So asks a Pajamas Media column by Prof. Ronald Rotunda (whose work on other matters I generally much respect, by the way). Except that it turns out that D.C. police are actually enforcing the good old American law of trespass, by support a property owner’s choice about whom to allow on its property. Here the property owner is a mosque, but it could just as easily be an Orthodox synagogue, or a Catholic Church running a program only for priests, or for nuns, or for male congregants, or for female congregants. The mosque is seeking only the very same legal protection for its property rights that any other religious organization, and likely any other ideological organization, would have (at least in the absence of a constitutionally valid statute to the contrary, and the column doesn’t point to any such statute).
On to Prof. Rotunda’s column:
The Islamic Center, housed in a magnificent building in Washington, D.C., has been around for over a half-century, but it is seldom in the news. Unless you drive by (on Embassy Row) you would not know that it there. Because it is supposed to be a peaceful place of worship, we would not expect local police to enter.
Yet last March they did. Three D.C. Metropolitan police officers entered the center, at the direction of an imam, and removed six Muslim women. Their crime? They were worshiping peacefully in the main prayer hall after the imam announced that women were forbidden to enter that area.
What happened in Washington, D.C., should remind us of the peaceful sit-ins of the 1960s. The courts found that the police action removing people from private businesses violated the Equal Protection Clause.
In a series of cases the lower federal courts and the Supreme Court reversed convictions of black and white civil protestors who were convicted under state criminal trespass or disturbing the peace laws when they sat in the “white-only” section of various lunch counters and restaurants and refused to move after having been ordered to do so by the agent of the establishment.
Neither state nor federal laws at the time required the restaurants to serve blacks, but the courts found “state action” that violated Equal Protection. In Garner v. Louisiana (1961), for example, the Supreme Court reversed the convictions (under a state disturbing the peace statute) of those who had engaged in a sit-in, because the record was “totally devoid of evidentiary support” that petitioners caused any disturbance of the peace. They sat there quietly.
Peterson v. Greenville (1963) reversed the trespass conviction of blacks who had engaged in a lunch counter sit-in. The store manager asked the blacks to leave because integrated service was “contrary to local customs” and a local ordinance. The Supreme Court held that “these convictions cannot stand,” whether or not a local ordinance supported the store manager. In Lombard v. Louisiana (1963), decided the same day, the Court reversed the trespass convictions of three blacks and one white who had sat in a privately owned restaurant that served only whites. The case involved no statutes or ordinances, but the police did say that “no additional sit-in demonstrations … will be permitted.” Justice Douglas, concurring, argued that there was state action when the state judiciary “put criminal sanctions behind racial discrimination in public places.”
There are precious little differences between the sit-in cases of the 1960s and the Muslim sit-in cases. We knew, in the 1960s, that the Equal Protection Clause forbids discrimination based on color. We know now that the Equal Protection Clause forbids discrimination based on gender. We know that the lunch counters were open to anyone who wanted to eat, except blacks, or blacks had to sit at a special section. We know that the mosque is open to anyone who wants to worship God, except that women must sit at special places — sort of like “back of the bus.”
And we know that the discrimination based on race or sex could not exist without the help of the local police. The question is why the D.C. police — who have real crime to worry about — are spending their time and taxpayer dollars to enforce sharia law.
Our First Amendment protects the right of people to believe whatever they want to believe. But there are limits to how they can act on their beliefs. For example, a religion may believe that racial segregation is God’s way. They can believe that, but the state cannot aid that belief by, for example, giving federally subsidized loans to colleges that discriminate on the basis of race. The people of Washington, D.C., should not be enforcing shariah law.
Some thoughts in response:
1. To begin with, the Supreme Court never held that the Equal Protection Clause bars the police from enforcing a private property owner’s wishes when those wishes stem from discriminatory motives (even racially discriminatory motives). Some Justices would have so held, at least as to places that had traditionally been recognized as places of public accommodation. But they never got a majority. The Court
never decided “the constitutional question of whether the Fourteenth Amendment, without the benefit of the Civil Rights Act, operates of its own force to bar criminal trespass convictions, where, as here, they are used to enforce a pattern of racial discrimination.” The reversals of trespass convictions in the early 1960s sit-in cases rested on other grounds (such as that the racial discrimination was pursuant to a statute, ordinance, or police department policy, rather than just a private choice passively enforced by the government). Nor does Shelley v. Kraemer, which held that courts can’t enforce racially restrictive covenants related to the sale of housing, dispose of the matter — that courts may not enforce policies that require them to themselves decide people’s race, and act based on that decision (even pursuant to a contract written by someone else), doesn’t mean that government officials must refuse to enforce private decisions (even discriminatorily motivated ones) in which the property owner says, “Please eject this, this, and this person, whom I don’t want on my property.”
Moreover, apparently even those who argued that the Equal Protection Clause itself barred enforcement of private property owner’s discriminatory ejection decisions suggested that it would not include religious institutions. As Justice Black, who believed that private property owners’ ejection decisions should not be governed by the Equal Protection Clause , described the argument, “It is argued that this supposed constitutional right to invade other people’s property would not mean that a man’s home, his private club, or his church could be forcibly entered or used against his will — only his store or place of business which he has himself ‘opened to the public’ by selling goods or services for money.” So there is no precedent-based reason to conclude that, for the sake of consistency, the police decision to eject the would-be worshippers was unconstitutional.
2. Nor should there be any such precedent set today. Antidiscrimination statutes cover particular areas of life, with particular exemptions; those are legislative choices, which can come and go. In the absence of such a statute, a property owner should be free to choose whom he allows on the property, and he should be able to call on the police to enforce this choice and protect his property rights — without being quizzed about the reasons for his choice, and without risking the police leaving if it turns out that his reasons are somehow seen as inappropriate. I think this is true generally, but it is especially true of churches, other ideological organizations, homes, and so on. Yet the analysis in the Pajamas column would suggest that the Equal Protection Clause bars the police from protecting property owners’ choices in all such cases, since there’s no limiting principle in the Clause that would distinguish the places once the Clause is seen as applicable to neutral police enforcement of private choices.
So if the column is right, then in all the following cases the police aren’t allowed to eject someone the property owner doesn’t want:
- An Orthodox synagogue that has separate seating sections for men and women calls the police to eject a man who is in the women’s section, or vice versa.
- A Catholic church that calls the police to eject rebel nuns from a meeting for male monks, or vice versa.
- A religious organization calls the police to eject people who aren’t members of the religious group from showing up at functions on its private property; note that the Constitution generally bars government discrimination based on religion to an even greater degree than it bars government discrimination based on sex.
- A girls’ school or women’s college — which is not barred by state or federal antidiscrimination law, since such laws generally exempt many such single-sex institutions — calls the police to eject a would-be male student who is showing up to class (and who would have been eligible for admission had he been female).
- A women-only health club, in a jurisdiction that doesn’t prohibit such clubs, calls the police to eject a male who insists on trying to work out there.
- A group of women who is having a party, whether at a home, at a local private club, or at a restaurant that they rent, that is generally open to community women calls the police to eject a man who wants to show up there.
- A male-only private club, in those jurisdictions that allow such clubs (note that federal law does not ban them) calls the police to eject a woman who shows up at its functions.
That cannot possibly be correct. Again, one can debate whether in some of those cases antidiscrimination statutes should be extended to cover those entities (though I think that the First Amendment would likely bar the application of antidiscrimination law to religious organizations’ membership decisions, just as it bars the application of antidiscrimination law to those organizations’ clergy hiring decisions. But there is no basis to read the Constitution as barring discrimination by such entities, or barring the police from ejecting whoever such property owners want ejected.
What’s more, if the police can’t eject the person, I take it that even the author of the Pajamas column would still allow the property owners to defend their property by themselves, for instance by using nonlethal force to eject the person. That’s an important right, that property owners sometimes have to exercise; but the legal system generally (and, I think, correctly) takes the view that, where possible, it’s better for law enforcement to take the lead in such cases, rather than leaving it entirely to self-help. Can it really be that the Constitution requires such self-help as the only means of protecting property rights when the property owner wants to limit certain functions on his property by sex, religion, or even race?
3. So I think the legal analysis here is unsound, and doesn’t acknowledge just how radical a change that analysis would require. But let me turn to the rhetoric. It is true that the imam’s actions were probably motivated by his understanding of Islamic religious law. Yet I take it the police don’t (and shouldn’t) give a whit about such law. As I said, they are enforcing the American law of property rights. They would, I assume, do the same if they were called by an Orthodox synagogue (which was acting based on its understanding of Jewish law), by a Catholic Church (which was acting based on its understanding of Catholic teachings), or by a girls’ school (which was acting based on its own secular preferences). Is it really sound to call this “police … enforcing Shariah law”?
Let me offer an analogy: Say that a Jewish religious group is organizing a big fair on its own property. It lets various food sellers onto its property (though without any promise that they can stay indefinitely). One of the food sellers starts selling bacon; the property owners ask it to leave, but it doesn’t, so they call the police. Of course, the property owner’s decision to not allow bacon sales on its property is motivated by its understanding of kosher law. But would we say that the police department’s defense of the property owner’s property rights involves the “D.C. Police … Enforcing Jewish Law”? Or would we say that it’s simply enforcing the D.C. law of trespass? I would think the latter is more accurate, and the former — with its suggestion that D.C. is making a choice in favor of enforcing Jewish law because it is Jewish — is misleading. Likewise here.
4. Also, what’s with the statement that, “Because it is supposed to be a peaceful place of worship, we would not expect local police to enter”? I would expect local police to enter peaceful places of worship whenever the place — like any other property owner — seeks the enforcement of secular law. If the place of worship had been vandalized, I would expect the police to enter to investigate. Same if the place had been burglarized, or if there was suspicion of embezzlement on the property and the organization had called the police about that crime. Why wouldn’t we expect local police to enter to enforce trespass law as well?
5. What we have here is not a religious group seeking any special benefit. Nor is it even seeking any special religious accommodation. All that is seeking is the enforcement of the law of trespass, on the same terms as any other property owner that is not covered by an antidiscrimination statute. It seems to me that the police were quite right to give it this protection, and would have been quite wrong if they had refused.