Constitutional Law Prof Blog

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.

SDS

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.

SDS

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.

SDS

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.

SDS

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.

 

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.

SDS

Seventh Circuit Upholds Moment of Silence in Schools

A three-judge panel of the Seventh Circuit on Friday upheld an Illinois law requiring a moment of silence at the beginning of each school day.  The case, Sherman v. Koch, involved this provision:

Period of Silence.  Sec. 1.  In each public school classroom the teacher in charge shall observe a brief period of silence with participation of all the pupils therein assembled at the opening of every school day.  This period shall not be conducted as a religious exercise but shall be an opportunity for silent prayer or for silent reflection on the anticipated activities of the day.

The provision was previously discretionary, but the legislature in 2007 changed the "may" to "shall" (as in "teacher in charge shall observe") over the governor's veto. 

Two of the three judges held that the provision satisfied the three-part Lemon test:

Secular Purpose.  The majority ruled that the legislature enacted the moment of silence in order to help students get settled for the day.  They relied upon the plain language of the provision--the choice that students have under the provision to engage in "silent reflection on the anticipated activities of the day"--in concluding that the legislature's purpose was secular.  

Advance or Inhibit Religion.  The majority ruled that the statute as written neither advanced nor inhibited religion.  The provision as written need not necessarily advance or inhibit religion, and the plaintiffs (in their facial challenge) didn't show that the provision was applied in a way that advanced religion.

Entanglement.  This wasn't at issue in the case.

The majority also concluded that the provision was not unconstitutionally vague.

Judge Williams dissented, taking aim particularly at the legislative purpose:

So while I recognize that we assess a legislature's stated purpose with some deference, let's call a spade a spade--statutes like these are about prayer in schools.  In my view, the legislature's decision to make the Act mandatory represents an effort to introduce religion into Illinois public schools, couched in the "hollow guise" of a mandated period of silence.  While the secular purposes articulated by the state might not be "shams," it seems clear to me that to whatever extent they are genuine, they are secondary to religious ones.  I share the concerns raised by a number of legislators who expressed their doubts about the true purposes behind amending the Act.

Op. at 41-42 (citation omitted).

SDS

 

Only the Bible?: Prison Book Policy Challenged

The Berkeley County Detention Center in South Carolina has an exceedingly limited book and magazine policy, according to a complaint which quotes detention center personnel as writing:

Our inmates are only allowed to receive soft back bibles in the mail directly from the publisher. They are not allowed to have magazines, newspapers, or any other type of books.

The detention centerhouses detainees for extended periods of time: with many being confined for more than sixty days, and some being confined for more than one year or two years.  The jail has no library, and also restricts mail to letters and three non-Poloroid pictures.  The Plaintiff, Prison Legal News, alleges the detention policies violate the First Amendment's Free Speech and Establishment Clauses, as well as the Due Process clause.

 

We recently discussed the September 2010 opinion Couch v. Jabe in which a federal judge declared unconstitutional the Virginia prison policy which excluded Ulysses and Lady Chatterly's Lover. 

UPDATE: See comments for discussion of "postcard only" policies.

RR

Funding Policy Discriminates Against Religion, Seventh Circuit Rules

A divided panel of the Seventh Circuit ruled last week that a university's policy of declining to fund student group worship, proselytizing, and religious instruction unconstitutional.  The case, Badger Catholic v. Walsh, highlights the shortcomings in the Supreme Court's approach to the First Amendment in a limited public forum. 

The plaintiff in the case, a student group called Badger Catholic, challenged the University of Wisconsin's policy of funding student group speech, except three categories: worship, proselytizing, and religious instruction.  Although the University funded several Badger Catholic programs that did not fall into these three categories, the University declined to fund some proposed programs that it said did.  For example, the University declined to fund a proposed mentoring program that entails meetings between students and "one of the spiritual directors for spiritual mentoring/counseling and to talk about anything they wanted for a half-hour."  The spiritual directors included nuns and priests for prayer, if requested by the student.  Another proposed program was a four-day summer leadership retreat, which included three masses and four communal prayer sessions.

The judges split over whether the University's policy constituted unconstitutional viewpoint discrimination. 

The Supreme Court recently affirmed and explained its approach to public forums in Christian Legal Society v. Martinez:

[G]overnmental entities create designated public forums when "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose"; speech restrictions in such a forum "are subject to the same strict scrutiny as restrictions in a traditional public forum." . . .  [G]overnmental entities establish limited public forums by opening property "limited to use by certain groups or dedicated solely to the discussion of certain subjects."  As noted in text, "[i]n such a forum, a governmental entity may impose restrictions on speech that are reasonable and viewpoint-neutral."

Op. at 12, n. 11 (citations omitted).

For Judge Easterbrook, writing for himself and Judge Evans, the policy constituted viewpoint discrimination.  As to the counseling program, for example, he wrote: "But having decided that counseling programs are within the scope of the activity fee, the University cannot exclude those that offer prayer as one means of relieving the anxiety that many students experience."  Judge Easterbrook wrote that the University would have a hard time dealing with requests from groups like Quakers, for whom discussion leading to consensus is a religious exercise--ed: but is it prayer, proselytizing, or or instruction?--or religions that do not distinguish between religion and daily life.

For Judge Williams in dissent, the University established a limited public forum, and its policy was merely reasonable content discrimination, and not unconstitutional viewpoint discrimination.  Judge Williams wrote that the policy excludes the content of worship, proselytizing, and religious instruction, but not religious viewpoints outside those areas (as evidenced by the University's funding of Badger Catholic programs outside those areas).  To illustrate the viewpoint-neutral and secular character of the policy, Judge Williams wrote the University could also decline to fund activity like "praying for the Yankees"--secular "prayer" that's based on the content (the prayer) and not the viewpoint (pro-Yankees). 

Judge Williams also highlighted the policy's feature of allowing the student group to identify its own activity.  In other words, Badger Catholic may well have received funding if it simply described its counseling program and retreat in secular terms--or even in terms that didn't include prayer, proselytizing, or religious instruction.

Judge Williams highlighted another problem:

The panel reaches its conclusion that the University is engaging in viewpoint discrimination by stating that purely religious activities have "little meaning on their own" and cannot be meaningfully distinguished from the categories of "dialog, discussion or debate from a religious perspective" funded by the University.  This conclusion degrades religion and the practices of religion.  If religion, and the practice of one's religion, can be described as merely dialog or debate from a religious perspective, what work does the Free Exercise Clause do?

Op. at 20-21 (citations omitted).

The Supreme Court's recent ruling in Christian Legal Society did little to clarify the distinction between content discrimination and viewpoint discrimination, despite Judge Easterbrook's claim that the ruling dictated his own conclusion here.  The competing opinions in Badger Catholic illustrate the problem: Any content-based discrimination can be viewpoint discrimination by discussing the content from a particular viewpoint--here, e.g., by proselytizing (perhaps the most plausibly content-based classification among the three in the policy) from a religious viewpoint.  This is not a new problem, and nothing in Christian Legal Society (or Badger Catholic) solves it.

Even so, Badger Catholic is perhaps a poor illustration of the problem.  In fact, few, if any, groups are going to seek funding for "praying for the Yankees," much less secular religious instructing.  In other words, the policy is likely, if not certain, to exclude only religious groups.  (On the other hand, religious groups well qualify for funding based on their non-prayer, non-proselytizing, and non-religious instruction activities.)

SDS

 

State Police Cross Memorials Violate Establishment Clause

A three-judge panel of the Tenth Circuit ruled on Wednesday that 12-foot high crosses erected on public land to memorialize fallen Utah Highway Patrol (UHP) officers by the the Utah Highway Patrol Association (UHPA), with permission of state authorities, violated the Establishment Clause.

The crosses include a fallen trooper's name, rank, and badge number and the UHP's official symbol along with the words "Utah Highway Patrol."  Most of the crosses sit on public land alongside state roads, but two of the crosses are located immediately outside the UHP offices.  UHPA erected the crosses with the permission of the fallen officers' families and the state.  The UHPA retained ownership of the crosses, and the state on at least one occasion noted that it "neither approves [n]or disapproves the memorial marker."

The court ruled that the crosses violated the second part of the Lemon test--that their "principal or primary effect must be one that neither advances nor inhibits religion."  The court:

the fact that all of the fallen UHP troopers are memorialized with a Christian symbol conveys the message that there is some connection between the UHP and Christianity.  This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP--both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah's highways.  The reasonable observer's fear of unequal treatment would likely be compounded by the fact that these memorials carry the same symbol that appears on UHP patrol vehicles.

Op. at 27-28.

The court rejected the defendant's argument that the crosses were a generic symbol of death; rather, "it is a Christian symbol of death that signifies or memorializes the death of a Christian."  Op. at 29 (emphasis in original).

The court also rejected the defendant's argument that the crosses were private speech and that therefore the Speech Clause, not the Establishment Clause, should govern.  The court held that the crosses were similar to the monuments in Pleasant Grove City v. Summum, the Supreme Court's 2009 case holding that monuments donated to the city by a private organization and displayed by the government on public property constitute government speech not subject to Speech Clause constraints (but still subject to the Establishment Clause).

SDS