Constitutional Law Prof Blog

The Supreme Court Recognizes the Ministerial Exception in Hosana-Tabor Evangelical Lutheran Church and School

In a unanimous and somewhat narrow opinion today, the United States Supreme Court in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws.   Justice Thomas wrote a short concurring opinion; Justice Alito authored a much longer concurring opinion, in which Justice Kagan joined.

The litigation was the focus of a well attended and lively "Hot Topics" panel at the AALS meeting a few days ago, exploring the multi-layered doctrine and ambiguous facts.

One problem is the status of Cheryl Perich as a minister eligible for any "ministerial exception."  Chief Justice Roberts declined to provide a test, but reversed the Sixth Circuit's finding that Perich was not a minister.  Perich was a "called teacher" at a school who performed the same duties as a "lay teacher."  The Sixth Circuit and the EEOC found it relevant that Perich's "religious duties consumed only 45 minutes of each workday" and "the rest of her day was devoted to teaching secular subjects."   Roberts, however, wrote that the issue should not be "resolved by a stopwatch."  Instead, the Court considered the fact that the Hosana-Tabor had issued Petrich a "diploma of vocation" according her the title "Minister of Religion, Commissioned."

Another factual issue regarded Ms. Perich's dismissal as an employee.  Ms. Perich developed narcolepsy, was asked to resign, refused, and later stated that she had spoken to an attorney.  The School terminated her on the basis of her insubordination and threat to take legal action.  She filed a charge with the EEOC based on a claim of retaliation under the Americans with Disabilities Act (ADA).  Justice Alito's concurring opinion discusses the relevance of "retaliation" under the First Amendment Religion Clauses:

Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court.This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, respondent’s disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.

Altio then notes that such a pretextual argument would mean that "a civil court—and perhaps a jury—would be required to make a judgment about church doctrine."

While the concurring opinions avail themselves of the language of religious "autonomy" - - - a controversial concept especially in light of contemporary clergy sexual abuse issues - - - the Court's opinion avoids such language.  The Court specifically rejects the government's "parade of horribles" including retaliation for reporting criminal misconduct or testimony.  As the Court states,

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.

Given such language, commentators can surely criticize the case as carving out another exception, this time a "religious exemption," from anti-discrimination statutes a majority of the Court find unappealing.

While the Court's opinion relies on both the Establishment Clause and the Free Exercise Clause, stating that both "bar the government from interfering with the decision of a religious group to fire one of its ministers," those familiar with First Amendment Free Exercise Clause doctrine might wonder about precedent.  Specifically, one might question the relevance of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) - - - the peyote case - - - in which the Court declared that free exercise does not insulate against a neutral law of general applicability.  The Court did distinguish Smith:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. [Citing Smith] (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

Thus, the Court found the contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses, as the government argued, to be without merit.  On one reading, this distinction protects religious institutions more than individuals.  On another, more cynical, reading, this distinction protects majority religious affiliation more than minority religious affiliation.  (Alito's concurring opinion is worth reading in that it stresses the religious specificity of "ministers" and seeks to broaden it).  The Court's reading of "outward physical acts" and "internal church decisions" may be workable, but it does veer close to the "autonomy" concept the Court avoided.

RR
[image: Martin Luther by Lucas Cranach der Ältere, 1529, via] 

No First Amendment Right to Impose One's Beliefs On Others in Counseling Program

Can a counseling program at a public university require a student to address her deficiencies in becoming a "multiculturally competent counselor," particularly with regard to working with sexual minorities, before allowing her to participate in the program's clinic practicum? 

The short answer from the Eleventh Circuit is "definitely, yes."  In a 40 page opinion, Keeton v. Anderson-Wiley, the Eleventh Circuit affirmed the District Judge's denial of a preliminary injunction to Jennifer Keeton, a student seeking a master's degree in school counseling at Augusta State University, Georgia.  The panel's opinion, authored by Judge Rosemary Barkett, found that Keeton did not show a likelihood of prevailing on the merits.  The opinion was joined by Judge Phyllis Kravitch.  Judge William Pryor, controversial for his own oft-stated Christian beliefs and confirmed 53-45 by the Senate to the Eleventh Circuit six years ago after serving in a recess appointment, concurred specially, largely to point out how views on homosexuality have changed.

The court rejected Keeton's claims of viewpoint discrimination, retaliation, and compelled speech under the Speech Clause and free exercise under the Free Exercise Clause of the First Amendment, spending the bulk of the opinion on viewpoint discrimination.  While Keeton argued that she was discriminated against because of her Christian beliefs, specifically those she held about "homosexuality," Judge Barkett stressed throughout the opinion that the problem was not Ms. Keeton's beliefs, but whether she could - - - or would even agree to try - - - to engage in ethical counseling under the profession's standards.  The evidence showed that Ms. Keeton had made several troubling statements indicating that she would not follow the ethical guidelines.  She said that as a school counselor she would respond to a student in crisis about his sexual orientation, by voicing her disapproval, telling him any homosexual behavior was morally wrong, and referring him to someone practicing sexual conversion therapy.  As Judge Barkett stated:

ASU’s officials confirmed that their primary concern was teaching Keeton not to impose her values on clients and how to become a more effective counselor. Also, in the addendum to the remediation plan, which was added in direct response to Keeton’s email claim that she believed she was being asked to alter her personal religious beliefs, ASU’s officials clarified that “[t]he content of your moral or religious beliefs is not in question,” and that the remediation plan was concerned with teaching her how “to respond in an ethical manner and avoid imposing your personal values on the client.”

The court applied the Hazelwood framework from Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), noting that the practicum might be reasonably thought to "bear the imprimatur of the school" and the practicum, as well as the specific remediation plan to assist Ms. Keeton with meeting acceptable standards, were part of the curriculum.

While the court's treatment of Ms. Keeton's "compelled speech" claim relying on West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is relatively brief, the court's discussion reveals the heart of the court's reasoning: 

ASU is not forcing Keeton to profess a belief contrary to her own personal beliefs. Rather, it is compelling her to comply with the ACA [American Counseling Association] Code of Ethics, which requires those who wish to be counselors to separate their personal beliefs from their work. When a GLBTQ client asks, for example, if his conduct is moral, students are taught to avoid giving advice, to explore the issue with the client, and to help the client determine for himself what the answer is for him. If a client determines for himself that his conduct is moral, the ACA Code of Ethics requires the counselor to affirm the client, which means that the counselor must respect the dignity of the client by accepting the client’s response without judgment, not that the counselor must say that she personally believes that the client is correct. Thus, far from compelling Keeton to profess a belief or change her own beliefs about the morality of homosexuality, ASU instructs her not to express her personal beliefs regarding the client’s moral values. This is the form of treatment that ASU and the ACA have determined best promotes client welfare, which, in their view, is the objective of secular counseling.

Moreover, the court's discussion reveals the applicability of the court's reasoning in other contexts, including law and legal education:

Just as a medical school would be permitted to bar a student who refused to administer blood transfusions for religious reasons from participating in clinical rotations, so ASU may prohibit Keeton from participating in its clinical practicum if she refuses to administer the treatment it has deemed appropriate. Every profession has its own ethical codes and dictates. When someone voluntarily chooses to enter a profession, he or she must comply with its rules and ethical requirements. Lawyers must present legal arguments on behalf of their clients, notwithstanding their personal views. Judges must apply the law, even when they disagree with it. So too counselors must refrain from imposing their moral and religious values on their clients.

Finally, the Supreme Court has hardly indicated an intention to limit a school’s power to require its students to demonstrate whether they grasp a particular lesson. A school must, for instance, be free to give a failing grade to a student who refuses to answer a test question for religious reasons, or who refuses to write a paper defending a position with which the student disagrees ... No doubt, a law school would be permitted to require a student who expressed an intent to indiscriminately disclose her client’s secrets or violate another of the state’s bar rules to take extra ethics classes before letting the student participate in a school- run clinic in which the student would be representing actual clients. These actions, like ASU’s officials’ imposition of the remediation plan, are the types of academic decisions that are subject to significant deference, not exacting constitutional scrutiny.

 RR
[image: Winslow Homer, The Country School, via]

 

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Still, it's a good day to reflect on the "Bll of Rights":

• Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
• Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
• Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
• Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
• Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
• Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
• Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
• Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
• Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
• Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

Town Clerk Update: NY Same-Sex Marriage Law and Town Clerk Seeking Religious Exemption

As the NYT reported yesterday, the clash between the same-sex marriage law in NY, the Marriage Equality Act, and the objections, religiously based, of public employees including town clerks, if fomenting.

As we previously discussed, while the Marriage Equality Act has a religious exemption, this does not cover town clerks who issue marriage licenses.  And as we also previously discussed, the Alliance Defense Fund issued a memo to town clerks entitled  "Your Right to Request An Accommodation of Your Sincerely Held Religious Beliefs Concerning Issuance of Marriage Licenses to Same- Sex Couples."

The NYT quotes the clerk in the rural community, Rose Marie Belforti, as saying  "state law 'protects my right to hold both my job and my beliefs.' "  While the article doesn not mention the memo, the state law claim is indeed discussed in the memo, which does not argue the First Amendment. 

At issue may be the contours of "religious accommodation."  According to the NYT article, the clerk's office is open only a limited number of hours, but same-sex couples desiring a marriage license needed to telephone in advance for a special appointment so that a substitute clerk could handle the matter.  The Town Clerk is an elected position.

RR

Julie Nice on CLS v. Martinez, the First Amendment, and Equality

The intersections of constitutional protections for liberty, equality, free speech, and free exercise of religion can make for convoluted and contentious cases.  Christian Legal Society (CLS) v. Martinez, decided by the Court in 2010, is a prime example, with the additional factual setting at a law school heightening the interest for legal scholars.

In How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38 Hastings Const. L.Q. 631 (2011), Professor Julie Nice, University of San Francisco School of Law, pictured left, argues that the case illuminates several different doctrinal and theoretical controversies, ultimately making liberty more robust because it refuses the conflation of identity and ideology.  

The article is further discussed as my selection for the Jotwell Equality section; it's the best essay I've read on constitutional equality in the last year.  It's essential reading for every ConLawProf.

RR

 

Alabama Immigration Law HB56 Enjoined by Federal Judge

UPDATE HERE

In a very brief Order issued late today, Judge Sharon Lovelace Blackburn, Chief Judge of the Norther District of Alabama, enjoined the enforcement of HB56:

 

Act 2011-535 [H.B. 56] is TEMPORARILY ENJOINED, and may not be executed or enforced. In entering this order the court specifically notes that it is in no way addressing the merits of the motions. The court will issue detailed Memorandum Opinions and Orders ruling on the merits of the pending Motions for Preliminary Injunction no later than September 28, 2011. This temporary injunction shall remain in effect until September 29, 2011, or until the court enters its rulings, whichever comes first.

The Order comes in the consolidated cases of Hispanic Interest Coalition of Alabama v. Bentley; Parsley v. Bentley, and United States v. Bentley.   We've previously discussed each of these three lawsuits have been brought against the controversial HB 56. 

The Hispanic Interest Coalition case began with a 118 page complaint filed early in July raises eight constitutional claims including claims under the Supremacy Clause (arguing that the state law is pre-empted); Fourth Amendment; Equal Protection Clause; Due Process Clause;  First Amendment claims including speech, assembly, and petition clauses, the Contracts Clause, and two Sixth Amendment claims. 

Parlsey v. Bentley is the clergy complaint centering on the First Amendment Free Exercise Clause. 

United States v. Bentley marks the DOJ's entry into the controversy, raising Supremacy Clause arguments as might be expected.

The law was scheduled to go into effect September 1. 

RR
[image: Map of Alabama, circa 1832, via]

Clergy Complaint Against Alabama Immigration Law

In addition to the DOJ challenge to Alabama's immigration law HB 56, which we discussed here, and last month's lawsuit filed by the Southern Poverty Law Center, discussed here, a group of clergy from Alabama have also filed a complaint alleging the immigration law is unconstitutional.

In their complaint, clergy members from the Episcopal, Methodist, and Roman Catholic churches allege that HB56 "runs counter to the Christian spirit of compassion. The law is unconstitutional and a direct affront to the recognized and accepted Word of God. Because Alabama citizens are entitled to freely exercise their religion to show mercy to all people regardless of their immigration status."

The gravamen of the complaint in Parsley v. Bentley is the conflict between Christian duties of hospitality and the statute's mandate to be "inhospitable" to immigrants. 

For example, the complaint alleges that if enforced, "Alabama's Anti-Immigration Law"  will "make it a crime to follow God's command to be Good Samaritans" citing Luke 10:25-37  and "will place Alabama church members in the untenable position of verifying individuals' immigration documentation before being able to follow God's Word to 'love thy neighbor as thyself'" citing Matthew 22:39.

More specifically, the complaint raises particular instances that might result in the prosecution of clergy or church members.  For example, a clergy member might be prosecuted for not verifying the immigration status of persons before performing a marriage or a baptism.  A church member might be prosecuted for transporting "a fellow congregant" or providing "shelter to a person needing help" without verifying immigration status.

While the complaint has six causes of action, including a contracts clause claim, but without a supremacy clause claim, it is obviously that the First Amendment Free Exercise of Religion claim is central and most unique. While some allegations of the complaint could extend to any number of laws, the allegations regarding central church activities might be viewed favorably by the United States district judge.

RR
[image:"The Good Samaritan" by George Fredric Watts via]

 

Justice Ruth Bader Ginsburg: On the 2010 Term

Justice Ginsburg's talk on the Court, presented at the Otsego County Bar Association of New York,  July 22, 2011, is worth reading. Here is an edited version of the written transcript.  The transcript includes footnotes and citations (omitted below), including to the oral argument statements and cases. 

 The edited version continues after the jump, with Ginsburg discussing constitutional law cases such as Snyder v. Phelps, Arizona Christian School Tuition Organization v. Winn,  Chamber of Commerce v. Whiting, and Arizona Free Enterprise Club v. Bennett. Ginsburg "explains" the fact that three of these cases are from Arizona, and makes her most provocative statement on the Court's term regarding Arizona Free Enterprise Club v. Bennett.  She also mentions the reality of three women Justices on the Court.

 

I will present some comments on the Supreme Court Term just ended, the 2010-2011 Term. Early in the Term, the Justices sat for a new photograph, as they do every Term the Court'scomposition changes. Elena Kagan, former Solicitor General, and before that, Dean of the Harvard Law School, came on board last summer, and has just completed her first year as a member of the Court. She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions. The junior Justice, in the first few rounds, tends to get opinion writing assignments in cases neither controversial nor of greatest interest. Displaying her good humor and wit, Justice Kagan opened the announcement of one of her opinions for the Court with this line: "If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee."

Lawyers and law professors alike pay close attention to the questions Justices pose at oral argument. The 2010-2011 Term was rich in that regard. Questions from the bench ranged from the historical: "[W]hat [did] James Madison th[ink] about video games[?]" to the practical: "[I]sn't ... evidence always .. . destroyed when ... marijuana [once possessed by a suspect] is ... smoked? Isn't it being burnt up?"

Colleagues have been fearful: "Does al-Qaeda know all this stuff?", occasionally philosophical: "[W]hy are you here?" "[W]hy are we all here?", and sometimes openly exasperated: "I know your client doesn't care. But we still have to write [an opinion]. So what['s] the answer?" Queries ran from the natural: "Is the snake covered?" to the unnatural: "[W]here is the 9,OOO-foot cow?" to the supernatural: ''What do you think about Satan?"

Justice Jackson famously commented that the Court is "not final because [it is] infallible, [it is]infallible only because [it is] final." Some musings from the bench last Term bear out that wisdom: "I don't know what I'm talking about," "Is that the best you can find on the other side, ... something I once wrote in a case?" You may not be surprised to learn that I uttered none of the just-recited lines. For, as the New York Times reported, based originally on an empirical study by a former law clerk of mine, when it comes to oral argument,I am-quote-" the least funny Justice who talks." From the foregoing samples, you may better understand why the Court does not plan to permit televising oral arguments any time soon.

Turning to the Term's work, I will report first on our docket. Argued cases numbered 78, the same number as the two preceding Terms. Per curiam opinions in cases decided without full briefing or argument numbered only five, consistent with the 2008-2009 Term, but considerably fewer than last Term. One petition was dismissed post-argument as improvidently granted, and another was remanded before argument in light of a recent development bearing on the question presented. Justice Kagan's recusal in more than one-third of the argued cases generated speculation that the Court would all too often divide 4 to 4; in fact, only two of the 78 argued cases ended in an even division. When that happens, we announce that the judgment we took up for review is affirmed by an equally divided Court. We state no reasons and the disposition does not count as precedent. (A third case last Term was evenly divided only as to threshold jurisdictional issues; and after affirming without opinion the lower court's exercise of jurisdiction, the Court rendered a unanimous decision on the merits of the controversy.)

The Court split 5-4 (or 5-3 with one Justice recused) in 16 of the opinions handed down in argued cases. In comparison to that 20% sharp disagreement record, we agreed, unanimously, on the bottom-line judgment more than twice as often, in 33 (or over 40%) of the decisions. And in more than half of those, 18 of the 33, opinions were unanimous as well.

I will next mention six headline-attracting decisions. Two significant class action cases were among them. The first, AT&T Mobility LLC v. Concepcion,concerned the enforceability of fine-print

 

 

 

arbitration provisions in consumer contracts. Representatives of a putative class of mobile phone users filed suit against AT&T, their service provider, arguing that the company had engaged in fraud by charging sales tax on phones advertised as "free." The service contract's arbitration provision prohibited class actions. The lower courts held the provision unconscionable and allowed the case to proceed on a class basis. The Supreme Court reversed in a 5-4 decision. The majority held that the plaintiffs must pursue their claims, if at all, in individual arbitrations. State unconscionability law, the Court concluded, stood as an obstacle to the objectives of the Federal Arbitration Act. The FAA's purpose, the majority urged, is to enforce private agreements and encourage efficient dispute resolution. State law calling for non-consensual class arbitration, the majority felt, would interfere with fundamental attributes of arbitration. I was among the dissenters. In consumer actions of this kind, the dissenters observed, due to the small amount of damages each plaintiff could claim, the real choice was often between class litigation, or no suit at all.

The second major-league class action case was Wal- Mart v. Dukes. Current and former employees sued Wal-Mart, alleging gender discrimination in discretionary pay and promotion decisions, in violation of Title VII (the nation's principal antidiscrimination in employment law). On behalf of themselves and a nationwide class of some 1.5 million female workers, the named plaintiffs sought declaratory and injunctive relief for the class, and backpay for each class member. Federal Rule of Civil Procedure 23-the Rule governing class actions-controlled. Two questions were raised concerning the Rule's application. First, the Court considered Rule 23(a)(2)'s requirement that a party seeking class certification identify "questions of law or fact common to the class." Next, the Court took up Rule 23(b)(2), the subcategory of class actions permitting certification when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." The plaintiffs contended that Rule 23(a)(2)'s gateway "commonality" requirement was met upon showing rudderless managerial discretion to set pay and award promotions, a company culture rooted in sex-role stereotyping, statistics alleged to demonstrate that pay and promotion disparities could be explained only by gender discrimination, and anecdotal evidence of individual instances of disparate treatment. A 5-4 majority concluded that the plaintiffs could not even pass through the 23(a) gateway, because millions of discrete employment decisions were called into question. On that issue, I wrote for the four dissenters. The requisite commonality was satisfied, I explained, by this phenomenon: Managers were overwhelmingly male, and they tended, perhaps unconsciously, to favor people who looked like themselves. As a graphic example, I noted that women did not appear in numbers in symphony orchestras until a curtain was dropped, so that the auditioners could not tell whether the applicant was male or female.

The Court was unanimous, however, on the second issue raised in Wal-Mart. Rule 23(b)(2), under which the plaintiffs sought certification, was designed for cases in which injunctive or declaratory relief is prime. For the would-be class in Wal-Mart, we concluded, the driving issue was backpay. Therefore, Rule 23(b)(3)- which generally governs when monetary relief is sought-controlled. But the plaintiffs quite deliberately declined to invoke that portion of the Rule, involving, as it does, more exacting procedural requirements.

The next top-billed case I will discuss, Snyder v. Phelps, attracted constant coverage in the media,reportorial, photographic, and editorial. The case concerned the First Amendment rights of the Westboro Baptist Church, a small congregation engaged in expressive activity many would rank as outrageous: Church members picket military funerals to communicate the congregation's belief that God hates the United States for its tolerance of homosexuality. Church members picketed in proximity of the funeral of Marine Lance Corporal Matthew Snyder, a young man killed in the line of duty in Iraq. Snyder's father sued the congregation, asserting various state law tort claims, including intentional infliction of emotional distress. The content of the picketers' signs, however offensive, plainly related to issues of public concern and could not be categorized as addressing, dominantly, concerns of a private character. We held that the First Amendment shielded the church from tort liability for picketing in the vicinity of Snyder's funeral. Our judgment invalidated a jury's two million dollar punitive damages award. The First Amendment, we reminded, protects even the most hateful views. Justice Alito's heart-felt dissent underscored the incomparable distress suffered by the Snyder family. Although no member of the Court joined him, his opinion aligned with the views of many Court-watchers, including one of the nation's newest-retired Justice Stevens recently told the Federal Bar Council he "would have joined [Justice Alito's] powerful dissent."

With Justice O'Connor's retirement and Chief Justice Rehnquist's passing, no member of the Court hails from Arizona. Perhaps counterbalancing that loss, Arizona was disproportionately represented among frontrunning and closely contested cases argued last Term. One of the 5-4 decisions, Arizona Christian School Tuition Organization v. Winn, presented this question: Did Arizona taxpayers have Article III standing to challenge a newly installed tax credit, allowed for contributions to school tuition organizations, which, in turn, use the contributions to provide scholarships to students attending private schools-most of them, as one might expect, religious schools. Justice Kennedy, writing for the majority, distinguished what many (including me) considered the controlling precedent, Flast v. Cohen, and held that state taxpayers lacked standing. Justice Kagan's forceful dissent-- - her first - - - was joined by Justice Breyer, Justice Sotomayor, and me.

Another headline case, Chamber of Commerce v. Whiting, asked whether federal law preempts an Arizona statute that authorizes suspension or revocation of the business license of any employer found to have knowingly or intentionally employed an undocumented alien. In a 5-3 decision, the Court ruled that Arizona's law was not preempted by the extensive federal regulation of the field.

Perhaps the most consequential case from the Grand Canyon State was the last opinion announced on the Court's last sitting day of the 2010-2011 Term. In Arizona Free Enterprise Club v. Bennett, the Court addressed a First Amendment challenge to an Arizona campaign-finance law. Under the State's law, a candidate for state office who accepts public financing could receive additional state funds tied to the campaign spending of opposing, privately-financed candidates and of independent expenditure groups supporting those candidates. Five past and future candidates for Arizona state office and two independent expenditure groups challenged Arizona's matching funds law. They argued that the State's law constrained them from exercising their First Amendment rights. In a 5-4 decision, the Court agreed, holding that Arizona's matching funds scheme substantially burdens political speech and is not justified by a compelling state interest. In a powerful dissent summarized from the bench, the Court's junior Justice stated the opposing view, with which I agree in full. All the democracy money can buy, I believe, is not what the First Amendment orders.

We have already granted review in 42 cases for the 2011-2012 Term, a pace slightly ahead of last year. So far, no State stands out on next year's docket as Arizona did last Term. One might argue that if Arizona's experience in the 2010-2011 Term is an indication that the absence of a home-state Justice increases the Court's readiness to grant review, the converse may also be true. If so, my home State, New York, is most securely situated. With Justices now bred in four of New York City's five boroughs, should another vacancy arise, Staten Island jurists should stay close to their phones.

Last year, in remarks addressed to the Second Circuit's Judicial Conference, I noted my joy that we would soon have three women on the Court. I am now delighted to report that not once this Term has an advocate called me Justice Sotomayor or Justice Kagan, and the same holds true for my junior colleagues. We sit left, right, and center of the bench and, as transcripts of oral argument show, Justice Scalia is getting a run for his title as the Justice who asks the most questions.

 

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RR
[bold emphasis added]

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." 

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.

RR

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.

 

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

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: 

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.

RR

Rethinking the Veil: West Virginia Weekend

The boundaries between religion and government are struggles in every state and nation, not only in the current conflicts in the Middle East, but also in West Virginia. 

In Turkey, the practice of veiling or the wearing of headscarves has conflicted with the constitutional mandates of strict securalism.  It is this conflict that is the subject of Professor Valorie K. Vojdik's article, Politics of the Headscarf in Turkey: Masculinities, Feminism, and the Construction of Collective Identities, 33 Harv. J. L. & Gender 661 (2010).

Vojdik writes:

Veiling has multiple meanings that can be understood only by closely examining its social and historical context in a particular location and time.  The headscarf is not solely a religious symbol or practice, nor its regulation merely an issue used to construct power relations between men and women, because secularists and Islamists, between the West and political Islam.

Id. at 663.  Vojdik argues that in "Turkey, the headscarf issue is a proxy for political struggle between secularists and Islamists. Covering constructs boundaries of identity and difference—boundaries between men and women, between Turkish secular elites and political Islamic leaders, and between the global West and transnational Islam. Yet women have been critical agents in this debate." Id.. at 663-64. 

Professor Vojdik provides a brief history of veiling and discusses the decisions of the Turkish Constitutional Court and the European Court of Human Rights upholding bans on headscarves, but her major emphasis is looking "beyond a rights-based analysis"  to the social and political context of the Turkish ban on veiling. To this end, Vojdik looks to the present role of Turkish women in the headscarf debate.

Ultimately, the author concludes that

 [b]oth secularists and Islamist political parties have used the veil, and the regulation of women’s bodies, to embody competing notions of the state and national identity.  This local struggle for a hegemonic masculinity constructs local gender relations, yet it is also part of the historical and contemporary struggle between the West and Islam.

 Id. at 684.  By concentrating on Turkey, a nation that is constitutionally secular but with a deep religious history and thus similar to the United States, Vojdik illuminates the gendered boundaries between religion and state.

RR

with J. Zak Ritchie

[image: Ottoman woman in a veil, circa 1880s, courtesy NY Public Library Collection via]

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.

SDS

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.

SDS

 

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

Eleventh Circuit Grants En Banc on Orlando's Prohibition of Feeding in the Parks

An Orlando, Florida Ordinance requires a permit for a "large group feeding" in a public park, and further provides that:

The Director of Families, Parks and Recreation or his/her designee shall issue a Large Group Feeding Permit upon application and payment of the application fee as established by the City. Not more than two (2) Large Group Feeding Permits shall be issued to the same person, group, or organization for large group feedings for the same park in the GDPD in a twelve (12) consecutive month period.

The Ordinance was challenged by the First Vagabonds Church of God and the nonprofit group Food Not Bombs, with the district court ruling in favor of the Church on its free exercise claim, in favor of Food Not Bombs on its as-applied free speech claim, and permanently enjoined the Orlando from enforcing the Ordinance against Plaintiffs.  The Eleventh Circuit reversed in an Opinion entered in early July, over a vigorous dissent by Judge Rosemary Barkett.

Barkett wrote:

The members of Orlando Food Not Bombs (“Food Not Bombs”) began conducting weekly demonstrations in 2005 at a public park located in the heart of downtown Orlando in order to draw attention to society’s failure to provide food to all and express their opposition to war. They did so by displaying signs and wearing buttons and t-shirts with the Food Not Bombs’ logo and anti-war messages while simultaneously distributing free food to hungry and homeless persons. . . . .  this conduct constitutes expressive conduct entitled to First Amendment protection . . . .

Barkett distinguished Rumsfeld v. FAIR, on which the majority relied, and also considered the actions as a whole of Food Not Bombs rather than merely the handing out of food.  Barkett argued that a reasonable person viewing Food Not Bombs’ demonstrations would observe that they

• take place every week,
• at a centrally located public park,
• in an affluent neighborhood,
•  are visibly run by a group whose name itself, Food Not Bombs, conveys an unmistakable message,
• include activists holding signs or banners and wearing t-shirts and buttons to reinforce the group’s central Food Not Bombs message, and
• involve the distribution of food to the hungry and homeless in accordance with Food Not Bombs’ purpose.

A majority of the Eleventh Circuit judges have voted to grant en banc review, indicating that Judge Barkett's views will be seriously entertained by the full court.

RR