The Volokh Conspiracy

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’ »

So reports International Christian Concern, with regard to a case in Algeria:

Siagh Krimo was charged by the Criminal Court of the Djamel District in Oran, who based their decision on Article 144 bis 2 of the Penal Code which criminalizes acts that “insult the prophet and any of the messengers of God, or denigrate the creed and precepts of Islam, whether by writing, drawing, declaration, or any other means.” Krimo has ten days to appeal the sentence.

Krimo … arrested on April 14, along with another Christian, Sofiane, after sharing his Christian faith with a neighbor. Sofiane was released soon after the arrest, while Krimo was detained for three days. Krimo was known to hold weekly prayer services at his home, which Algerian Christians suspect were being closely monitored by the police.

If anyone has a pointer to other sources on the case, please pass it along. International Christian Concern is obviously a partisan source on this, and the story is short on detail; while their reporting may well be accurate, I’d much prefer seeing more before removing the question mark from the post title. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

The proposed anti-circumcision initiative follows the text of the San Francisco initiative. According to the Jewish Journal, “To qualify the initiative for inclusion on the ballot in Santa Monica’s next election in November 2012, its proponents will need to collect signatures from 10 percent of the city’s approximately 61,000 registered voters in the next six months. If they obtain signatures from 15 percent of Santa Monica’s voters, the initiative could be put to a vote in a special election.”

Santa Monica is a relatively wealthy enclave of the greater Los Angeles area — not really a suburb, but part of the West Los Angeles core. It is also heavily Democratic (69% D, 29% R), and supposedly almost 5% Jewish. San Francisco is likewise supposedly about 5% Jewish; America as a whole is 2% Jewish, though I’m not sure how the site that I’m citing is gathering its city-level religion statistics. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

In the earlier post, I discussed whether the proposed San Francisco ban on circumcising boys would violate parental rights, even when the parents don’t raise a religious objection to the ban. (As I mentioned in the post, likely about 95% of male circumcisions in the U.S. are not done by Jews or Muslims, the two groups that generally circumcise for religious reasons.) But what about parents who do raise such a religious objection? Would they be entitled to an exemption from the ban, even if courts say the ban can be constitutionally applied — notwithstanding parents’ constitutional rights to direct the medical care of their children — in the absence of a religious objection?

The general Free Exercise Clause under the First Amendment: In Employment Division v. Smith (1990), the Supreme Court held that religious objectors are generally not entitled to an exemption from religion-neutral, generally applicable laws. This law would likely qualify as such a religion-neutral, generally applicable laws, because it applies to all circumcisions, whether religious or not. The proposal does specifically says that, in determining whether the exemption for immediate medical need applies, “no account shall be taken of the effect on the [child] of any belief on the part of [the child] or any other person that the operation is required as a matter of custom or ritual.” But that just reiterates that the ban is a flat ban on all non-medically-required circumcisions, with no exemptions based on religion, culture, personal preference, or anything else.

A law might still be found not to be religion-neutral if courts conclude that it was motivated by hostility to religion. But I doubt this will happen here. Courts require pretty strong evidence of such religious hostility to set aside a law that is religion-neutral on its face. And I suspect that courts will recognize that any opposition to particular conduct — whether it’s circumcision, sexual orientation discrimination, the use of marijuana, or what have you — will often spill over into criticisms of the religious groups that engage in such conduct (as well as towards people who engage in such conduct for nonreligious reasons). That’s natural, and requires no hostility to religion as such. So the fact that some backers of the initiative will doubtless have criticized religions that mandate circumcision wouldn’t suffice to invalidate the ordinance.

The “hybrid rights” exception: Smith, however, set forth an exception to its general rule. Two decades before Smith, Wisconsin v. Yoder (1972) held that the Amish were entitled to an exemption from a generally applicable law requiring children to attend schools (public or private) up to 16; and Smith did not overrule Yoder on this score. Rather, Smith dealt with Yoder like this (most citations omitted):

The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U. S. 510 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U. S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). [Footnote: [Yoder] specifically adverted to the non-free-exercise principle involved … [by saying] that “the Court’s holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children. And, when the interests of parenthood are combined with a free exercise claim of the nature revealed by this record, more than merely a ‘reasonable relation to some purpose within the competency of the State’ is required to sustain the validity of the State’s requirement under the First Amendment.”] Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion. And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.

The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right. Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls.

This is a mysterious, mystifying, and perhaps mystical passage. I think the Smith decision is correct, but even I think that its explanation of Yoder is pretty poor. And lower courts have understandably split on what it means.

Some have dismissed the “hybrid situation” analysis as dictum, and sufficiently unhelpful dictum that those courts have felt free to reject it. Some have concluded that “hybrid situation” simply refers to a situation where the religious objectors have a winning claim on some other right, so that the religious objectors would win but not because of the Free Exercise Clause; under this approach, there would likewise be no right to religious exemptions from generally applicable laws even when another right is in play — only the other right would matter.

But some courts have held that the Free Exercise Clause does provide extra protection when the claimant can “make out a ‘colorable claim’ that a companion right has been violated — that is, a ‘fair probability’ or a ‘likelihood,’ but not a certitude, of success on the merits.” Some Ninth Circuit decision have so said (the quote I just gave is from one such case), but another Ninth Circuit decision has disagreed: “We reject Plaintiffs’ contention that Jacobs and Dresser raise ‘hybrid rights’ claims that should be subjected to strict scrutiny. The ‘hybrid rights’ doctrine has been widely criticized [citing sources], and, notably, no court has ever allowed a plaintiff to bootstrap a free exercise claim in this manner. We decline to be the first.” And the California Supreme Court has also rejected the theory that a Free Exercise Clause claim could be based on a combination of a religious objection (which wouldn’t normally itself justify constitutional relief) and another constitutional claim that is merely “colorable” (rather than a winner on its own).

So if courts conclude that a “hybrid situation” under Smith is merely a situation where the religious claimant also has some other winning constitutional claim, then the Free Exercise Clause wouldn’t add anything to the analysis (see the general Free Exercise Clause discussion above): The religious parents’ objection would stand or fall on their parental rights claim.

But if courts accept the “colorable claim” theory, then they would have to decide whether the parents’ pure parental rights claim is “colorable” (whatever that might mean here); and, if it is, then the standard of scrutiny would be elevated from that normally used for parental rights (which, as I mentioned, is uncertain), to the “strict scrutiny” used in cases such as Yoder — a religious exemption would have to be granted unless denying it would be “narrowly tailored” to a “compelling government interest.” In principle, this might mean that parents who are religiously motivated to circumcise their children might win, even if the parents who are nonreligious motivated would lose.

What “strict scrutiny” might mean in practice: Yet in practice, even the “colorable claim” view of the “hybrid situation” language might not much matter. “Strict scrutiny,” though very demanding in many contexts, it has never been that demanding in the religious exemption context. While the “strict scrutiny” test in race and free speech cases was generally seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, in religious freedom cases it was “strict in theory, feeble in fact” (Larry Sager & Chris Eisgruber’s phrase).

And that was likely inevitable, for reasons I discussed in my A Common-Law Model for Religious Exemptions article. Even if religious objectors have a constitutional right to exemption from some generally applicable laws, they can’t have the nearly certain victories that truly “strict” scrutiny promises. We can have a regime where nearly all race classifications are unconstitutional, and nearly all content-based speech restrictions (imposed by the government as sovereign, not as proprietor, and exclusive of the traditionally recognized Free Speech Clause exceptions) are unconstitutional. We can’t have a regime where religious objectors can violate nearly every generally applicable law — including laws that protect the rights of others who don’t share the objectors’ religious views — simply because they feel a religious motivation to do so.

So in practice, I expect that even if the Free Exercise Clause is seen as presumptively requiring exemptions from laws that interfere with parents’ right to medical care, that presumption would be no stronger for religious objectors than it is for other parents. So the analysis would end up being much the same as that discussed in the parental rights post.

The California Constitution: The California Constitution has its own religious freedom guarantee, and some states have interpreted their state guarantees as providing more protection for religious objectors than does the federal Free Exercise Clause. As the 2010 map below shows, eleven states interpreted such provisions to require “strict scrutiny” in religious exemption, and a 2011 Kansas decision makes that number twelve. One state, New York, has interpreted such a provision to require a weak form of “intermediate scrutiny.” Five states have disagreed, interpreting such provisions as protecting only against deliberate discrimination (thus following Smith). And the rest haven’t decided this. (Some legislatures have enacted specific statutory religious exemption schemes — or, in Alabama, a specific constitutional amendment expressly mandating a “strict scrutiny” approach — but the effort to enact such a law in California was ultimately blocked.)

The California Supreme Court, in particular, has not resolved this question. If California courts do conclude that the California Constitution secures a presumptive right to a religious exemption, then religious parents wouldn’t have to rely on their parental rights claim. In particular, recall that the claim of parental rights to control a child’s medical care might be unavailable — the matter is unclear — to parents who don’t have a medical motivation for circumcising their child. But if the parents have a constitutional religious exemption claim, then they’ll be assert it even if their motivation is purely religious, and not medical.

Nonetheless, for reasons given in the “what strict scrutiny might mean in practice” discussion above, parents might lose a “strict scrutiny” analysis of the religious exemption claim. Just as a court might reject a medically motivated parent’s parental rights claim, on the grounds that the government interest overrides the parental right, so it might reject a religiously motivated parents’ religious exemption claim.

The bottom line: So with the religious exemption claim, as with the parental rights claim, the result remains uncertain.

1. If the courts reject the “colorable claim” view of the Smith “hybrid situation” language, parents will lose on their religious exemption claim, though they might have a parental rights claim (alongside parents who have no religious objections).

2. If the courts accept the “colorable claim” view of the Smith “hybrid situation” language, parents’ religious exemption claim will probably be treated much like their parental rights claim (though it’s possible that courts might be somewhat more skeptical of the law if a religious freedom claim is involved together with a parental rights claim, than if a parental rights claim were involved by itself).

3. If the courts interpret the California Constitution as departing from the federal Free Exercise Clause standard, and requiring “strict scrutiny” in religious exemption cases, then the parents’ religious exemption claim will probably be treated much like the parental rights claims brought by parents who have medical motivations for having their sons circumcised.

Again, I wish I could say something more definite, but the precedents don’t warrant any such certainty.

In the comments to this post, please do not discuss the pure parental rights questions; there’s a separate post for discussing those. I thought it would be helpful to have here a separate discussion that focuses on the religious freedom issue.

Christian Today reports:

[Eleven Iranian Christians who] had been charged with “action against the order of the country” and drinking alcohol, after joining a house church meeting and taking communion wine [have been freed by an Iranian court] … under Article 13 of the Iranian Constitution, which allows Zoroastrians, Jews and Christians to “perform their religious rites and ceremonies, and to act according to their own canon in matters of personal affairs and religious education”.

According to Christian Solidarity Worldwide, the judge concluded that there was no evidence to suggest that the group had been acting against national security or the order of the country….

Other members of the same church are still in trouble elsewhere, with six charged with blasphemy and one “awaiting the outcome of an appeal against his death sentence for apostasy.”

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

I blogged last week about a Georgia judge’s refusal to let a Muslim man wear a kufi (a sort of cap) in court. The man believes the headgear is religiously required, and the Georgia judicial system’s announced policy is to allow religious headgear — whether Muslim, Jewish, or related to any other religion — but the judge nonetheless didn’t let the man wear the cap.

Now the Atlanta Journal-Constitution reports that the judge has changed his mind:

“The Court finds through its own research that there is a basis in the Quran for both men and women to cover their heads as a religious observance,” Judge James T. Chafin wrote in an order obtained by the AJC. “Accordingly, the Court will permit the defendant to wear his hat in the courtroom as a valid religious observance.”

But while I think the result is right, for reasons I mentioned earlier, the judge’s reasoning strikes me as flawed (assuming the newspaper article accurately captured that reasoning). It’s not the job of secular judges to “find through [their] own research” whether “there is a basis” in a religious book for a religious practice. Rather, when a person asks for a religious accommodation, the question is whether that person sincerely holds the religious belief; a judge may not try to decide for himself what the religious belief is consistent with a religious book. As the Supreme Court has held, “Courts are not arbiters of scriptural interpretation.”

And this has to be the case, unless you want judges to determine whether there is a basis in the Torah for a prohibition on eating chicken with cheese (there isn’t, though Orthodox Jews treat such mixtures as not kosher) or for a mandate to wear a yarmulke (there isn’t, though Orthodox Jewish tradition for centuries has been to wear headgear when out in public), or whether the Bible can be reasonably interpreted as requiring that one observe Sunday as the day of rest, or a wide range of other religious questions. Our legal system has rightly concluded that secular judges ought not be making such decisions.

Of course, even if a religious belief is sincerely held, this doesn’t mean that it must or should be accommodated. A judge may reject such a request on the grounds that granting the request would substantially impair a compelling government interest, or would unduly burden an employer, or — in many states — would violate a religion-neutral generally applicable law. But that too is true regardless of whether a court thinks “there is a basis” for the religious practice in a religious book; accommodation requests may and should be denied (under the standards I just noted) even for clearly scripturally grounded religious practices. The question is whether the rule substantially burdens a sincerely held religious belief, and whether there’s a sufficient secular reason for the burden, not whether the Bible or the Koran supports the religious belief.

As I wrote in 2009, the Georgia courts have a headgear policy that expressly allows religious headgear:

The Georgia courts have adopted a new policy on head coverings that will take effect in every court in Georgia. At a meeting Wednesday of the Judicial Council of Georgia — the policy-making body of Georgia’s courts — from around the state voted unanimously to endorse the measure permitting headgear in court that is worn for religious or medical reasons. Other types of head coverings will continue to be prohibited in courtrooms….

The measure stems from the December 2008 arrest of Lisa Valentine after she refused to remove her hijab, the head scarf worn by Muslim women. She said to do so would violate her faith. But Judge Keith Rollins of the Douglasville Municipal Court found her in contempt of court and ordered her to serve 10 days in jail. The incident prompted a formal complaint from the U.S. Department of Justice. The Anti-Defamation League, Council on American-Islamic Relations and American Civil Liberties Union also lodged complaints. On June 12th, Ms. Valentine testified before the Supreme Court of Georgia Committee on Access and Fairness in the Courts.

“If this had been a nun, no one would have required her to remove her habit,” said Chief Justice Carol Hunstein, who chairs the Judicial Council. “I think this is a good rule, and I think it’s clear.”

Specifically, the adopted policy states: “Head coverings are prohibited from the courtroom except in cases where the covering is worn for medical or religious reasons. To the extent security requires a search of a person wearing a head covering for medical or religious reasons, the individual has the option of having the inspection performed by a same-sex officer in a private area. The individual is allowed to put his or her own head covering back on after the inspection is complete.”

But an AP story reports that a litigant is accusing Henry County State Court Judge James Chafin of not complying with the policy:

[Troy "Tariq"] Montgomery said he was first blocked by a courtroom bailiff from wearing the kufi in the courtroom on April 1, when he was initially scheduled to appear in front of Chafin for the speeding violation. He returned two weeks later with the council’s 2009 policy, but said he still rebuffed.

When he returned on Thursday — this time with his attorney at his side — he said Chafin rejected him again and told him to remain in the hallway during the proceedings. His speeding case is still pending.

As I noted before, this not a new or Muslim-specific issue (just as many of the religious accommodation questions involving Muslims have arisen in the past with non-Muslims). Trial judges have, for instance, applied no-hat rules to demand that parties or witnesses remove yarmulkes, see, e.g., Close-It Enterprises, Inc. v. Weinberger, 64 A.D.2d 686 (N.Y. App. Div. 1978), or their Catholic or Episcopalian priestly garb, People v. Drucker, 418 N.Y.S.2d 744 (N.Y. Crim. Ct. 1979); O’Reilly v. New York Times Co., 692 F.2d 863 (2d Cir. 1982); Ryslik v. Krass, 652 A.2d 767 (N.J. Super. App. Div. 1995). The priest cases didn’t involve headgear, but one can easily imagine similar issues arising as to nuns’ habits, including their headgear.

And nearly all the appellate courts that have considered the matter have expressly held that such rules should not be so applied to people who wear headgear or religious garb for religious reasons. For instance, a Seventh Circuit opinion by noted conservative judge Frank Easterbrook put it well:

Continue reading ‘Georgia Judge Not Getting the Message on Religious Headgear in Court?’ »

So held a Kansas state trial judge in Purdum v. Purdum, 2011 WL 1430279 (Kan. Dist. Ct. Apr. 11, 2011), which dealt with a slander claim based on statements made in a church annulment proceeding. I doubt that this is right; the First Amendment ban on religious decisions by secular courts should preclude slander or libel lawsuits that require evaluation of religious statements (e.g., “X is a sinner,” “X violated God’s law,” “X is not a true Christian,” etc.), but I don’t think the First Amendment should preclude such lawsuits based on ordinary secular assertions (“X had sex with Y,” “X lied to me about this secular subject,” etc.). But I thought it was worth noting. An excerpt:

[T]he Free Exercise Clause of the First Amendment … appl[ies] in this case to protect the defendant’s confidential communications with her church or its representatives ….

The Court finds that, in this case, the statement is absolutely privileged as made pursuant to the defendant’s First Amendment right to Free Exercise of her religion. This case is virtually identical to that of Cimijotti v. Paulsen, 230 F. Supp. 39 (N.D. Iowa 1964). In Cimijotti, the plaintiff filed a slander suit against his ex-wife and two other women serving as witnesses in the religious tribunal for separate maintenance and divorce, and the plaintiff did not allege any publication outside of the religious proceeding.

The Cimijotti court held that,

“[t]o allow slander actions to be based solely upon statements made to the Church before its recognized officials and under its disciplines and regulations would be a violation of the First Amendment. The law withdraws from the State any exertion of restraint on the free exercise of religion. The freedom of speech does not protect one against slander, yet a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. This does not mean that in some instances it may not have to be disclosed, but nonetheless the person must not be prohibited, by fear of court action either civil or criminal against his person or property, from actually making the communication. Also, the court is not holding that it would not be actionable if communicated to other third persons. Likewise, it might be actionable if made outside strictly religious activities.”

In this case, the plaintiff does not allege that the statement was made to anyone other than the Archdiocese and the plaintiff himself. Disclosure to the plaintiff allowed the plaintiff notice and an opportunity to participate in the ecclesiastical proceeding. Furthermore, neither party disputes that the annulment of a sacramental marriage in the Catholic Church is a required religious proceeding if the Catholic individual ever wants to enter into a sacramental marriage again. As held by the Cimijotti court, an individual’s right to engage in the free exercise of his or her religion is protected by the First Amendment; this is especially true when a penitent communicates with his or her minister. To hold otherwise, would require individuals to defend themselves in civil court for statements made during required religious proceedings, even if the statements are later determined to be true.

Therefore, the statements made by the defendant under the circumstances of this case, even if false, are absolutely privileged by the First Amendment right to free exercise….

Note that the case doesn’t seem to involve a state law privilege for confidential penitential communications (such as confessions). Rather, the court finds that there’s an absolute Free Exercise Clause privilege — one that can’t be overcome even based on a showing that allowing liability is narrowly tailored to serving any possibly compelling government interest — regardless of what state law mandates.

This is the bill I blogged about last week; Monday, Gov. Brewer vetoed the bill. The Verde Independent reports that the governor warned of a risk that the protection might be “abuse[d],” and though she offered no specific details,

[The Governor's] office made public a letter she got from the head of the Peace Officers Standards and Training Board pointing up one potential problem.

“Polygamy is prohibited by the Arizona constitution but it is not criminal conduct in Arizona,” wrote Lyle Mann, executive director of the organization …. He said three police officers have had their certification revoked because they practice polygamy.

[Mann] said AzPOST revoked certification of two other officers in the polygamous community of Colorado City. He said the pair had corresponded with Warren Jeffs, leader of the Fundamentalist Church of Latter-Day Saints, while Jeffs was a fugitive, but refused to provide information that might have helped locate him.

“They claimed that their protection of the fugitive was a religious practice,” Mann wrote to the governor.

“Under this law, it could be argued that following the direction of the church, rather than the constitution and code of ethics, is a right and the state may not intervene to protect its citizens from what appeared to be a church-controlled police force,” Mann said.

Gov. Brewer is apparently open to signing a narrower bill. If anyone can point me to the full text of the governor’s veto message, or of the Peace Officers Standards and Training Board letter, I’d be much obliged. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: Thanks to commenter Robert for passing along a pointer to the veto letter.

UPDATE: The Arizona governor has vetoed the bill.

This bill was passed by the Arizona Legislature and, this Monday, sent to the Governor for signature:

A. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person’s exercise of religion.

B. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person’s refusal to affirm a statement that is contrary to the person’s sincerely held moral or religious beliefs, regardless of whether those beliefs are specifically espoused by a recognized church or religious body.

C. A person’s exercise of religion is not unprofessional conduct.

D. Government shall not deny a person a position on a board, commission, committee or public body based on the person’s religious beliefs or exercise of religion.

E. This section does not authorize any person to engage in [any sexual conduct proscribed by the person's licensing board or agency, not including religious expression or beliefs,] or any criminal conduct. Criminal conduct does not include religious expression or beliefs.

The section would be added to the Arizona version of the Religious Freedom Restoration Act, and the RFRA defines “exercise of religion” as “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.” (Despite the somewhat confusing reference to “the ability to act,” this has been interpreted as basically meaning “religiously motivated action or religiously motivated refusal to act.”) So this doesn’t just protect religious speech, or the holding of religious beliefs. Rather, it creates a religious exemption from generally applicable licensing and professional discipline conditions.

But what a religious exemption! Other religious exemption regimes generally fit two molds. Some are focused on exemptions from specific obligations (e.g., the conscientious objector exemption from the draft, or the clergy-penitent) privilege. Others apply to a broad range of laws, but provide a qualified exemption that can be overcome by a showing that granting the exemption would pose an “undue hardship” (that’s the Title VII standard for religious accommodation in employment) or would unavoidably undermine a compelling government interest (that’s the RFRA standard, the Free Exercise Clause standard from 1963 to 1990, and the constitutional standard under some state constitutions). In practice, the “compelling government interest” test has been applied fairly weakly here, and understandably so: Even supporters of religious exemptions recognize that there are many laws that need to be applied to people notwithstanding their religious objections. (For more on the subject, see my A Common-Law Model for Religious Exemptions article.)

Here, though, the exemption applies to all licensing and professional discipline laws (with the exception of those imposing discipline for criminal conduct or sexual misconduct), with no opportunity for the government to justify the denial of an exemption, however important its interest might be. It thus seems like, just to give a few examples:

1. A lawyer or psychotherapist who betrays client confidences because he feels a religious motivation to do so would be free from professional discipline.
2. A doctor who feels a religious motivation to affirmatively omit to tell a patient that one of her therapeutic options is an abortion — even when the patient is unaware that the doctor takes this approach, and thus is unaware that an abortion might even be a possibly helpful option — would be free from professional discipline.
3. Even a doctor who feels a religious motivation to affirmatively lie to a patient to prevent an abortion — on the theory that lying is religiously justified when necessary to prevent murder — would be free from professional discipline, unless this somehow fits in the category of criminal fraud (which I doubt).
4. A person who engages in racial, religious, or sexual orientation discrimination in his own business, based on a felt religious obligation to do so — even when his action is in violation of the law, because a court has held that the religious obligation doesn’t suffice to give him a legal immunity from antidiscrimination laws — couldn’t be denied a seat on a board that enforces antidiscrimination laws.
5. Likewise, a lawyer, psychotherapist, or a doctor couldn’t be denied a seat on an official professional regulatory body on the grounds that he has engaged in behavior noted in items 1 and 2.

And all this assumes that subsection E means that the section doesn’t prohibit discipline for criminal conduct. If the subsection simply means what it says, which is that it “does not authorize any person to engage in … criminal conduct,” then the list of possible problems would be even greater.

Of course, if one thinks that licensing and occupational discipline rules are a bad idea, and that all forms of professional misconduct should be dealt with only through the criminal and civil justice systems, then the examples above might not be so troublesome. But Arizona law rests on the assumption that such discipline rules are important tools for protecting clients, and sometimes third parties. Does it make sense to give absolute exemptions from such rules to religious objectors, or to religious and conscientious objectors? (Nonreligious conscientious objectors might be covered if “religious” is interpreted to include deeply felt nonreligious moral beliefs, though it’s possible that it might not be, given the inclusion of “moral … beliefs” in paragraph B but not the other paragraphs.)

Of course, this is just a statute, so perhaps the legislature thinks that it could deal with this by creating new statutory exceptions as problems come up. But that strikes me as a rather inefficient and dangerous option. I would think that if such broad exemption regimes are created, courts should have some way of recognizing that some professional regulations are important enough that they must be applied to everyone, and that simply having a religious objection can’t immunize one from professional discipline. Or am I missing some important limitations on this statute, or some important arguments for why the statute is nonetheless a sound idea?

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