Archive | Religion and the Law

New Mexico Photographer Loses Discrimination Case

In Elane Photography v. Willock, the New Mexico state supreme court has decided to reject a professional photographer’s statutory and constitutional claims that she could not be required to photograph a lesbian couple’s commitment ceremony.  Filed under a state law barring discrimination based on sexual orientation in “public accommodations” (which nowadays is often defined to include small businesses that offer services to the public), the case has been kicking around in the state’s court system since 2006.  The next stop for the photographer would be the United States Supreme Court since there are First Amendment free speech and free exercise claims.

The decision comes down to three basic conclusions:

(1) The state’s antidiscrimination law applies.  Discrimination against a same-sex couple (married or not) is discrimination based on “sexual orientation” and is prohited in public accomodations under the statute.  That’s because the conduct of having, for example, a same-sex commitment ceremony (regardless of whether it’s a legal marriage or just a private celebration) is closely tied to homosexuality.  This conclusion seems right as a matter of logic and precedent.  Rejecting just such an attempt to distinguish conduct and status in Christian Legal Society v. Martinez, the Supreme Court held:

Our decisions have declined to distinguish between status and conduct in this context. See Lawrence v. Texas, 539 U.S. 558, 575, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.” (emphasis added)); id., at 583, 123 S.Ct. 2472 (O’Connor, J., concurring in judgment) (“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances,

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£85,000 Fine for Stating That It’s Permissible to Kill Anyone Who Disrespects Mohammed

The PressGazette (UK) reports:

Ofcom [the UK communications regulatory body] has fined an Islamic TV channel £85,000 after it broadcast statements saying it was acceptable to murder anyone who disrespects the Prophet Mohammed.

The decision appears to be the one that starts on p. 18 of this document; Ofcom found that Noor violated the prohibition (Rule 3.1) on “Material likely to encourage or incite the commission of crime or to lead to disorder must not be included in television or radio services,” and the mandate (Rule 4.1) that “Broadcasters must exercise the proper degree of responsibility with respect to the content of programmes which are religious programmes.” Noor is “a digital satellite television channel that broadcasts programmes about Islam in a number of languages, including English, Urdu and Punjabi,” which “can be received in the United Kingdom, Europe, Africa, the Middle East and Asia”; the program, mostly in Urdu, involved a presenter (Allama Muhammad Farooq Nazimi) answering questions about Islam:

At approximately one hour and 18 minutes into the programme Mr Nazimi answered a question from a caller, who was identified as “brother Yasir Nahif” (“Mr Nahif”), who asked:

“What is the punishment for the individual who shows disrespect for Prophet Muhammad?”

In response to the question from Mr Nahif, we noted the following remarks made by Mr Nazimi:

“There is no disagreement about this [the punishment]; there is absolutely no doubt about it that the punishment for the person who shows disrespect for the Prophet is death. No one [among the Islamic scholars] disagrees about this. No one disagrees about this. The Koran, hadeeth [orally transmitted quotes of Prophet Muhammad], the actions of the companions of Prophet Muhammad, all testify to this [punishment] and there is no room for doubt in it. Whoever shows disrespect for Prophet

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“Mature Minors” and Refusal of Likely Life-Saving Treatment

In re Sheila W. (Wisc. July 10, 2013) involves this issue, though the court declines to reach the question on grounds of mootness:

The petitioner, Sheila W., is a minor who was diagnosed with aplastic anemia. She opposed on religious grounds any life-saving blood transfusions and her parents supported her position. [Sheila W. is a Jehovah’s Witness. -EV]

The circuit court appointed a temporary guardian under Wis. Stat. § 54.50 for the purpose of deciding whether to consent to medical treatment. Sheila W. appealed, but the order appointing a temporary guardian expired while the case was pending before the court of appeals. The court of appeals then dismissed the appeal, concluding that the issues presented are moot and that the appeal does not sufficiently satisfy the criteria to address the merits regardless of mootness. Four issues are presented for our review:

First, notwithstanding mootness, should this court decide this case on the merits because it involves matters of statewide importance that are capable of repetition yet evade appellate review? Second, does Wisconsin recognize the mature minor doctrine, which may permit a minor to give or refuse consent to medical treatment after a finding that she is sufficiently mature and competent to make the treatment decision? Third, does a mature, competent minor have an enforceable due process right to refuse unwanted medical treatment? Fourth, did the circuit court violate Sheila W.’s common law and constitutional right to refuse unwanted medical treatment by appointing a temporary guardian to determine whether to give consent to medical treatment over her objections?

The court concluded the issue was moot because a transfusion was indeed ordered and performed, the guardianship then expired, and there was no plan to require further transfusions. And the court declined (by a 4-3 vote) to use the “capable of repetition yet [...]

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Foreign Judgments in American Courts Based on Overseas Solicitation of Religious Donations

Ohno v. Yasuma (9th Cir. July 2, 2013) offers a very detailed discussion of the matter. Here’s the introduction, the statement of facts, and the conclusion; look at the opinion itself for the reasoning:

Our case involves novel issues concerning the enforcement of foreign-country money judgments that assertedly implicate the defendant’s freedom of religion. Naoko Ohno sued Yuko Yasuma and the Saints of Glory Church (collectively, “the Church”) in Japan, alleging that they had tortiously induced her to transfer nearly all of her assets to the Church. The Japanese courts awarded Ohno a $1.2 million tort judgment.

The Church contends that the judgment imposes liability for its religious teachings, in violation of its constitutional right to free exercise of religion. The Church makes two principal arguments on appeal: (1) that the district court’s recognition and enforcement of the Japanese judgment is unconstitutional as a direct violation, by the court, of the Free Exercise Clause in the U.S. Constitution and the parallel provisions of the California Constitution, U.S. Const. amend. I; Cal. Const. art. I, § 4; and (2) that the Japanese judgment is not entitled to recognition or enforcement under California’s Uniform Foreign-Country Money Judgments Recognition Act, Cal. Civ. Proc. Code §§ 1713–1724 (“Uniform Act”), because it is “repugnant to the public policy” embodied in the Religion Clauses.

We hold, first, that the district court’s recognition and enforcement of the Japanese money judgment does not constitute “state action” triggering direct constitutional scrutiny and, second, that neither the Japanese judgment nor the cause of action on which it was based rises to the level of repugnance to thepublic policy of California or of the United States that would justify a refusal to enforce the judgment under the Uniform Act. Accordingly, we affirm the district court’s judgment in Ohno’s favor….

Ohno, a

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Judge Holds That Particular Sorts of Yoga Classes in Public School Are Constitutionally Permissible

The L.A. Times reports:

Dean Broyles, president and attorney for the Escondido-based National Center for Law and Policy, had filed a lawsuit on behalf of a couple with two children in the [Encinitas Union School District]. The suit sought to have the program ousted as a violation of state law prohibiting the teaching of religion in public schools….

Students attend two 30-minute yoga sessions each week. The yoga program has been supported by a $533,000 grant from a local studio that teaches Ashtanga yoga.

The studio is linked to the Jois Foundation, supported by hedge-fund billionaire Paul Tudor Jones II and his wife, Sonia, who were followers of yoga teacher Krishna Pattabhi Jois. Jois, whose devotees included Madonna and Sting, stayed briefly in Encinitas.

Encinitas schools Supt. Tim Baird has said that the program is worthwhile in teaching healthy exercise and eating habits. He said he hopes that teaching yoga to students will decrease instances of fighting and bullying….

Here’s the judge’s reasoning from a minute order in Sedlock v. Baird, No. 37-2013-00035910-CU-MC-CTL (San Diego County Super. Ct. July 1, 2013):

The court states the issue is the first amendment and no other things. The court states that its question is “Is yoga a religious activity?” The court states that the district says it is not and the court needs to make a determination if it is or is not.

The court reads excerpts from case law and Dr. Brown’s testimony. The court determines yoga is religious. The court then needs to determine if EUSD (Encinitas Unified School District) yoga is to be taught in the school district.

The court states that the seminal case is the Lemon case. The court states that the “Lemon Test” is a three pronged test. The first prong is to determine whether

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Bill to “Protect Christmas and Thanksgiving”

The Missouri Legislature just passed a bill, introduced by Rep. Rick Brattin, aimed to “protect Christmas and Thanksgiving” (the AP’s paraphrase of the representative); the representative “said Christmas has particularly come under criticism from groups seeking to wipe out public references to religion. ‘In schools, especially, they’re not even allowed to mention the word[.]'” The bill provided,

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

Fortunately, someone on Governor Jay Nixon’s staff actually considered what the bill would do, rather than just what it’s meant to do, and the Governor vetoed it; here’s an excerpt from the veto message:

House Bill No. 278 would prohibit governmental entities from regulating activities relating to “federal holidays.” The legislation would cover a wide scope of activities falling within the undefined terms of “practice” and “celebration.” House Bill No. 278 constitutes a direct assault on local government authority and curtails the flexibility that cities and counties need to address pressing public health and safety concerns. Indeed, House Bill No. 278 does not contain a public safety exception. As a result, local governments would be hampered in their efforts to enforce existing fireworks ordinances around July 4th. More troubling, House Bill No. 278 would greatly frustrate a ban on fireworks imposed during a period of severe fire risk. During 2012, as much of Missouri experienced drought conditions and large fires put Missourians and their property in peril, many jurisdictions prudently passed fireworks bans. If House Bill No. 278 were to become law, individuals would be permitted to circumvent such bans by simply claiming the fireworks were being used to celebrate July 4th or other federal holiday. Restricting local

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When You’re a Schoolteacher Observing a Tuesday Sabbath, You’re Likely to Have Problems

From Slocum v. Devezin (E.D. La. June 3, 2013):

Here, Defendants do not challenge the sincerity of Plaintiff’s religious convictions or that part of her religion — her Sabbath [which runs from 10 am Tuesday to 10 am Wednesday each week] — conflicts with her employer’s requirement that she work on Tuesdays…. Assuming for the purposes of the pending motion to dismiss that a prima facie case is established, the burden shifts to Defendants to show that it was unable to reasonably accommodate Plaintiff’s religious needs without undue hardship….

Here, Plaintiff teaches special education at an elementary school. Class is held from Monday through Friday. Accommodating Plaintiff’s request to take off every Tuesday would require Defendants to hire a substitute teacher every week, or a part-time employee to cover every Tuesday, in addition to paying Plaintiff’s salary, or perhaps would require her students to sit with another teacher’s class — overloading the student-teacher ratio. Such accommodations appear even more burdensome than those contemplated in Hardison or Eversley. Therefore, this Court finds that obliging Plaintiff’s request and accommodating her religious practices in this regard would require Defendants to bear more than a de minimus cost, and as such would be an “undue hardship.” Accordingly, on the face of Plaintiff’s complaint, and accepting all of her allegations as true, Plaintiff cannot establish that Defendants were in violation of Title VII of the Civil Rights Act of 1964 by denying Plaintiff her request for time off every Tuesday for her Sabbath, and Plaintiff’s claims for religious discrimination will be dismissed with prejudice.

Sounds correct to me; Title VII requires reasonable accommodation, which courts have interpreted as accommodation that doesn’t impose much of a burden on the employer. In some situations and job categories, requests for time off for religious observance can [...]

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“Airport Garage Now Muslim House of Worship”

So reads the title of a column by political writers Matier & Ross at

Muslim cabbies now have their very own place at San Francisco International Airport to wash their hands and feet before they pray.

Under Islamic law, Muslims are required to pray five times a day — a ritual that also calls for a ceremonial cleansing.

For many cab drivers, that’s meant either lugging bottled water around or using one of the bathrooms inside the terminal to wash — a practice not always welcomed by airport passengers.

So Royal Cab driver Hasan Khan, 52, a Pakistani immigrant, collected some 300 signatures from fellow cabbies, urging the airport to give them their own cleansing station.

Airport brass obliged — and the wash equipment was installed on the ground floor of the main garage, right next to where the drivers congregate for their breaks.

“The way we look at it … this was in the interest of maintaining a good relationship with ground transportation providers,” says airport spokesman Doug Yakel.

Various commenters are upset at this; consider, for instance, this American Thinker post:

Right: ‘maintaining a good relationship” means not getting your head cut off. One can’t imagine that evangelicals, Jews, Catholics, Mormons or any other religious group would receive this kind of exclusive use of city-owned property. But then again, where are the beheadings undertaken by fanatical evangelicals, Jews, Catholics, or Mormons?

Sharia creeps in on cat’s feet, out of the San Francisco fog.

This sort of criticism, it seems to me, misses just how commonly lots of religious groups — and usually Christian ones — are accommodated by the government. One can debate the wisdom of any particular accommodation (though this one seems quite sensible), or the wisdom of the general practice of religious accommodation. [...]

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EEOC Claims Trucking Company Must Accommodate Muslim Employee’s Religious Objections to Transporting Alcohol

That’s the argument made in EEOC v. Star Transport Co. (C.D. Ill. filed May 29, 2013), a lawsuit brought by the EEOC on behalf of two employees, Mahad Abass Mahamed and Abdikarim Hassan Bulshale. (Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.) Pamela Geller (Atlas Shrugs) condemns this, writing, among other things,

Islamic supremacists chip, chip, chip away at the establishment clause, and in doing so, impose Islam on the secular marketplace. Muslim lawsuits against Hertz, Wal-Mart, Target, Disney and a host of other American businesses for special rights, special accommodation have been largely successful creating a special rights for a special class of people — which is an accordance with Islam (in which Muslims are superior to the kuffar). But it goes against every American tenet of individual rights and separation of mosque and state. Someone ought to remind the EEOC that their name is Equal Employment Opportunity Commission. Equal as in no special rights for any particular class.

Others make similar arguments (see, e.g., here, here, and here).

The responsibility, however, lies not in the EEOC, but in the Congress, specifically in the Congress that in 1972 required employers to make “reasonable accommodations” that exempt religious objectors from generally applicable work rules. I summarize some of the general rules imposed by federal religious accommodation law here, but the brief summary is this: 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). As one might gather, this was not enacted at the behest of “Islamic supremacists,” though other [...]

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Puns as Legal Analysis

A comment reminded me of this passage from Justice Stevens’ opinion in County of Allegheny v. ACLU:

It is also significant that the final draft [of the Establishment Clause] contains the word “respecting.” Like “touching,” “respecting” means concerning, or with reference to. But it also means with respect — that is, “reverence,” “good will,” “regard” — to. [Footnote: “Respect,” as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster’s Ninth New Collegiate Dictionary 1004 (1988).] Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion.

This seems to be a very weak argument — more a play on words than legal analysis.

First, the Clause doesn’t ban laws respecting religion. It bans laws respecting an establishment of religion.

Second, the fact that an English word has multiple meanings doesn’t mean all those meanings are applicable in each context. Indeed, any usage of a word in a legal document (rather than in a joke or in a poem) is usually understood as triggering just one meaning, at least when the meanings are relatively far removed from each other.

For instance, one can debate what “common law” means in the Seventh Amendment protection of a jury trial in suits “at common law,” since at various times (and even at the time of the Framing) “common law” has meant several things: (1) judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes, (2) a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law [...]

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New Establishment Clause Case for the Supreme Court

The Court just agreed to hear Town of Greece v. Galloway, a case involving legislative prayer. In Marsh v. Chambers (1983), the Supreme Court upheld legislative prayers against an Establishment Clause challenge, based on the very long American tradition of such prayers (dating back to the same First Congress that proposed the Establishment Clause); nonetheless, the scope of Marsh is unclear, and in particular it’s unclear to what extent legislative prayers might be seen as unconstitutionally preferring a particular religion or denomination.

Or that at least is the narrow question raised by the case. But I think it’s also possible that the Court may use the case as a means of reconsidering the “endorsement test,” under which the Establishment Clause is read as barring government speech (or even government action) that a “reasonable observer” would see as “endorsing or disapproving” of religion (either a particular religion or religion generally). The test has long been controversial; it was relied on by the decision below, so it’s very much in play in this case; and I suspect that there are five votes to overrule it. (Justices Kennedy, Scalia, and Thomas are on the record as rejecting it, and I suspect Chief Justice Roberts and Justice Alito take a similar view.) Should be a very interesting decision, which will be out in the first half of next year. [...]

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Proposed California Bill Would Strip Youth Groups’ Sales Tax Exemption If They Discriminate Based on Sexual Orientation or Religious Affiliation

The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might well be similar proposals with regard to the nonprofit property tax exemption, the charitable institution income tax exemption, and the tax deductibility of contributions to such institutions. (I assume the argument would be, “We already strip these groups of the sales tax exemption, how are the newly proposed property tax/income tax exemptions any different?”)

I doubt that this is a good idea, but I do think it is constitutional: As I’ve argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups’ expressive association rights — just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court’s decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have be to defeated in the political process, not in court. So far, it has cleared a State Senate committee.

Thanks to Nick Lum for the pointer. [...]

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Canon Law in American Courts, or, Real Nun or Fake Nun?

From McCarthy v. Fuller (7th Cir. Apr. 10, 2013), an interesting opinion by Judge Posner (some paragraph breaks added), with the first appearance of “exclaustration” in a Westlaw-accessible American court decision:

These three interlocutory appeals arise from a complicated and acrimonious litigation, charging RICO, trademark, and copyright violations along with Indiana torts, that has been percolating in the district court for almost five years. The origins of the litigation go back to 1956, when Sister Mary Ephrem …, a Catholic Sister of the Congregation of the Sisters of the Most Precious Blood of Jesus …, had experienced a series of apparitions of the Virgin Mary, in the course of which Mary had told Sister Ephrem (according to the latter’s report): “I am Our Lady of America.”

The Archbishop of Cincinnati … was convinced of the truth of her report of the apparitions, and with his support an elaborate program of devotions to Our Lady of America was launched. Our Lady has been credited with healing sick people who appealed to her for a cure, although whether either the apparitions or the cures are authentic has not been ruled on by the Congregation for the Doctrine of the Faith, the body within the Roman Catholic hierarchy that is responsible for making such determinations.

Perhaps inspired by her visions, Sister Ephrem joined with other sisters within the Congregation of the Sisters of the Precious Blood in seeking to form a “contemplative cloister” — a “strictly cloistered house for members of the [Congregation] who were principally dedicated to a contemplative life.” In 1965 Pope Paul VI approved the creation of the cloister, in New Riegel, Ohio, designating it a “papal enclosure.” … The New Riegel cloister lasted until at least 1977, when its three surviving members, including Sister Ephrem and Sister Mary

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North Carolina Legislators Arguing That the Establishment Clause Should Be Seen as Not Incorporated Against the States by the Fourteenth Amendment

A bunch of readers pointed me to a North Carolina bill that would express the legislators’ view that the Establishment Clause shouldn’t be seen as applicable to the states, so I thought I’d offer some general thoughts about the subject. Here is the bill, in relevant part:

The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

Recall that the Bill of Rights originally didn’t apply to the states, and indeed several states (not including North Carolina) had official establishments of religion at the time the Bill of Rights was enacted, with the last being disestablished in the 1830s. It’s the Fourteenth Amendment that has been read as applying the Bill of Rights to the states, through its statement that “nor shall any State deprive any person of life, liberty, or property, without due process of law,” though many scholars and some judges have argued that the incorporation should have taken place through another clause of the Amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

And a few scholars and judges have indeed argued that this language should not be read as incorporating the Establishment Clause; the most prominent examples have been Justice Thomas and Prof. Akhil Amar. The chief argument for this view is that the Establishment Clause was originally understood as a federalism guarantee, with the ban on federal laws “respecting an establishment of [...]

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Another Example of Unconstitutional Religious Discrimination in Virginia Marriage Law

Co-blogger Eugene Volokh recently linked to a Virginia state court decision striking down as unconstitutional a state law that allowed religious societies without official clergy to designate only one member as having the power to perform wedding ceremonies, while religious groups that do have clergy can designate more. The court concluded that the First and Fourteenth Amendments bar this law because “The General Assembly [Virginia’s state legislature] cannot favor one type of religion over another without a compelling government interest and a narrowly tailored method.”

I think the same reasoning should lead to the invalidation of another form of religious discrimination in the marriage law of our beloved Commonwealth, which I blogged about in this 2009 post:

My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for. Unfortunately, however, Judge Smith lives in Texas. This would be fine under state law if he were a minister or other religious leader; but secular wedding officiants must be state residents.

Virginia law allows any minister of a religious denomination to perform a wedding, even if he or she is not a resident. The same applies to religious leaders of faiths that don’t have any official ministers. Similarly, state law allows any Virginia resident to perform a wedding if he posts a bond, and permits federal and state judges resident in Virginia to officiate even without posting a bond. However, Virginia does not allow out-of-state judges or any other nonresident secular personages to officiate. Thus, we have a clear case of discrimination on the basis of religion. Nonresident ministers and other religious leaders can perform weddings in Virginia; but nonresident secular leaders cannot. This holds true even if the secular figure and the

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