Sunday, October 16, 2011

No Rehearing for Mt. Soledad Cross Case

The Ninth Circuit on Friday denied a petition for rehearing and for rehearing en banc of unanimous ruling by a three-judge panel on January 4, 2011, in Jewish War Veterans v. City of San Diego, holding that the Mt. Soledad cross violated the Establishment Clause.

The Mt. Soledad cross, the centerpiece of a veterans memorial in San Diego, has been the subject of lengthy litigation under the Establishment Clause and the California Constitution's No Preference Clause.  The cross is a mammoth, 43-foot structure that sits atop Mt. Soledad, surrounded by plaques honoring veterans, U.S. flags, and other secular symbols.  Here's a picture:


The earlier three-judge panel exhaustively surveyed the history of the cross and the site as it exists today.  It ruled that while there are some indicia of a secular purpose, and while the site includes some secular symbols, "[t]aking these factors into account and considering the entire context of the Memorial, the Memorial today remains a predominantly religious symbol."  The panel ruled that the cross violated the Establishment Clause under either Lemon v. Kurzman or Van Orden v. Perry.

The Ninth Circuit declined to rehear the case over a sharp dissent by Judge Bea and joined by Judges O'Scannlain, Tallman, Callahan, and Ikuta.  Judge Bea would have ruled that the cross did not violate the Establishment Clause under Van Orden alone.  In particular, Judge Bea said that the government's use of the symbol was secular, the context is secular, and the history--especially how long it has stood without being challenged--was secular.

If the government appeals, the case would give the Supreme Court a good opportunity to clarify Lemon and Van Orden--when exactly to use one or the other, and more precisely what Van Orden means.


October 16, 2011 in Cases and Case Materials, Establishment Clause, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 14, 2011

Ninth Circuit: Teacher Has No Right to Display God Banners

A unanimous three-judge panel of the Ninth Circuit ruled yesterday in Johnson v. Poway Unified School District that the District did not violate a teacher's First Amendment rights when officials ordered him to remove banners from his classroom reading "In God We Trust," "One Nation Under God," "God Bless America," "God Shed His Grace On Thee," and "All Men Are Created Equal; They Are Endowed By Their CREATOR."

Teacher Johnson argued that the district violated his rights under the Speech and Establishment Clauses when officials ordered him to remove the banners.  He argued that other district teachers displayed religious symbols in their classrooms--including Tibetan prayer flags, a John Lennon poster with the "Imagine" lyrics, a Mahatma Gandhi poster, a Dalai Lama poster, and the like--and that he was treated unfairly.  The district court ruled in his favor, saying that the district created a public forum and engaged in viewpoint discrimination by requiring Johnson, but not these others, to remove his banners.

The Ninth Circuit reversed.  It ruled that the district court erroneously applied public forum analysis, when it should have applied public employee doctrine under Pickering.  Applying Pickering, the court ruled that Johnson spoke in his capacity as a public school teacher, not as a private citizen, and that his speech was therefore not protected.  (The court said that Johnson displayed his banners in his room, under a time-honored policy in the district allowing teachers to decorate their own classrooms.  Thus his display was part of his job as a teacher, not his independent speech as a citizen.)

The court further ruled that the district's act in requiring Johnson to remove his banners did not violate the Establishment Clause.  Applying the Lemon test, the court ruled that the district had a secular purpose (because it ordered the removal as part of its vigilant efforts to avoid Establishment Clause problems) and that the district's order had a religion-neutral, sect-neutral effect (because in context the other displays that it allowed to remain--the Tibetan prayer flags, the Lennon poster, the Gandhi poster--all had a primarily secular meanings).

The result isn't a particular surprise; the court itself began its opinion with the line, "The answer is clear."


September 14, 2011 in Cases and Case Materials, Establishment Clause, First Amendment, Fundamental Rights, News, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

Monday, August 22, 2011

Serfs, Jesus, and the Establishment Clause in Advanced Placement History Class

The scene is an advanced history class in an Orange County school, in one of the tonier school districts in the United States, in which Dr. James Corbett has been teaching the AP European History course for the past 16 years with pedagogical goals including critical thinking and provocative engagement with current events. 

In its opinion in CF v. Capistrano Unified School District, a panel of the Ninth Circuit considered the claim by Chad Farnan, a student in the class who eventually withdrew, that Dr. Corbett violated the Establishment Clause by evincing his hostility to religions in general and Christianity in particular.  One of Dr. Corbett's objectionable statements - - - recorded by the student without the teacher's knowledge - - - was a discussion of Joseph II (pictured right).  Anton_von_Maron_006

Joseph II, according to the recording, was trying to end serfdom, but was opposed by the serfs, against their own economic interests, because Joseph II was also trying to reform religion.  Dr. Corbett then analogized this to the situation in "red states" in which people vote against their economic interests and in favor of the Republican party because when they put on their "Jesus glasses" they can't "see the truth."  

Dr. Corbett argued that many of the statements were taken out of context and inaccurate, as well as being the product of a surreptitious recording that violated state law, but the panel declined to discuss that issue.  The panel also declined to reach the ultimate question as to whether a school teacher could violate the Establishment clause by being hostile to religions in general or Christianity in particular.  Instead, the panel found that the defendants were entitled to qualified immunity because any right involved in Farnan's theory of the case was not "clearly established at the time of the alleged misconduct" as would be required.  As the court stated:

We have little trouble concluding that the law was not clearly established at the time of the events in question — there has never been any reported case holding that a teacher violated the Establishment Clause by making statements in the classroom that were allegedly hostile to religion.

In its summation, the panel opined that teachers must be

given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

However, the court did note that at some point a  "teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility."   In this context, the panel's earlier description of Dr. Corbett as "a Christian who regularly prays and attends church services," is a bit troublesome.  Is it relevant that Dr. Corbett is a Christian, or more precisely, not an atheist?

But to be clear, the panel reserved judgment on whether that point had been reached, holding that there was no clearly established law regarding the possibility of such a point.

[image Portrait of Joseph II, Holy Roman Emperor by Anton von Maron via]

Update: See Dr. Corbett's comments below

August 22, 2011 in Establishment Clause, First Amendment, History, Opinion Analysis | Permalink | Comments (2) | TrackBack (0)

Monday, August 8, 2011

Third Circuit Finds School Board Prayer Violates Establishment Clause

Public school prayer violates the Establishment Clause of the First Amendment, at least since 1962's Engel v. Vitale, 370 U.S. 421 (1962), but legislative prayer that is sufficiently non-sectarian does not violate the Establishment Clause, at least since Marsh v. Chambers, 463 U.S. 783 (1983).

So what about prayer at the school board meeting?  

The issue - which seems fit for an exam - - - is one of analogy.  Is the school board meeting more like a public school function or more like a legislative body?

400px-The_Infant_Samuel_at_Prayer_-_Sir_Joshua_Reynolds The Third Circuit opinion in Doe v. Indian River School District adopts the school rule rather than the legislative "exception."  Reversing the district judge, the appellate panel found it important that students were often at the school board meetings, including for disciplinary proceedings or recognitions of honors.   After an extensive discussion of Establishment Clause precedent, the panel noted:

The Indian River School Board carries out its practice of praying in an atmosphere that contains many of the same indicia of coercion and involuntariness that the Supreme Court has recognized elsewhere in its school prayer jurisprudence. While there is no doubt that school board meetings do not necessarily hold the same type of personal and cultural significance as a high school graduation or perhaps even a football game, we take to heart the Supreme Court‟s observation that, in this respect, “[l]aw reaches past formalism.”  [quoting Lee v. Weisman, 505 US at 595]. 

Moreover, the panel noted that there were additional factors that might make students feel coerced: "The meetings take place on school property. The Board retains complete control over the meeting; it sets the agenda and the schedule."  Further, "the Board itself composes and recites the prayer" and is thus "involved in every aspect of the prayer."  Thus, it was more like public school - - - including the graduation ceremony involved in Lee - - - than like a legislative body.

After determining Lee v. Weisman, 505 U.S. 577 (1992) rather than Marsh was the correct precedent, the panel then struggled with the Lemon test from Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The panel noted the problems with the Lemon test, but noted it had not been overruled, as so proceeded to consider Lemon factors:  (1) whether the government practice had a secular purpose; (2) whether its principal or primary effect advanced or inhibited religion; and (3) whether it created an excessive entanglement of the government with religion.  The panel concluded the prayer practice was unconstitutional under Lemon.

While Doe is different from the Fourth Circuit legislative prayer opinion we recently discussed, in one respect it is quite similar.  The Third Circuit also noted that despite a broad written policy, the actual practice was to always have a prayer and that "the record shows that the prayers recited at the meetings nearly always—and exclusively—refer to Christian concepts." 

[image: The Infant Samuel at Prayer, by Joshua Reynolds, 1723- 1792, via]


August 8, 2011 in Establishment Clause, First Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, July 30, 2011

Fourth Circuit Holds Legislative Prayer Violates Establishment Clause

The Forsyth County Board of Commissioners, an elected body that governs Forsyth County, North Carolina, begins each of its meetings with a prayer and the pledge of allegiance. 

La_Saeta_by_Julio_Romero_de_Torres_(part) The practice in this situation, according to an opinion from the Fourth Circuit, violated the Establishment Clause of the First Amendment.  Affirming the district judge, who adopted a magistrate's findings, while the Board took "a hands-off approach to the actual content of the prayers," using clergy from a list, the actual prayers delivered frequently contained references to Jesus Christ, such as "We pray this all in the name under whom is all authority, the Lord Jesus Christ."  After some initial dispute, the Board attempted to clarify its policy, but still, almost four-fifths of the prayers referred to "Jesus," "Jesus Christ," "Christ," or "Savior," closing the prayer by mentioning Jesus.  According to the Fourth Circuit panel, "None of the prayers mentioned non-Christian deities."

The panel stated, "At its core, this is not a case about the Establishment Clause in general, but about legislative prayer in particular. This distinction is critical, for legislative prayer lies at the heart of two intersecting realities." 

The first reality is that legislative prayer "is deeply embedded in the history and tradition of this country," and as such, has been upheld by the United States Supreme Court in  Marsh v. Chambers, 463 U.S. 783, 786 (1983).

The second reality is that legislative prayer risks offending the Establishment Clause precept that the government may not prefer one particular sect or creed over another.  Legislative prayer should be welcoming and inclusive and as nonsectarian as possible.

The frequent and repeated references to Christ, as well as to specific tenets of Christianity, including discussions of "Calvary," placed these practices over the line of what is permissible under the Establishment Clause.  While the Board's stated policy was permissible and neutral, the manner in which it was implemented was a different matter.  Importantly, as the panel noted, "citizens attending Board meetings hear the prayers, not the policy."

Circuit Judge Niemeyer wrote a lengthy and vigorous dissent, arguing that the majority reduces prayer to a "civil nicety," an accusation which the majority discussed in its opinion.  The dissenting judge found fault with the majority's attempt to "legislate" a "government censorship of religious expression" "based on the imprecise notion of nonsectarianism, bowing to political correctness or universal inoffensiveness.

While there is some dispute regarding the facts between the majority and the dissent - - - just how focused on Jesus were the prayers that were delivered? - - -precedent seems strongly weighted in favor of the majority's conclusion.

[image: from La Saeta, Julio Romero de Torres, 1918, via]

July 30, 2011 in Establishment Clause, First Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 20, 2011

Florida Federal Court Rules Ten Commandments Monument Violates Establishment Clause

Senior District Judge Maurice M. Paul (N.D. Fla.) ruled last week that a Ten Commandments monument displayed just outside the Dixie County Courthouse is government speech and violates the Establishment Clause.  Judge Paul ordered Dixie County to remove the monument within 30 days.

The case involves a privately funded monument, over five-feet tall and weighing six tons, that displays the Ten Commandments and text reading "LOVE GOD AND KEEP HIS COMMANDMENTS."  Here's a picture, courtesy of the ACLU of Florida:


The private funder secured County Commission approval before initiating the project.  After the ACLU sued, the Commission issued its "Monument Placement Guidelines," which purported to establish a limited public forum on the courthouse steps, where the monument is located.

The county government thus argued that the monument was private speech, protected under the First Amendment Speech Clause.  Judge Paul didn't buy it.  He ruled that the monument is government speech.  He noted that while the monument is not tethered and contains the name of the private funder (with an indication that the monument belongs to the private funder), it nevertheless has all the appearances of permanence; and its location "make[s] it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed."  Op. at 10.  (Judge Paul compared the case to the OT 08 case, Pleasant Grove City v. Summum, in which the Court ruled that the placement of a privately-funded, permanent monument in a government park, alongside other privately-funded monuments, is government speech.  If so there, so much more so here--a permanent monument on the courthouse steps.)  To get a sense, take a look at this picture, also courtesy of the ACLU of Florida:


Judge Paul then ruled that the monument violated the Establishment Clause:

As noted previously, permanent displays carry the indicia of government speech.  This strongly implies endorsement of the message being conveyed.  However, beyond the mere permanence of the monument, the context of the display establishes Dixie County's endorsement of its religious message.  The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office.  "No viewer could reasonably think that it occupies this location without the support and approval of the government."  By permitting the display of the monument in this setting, "the county sends an unmistakable message that it supports and promotes" the religious message that appears on it.

Op. at 12 (citations to County of Allegheny v. ACLU omitted).

Two terms ago, the Court ruled in Pleasant Grove that a privately-funded, permanent monument in a public park, alongside several other privately-funded monuments, was government speech (and not a public forum).  As such, the government's rejection of a privately-funded monument was not subject to scrutiny under the Free Speech Clause.  But it would have been subject to scrutiny under the Establishment Clause (if the plaintiff-respondent raised it).  (That doesn't mean the plaintiff-respondent would have won, just that the government's rejection of its monument would have been subject to Establishment Clause analysis.) 

Justice Souter noted in concurrence that the play between the government speech doctrine and the Establishment Clause hadn't been worked out.  He worried that a government, in order to dodge Establishment Clause problems, would wisely accept more monuments whenever an accepted monument had a religious character--"safety in numbers"--but that this strategy would in turn would "make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments."  The result: The government could unwittingly create a speech forum, diluting its government speech defense and forcing it, under the Free Speech Clause, to accept monuments from all comers, including those that don't represent its views.  If so, Justice Souter argued,

the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups.  Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept.

Whether that view turns out to be sound is more than I can say at this point.  It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate.

Souter Concurrence, at 3.  (For more on Justice Souter's worry, check out Prof. Mary Jean Dolan's (John Marshall) recently posted piece The Cross National Memorial: At the Intersection of Speech and Religion.)

If Pleasant Grove wasn't an occasion to explore the play between the government speech doctrine and the Establishment Clause (because the latter wasn't raised), this case isn't a likely candidate to explore it either, but for a different reason: There's only one monument.  This is a straight-forward Establishment Clause case and not one that raises issues at the intersection of these two doctrines.


July 20, 2011 in Cases and Case Materials, Establishment Clause, Fundamental Rights, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 13, 2011

Polygamy Challenge: Complaint Claiming Utah's Statute Unconstitutional

The "Sister Wives" family, made popular by a reality television show, have filed a complaint in federal district court in Utah challenging the constitutionality of Utah's polygamy statute. 

Represented by Jonathan Turley (h/t for complaint), the case garnered press including from NPR even before the lawsuit was filed.

Standing seems easily established.  Before the show, there was little attention paid to the group, but that was not the case after the reality showed aired. 



The complaint characterizes the Brown Family (they all have the same surname) as a plural "family" rather than using the term plural marriage.  Indeed, Corey Brown, the sole male, is legally married to only one of the women.  This arguably runs afoul of Utah Stat. 76-7-101(1), which defines bigamy broadly: 

(1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Section 2 of the statute provides that bigamy is a felony of the third degree.

 The complaint alleges the Utah statute is unconstitutional based on six claims: due process and equal protection under the Fourteenth Amendment, and free exercise of religion, free speech, freedom of association, and anti-establishment of religion under the First Amendment.

Perhaps most controversially, the complaint relies upon Lawrence v. Texas in which the Court declared Texas' sodomy statute unconstitutional under the due process clause.  For some, this type of "slippery slope" argument is uncomfortable, and made more uncomfortable because, as the TMZ entertainment site phrases it, "The Mormons and the gays -- they don't always get along." 

Gordon_mormon_afloat Certainly, although bigamy has a colonial history, for Americans the notion of plural marriage - - - and plural families - - - is inextricably intertwined with the Mormon religion as it appeared in the antebellum nation. 

One of the best histories of this period is Sarah Barringer Gordon's The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002).   Gordon's history is essential reading for anyone interested in pursuing scholarship on polygamy.

Gordon discusses the history behind the case of  Reynolds v.  United States, 98 U.S. 145 (1878), a “test case” in which Mormon leaders had a “reasonable hope” of their First Amendment claims being vindicated.  But of course, in Reynolds the Court rejected those claims, in part because polygamy was not "American."

On the African context of polygamy, some of the best writing is by my colleague Peneleope Andrews, including her discussions of South African President Zuma's multiple marriages.

As for the analogies between same-sex marriage and plural marriages, there has been much scholarship on this issue, including my own piece in Temple Law Review.


July 13, 2011 in Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Family, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Privacy, Religion, Sexuality, Standing, Television | Permalink | Comments (2) | TrackBack (0)

Friday, April 15, 2011

Voting Restricted to Males for Leadership in Religious Council that Receives State Funding: Constitutional?

Religious communities?  Gender?  Voting rights?  State action? 

A host of constitutional law problems are raised by the following:

According to the bylaws of the Crown Heights Jewish Community Council, a social service agency and community pillar that has received millions of dollars in government grants over the years, only those who meet the following requirements can vote for its leadership:

  • Jewish and religiously observant residents of Crown Heights
  • Married, previously married or at least 30 years old
  • Male

Now Eliyahu Federman, a Crown Heights resident and recent law school graduate [of CUNY School of Law], is challenging that last requirement, saying he believes it to be unconstitutional.

The rest of today's NYT story is here.  

For ConLawProfs still looking for a challenging exam question, this might be a good place to start.


1912 NYC Women's suffrage

[image: Suffrage Parade in New York City, 1912, via]

April 15, 2011 in Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, News, Religion, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

Seventh Circuit Rules No Standing to Challenge Presidential National Day of Prayer Proclamation

In a succinct Opinion authored by Chief Judge Easterbrook in Freedom From Religion Foundation v. Obama, the Seventh Circuit has held that the organization does not have standing to challenge the Presidential Proclamation of a National Day of Prayer.  The Opinion's appendix notably includes Obama's Proclamation as Appendix B and a Proclamation by George Washington as Appendix A. 


As we discussed, last year District Judge Barbara Crabb declared the proclamation of a national day of prayer unconstitutional: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."

Reversing the lower court, the Seventh Circuit did not find sufficient injury to confer standing:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us.” But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders” (United States v. SCRAP, 412 U.S. 669, 687 (1973)) do not support standing to sue.

Further, the Seventh Circuit noted:

                    If this means that no one has standing, that does not change the outcome.

Judge Williams wrote separately to concur but express some concerns with the "majority's reasoning and the uncertainty of the Supreme Court's precedent."   Specifically, Judge Williams rejects the majority's reliance on Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a challenge to the "under God" phrase in the Pledge of Allegiance, by a noncustodial father.  As Williams notes, it was Newdow's custodial status and not the "feelings of exclusion" that foreclosed Newdow's standing.  Additionally, Williams contends:

 The Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases. As the Ninth Circuit recently noted, the Court has
decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government, including cases involving a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capitol, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation. [citation omitted].  In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs.  “To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial cases unnecessarily and inappropriately.

Judge Williams continues by noting that "as recently as last week, the Court stated in Arizona Christian School Tuition Organization v. Winn that even though it had decided a number of Establishment Clause cases on the merits that appeared to be in tension with its decision to find no standing in the case before it, those cases were not dispositive because they did not address the threshold standing question."

In Hein v. Freedom from Religion Foundation decided in 2007 by the Supreme Court, the organization was similarly denied standing in its suit against faith-based funding.


[image: Old Woman in Prayer by Nicholas Maes circa 1656  via]

April 14, 2011 in Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12

Amendments 1-8

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.


April 13, 2011 in Cases and Case Materials, Due Process (Substantive), Establishment Clause, Federalism, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Games, History, Interpretation, Second Amendment, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, April 9, 2011

Footnote of the Day: Tradition

In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court  reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause.  The Court held that the taxpayer plaintiffs lacked standing.

In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:

On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).

In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' "   Dissenting Opinion at 19.

James_Madison Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’”  This is quoted by the Court, but Kagan disputes the majority's reliance:

And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.

Dissenting Opinion at 18.  Whenever the majority in Winn considers “tradition”  it does so in the text; the Court’s opinion does not possess any footnotes.  Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:

The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.

Opinion at 4.

The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review.  Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses  “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one.   What does the Court actually say about tradition?  Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following  “tradition-related” terms:  “tradition,”  “culture,” “custom,” “heritage,”  or “history” with a yield of 222 entries.    He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.   

Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs.  The Justice most likely to resort to tradition?  Not surprisingly, it is Justice Scalia.  The Justice least likely?  Perhaps more surprisingly, Justice Thomas.   Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts.  Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.

Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?


[image: James Madison, 1818, Portrait in the White House Collection, via]

April 9, 2011 in Cases and Case Materials, Courts and Judging, Establishment Clause, First Amendment, Games, History, Interpretation, Opinion Analysis, Recent Cases, Religion, Scholarship, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 4, 2011

No Standing in Establishment Clause Challenge: Arizona Christian School Tuition Organization v. Winn Opinion Analysis

The Court issued its 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, reversing the Ninth Circuit's finding that the Arizona statute violated the Establishment Clause by holding that the challengers lacked standing.

In his concurring opinion, Justice Scalia identifies the "struggle" between the majority and dissent as being whether the challenge to the Arizona tuition tax credit falls within the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968).  For Scalia (joined by Thomas), this struggle is unnecessary because the "misguided" decision of Flast v. Cohen should be repudiated. Stained Glass

The Arizona provision at issue in Winn allows a tax credit for a contribution to school tuition organizations, STOs, many of which are religious. 

Writing for the Court, Justice Kennedy quickly sets the tone by noting that the challengers "sought intervention from the Federal Judiciary."  In further description of the facts, Kennedy notes that while the challengers "may be right that Arizona’s STO tax credits have an estimated annual value of over $50 million," the Arizona Christian School Tuition Organization is also right that "the STO program might relieve the burden placed on Arizona’s public schools," and the "result could be an immediate and permanent cost savings for the State." 

Kennedy thereafter analyzes the requirement of particularized injury:

Even assuming the STO tax credit has an adverse effect on Arizona’s annual budget, problems would remain. To conclude there is a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability.[citation omitted].  A finding of causationwould depend on the additional determination that any tax increase would be traceable to the STO tax credits, as distinct from other governmental expenditures or other tax benefits. Respondents have not established that an injunction against application of the STO tax credit would prompt Arizona legislators to “pass along the supposed increased revenue in the form of tax reductions.”

Thus, the injury must be economic, give that the "STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast." 

Kagan, writing for the four dissenting Justices, argues that there is little, if any, difference between appropriations and tax expenditures:  "Cash grants and targeted tax breaks are means of accomplishing the same government objective," and taxpayers who "oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other."

Kagan criticizes the Court's opinion as offering a "road map —more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge":

Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting an establishment of religion”—

Kennedy's Opinion for the Court ends by appealing to the prospect of a different type of damage and constitutional commitment: limited judicial power.

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagreeswith them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts mustbe more careful to insist on the formal rules of standing,not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that [Arizona statute] §43–1089 allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.


[image via]

April 4, 2011 in Cases and Case Materials, Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Sunday, February 6, 2011

Abstinence Sex Education Scholarship: West Virginia Weekend

Abstinence sexual education is again being debated.  

Bristol Palin's planned appearance at the University of Washington in St. Louis on February 7  "to speak on abstinence as part of Washington University’s student Sexual Responsibility Week" has been canceled because "of the growing controversy among undergraduates over the decision to pay for her talk with student-generated funds."  Moreover, Senator Orrin Hatch (R-UT) successfully added an amendment to the Patient Protection and Affordable Care Act (eventually signed into law by the president) that restored a $50 million annual federal outlay to states (through 2014) for abstinence sex education.  The provisions appear at sections 2953 et seq., entitled "Personal responsibility education." 

WV Weekend Logo John E. Taylor's lively and readable work, Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education, 18 Wm. & Mary Bill Rts. J. 1053 (2010), seeks to chart a middle course between what he terms the "sexual right" and the "sexual left."  Taylor situates his analysis in the Establishment Clause, even as he rejects the formulation that the sex education debate is a clash between science and (religious) values.   His intriguing thought experiment involves dental education and requires readers to examine our own flossing habits!

In the article, Taylor, Associate Dean for Academic Affairs and Professor of Law at the West Virginia University College of Law, then turns to three further claims, noting that “the value-laden character of sex education generates interesting conclusions about the proper roles of the federal government, the courts, and the public schools in sex education policy.” Id. at 1095.  First, Taylor claims that the federal government “should not attempt to dictate how state and local governments approach sex education.” Id. at 1056.  Second, Taylor argues that “courts should be reluctant to use the Establishment Clause to settle sex education controversies."  Id.  Finally, Taylor draws a broader conclusion that “we should recognize some limits on the degree to which the public schools can be enlisted as soldiers in the culture wars.” Id.

In the end, Taylor

cast[s] doubt on whether the federal government or the courts have useful roles to play in resolving cultural struggles about sex education. . . . These government institutions should allow space for the value conflicts at stake in sex education to work themselves out in a decentralized fashion. The core of truth in constitutional critiques of abstinence only-until-marriage sex education is the recognition that it involves the use of the public schools to promote a highly contested set of cultural norms.  Legislators and school officials have duties to refrain from using the public schools as tools in the cultural struggle between red and blue family values. In practical terms, they should seek to forge policies that appeal to the “sexual middle” by stressing abstinence for school-age children while also providing basic information about contraception. These obligations have roots in constitutional values, but do not give rise to judicially enforceable constitutional rights.

Id. at 1095.

Despite Taylor's plea for the "sexual middle" to prevail, it seems likely that the value conflicts will continue and litigation will have a constitutional cast.


with J. Zak Ritchie


February 6, 2011 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Religion, Reproductive Rights, Scholarship, Sexuality | Permalink | Comments (2) | TrackBack (0)

Tuesday, November 30, 2010

Federal Judge Dismisses Case Against Health Care Reform

Judge Norman Moon (W.D. Va.) today dismissed Liberty University v. Geithner, a case filed by state lawmakers, a doctor, Liberty University, and individuals challenging the federal healthcare reform legislation.  The plaintiffs argued that the legislation exceeds Congress's Article I authority, and that it violates the Tenth Amendment, the religion clauses, the Religious Freedom Restoration Act, equal protection, free speech and free association, Article I, Section 9's prohibition against unapportioned capitation or direct taxes, and the Guarantee Clause.

Judge Moon ruled that the state lawmakers lacked standing by virtue of their opposition to federal reform.  The doctor lacked standing, because his claims that reform may interfere with his ability to provide quality care for his patients were too vague.  Judge Moon ruled that other plaintiffs have standing; the case is ripe; and it's not barred by the Anti-Injunction Act.

On the merits, Judge Moon ruled that Congress acted within its authority under the Commerce Clause in enacting the individual health insurance mandate.  Judge Moon wrote that

The conduct regulated by the individual coverage provision--individuals' decisions to forego purchasing health insurance coverage--is economic in nature, and so the provision is not susceptible to the shortcomings of the statutes struck down by the Court in Lopez and Morrison.  Nearly everyone will require health care services at some point in their lifetimes, and it is not always possible to predict when one will be afflicted by illness or injury and require care.  The "fundamental need for health care and the necessity of paying for such services received" creates the market in health care services, of which nearly everyone is a participant." . . .  Far from "inactivity," by choosing to forgo insurance, Plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance.

Op. at 27 (quoting Thomas More Law Ctr., another challenge to federal health care reform).  Judge Moon had less trouble concluding that the employer mandate fell within Congress's Commerce Clause authority:

As defendants correctly point out, it is well-established in Supreme Court precedent that Congress has the power to regulate the terms and conditions of employment. . . .

The requirement imposed by the Act on employers to offer a minimum level of health insurance resembles the requirement imposed by the [Fair Labor Standards Act] on employers to offer a minimum wage upheld in Darby, and Plaintiffs fail to distinguish the two.

Op. at 31.

As to the Tenth Amendment, Judge Moon ruled that Congress had authority (and therefore the Tenth Amendment is no bar), Congress can regulate in the area of insurance (and therefore federal reform doesn't infringe upon an area reserved to the states, or upon state sovereignty), and state participation is voluntary (and therefore there's no commandeering of states or state officials).

As to the Establishment Clause, Judge Moon ruled that the religious exemptions to the individual mandate were permissible accommodations under Cutter v. Wilkinson.  The exemptions do not differentiate based on faiths, they are based upon a secular government purpose, and they do not lead to excessive government entanglement with religion.

As to Free Exercise and the Regligious Freedom Restoration Act, Judge Moon ruled that the federal law does not require the plaintiffs to pay for abortion, in violation of their religious practices.  "Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  Op. at 43.

Judge Moon ruled that the religious exemptions also did not violate equal protection.  "Accordingly, with no reason to believe the exemptions were designed to favor or penalize a particular religious group, I proceed to analyze the exemptions under rational basis review."  Op. at 46.  The exemptions, toward the end of accommodating religion, clearly satisfied rational basis review.

As to speech and association, Judge Moon ruled that federal reform does not require the plaintiffs to support or associate with individuals who obtain an abortion in violation of free speech and association.  "The Act does not require health plans to cover abortion, and it ensures that at least one policy offered through each health benefit exchange will not cover non-excepted abortion services."  Op. at 49.  Any required association is minimal.  And the federal act does not require the plaintiffs to speak on, or to support, abortion.

As to taxes, Judge Moon ruled that the penalties for noncompliance are not taxes; instead they are "mere incident[s] of the regulation of commerce."  Op. at 52 (quoting Head Money Cases.)

Finally, as to the Guarantee Clause, Judge Moon rejected the plaintiffs' claim that the federal act gives Congress the ability to veto private choices about health care and thus gives the federal government absolute sovereignty over the people.  "The Act does no such thing; nothing prevents the people and their representatives from amending or repealing the Act through the democratic process."  Op. at 53.


November 30, 2010 in Association, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, Federalism, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Recent Cases, Religion, Ripeness, Speech, Standing, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 16, 2010

First Circuit Upholds Mandatory Voluntary Pledge in Classrooms

A three-judge panel of the First Circuit on Friday upheld a New Hampshire law requiring school districts to authorize a period of time during the school day for recitation of the Pledge of Allegiance--including the words "under God."  Under the law, teachers are to lead their classes in a voluntary recitation of the Pledge.  Students may elect not to participate.

The plaintiffs in Freedom From Religion Foundation v. Hanover School District argued that the law violated the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the Due Process Clause.  The court rejected each claim.

(Fun fact: Michael Newdow of Elk Grove Unified School District v. Newdow is counsel for the plaintiffs.  The Supreme Court in Newdow ruled that Newdow lacked standing as next-of-friend to his daughter to challenge the school district's requirementthat all students recite the Pledge.  The problem: Newdow didn't have legal custody over his daughter.  There are no similar standing problems here.)

Establishment Clause.  The court ruled that the New Hampshire law satisfied each of the Court's approaches--the three-part Lemon test; the "endorsement" test first articulated by Justice O'Connor in concurrence in Lynch v. Donnelly; and the "coercion" analysis of Lee v. Weisman.  As to Lemon, the court ruled that New Hampshire had a secular purpose in enacting the requirement--the promotion of patriotism.  (The United States's purpose in adding the words "under God" in 1954 is irrelevant.)  The law doesn't have the primary or principal purpose of advancing religion, because it's voluntary and meant to further "the policy of teaching our country's history to the elementary and secondary pupils of this state."

As to endorsement, the court relied on the voluntary nature of the recitation.  It held that students may elect not to participate for any number of reasons that aren't obvious to the rest of the case.  The effect is therefore not to distinguish non-participants on the basis of religion--and therefore not to endorse religion.  Moreover, taken in the context of the whole Pledge, the words "under God" don't convey a message of endorsement.

As to coercion, the court ruled that this case is different than Lee.  In Lee, students were indirectly coerced into silence during a prayer at graduation; the silence was an act of participating in the prayer.  Here, where the words "under God" are couched in an otherwise secular Pledge and where silence does not have any necessary religious connotations, there's simply not the same kind of coercion as in Lee.

Free Exercise.  The court rejected this claim, relying on its ruling in Parker v. Hurley.  The First Circuit ruled in that case that "[p]ublic schools are not obliged to shield individual students from ideas which potentially are religiously offensive, particularly when the school imposes no requirement that the students agree with or affirm those ideas, or even participate in discussions about them."  Here, mere exposure to the words "under God" does not inhibit their own (or their parents) free exercise.

The court rejected the equal protection and due process claims out of hand: nothing in the New Hampshire law led to any disparate treatment, and the due process argument (apparently based on parental rights) simply wasn't developed.



November 16, 2010 in Equal Protection, Establishment Clause, Fourteenth Amendment, Free Exercise Clause, Fundamental Rights, Recent Cases, Religion | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

Federal Judge Issues TRO in Oklahoma's Anti-Sharia Case

Judge Vicki Miles-LaGrange of the Western District of Oklahoma yesterday issued her Temporary Restraining Order, enjoining the State from certifying the election results for State Question 755, the state ballot question that would amend the Oklahoma Constitution to ban state courts from considering Sharia law. 

Judge Miles-LaGrange's order was expected.  She issued a Minute Sheet to the same effect earlier this week.

The 9-page Order concludes that plaintiff Muneer Awad is likely to succeed on his Establishment Clause and Free Exercise Clause claims for reasons argued by Awad.  As to the Establishment Clause, Judge Miles-LaGrange wrote that the ballot measure did not have a secular purpose, that its primary purpose inhibits religion, and that it fosters an excessive government entanglement with religion.  As to the Free Exercise Clause:

[T]he Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is not facially neutral, discriminates against a specific religious belief, and prohibits conduct because it is undertaken for religious reasons.  Additionally, the Court finds that plaintiff has made a preliminary showing that State Question 755's amendment is neither justified by any compelling interest nor narrowly tailored.

Judge Miles-LaGrange also ruled that Awad had standing, and that the case was ripe for review.  She ordered the TRO in effect until the scheduled hearing on the preliminary injunction, Monday, November 22.

Meanwhile, two Con Law Profs weighed in.  Prof. Ali Khan (Washburn) takes a strong stand against the measure, arguing that it would affect everything from Muslim prisoners' rights to halal food to state court interpretation of international business contracts based on Sharia law to marriages under Sharia law.  Prof. Marci Hamilton (Cardozo) argues that it may be a non-issue, because courts can't use religious law, anyway:

It may look anti-Muslim, but no other religious group has a right to have their religious doctrine determine secular law.  On this reading, it is just a restatement of the rule of law.


November 10, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Monday, November 8, 2010

Federal Court Blocks Oklahoma's Anti-Sharia Con Amendment

Judge Vicki Miles-LaGrange of the Western District of Oklahoma today issued a temporary restraining order preventing the State of Oklahoma from implementing its new constitutional amendment that would ban the use of Sharia law in Oklahoma courts.  The court released a Minute Sheet without significant analysis; Judge Miles-LaGrange indicated that she'd release an Order soon.

We posted on the case, brought by Muneer Awad, ED for the advocacy group the Council on American-Islamic Relations, here.

The constitutional amendment, passed by a 70%-30% vote in last Tuesday's election, would prohibit Oklahoma courts from "look[ing] to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law."

The Minute Sheet also concludes that Awad has standing.  He claims that the amendment would stigmatize him as a Muslim and prevent him from enforcing his will, which references Sharia law, in Oklahoma state courts.


November 8, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Friday, November 5, 2010

Group Sues to Stop Oklahoma's Anti-Sharia Constitutional Amendment

Muneer Awad, Executive Director of the Council on American-Islamic Relations, filed for a temporary restraining order and preliminary injunction seeking to stop the State of Oklahoma from certifying state ballot question 755 and implementing the new anti-Sharia constitutional amendment.  CAIR's press release is here.

As we mentioned previously, Oklahoma's state ballot question 755 would amend the state constitution to ban the use of Sharia law in Oklahoma courts.  It reads in relevant part:

The [Oklahoma courts], when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.  The courts shall not look to the legal precepts of other nations or cultures.  Specifically, the courts shall not consider international law or Sharia Law.  . . .

The measure passed by 70% to 30% in Tuesday's election.

Awad and CAIR argue that the provision violates both the Establishment Clause (under the Lemon test) and the Free Exercise Clause (under either strict scrutiny or rational basis review).  In short, they argue that the State's targeting of Sharia law will stigmatize Awad based on his faith and prevent him from enforcing his will (which references Sharia law) in Oklahoma state courts.  As to the Establishment Clause, they argue that the measure violates all three parts of the Lemon test: that it does not have a secular purpose, that its primary effect advances and inhibits religion, and that it fosters an excessive government entanglement with religion.  As to Free Exercise, they argue that the State doesn't even have a legitimate purpose in banning the use of Sharia law, except the bare desire to harm a politically unpopular group.  This is not enough to sustain the measure against Awad's challenge.  Cleburne v. Cleburne Living Center; Romer v. Evans.


November 5, 2010 in Comparative Constitutionalism, Courts and Judging, Elections and Voting, Establishment Clause, Free Exercise Clause, Fundamental Rights, News, Recent Cases, Religion, State Constitutional Law, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Thursday, October 28, 2010

O'Donnell, Jefferson on Separation of Church and State

Republican Senate Candidate Christine O'Donnell's 2008 primary campaign manager Jonathon Moseley this week offered a $1,000.00 reward to anyone who could find the phrase "separation of church and state" in the Constitution.  (Thanks to Carrie Beth Clark for the tip.)  The offer comes on the heels of O'Donnell's statement in her debate last week with Democrat Chris Coons that the First Amendment contains no such phrase and requires no such separation.

The phrase, of course, comes from Thomas Jefferson's January 1, 1802, letter to the Danbury Baptist Association in response to that group's address congratulating him on his election as president.  The Library of Congress, with the help of the FBI, analyzed Jefferson's handwritten draft of the letter, including Jefferson's edits, and featured the letter in a 1998 exhibit on church and state.  The LoC gives us an historical context here.  The text of Jefferson's final letter is here; the unedited text is here.


From the LoC:

Jefferson revealed that he hoped to accomplish two things by replying to the Danbury Baptists.  One was to issue a "condemnation of the alliance between church and state."  This he accomplished in the first, printed, part of the draft.  Jefferson's strictures on church-state entanglement were little more than rewarmed phrases and ideas from his Statutes Establishing Religious Freedom (1786) and from other, similar statements.  To needle his political opponents, Jefferson paraphrased a passage, that "the legitimate powers of government extent to . . . acts only" and not to opinions, from the Notes on the State of Virginia, which the Federalists had shamelessly distorted in the election of 1800 in an effort to stigmatize him as an atheist.  So politicized had church-state issues become by 1802 that Jefferson . . . considered the articulation of his views on the subject, in messages like the Danbury Baptist letter, as ways to fix his supporters' "political tenets."

Here's what Moseley had to say:

Jefferson was not in the Constitutional Convention that wrote the U.S. Constitution. . . .  Jefferson was also not a member of the first U.S. Congress that wrote the Bill of Rights, either. . . .

The law clerks over in the U.S. Supreme Court should stop reading people's letters and re-read the U.S. Constitution itself.


October 28, 2010 in Current Affairs, Establishment Clause, Free Exercise Clause, News, Religion | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 19, 2010

Chemerinsky: A Conservative Assault on the Constitution

Erwin Chemerinsky released his new book, The Conservative Assault on the Constitution, late last month.  It's a highly accessible, often first-hand account (through his own cases, his own advocacy) of how a rightward shift in the composition of the federal courts has changed the Constitution.

Conservative Assault 

Among the topics Chemerinsky examines: school segregation; executive authority; religion clauses; rights of criminal defendants; and access to the courts.

Chemerinsky identifies separation of church and state as a key issue--one that happens to be in the headlines today, after Republican and Tea Partier Christine O'Donnell seemed to argue in her debate with Chris Coons that nothing in the First Amendment compels such separation.  Here's part of what Chemerinsky has to say about it:

A major concern of the right wing is the separation of church and state.  For decades, it was understood that the First Amendment's prohibition on the establishment of religion meant that there was a wall separating church and state, a wall that kept American governments secular.  But conservatives, especially starting with the Reagan presidency, have sought to eliminate any such notion.  They argue that the government should have broad latitude to aid religion andto include religion in government activities.  With the arrival of Chief Justice Roberts and Justice Alito, there now appear to be five votes for radically changing the law in this area in a manner that conservatives have advocated for decades.


October 19, 2010 in Books, Establishment Clause, Free Exercise Clause, Interpretation, Religion, Scholarship | Permalink | Comments (2) | TrackBack (0)