Wednesday, July 13, 2011
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."
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
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.
RR [image: Suffrage Parade in New York City, 1912, via]
Thursday, April 14, 2011
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]
Wednesday, April 13, 2011
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:
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
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
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.
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.
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.
Sunday, February 6, 2011
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."
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
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
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.
Wednesday, November 10, 2010
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
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
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.
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
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.
Tuesday, October 19, 2010
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.
Monday, October 18, 2010
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).
Wednesday, October 6, 2010
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.
Saturday, September 4, 2010
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.)
Friday, August 20, 2010
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).