religious, Philosophical, and Otherwise), of Employees and Others’ »

Last Friday, a letter was sent by from Archbishop Timothy Cardinal Dolan, President, United States Conference of Catholic Bishops.  What follows are some excerpts.  (You can read a pdf of the entire letter here.)

My brother bishops,

. . .  Thank you, brothers, for the opportunity to provide this update to you and the dioceses you serve. Many of you have expressed your thanks for what we have achieved together in so few weeks, especially the data provided and the leadership given by brother bishops, our conference staff and Catholic faithful. And you now ask the obvious question, “What’s next?”  Please allow me to share with you now some thoughts about events and efforts to date and where we might go next.

Since January 20, when the final, restrictive HHS Rule was first announced, we have become certain of two things: religious freedom is under attack, and we will not cease our struggle to protect it. . . .   As pastors and shepherds, each of us would prefer to spend our energy engaged in and promoting the works of mercy to which the Church is dedicated: healing the sick, teaching our youth, and helping the poor. Yet, precisely because we are pastors and shepherds, we recognize that each of the ministries entrusted to us by Jesus is now in jeopardy due to this bureaucratic intrusion into the internal life of the church. You and I both know well that we were doing those extensive and noble works rather well without these radical new constrictive and forbidding mandates. Our Church has a long tradition of effective partnership with government and the wider community in the service of the sick, our children, our elders, and the poor at home and abroad, and we sure hope to continue it.

Of course, we maintained from the start that this is not a “Catholic” fight alone. I like to quote as often as possible a nurse who emailed me, “I’m not so much mad about all this as a Catholic, but as an American.” And as we recall, a Baptist minister, Governor Mike Huckabee, observed, “In this matter, we’re all Catholics.” No doubt you have heard numerous statements just like these. We are grateful to know so many of our fellow Americans, especially our friends in the ecumenical and interreligious dialogue, stand together in this important moment in our country. They know that this is not just about sterilization, abortifacients, and chemical contraception. It’s about religious freedom, the sacred right of any Church to define its own teaching and ministry.

When the President announced on January 20th that the choking mandates from HHS would remain, not only we bishops and our Catholic faithful, but people of every faith, or none at all, rallied in protest. The worry that we had expressed — that such government control was contrary to our deepest political values — was eloquently articulated by constitutional scholars and leaders of every creed.

On February 10th, the President announced that the insurance providers would have to pay the bill, instead of the Church’s schools, hospitals, clinics, or vast network of charitable outreach having to do so. He considered this “concession” adequate. Did this help? We wondered if it would, and you will recall that the Conference announced at first that, while withholding final judgment, we would certainly give the President’s proposal close scrutiny.

Well, we did — and as you know, we are as worried as ever. For one, there was not even a nod to the deeper concerns about trespassing upon religious freedom, or of modifying the HHS’ attempt to define the how and who of our ministry. Two, since a big part of our ministries are “self-insured,” we still ask how this protects us. We’ll still have to pay and, in addition to that, we’ll still have to maintain in our policies practices which our Church has consistently taught are grave wrongs in which we cannot participate. And what about forcing individual believers to pay for what violates their religious freedom and conscience? We can’t abandon the hard working person of faith who has a right to religious freedom. And three, there was still no resolution about the handcuffs placed upon renowned Catholic charitable agencies, both national and international, and their exclusion from contracts just because they will not refer victims of human trafficking, immigrants and refugees, and the hungry of the world, for abortions, sterilization, or contraception. In many ways, the announcement of February 10 solved little and complicated a lot. We now have more questions than answers, more confusion than clarity.

So the important question arises: What to do now? How can we bishops best respond, especially united in our common pastoral ministry as an Episcopal Conference? For one, . . . we will continue our strong efforts of advocacy and education. In the coming weeks the Conference will continue to provide you, among other things, with catechetical resources on the significance of religious freedom to the Church and the Church’s teaching on it from a doctrinal and moral perspective. We are developing liturgical aids to encourage prayer in our efforts and plans on how we can continue to voice our public and strong opposition to this infringement on our freedom. And the Ad Hoc Committee on Religious Liberty, that has served the Conference so well in its short lifespan, will continue its extraordinary work in service to this important cause.

Two, we will ardently continue to seek a rescinding of the suffocating mandates that require us to violate our moral convictions, or at least insist upon a much wider latitude to the exemptions so that churches can be free of the new, rigidly narrow definition of church, minister and ministry that would prevent us from helping those in need, educating children and healing the sick, no matter their religion.

In this regard, the President invited us to “work out the wrinkles.” We have accepted that invitation. Unfortunately, this seems to be stalled: the White House Press Secretary, for instance, informed the nation that the mandates are a fait accompli(and, embarrassingly for him, commented that we bishops have always opposed Health Care anyway, a charge that is scurrilous and insulting, not to mention flat out wrong. Bishop Blaire did a fine job of setting the record straight.) The White House already notified Congress that the dreaded mandates are now published in the Federal Registry “without change.” The Secretary of HHS is widely quoted as saying, “Religious insurance companies don’t really design the plans they sell based on their own religious tenets.” That doesn’t bode well for their getting a truly acceptable “accommodation.”

At a recent meeting between staff of the bishops’ conference and the White House staff, our staff members asked directly whether the broader concerns of religious freedom—that is, revisiting the straight-jacketing mandates, or broadening the maligned exemption—are all off the table. They were informed that they are. So much for “working out the wrinkles.” Instead, they advised the bishops’ conference that we should listen to the “enlightened” voices of accommodation, such as the recent, hardly surprising yet terribly unfortunate editorial in America. The White House seems to think we bishops simply do not know or understand Catholic teaching and so, taking a cue from its own definition of religious freedom, now has nominated its own handpicked official Catholic teachers.

We will continue to accept invitations to meet with and to voice our concerns to anyone of any party, for this is hardly partisan, who is willing to correct the infringements on religious freedom that we are now under. But as we do so, we cannot rely on off the record promises of fixes without deadlines and without assurances of proposals that will concretely address the concerns in a manner that does not conflict with our principles and teaching.

Congress might provide more hope, since thoughtful elected officials have proposed legislation to protect what should be so obvious: religious freedom. Meanwhile, in our recentdebate in the senate, our opponents sought to obscure what is really a religious freedom issue by maintaining that abortion inducing drugs and the like are a “woman’s health issue.” We will not let this deception stand. Our commitment to seeking legislative remedies remains strong. And it is about remedies to the assault on religious freedom. Period. (By the way, the Church hardly needs to be lectured about health care for women. Thanks mostly to our Sisters, the Church is the largest private provider of health care for women and their babies in the country.)   Bishop William Lori, Chairman of our Ad Hoc Committee on Religious Liberty, stated it well in a recent press release: “We will build on this base of support as we pursue legislation in the House of Representatives, urge the Administration to change its course on this issue, and explore our legal rights under the Constitution and the Religious Freedom Restoration Act.”

Perhaps the courts offer the most light. In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.

Given this climate, we have to prepare for tough times. Some, like America magazine, want us to cave-in and stop fighting, saying this is simply a policy issue; some want us to close everything down rather than comply (In an excellent article, Cardinal Francis George wrote that the administration apparently wants us to “give up for Lent” our schools, hospitals, and charitable ministries); some, like Bishop Robert Lynch wisely noted, wonder whether we might have to engage in civil disobedience and risk steep fines; some worry that we’ll have to face a decision between two ethically repugnant choices: subsidizing immoral services or no longer offering insurance coverage, a road none of us wants to travel.

Brothers, we know so very well that religious freedom is our heritage, our legacy and our firm belief, both as loyal Catholics and Americans. There have been many threats to religious freedom over the decades and years, but these often came from without. This one sadly comes from within. As our ancestors did with previous threats, we will tirelessly defend the timeless and enduring truth of religious freedom.

I look forward to our upcoming Administrative Board Meeting and our June Plenary Assembly when we will have the chance to discuss together these important issues and our way forward in addressing them. And I renew my thanks to you for your tremendous, fraternal support and your welcome observations in this critical effort to protect our religious freedom.

With prayerful best wishes, I am
Fraternally in Christ,

Timothy Cardinal Dolan
Archbishop of New York
President, United States Conference of Catholic Bishops Continue reading ‘Catholic Bishops Continue Protesting HHS Mandates’ »

YNet News reports:

Dozens of Israel Postal Company employees in Ramat Gan refused to distribute thousands of copies of the New Testament to city residents. They claimed such distribution is forbidden according to [Jewish religious law], and might even be illegal [under Israeli law].

Both religious and secular postal workers were asked to hand out mail and advertisements on Monday, along with thousands of holy Christian booklets translated into Hebrew. The workers informed their supervisors that they refuse to distribute such materials….

[O]ne religious mailman explained that distributing the New Testament goes against his word view. “The halacha forbids me from handing out such idolatry material, and when there’s a contradiction between my religious belief and what my job requires of me, it’s clear to me what I chose,” he said. “It’s like if my manager were to come and tell me to work on Shabbat.”

According to him this is not the first time the mailmen have refused to distribute the booklets. He said his Gadera counterparts were successful in dodging such distribution ….

The Israel Postal Company (a branch of the Israeli government) is refusing the demand, to its credit. Among other things, the objecting employees’ claims that distributing proselytizing material violates Israeli law seems to be mistaken, at least according to the postal service and to the United States State Department (search for “proselytizing”). Nonetheless, at least one member of the Knesset (Orlev) is quoted as saying, “It’s unacceptable that the Israel Postal Company should participate in distributing missionary materials to the Jewish residents of Israel. We must clarify to the missionaries that the law forbids it.” If this were the law — or if there are proposals to change the law — that would, I think, be a bad law indeed, one that interferes with freedom of speech and religious freedom.

I should note that, if there were a way to easily accommodate the religious employees’ objections while still getting the mail delivered, and at no material cost to the post office, that would be good. American employment law generally requires such reasonable accommodations that don’t unduly burden employers; perhaps Israeli law does as well. (See this footnote for some cases in which this law was used to excuse people from generally applicable job requirements.) But my suspicion is that this would be very hard to do with postal employees, who have their own routes; filling in the gaps caused by many employees’ refusal to deliver particular items would be quite burdensome on the employer. In any event, the postal service’s job should be to deliver mailed material, whether or not that requires some route juggling, and that includes material that Member Orlev and various post office employees don’t approve of.

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

UPDATE: I originally focused solely on the religious postal workers, but on reflection I’ve broadened the block quote to also mention the fact that some secular postal workers objected.

The discussion of the unemployment compensation case involving the woman who refused to sell alcohol was very interesting to me, and seemed to interest many commenters. I therefore thought I’d bring up another similar unemployment compensation case, and see what people thought about it. First, remember the general legal framework: Most states will let people who quit their jobs collect unemployment compensation only if they had “good cause” for leaving, and if they are available to take another job (unless they have “good cause” for declining that). In Sherbert v. Verner (1963), Adell Sherbert, “a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act.” The state concluded that she wasn’t entitled to the benefits because she was refusing jobs without “good cause.” But the Supreme Court disagreed, reasoning (in part):

[T]he disqualification for benefits imposes [a] burden on the free exercise of appellant’s religion…. [A]ppellant’s declared ineligibility for benefits derives solely from the practice of her religion, [and] the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship….

In Employment Division v. Smith (1990), the Court generally rejected the notion that people are entitled to religious exemptions from generally applicable laws, but preserved the Sherbert doctrine as to unemployment compensation schemes:

The Sherbert test … was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct…. [A] distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant’s unemployment: “The statutory conditions … provided that a person was not eligible for unemployment compensation benefits if, ‘without good cause,’ he had quit work or refused available work. The ‘good cause’ standard created a mechanism for individualized exemptions.” … [O]ur decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason.

Now, the particular case, Marvin v. Giles (Ohio Ct. App. 1983):

Marvin stopped working for his employer, appellee Federal Home Loan Bank of Cincinnati (“the bank”), on November 28, 1980, after almost seven years of employment with the bank and a total of fourteen years of continuous employment since his graduation from high school. At the bank he was the manager of the check processing area, was making in excess of $25,000 a year, and was scheduled to be promoted to assistant treasurer.

On February 25, 1979, while attending the Bibleway Church of God in Christ’s Church at 3231 Woodburn Avenue, Cincinnati, Ohio, Marvin, according to his sworn testimony, had a religious experience and was told by God to return to his home in Alabama within two years to help raise his deceased sister’s six children. He did resign from the bank, went to Alabama, attempted to secure employment, could not, and applied for unemployment compensation. Throughout the entire administrative proceedings, Marvin’s claim was disallowed because it was held that he quit his work without just cause under the Ohio Unemployment Compensation Law….

While the facts in Thomas are not identical to those here, nevertheless, the similarity is marked. Thomas quit due to his religious convictions. The only reasonable interpretation which can be made of the hearing referee’s findings here is that Sammie L. Marvin quit or “resigned” because he “had a vision and was instructed by God to relocate to Alabama to help in a family situation,” a decree which the record demonstrates was given to him while attending a formal service in the church of his choice. If there was a religious conviction in Thomas, as the Supreme Court held, a religious conviction is present here on the part of Marvin. The referee in effect recognized that Marvin may have had a good personal reason for quitting his employment, but concluded that a “good personal reason” is not enough for benefits under Ohio law. A “good personal reason” unassociated with a religious conviction ordinarily would not be sufficient to justify the allowance of unemployment benefits. However, if there is a true religious conviction present, benefits cannot be withheld even if the religious conviction may also be categorized as a personal conviction. Here, the finding of a “good personal reason” did not eliminate what amounted to a finding of religious conviction….

[Footnote: We are not blind to the possibility of charlatans unlawfully faking religious beliefs for their own nefarious purposes. This possibility makes the determination of what is a religious belief or practice "a difficult and delicate task" as the United States Supreme Court recognized in Thomas. The roles of hearing referees and review boards are extremely important in this respect. Findings should report attempted deception or fakery when discerned. There is no suggestion of chicanery in the Thomas case, nor here. Contrariwise, the administrative record tends to demonstrate Marvin's religious sincerity....

Claimant-appellant's testimony was taken in Alabama on a cassette tape and sent to Ohio where the hearing referee listened to it and had it transcribed. No appellate argument in any way questions this procedure, and I introduce no noteworthy significance to it.] …

[T]he decision of the Unemployment Compensation Board of Review is unlawful and that the appellant is entitled to such unemployment compensation (for time in a covered employment) as is authorized under the laws of Ohio since appellant terminated his employment because of his religious convictions….

Does this result make sense? What light does it shed on the Sherbert/Thomas doctrine?

I blogged about this issue yesterday, but didn’t point to the particular case — which I had recently come across — in which the question was discussed. (I wanted people to discuss the issue with just the information that I gave.) Now that the thread has mostly settled down, I thought I’d cite the case: It’s Murphy v. Everett (Ark. Ct. App. 1982), and the religious objector A.M. is Alma Murphy.

Some have argued that a religious exemption analysis in work-related cases might differ depending on whether (1) the job requirements changed in a way that violated the employee’s felt religious obligations or (2) the employee’s religious beliefs changed in a way that started to conflict with the existing job requirements. That might or might not be a good rule to adopt, but it’s not the rule that American religious exemption law has generally adopted. Here’s the Court’s statement on this, in the unemployment exemption context (though I think it would likely also apply to religious accommodations under Title VII), from Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136 (1987):

The Appeals Commission also attempts to distinguish this case by arguing that, unlike the employees in Sherbert and Thomas, Hobbie was the “agent of change” and is therefore responsible for the consequences of the conflict between her job and her religious beliefs. In Sherbert and Thomas, the employees held their respective religious beliefs at the time of hire; subsequent changes in the conditions of employment made by the employer caused the conflict between work and belief. In this case, Hobbie’s beliefs changed during the course of her employment, creating a conflict between job and faith that had not previously existed. The Appeals Commission contends that “it is … unfair for an employee to adopt religious beliefs that conflict with existing employment and expect to continue the employment without compromising those beliefs” and that this “intentional disregard of the employer’s interests … constitutes misconduct.”

In effect, the Appeals Commission asks us to single out the religious convert for different, less favorable treatment than that given an individual whose adherence to his or her faith precedes employment. We decline to do so. The First Amendment protects the free exercise rights of employees who adopt religious beliefs or convert from one faith to another after they are hired. The timing of Hobbie’s conversion is immaterial to our determination that her free exercise rights have been burdened; the salient inquiry under the Free Exercise Clause is the burden involved. In Sherbert, Thomas, and the present case, the employee was forced to choose between fidelity to religious belief and continued employment; the forfeiture of unemployment benefits for choosing the former over the latter brings unlawful coercion to bear on the employee’s choice.

Most states will let people who quit their jobs collect unemployment compensation only if they had “good cause” for leaving, and if they are available to take another job (unless they have “good cause” for declining that). In Sherbert v. Verner (1963), Adell Sherbert, “a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina Unemployment Compensation Act.” The state concluded that she wasn’t entitled to the benefits because she was refusing jobs without “good cause.” But the Supreme Court disagreed, reasoning (in part):

[T]he disqualification for benefits imposes [a] burden on the free exercise of appellant’s religion…. [A]ppellant’s declared ineligibility for benefits derives solely from the practice of her religion, [and] the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship….

In Employment Division v. Smith (1990), the Court generally rejected the notion that people are entitled to religious exemptions from generally applicable laws, but preserved the Sherbert doctrine as to unemployment compensation schemes:

The Sherbert test … was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct…. [A] distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant’s unemployment: “The statutory conditions … provided that a person was not eligible for unemployment compensation benefits if, ‘without good cause,’ he had quit work or refused available work. The ‘good cause’ standard created a mechanism for individualized exemptions.” … [O]ur decisions in the unemployment cases stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of “religious hardship” without compelling reason.

So here’s an interesting incident I just ran across: A woman, A.M., was working at a convenience store. The store got a permit to sell beer, and the woman then quit, because her religious principles forbade her from participating in the sale of alcohol. The unemployment compensation board denied the benefits, and the woman appealed.

What should the result be?

So holds a federal district court in today’s Stormans Inc. v. Selecky (W.D. Wash. Feb. 22, 2012):

This case presents a novel question: can the State compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life? In 2007, under pressure from the Governor, Planned Parenthood, and the Northwest Women’s Law Center, the Washington State Board of Pharmacy enacted regulations designed to do just that.

The rule primarily at issue, commonly known as the “delivery rule,” requires pharmacies to timely deliver all lawfully prescribed medications, including the emergency contraceptives Plan B and ella. Under the delivery rule, a pharmacy’s refusal to deliver is grounds for discipline, up to and including revocation of its license. In operation, the delivery rule bars a pharmacy from referring patients seeking Plan B to other pharmacies, meaning they must dispense the drugs.

In violation of the regulations, but in conformity with their religious beliefs, the Plaintiffs refused to dispense Plan B to Planned Parenthood test shoppers and others. The Board launched a series of investigations, and this suit was the result. Based on the evidence presented at trial, the Board’s regulations, while facially acceptable, are in practice unconstitutional….

The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs. The Court will therefore permanently enjoin their enforcement against Plaintiffs.

There’s also a more detailed Findings of Fact and Conclusions of Law available, and here’s the Permanent Injunction. I haven’t had a chance to read through all this yet, but I hope to blog more about it when I get a chance. [UPDATE: Ed Whelan (National Review Online's Bench Memos) has a post on the subject.]

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.