Wednesday, May 15, 2013
Most ConLawProfs would agree that First Amendment doctrine suffers from incoherence, but fewer may agree that institutionalism is the solution, and even those who do favor institutionalism may differ on their selection of the institutions deserving deference.
But for anyone teaching or writing in the First Amendment, Horwitz's book deserves a place on a serious summer reading list. My longer review appears in Law and Politics Book Review.
Wednesday, April 3, 2013
North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause. The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.
But the bill doesn't just take aim at the Establishment Clause. It also challenges federal supremacy and takes on federal judicial review. Here are some of the whereases:
Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .
Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and
Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and
Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .
Here's the punch-line:
Section 1. 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.
Section 2. 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 subdivision of the State from making laws respecting an establishment of religion.
Monday, April 1, 2013
In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.
Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints. The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed. Batts dispatched this argument with a rehearsal of the causal connections:
But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.
She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.
The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.
In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971). The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion. Judge Batts found it important that
there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.
She disagreed that the size of the cross was determinative. First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall. Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."
As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review. The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history. The museum has the choice whether or not to include atheistic symbols.
Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful. It looks as if the September 11 Museum will include the seventeen foot cross.
Friday, March 1, 2013
The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.
The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center. The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene. The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused. So the Foundation asked the Mayor to include its sign in the display; the sign read:
At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, No heaven or hell. There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.
The Mayor declined. He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment. The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech. The Sixth Circuit rejected the claims.
The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally. (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling." Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.)
The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech. The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.
Wednesday, February 20, 2013
In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions.
The operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant. At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.
Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment. Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,
while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.
On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation. The panel, assuming again that the allegations were true, held that the prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs." the panel provided some guidance to the lower court (and counsel): at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.
The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants. But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.
[image: Wiccan symbol via]
Friday, February 1, 2013
HHS today issued proposed new rules on the contraception coverage requirement under the Affordable Care Act, including new exemptions for religious employers. The proposed rules come on the heels of a spate of litigation by religious employers challenging the contraception coverage requirement as violating their religious liberties.
The D.C. Circuit most recently rejected these claims based on the administration's promise to issue new regs exempting religious employers, but the court also retained jurisdiction over the case, holding it in abeyance, to monitor the administration's adoption of new rules. The United States District Court for D.C. similarly recently rejected the claims, but declined to retain jurisdiction and dismissed the case.
According to HHS, the proposed rules allow non-profit religious organizations that object to contraception on religious grounds to side-step the ACA's contraception mandate, but still give employees free access to contraception. Here's how it'll work:
The proposed rules lay out how non-profit religious organizations, such as non-profit religious hospitals or institutions of higher education, that object to contraception on religious grounds can receive an accommodation that provides their enrollees separate contraceptive coverage, and with no co-pays, but at no cost to the religious organization.
With respect to insured plans, including student health plans, these religious organizations would provide notice to their insurer. The insurer would then notify enrollees that it is providing them with no-cost contraceptive coverage through separate individual health insurance policies.
With respect to self-insured plans, as well as student health plans, these religious organizations would provide notice to their third party administrator. In turn, the third party administrator would work with an insurer to arrange no-cost contraceptive coverage through separate individual health insurance policies.
The proposed rules also simplify and clarify the definition of "religious employer" for the purpose of exemption from the contraceptive coverage requirement.
The proposed rules are the first step in issuing new regulations. HHS will collect comments on the rules until April 8, 2013, and then move forward on finalizing them.
Tuesday, January 15, 2013
The First Circuit ruled today in ACLU of Massachusetts v. Sebelius that the ACLUM's Establishment Clause challenge to a government contract with the United States Conference of Catholic Bishops was moot after the contract expired and after the USCCB failed in its bid to win a new contract. The ruling reverses an earlier district court ruling for the ACLUM on both mootness and the merits.
The case arose out of an HHS contract with the USCCB to provide services to human trafficking victims in the United States under the Trafficking Victims Protection Act. USCCB won the contract, even with its statement that it "could not provide or refer for abortion services or contraceptive materials" for trafficking victims under the contract. The ACLUM lodged a taxpayer suit for declaratory and injunctive relief, arguing that the contract violated the Establishment Clause.
The district court ruled for the ACLUM on the merits. It said that HHS violated the Establishment Clause either by endorsing or appearing to endorse USCCB's religiously based views, or by impermissibly delegating authority to USCCB to impose those views on others. As to standing, it said that the case fell under the "voluntary cessation" exception to the mootness doctrine.
The First Circuit reversed. It ruled that the contract expired, leaving no case or controversy, and that it didn't satisfy requirements either for "voluntary cessation" or capable-of-repetition-but-evading review. Key to the court's holding was that the ACLUM asked only for injunctive relief, and that HHS denied a new contract to the USCCB.
The ruling ends the case and means that we won't get a final merits decision on the Establishment Clause claim, except in the highly unlikely even that the case goes to the full First Circuit or the Supreme Court.
Saturday, December 22, 2012
A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses. The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion. The ruling almost certainly ends this long-running case in favor of the City.
California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ." Cal. Const. art. XVI Sec. 5. The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.
The Ninth Circuit said the lease satisfied the four-part test. It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government. (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)
The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it. The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.
December 22, 2012 in Cases and Case Materials, Comparative Constitutionalism, Establishment Clause, News, Opinion Analysis, Religion, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, November 5, 2012
A three-judge panel of the D.C. Circuit ruled in In re Navy Chaplaincy that Navy chaplains have standing to lodge their Establishment Clause claims against the Navy's chaplain promotion policies. The court also ruled that the lower court issued insufficient factual findings for it to review the chaplains' likelihood of success on the merits in evaluating their motion for a preliminary injunction. The court thus reversed the lower court ruling and remanded for further findings. In short, the ruling means that the case will go back to the lower court for additional findings related to one of the chaplains' Establishment Clause claims on their motion for a preliminary injunction.
The chaplains argued that Navy policies violated the Establishment Clause in two ways. First, they argued that the Navy improperly delegated government authority over promotion decisions to a religious entity by allowing chaplains themselves to make promotion decisions without sufficient, secular standards. Next, they argued that the Navy's promotion procedure--small selection boards, secret votes, and the appointment of the Chief of Chaplains as president--have resulted in denominational discrimination and, if not, will likely result in such discrimination in the future.
The district court ruled that the chaplains lacked standing (because they alleged future speculative harms, not imminent harms) and that they were unlikely to succeed on either substantive claim. It thus dismissed the case and alternatively rejected the chaplains' motion for a preliminary injunction.
The D.C. Circuit reversed. It ruled that the chaplains had standing, because they challenged actual policies that the Navy planned to use in the future, and because at least some chaplains will probably appear before selection boards in the near future. Comparing the case to City of Los Angeles v. Lyons the court wrote, "Unlike in other cases, like Lyons, where plaintiffs speculated about the very existence of the unwritten discriminatory practices at issue, here the Navy acknowledges that the challenged policies and procedures not only exist, but will continue to govern the conduct of future selection boards." Op. at 9.
The court agreed with the district court that the chaplains were unlikely to succeed on their first substantive claim--the one about delegation of authority to a religious entity without standards. (The court wrote that there were standards, making this case a "far cry from the 'standardless' delegation scheme at issue in [Larkin v. Grendel's Den, Inc.]." Op. at 14. But the court said that the lower court didn't issue sufficient facts for it to evaluate the second claim--the one about the likely discriminatory effects of the promotion procedure. It thus remanded the case for findings on this claim.
Thursday, October 11, 2012
Judge Reggie Walton (D.D.C.) remanded a religious service organization's appeal of its denial of a USDA loan to the agency for review of the constitutional claims involved in the appeal. The ruling in Care Net Pregnancy Center v. USDA means that the agency will take the first crack at the Free Exercise and Establishment Clause and free speech claims in the case.
Care Net applied for a USDA loan through the Community Facilities Loan Program, which makes and guarantees loans to non-profits and others for essential services in rural areas. Care Net intended to use the loan to purchase property for its "Learn to Earn" program, including classes that help clients prepare for parenthood and option Bible study. Care Net proposed to host its optional Bible study after hours in the same space as its parenting classes and thus claimed that its optional Bible study--the only religious aspect to its program--added no cost to the purchase and renovation of the property. In short, the religious aspect of the program merely piggy-backed on the secular aspect.
The USDA nevertheless denied the application, stating that the project was not eligible under agency regs. Care Net appealed to a USDA hearing officer, arguing, among other things, that the denial violated free speech and the Free Exercise Clause; the agency said that granting the application would violate the Establishment Clause.
The hearing officer affirmed the agency's denial of Care Net's application based on an agency reg that reads in relevant part,
Where a structure is used for both eligible and inherently religious activities, direct USDA assistance may not exceed the cost of those portions of the acquisition, construction, or rehabilitation that are attributable to eligible activities in accordance with the cost accounting requirements applicable to USDA funds.
7 C.F.R. Sec. 16.3(d)(1). The hearing officer wrote that Care Net failed to provide sufficient information about its program to allow the USDA "to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion." The officer rejected Care Net's argument that the regulation allowed the agency to issue a loan for the full amount of the project, when the religious portion of the project merely piggy-backed on the secular portion (and didn't add anything to the cost). The officer declined to address any constitutional claim, however, beyond the statement that Care Net's proposed use would cause excessive entanglement with religion. (The officer wrote that his role was simply to apply agency regs, not to rule on their constitutionality.)
Judge Walton affirmed the hearing officer's interpretation of the regulation--that the regulation prohibited loans for projects that didn't sufficiently segregate the costs of religious and secular components--but remanded the case for consideration of the religion clause claims and the free speech claim. Quoting D.C. Circuit law, Judge Walton wrote that "[a]gencies . . . have 'an obligation to address properly presented constitutional claims which . . . do not challenge agency actions mandated by Congress,'" in order to ensure against premature or unnecessary constitutional adjudication and to give the courts teh benefit of the agency's first-crack analysis.
Wednesday, August 1, 2012
The Sixth Circuit ruled today in Satawa v. Macomb County Road Commission that the Commission's rejection of a permit for a private display of a creche in the median of a public highway violated free speech and equal protection, but not the Establishment Clause.
The ruling sends the case back to the trial court to proceed on the free speech and equal protection issues. But unless something changes as the case unfolds beyond summary judgment, the ruling also probably means that the creche can stay.
The case arose out of a family's year-after-year display, around Christmas, of a creche in the median of a public road in Macomb County, Michigan. Eventually, the Freedom from Religion Foundation complained, and the Commission asked the family to remove the display. When the family applied for a permit for the display the following year, the Commission declined. The Highway Engineer sent a letter to the family explaining that the denial was based on the County's concern, after consulting an attorney, that the display would violate the Establishment Clause.
The family sued, and the County changed its story. After the case was filed, the Engineer said that the Commission denied the permit for safety reasons. He even said that he consulted with Commission members on the safety questions outside of formal meetings. (The court said that these statements weren't credible, though: the Engineer's precise stated safety reasons changed; and the Engineer's meetings were disputed.) The district court granted summary judgment for the Commission on all of the plaintiffs' claims--free speech, equal protection, and Establishment Clause.
The Sixth Circuit ruled that the permit denial violated free speech and equal protection, but not the Establishment Clause. As to speech, the panel first determined the forum--a public forum. The panel explained:
The Mound Road median is difficult to define because it has objective characteristics typical of both public and non-public fora. Like a public park . . . the median is landscaped and has benches for people to use. It also contains "memorial trees and brass memorial plaques affixed to rocks." These plaques are discernable only from the median--they are too small to be read by a passing motorist. Across Chicago Road, in a similar median, is the gazebo, erected by the City of Warren Historical Society, which contains more space for people to assemble.
On the other hand, the median is in the middle of a busy eight-lane road, with a fifty-mile-per-hour speed limit. There does not appear to be any special parking area for the median, nor are there dedicated public restrooms. However, there is pedestrian access from a sidewalk that crosses the median and connects the two sides of Mount Road.
On balance, we hold that the Mound Road median is a traditional public forum. Residents of Warren apparently use the median for a variety of expressive purposes, such as the display of farm equipment (meant to show the historical nature of the village) and memorial plaques. The median, moreover, invites visitors. It contains park benches and is accessible by sidewalk. . . . A public sidewalk allows access to the median, and public benches populate it.
Op. at 15-16. The court said that the Commission's religious motivation in rejecting the permit triggered strict scrutiny; and the Commission's interest in avoiding an Establishment Clause violation was not compelling. Why? Because granting the permit and allowing the display would not have created an Establishment Clause problem in the first place. ("Where, as here, '[t]he State did not sponsor [the religious] expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups,' the government would not violate the Establishment Clause by granting the permit." Op. at 22-23 (quoting Capitol Square Review Board v. Pinette)).
As to equal protection, the court ruled that the Commission treated the private, fully protected religious display differently than other displays on the median; that the disparate treatment triggered strict scrutiny (because of the protected religious speech); and that the Commission couldn't meet this standard (for the same reasons it couldn't meet it under free speech analysis).
Finally, as the the Establishment Clause, the court ruled that the Commission denied the permit in order to comply with the Constitution--the very same Establishment Clause that the family claimed it violated. This, the court said, was a secular purpose having nothing to do with animosity toward religion.
Monday, July 23, 2012
In its en banc opinion today in Doe v. Elmbrook School District, the Seventh Circuit en banc found a First Amendment Establishment Clause violation when two high schools held their graduation ceremonies in a church.
The majority stressed the specific facts concluding that "the involvement of minors, the significance of the graduation ceremony, and the conditions of extensive proselytization prove too much for the [School] District’s actions to withstand the strictures of the Establishment Clause." It would be a "very different case," the opinion notes, "if a church sanctuary were the only meeting place left in a small community ravaged by a natural disaster." But here, the schools rented the church because the space had better seating and air conditioning, despite the large cross, the pews with Christian hymn books, and other religious literature and symbols.
Judge Flaum's careful opinion for the majority notes that the three-pronged test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), “remains the prevailing analytical tool for the analysis of Establishment Clause claims,” citing circuit precedent, and articulates the Lemon test: a governmental practice violates the Establishment Clause if it (1) lacks a legitimate secular purpose; (2) has the primary effect of advancing or inhibiting religion; or (3) fosters an excessive entanglement with religion. More importantly, Flaum highlighted the "endorsement test" (as part of Lemon's second prong) and the coercion test, certainly "less clear" in terms of its relation to the Lemon test. Considering the facts - - - and the "social facts" - - - Flaum's opinion concluded that in this instance the graduation in church conveyed a message of endorsement and could not be meaningfully distinguished from the Court's coercion precedent, Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
The dissenting opinion by Judge Ripple, joined by Easterbrook and Posner, stresses the church as a mere "landlord." Easterbrook's sole dissenting opinion mines a similar vein: "Holding a high school graduation in a church does not “establish” that church any more than serving Wheaties in the school cafeteria establishes Wheaties as the official cereal." Posner's sole dissenting opinion levels the critique at the doctrine itself:
The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance. See, e.g., Utah Highway Patrol Ass’n v. American Atheists, Inc., 132 S. Ct. 12 (2011) (dissent from denial of certiorari) (“Establishment Clause jurisprudence [is] in shambles,” “nebulous,” “erratic,” “no principled basis,” “Establishment Clause purgatory,” “impenetrable,” “ad hoc patchwork,” “limbo,” “incapable of consistent application,” “our mess,” “little more than intuition and a tape measure”); Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993) (concurring opinion) (a “geometry of crooked lines and wavering shapes,” a “ghoul in a late night horror movie” that can’t be slain even though “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart”).
As the majority acknowledges, and the dissents argue, the analogy to voting in churches is a pertinent one. But the majority distinguishes the “history and circumstances” of voting practices from high school graduations.
At more than 80 pages - - - with the dissents as lengthy as the majority - - - this opinion provides much fodder for the continuing debates about the efficacy of Establishment Clause doctrine. Yet at its base, there seems to be a great divide regarding the relevance of a large cross at a high school graduation.
Monday, May 21, 2012
Forty-three Catholic institutions filed 12 separate suits today against HHS Secretary Kathleen Sebelius to halt HHS regulations that they say would require them to "provide, or facilitate the provision of, abortion-inducing drugs, sterilization, and contraceptive services to its employees in violation of the centuries' old teachings of the Catholic Church."
The move is the latest in the ongoing debate between the church and the administration over new HHS guidelines under the Patient Protection and Affordable Care Act that require insurers and group health plans to cover "[a]ll Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity." The plaintiffs reject the White House's February 2012 compromise--to exempt religious organizations that have religious objections from directly paying for those services--as insufficient.
Notre Dame's complaint alleges violations of the First Amendment religion and speech clauses, the Religious Freedom Restoration Act, and the Administrative Procedures Act. It seeks declaratory and injunctive relief and attorneys' fees.
As to its religion clause claims, Notre Dame alleges that the government has no compelling interest in the requirement, that the requirement substantially burdens its religious exercise; that the requirement excessively entangles government in religion (because it requires a government determination of whether the purpose of the organization is to inculcate people into its tenets in order to qualify for an exemption); and that the requirement discriminates among religions (because it treats those religions that do not oppose "abortifacients" differently than those that do).
As to its speech claim, Notre Dame argues that the requirement and counseling are viewpoint-based compelled speech in violation of the First Amendment.
Notre Dame claims that under HHS regulations it has to provide "contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity" itself, and not through a third-party insurer. That's because Notre Dame does not contract with a separate insurance company for its employees' health insurance; instead, it offers self-insured plans. It also claims that it doesn't qualify for an exemption, because it's not a church or an exclusively religious activity--the exemptions in Section 6033(a)(3)(A)(i) and (iii), respectively, of the IRC.
Thursday, May 17, 2012
The Second Circuit, in its opinion today in Galloway v. Town of Greece, found that the town meetings practice of legislative prayer since 1999 "impermissibly affiliated the town with a single creed, Christianity."
The evidence, as the unanimous panel described it, was that of the 130 different invocations between 1999 and June 2010, two-thirds contained references to “Jesus Christ,” “Jesus,” “Your Son,” or the “Holy Spirit.”
The other third were theistic, but more "generic," including ones by Christians, Jewish, and Baha'i prayer givers, all of whom referenced God. There was also a Wiccan prayer, in which the Wiccan priestess invoked Athena and Apollo, apropos of the Town’s name.
But it was not only the content of the prayers. As the court stated, in concluding that "the town’s prayer practice must be viewed as an endorsement of a particular religious viewpoint," because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity," the conclusion is supported by "several considerations, including the prayer-giver selection process, the content of the prayers, and the contextual actions (and inactions) of prayer-givers and town officials." The court emphasizes that it did "not not rely on any single aspect of the town’s prayer practice, but rather on the totality of the circumstances present in this case."
The panel emphasized what would be constitutional: "a practice such as the one to which the town here apparently aspired" meaning one that is "inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief." (emphasis added).
In short, one invocation to Athena out of 130 is simply not sufficient, and not only in Greece.
Saturday, May 12, 2012
Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation
With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments.
Obama specifically mentioned same-sex couples "raising kids together." But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry. This is the so-called "responsible procreation" state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.
ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."
She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.
Nice explains that the justification is rooted in religion. It appeared as a justification of the federal Defense of Marriage Act. State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans.
While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane." She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else. She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.
Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.
An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.
May 12, 2012 in Equal Protection, Establishment Clause, Family, Federalism, Fourteenth Amendment, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Friday, May 11, 2012
Indiana, like most states, allows state officials, judges, and certain religious officials to "officiate" at marriage ceremonies, performing the legal requirement often called solemnization. In popular understandings, this is the person who asks the question of the persons to be married which they must each answer something akin to "I do."
But who gets to officiate? Generally, the persons are listed by statute. Indiana Code 31-11-6 lists the persons authorized to solemnize marriages, as:
(1) A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.
(2) A judge.
(3) A mayor, within the mayor's county.
(4) A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.
(5) A clerk of the circuit court.
(6) The Friends Church, in accordance with the rules of the Friends Church.
(7) The German Baptists, in accordance with the rules of their society.
(8) The Bahai faith, in accordance with the rules of the Bahai faith.
(9) The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.
(10) An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.
The Center for Inquiry, a secular humanist group, has filed a complaint challenging the constitutionality of the section, based on its argument that it would like to perform secular weddings. The complaint avers that secular ceremonies by state officials may not be desirable for some secular humanists: it would have "political overtones" and the official may not know the couple personally or share their values. Such is alleged to be the case with the individual plaintiffs who have joined the Center for Inquiry.
The gravamen of the argument is that the Indiana statute embodies a preference for religion over irreligion and therefore violates the Establishment Clause. The ACLU is representing the plaintiffs in Center for Inquiry v. Clerk, Marion County, and its press release is here.
[image: 14th C wedding via]
Thursday, May 3, 2012
This year, as President Obama issues the proclamation of a National Day of Prayer for May 3, it includes an invitation to "all citizens of our Nation, as their own faith directs them, to join me in giving thanks for the many blessings we enjoy, and I call upon individuals of all faiths to pray for guidance, grace, and protection for our great Nation as we address the challenges of our time."
Obama's proclamation is pursuant to 36 U.S.C. § 119 passed by Congress in 1988 and signed by Ronald Regan, declaring the First Thursday in May as the "National Day of Prayer."
While a district judge had enjoined the National Day of Prayer in 2010 as violating the Establishment Clause, the Seventh Circuit later ruled that the Freedom from Religion Foundation lacked standing to bring a claim for relief. Importantly, the Seventh Circuit stated that even if "this means that no one has standing, that does not change the outcome."
However, May 3 is now also the "National Day of Reason," supported by the American Humanist Association. Congressperson Pete Stark of California has made a statement on the floor of the House of Representatives recognizing the National Day of Reason as celebrating "the application of reason and the positive impact it has had on humanity. It is also an opportunity to reaffirm the Constitutional separation of religion and government." There is also a petition seeking President Obama's recognition of the National Day of Reason:
"We therefore respectfully ask that you issue a proclamation recognizing the National Day of Reason on May 3rd, 2012 in order to promote the importance of reason and to give secular Americans the same sort of governmental recognition that religious Americans receive on the National Day of Prayer. Regardless of our religious beliefs or lack thereof, we are all Americans."
[image: Erasmus, renowned humanist and theologian, Portrait by Hans Holbein, circa 1523, via]
Saturday, April 28, 2012
Saturday Evening Review: The Missing Dissenting Opinion in Hosanna-Tabor by Professor Leslie Griffin
As a rule, there is something unsatisfying about a constitutional law opinion from the United States Supreme Court without a well-reasoned and scholarly dissent.
The Court's opinion earlier this year in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is no exception to that rule, despite a short concurring opinion by Justice Thomas and the much longer concurring opinion by Justice Alito in which Justice Kagan joined. The Court in Hosanna-Tabor recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws, including the ADA.
Professor Leslie Griffin supplies the necessary countervailing arguments in her forthcoming article The Sins of Hosanna-Tabor, available on ssrn. Professor Griffin (pictured left) who co-authored the Brief of Amici Curiae Law and Religion Professors in Support of Respondents and who appeared at the AALS Conference panel discussing the case was well-situated to provide a quick and thorough analysis, with excellent research that is mostly absent from the Court's opinions.
Griffin's critique of the case is insightful and pointed, discussing the factual context and reorienting it as a retaliation case, providing some useful historical perspectives, and seeking to reconcile the 1990 case of Employment Division v. Smith. As Griffin argues, after Hosanna-Tabor, "Individual religious believers are subject to the rule of Smith, while institutions are not. Institutional religious freedom allows the firing of ministerial employees for any reasons, even non-religious ones." This does seem incoherent, although as Griffin notes, the "rule always favors employers."
The broad insulation of religious employers from anti-discrimination laws for anyone who is deemed a minister is the import of Hosanna-Tabor. While the Court declined to decide exactly who is a minister, the implication seems to be that this determination must rest on the sincere belief of the employer, lest there be Establishment Clause issues. The Court also declined to express a view "on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Griffin uses her in depth knowledge of the area to explore the implications of this opening.
Griffin's article is worth reading for anyone teaching or writing about Hosanna-Tabor and should certainly be excerpted in Casebooks. It's an important dissenting opinion.
Tuesday, April 10, 2012
The Tennessee bill, HB 368, is wildly controversial and tamely written. Most likely to become law (unless the Governor quickly vetoes it), the "ACT to amend Tennessee Code Annotated, Title 49, Chapter 6, Part 10, relative to teaching scientific subjects in elementary schools," provides:
a) The general assembly finds that:
(1) An important purpose of science education is to inform students about scientific evidence and to help students develop critical thinking skills necessary to becoming intelligent, productive, and scientifically informed citizens;
(2) The teaching of some scientific subjects, including, but not limited to, biological evolution, the chemical origins of life, global warming, and human cloning, can cause controversy; and
(3) Some teachers may be unsure of the expectations concerning how they should present information on such subjects.
b) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to create an environment within public elementary and secondary schools that encourages students to explore scientific questions, learn about scientific evidence, develop critical thinking skills, and respond appropriately and respectfully to differences of opinion about controversial issues.
c) The state board of education, public elementary and secondary school governing authorities, directors of schools, school system administrators, and public elementary and secondary school principals and administrators shall endeavor to assist teachers to find effective ways to present the science curriculum as it addresses scientific controversies. Toward this end, teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.
d) Neither the state board of education, nor any public elementary or secondary school governing authority, director of schools, school system administrator, or any public elementary or secondary school principal or administrator shall prohibit any teacher in a public school system of this state from helping students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught.
e) This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.
SECTION 2. By no later than the start of the 2011-2012 school term, the department of education shall notify all directors of schools of the provisions of this act. Each director shall notify all employees within the director's school system of the provisions of this act.
The law is the subject of a discussion today on Warren Onley's To The Point radio show in a segment entitled "Is Academic Freedom a Disguise for Religion?" Audio here:
As many commentators have noted, the issue of evolution teaching is especially sensitive in Tennessee given the Scopes trial in 1925 with Clarence Darrow (pictured above) as Scopes' attorney.