Constitutional Law Prof Blog

Daily Read: Linda Sugin on the Constitutional Tax Avoidance of the Roberts Court

The Roberts Court majority is avoiding taxes: not the income taxes revealed by the returns due today, April 15, but the constitutional scrutiny that taxes deserve.

Law Prof Linda Sugin (pictured left), in her article The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, draft available on ssrn, analyzes two cases that are not typically paired. 

First, she considers National Federation of Independent Business v. Sebelius, in which, as she describes it, Justice Roberts' "newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause." 

Second, she examines Arizona Christian Schools v. Winn, in which, as dhe describes it, the majority   "adopted a novel judicial approach to targeted tax benefits" and denied standing in an Establishment Clause challenge.

Sugin argues that these two cases, taken together, "challenge the revenue-raising role of the tax law, and give it tremendous potential to overcome constitutional obstacles that legislatures face," including state legislatures.  She contends that the cases "introduce confusion into the law of taxation by incentivizing the adoption of more non-revenue policy in the tax law, and blurring the conceptual structure of taxation."  She claims that "these decisions undermine the important work on tax reform and fiscal responsibility that other branches of government are doing."  Ultimately, she argues that these decisions portend that "policies administered through the tax law" will be deemed constitutional "even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending."

Worth a read and not only on "tax day."

RR

School May Ban Rubber Fetus Dolls

A three-judge panel of the Tenth Circuit ruled yesterday in Taylor v. Roswell Independent School District that a school can ban students' distribution of rubber fetus dolls without violating free speech, free exercise, or equal protection.

The case arose when members of a student group, Relentless, distributed rubber fetus dolls to fellow students at two schools, without required administration permission.  The dolls were said to have the weight and size of a 12-week-old fetus.  Relentless members apparently distributed them to educate fellow students and to protest abortion.  But that message only backfired:

Both schools experienced doll-related disruptions that day.  Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops.  Others threw dolls and doll parts at the "popcorn" ceilings so they became stuck.  Dolls were used to plug toilets.

Op. at 7-8.  And on and on.

The administration stepped in and stopped the distribution, even though it allowed students to distribute other non-school-related items (like Valentine's Day items), and even though it previously permitted Relentless to distribute other things like McDonald's sandwiches to teachers.  (Maybe not surprisingly, those things didn't cause the same kinds of disruptions.)

So Relentless members sued, arguing that the administration violated free speech, the Free Exercise Clause, and equal protection.

The Tenth Circuit rejected each of these claims.  As to free speech, it said that the case did not involve content-based discrimination, and that nobody contested the administration's ability to confiscate dolls that were used to harm school property or for lewd or obscene expressions of their own.  Instead, the case involved private, non-school-related speech, and "[a]pplying Tinker, we hold that the District did not violate Plaintiffs' free speech rights because it reasonably forecasted that distribution of the rubber dolls would lead to a substantial disruption."  Op. at 16.  The court also held that the pre-approval policy looked like a licensing scheme, but with plenty of procedural safeguards (inluding two appeals) and substantive constraints on official discretion--and in the special environment of a school, where the First Amendment doesn't give students the same free speech rights that they may have, say, in the public square.  Finally, the court held that the pre-approval policy wasn't unconstitutionally vague, because a student of ordinary intelligence would know when he or she needs to get a license, and how.  The court said that the plaintiffs failed to show any arbitrary enforcement.

As to the Free Exercise Clause, the court held that there was no evidence of discriminatory purpose on the part of the administrators--that the ban on fetal doll distribution was neutral--that therefore rational basis review applied, and that the administrators had a rational reason for banning the doll distribution--that is, stopping the "doll-related disruptions."  As to equal protection, the court said that the plaintiffs couldn't show that they were treated differently than anyone else seeking to distribute items at school and so couldn't show a violation of equal protection.

SDS

N.C. Bill Takes on First Amendment, Supremacy, Judicial Review--All in One Fell Swoop

North Carolina lawmakers introduced a bill earlier this week that declares the state exempt from the First Amendment's Establishment Clause.  The bill is apparently a reaction to an ACLU suit filed last month against the Rowan County Board of Commissioners for opening its meetings with explicitly Christian prayers.

But the bill doesn't just take aim at the Establishment Clause.  It also challenges federal supremacy and takes on federal judicial review.  Here are some of the whereases:

Whereas, [the Establishment Clause] does not apply to states, municipalities, or schools; and . . .

Whereas, the Tenth Amendment of the Constitution of the United States prohibits the federal government and prohibits the federal courts from expanding the powers of the federal government beyond those powers which are explicitly enumerated; and

Whereas, the Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people; and

Whereas, each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion . . . .

Here's the punch-line:

Section 1. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

Section 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivision of the State from making laws respecting an establishment of religion.

SDS

Federal Judge Rejects Challenge to WTC Cross in September 11 Memorial and Museum

In her opinion in American Atheists v. Port of Authority of NY and NJ Judge Deborah Batts of the Southern District of New York rejected a challenge to the plan to include a seventeen foot cross (pictured) in the National September 11 Memorial and Museum.

Judge Batts, however, did hold that the actions of the Memorial and Museum were subject to constitutional constraints.  The defendants had argued that the "National September 11 Memorial and Museum at the World Trade Center Memorial Foundation" was not a state actor and thus the complaint against it, and the Port Authority, should be dismissed.  Batts dispatched this argument with a rehearsal of the causal connections:

But for the Port Authority’s donation of the cross, but for the Port Authority granting the Foundation a property interest at the WTC Site, but for the Port Authority’s aid in constructing the Museum, and but for their continuing financial and operating relationship, the Foundation would not be able to include the artifact in the Museum.

She also found that the Foundation could be deemed a state actor because of its "pervasive entwinement" with the government.

The American Atheists were far less successful on their federal and state constitutionallaw arguments based on the Establishment Clause and Equal Protection.

In the more serious Establishment Clause challenge, Judge Batts concluded that the planned use of the cross passed the test of Lemon v. Kurtzman (1971).  The placement of the cross in the museum's Historical Exhibition in the section, “Finding Meaning at Ground Zero,” part of the September 11 historical narrative, was not an endorsement of religion.  Judge Batts found it important that

there will be numerous secular artifacts around the cross, as well symbol steel with depictions of a Star of David, a Maltese cross, the Twin Towers, and the Manhattan skyline, which will reinforce to the reasonable observer that they are perceiving a historical depiction of some people’s reaction to finding the cross at Ground Zero.

She disagreed that the size of the cross was determinative.  First, the plaintiffs were mistaken that it was the largest object in the museum at seventeen feet; the "Last Column," also to be included, is thirty-seven feet tall.  Second, she observed that the artifact’s size was a function of its size when it was found; "Defendants did not create the cross to be such an imposing figure."

As for the Equal Protection challenge, Judge Batts found that there was not even an allegation of intentional discrimination or animus, and that the Foundation's act would easily survive rational basis review.  The Museum is merely telling the history surrounding September 11 and the cross, and its meaning for some, is part of that history.  The museum has the choice whether or not to include atheistic symbols.

Because the cross is situated among other artifacts and it is in a museum, any appeal from Judge Batts' grant of summary judgment for the defendants would most likely be unsuccessful.   It looks as if the September 11 Museum will include the seventeen foot cross.

RR
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Sixth Circuit Says Holiday Display Doesn't Establish Religion or Violate Free Speech

The Sixth Circuit ruled earlier this week in Freedom from Religion Foundation, Inc. v. City of Warren that a city's holiday display didn't violate the Establishment Clause and that its refusal to include the petitioner's message in the display didn't violate free speech.

The City of Warren puts up a holiday display every year between Thanksgiving and New Years in the atrium of its civic center.  The display includes a range of secular and religious symbols, including a lighted tree, reindeer, snowmen, a "Winter Welcome" sign, and a nativity scene.  The Freedom from Religion Foundation wrote a series of letters to the Mayor asking him to remove the nativity scene, but the Mayor refused.  So the Foundation asked the Mayor to include its sign in the display; the sign read:

At this season of THE WINTER SOLSTICE may reason prevail.  There are no gods, no devils, no angels, No heaven or hell.  There is only our natural world, religion is but myth and superstition that hardens hearts and enslaves minds.

The Mayor declined.  He wrote back explaining, in his view, why the sign would "provoke controversy and hostility," why it violates this country's basic religious beliefs ("our country was founded upon basic religious beliefs"), and even why the Foundation's "non-religion is not a recognized religion" under the First Amendment.  The Foundation sued, arguing that the display violated the Establishment Clause and that the Mayor's rejection of its sign violated free speech.  The Sixth Circuit rejected the claims.

The Sixth Circuit ruled that the display didn't violate the Establishment Clause, becuase, under Lynch v. Donnelly (1984) and County of Allegheny v. ACLU (1989), it contained sufficiently diverse religious symbols and sufficient secular items so that it didn't unconstitutionally promote a religion or religion generally.  (The court recognized that the Mayor's letter took some liberties with constitutional law: "the Mayor, apparently untrained as a lawyer, may not have missed his calling."  Still, it read the letter to mean that the Mayor was principally concerned about the controversy and hostility that the sign might provoke, and not preferencing religion.) 

The court ruled that the Mayor's rejection of the sign didn't violate free speech, because, under Pleasant Grove v. Summum (2009), the display was government speech, and the government doesn't have to be viewpoint neutral in its own speech.  The court emphasized that the display was approved and controlled by the government, even if it included some privately-donated items.

SDS

Fourth Circuit Rejects First Amendment Claims from "Fortune Teller"

In its opinion in Moore-King v. County of Chesterfield, a panel of the Fourth Circuit has upheld the constitutionality of ordinances specifically directed at those defined as "fortune tellers."  The fortune tellers must have a business license, like all other businesses, but must also:

• have a special permit from the Chief of Police, the application for which must include biographical information, fingerprints, criminal history, and an authorization for a background check;
• pay a license tax of $300;
• be located within particular business districts, excluding certain other business districts.

"Justice" Tarot Card circa 15th Century

As to the free speech claim, the Fourth Circuit disagreed with the district judge's finding that the Moore-King's practice was inherently deceptive and thus categorically excluded from First Amendment protection.  In support, the panel interestingly replied upon United States v. Alvarez (the "Stolen Valor case). Yet the panel then struggled with the appropriate First Amendment doctrine that should be applied - - - a not unusual situation in First Amendment litigation - - - rejecting the commercial speech doctrine and time, place or manner analysis and settling upon what it named the "professional speech doctrine." 

As the government complies with the professional speech doctrine by enacting and implementing a generally applicable regulatory regime, the fact that such a scheme may vary from profession to profession recedes in constitutional significance. Just as the internal requirements of a profession may differ, so may the government’s regulatory response based on the nature of the activity and the need to protect the public. [citation omitted] With respect to an occupation such as fortune telling where no accrediting institution like a board of law examiners or medical practitioners exists, a legislature may reasonably determine that additional regulatory requirements are necessary.

The panel then engaged in little analysis, except to say that this did not mean that the government had "carte blanche" but that it held that the government "regulation of Moore-King's activity falls squarely within the scope of that doctrine."

As to Free Exercise, the panel rejected Moore-King's qualifications to assert the claim:

Moore-King’s beliefs more closely resemble personal and philosophical choices consistent with a way of life, not deep religious convictions shared by an organized group deserving of constitutional solicitude.

In addition to the First Amendment claims, Moore-King had also challenged the regulatory scheme on the basis of Equal Protection, although this argument was largely predicated upon her First Amendment interests as the fundamental rights that would trigger strict scrutiny.  Again, the Fourth Circuit affirmed the district judge's grant of summary judgment in favor of the government.

This is a case ripe for critique and would make a terrific subject for student scholarship.

RR
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Ninth Circuit Allows Prisoner Wiccan Claim to Proceed

In its opinion in Hartmann v. California Department of Corrections and Rehabilitation (CDCR), a panel of the Ninth Circuit reversed in part a district judge's dismissal on a complaint by prisoners' regarding the availability of Wiccan paid-chaplain positions. 

The operative policy maintained paid full-time and part-time chaplain positions only for adherents of five faiths: Catholic, Jewish, Muslim, Native American, and Protestant.  At the heart of the plaintiffs' claims was the allegation that there are more Wiccan prisoners at the women's prison than prisoners of the other faiths.

Interestingly, the plaintiffs did not prevail on their Free Exercise claim under the First Amendment.  Affirming the district judge, the Ninth Circuit panel wrote that even accepting the allegations as true,

while Plaintiffs may be better able to exercise their religious beliefs with the assistance of a paid full-time Wiccan chaplain, it is well-settled that the First Amendment does not require prison administration to provide inmates with the chaplain of their choice. . . . The Free Exercise Clause does not require prison administration to provide Plaintiffs with more than that which they are currently receiving—i.e., the services of staff chaplains and a volunteer Wiccan chaplain.

On the other hand, the CDRC's choice to provide paid chaplains for five more established religions risks an Establishment Clause violation.  The panel, assuming again that the allegations were true, held that the  prison administration created staff chaplain positions for five conventional faiths, "but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs."  the panel provided some guidance to the lower court (and counsel):  at a minimum, a court would have to ascertain whether paid staff chaplains work only at the women's prison or are required to travel to other prisons, jails, and correction facilities in the State and there could be a survey of inmate religious affiliation in the women's prison population and the broader CDCR prison population.

The panel also considered the California constitutional claims as well as the RLUIPA, equal protection, and the proper defendants.  But the case is noteworthy for its illustration of the relationship between Free Exercise and Establishment Clause challenges.

RR
[image: Wiccan symbol via]

The Contraception Mandate and Private Employers in the Circuits

There's a growing split among circuit courts that have ruled on whether to grant an injunction pending appeal to private employers who object to the contraception mandate under HHS regs pursuant to the Affordable Care Act.  The underlying issues--whether the mandate violates the Religious Freedom Restoration Act or free exercise--seem to be moving closer and closer to Supreme Court review.

(These issues are different than the issue in the other cases testing the mandate--by religious employers.  Courts in those cases have held them in abeyance or dismissed them outright in anticipation of new HHS regs that exempt religious employers from the mandate.  The regs would exempt religious employers, but not secular corporations owned by religious individuals.)

The Seventh Circuit ruled recently, for the second time, that a private employer was likely to succeed on its RFRA claim against the contraception mandate.  That court in Grote v. Sebelius held that the corporation's owners' religious objections to the mandate, the government's likely failure to justify the mandate at strict scrutiny under the RFRA, and the owners' harm meant that the contraception mandate must be enjoined pending the company's appeal.  The case echoes that court's earlier ruling in Korte v. Sebelius.  (The difference between the two cases--that the company in Grote was self-insured, while the company in Korte wasn't--didn't justify different treatment, according to the court.)  Both rulings drew dissents by Judge Rovner, but the Grote dissent was especially sharp and lengthy.  In short, Judge Rovner took issue with the idea that the secular corporations enjoyed free exercise rights, even if the owners did.

The Eighth Circuit has lined up with the Seventh Circuit, while the Third, Sixth, and Tenth Circuits have gone the other way.  (Recall that Justice Sotomayor denied Hobby Lobby's application for a stay in the Tenth Circuit case.  The Seventh Circuit took account of that denial, but distinguished it, saying that the standard for a stay at the Supreme Court was much higher than the standard for an injunction pending appeal.)

These cases are on a motion for an injunction pending appeal, not the underlying merits.  Still, they presage a merits ruling, as the courts consider the likelihood of success on the merits as part of the injunction analysis.

We covered a different lower court ruling here.  The Beckett Fund for Religious Liberty has a full scorecard of the cases, including lower court cases, here.

SDS

Daily Read: Dworkin on Winn and Bennett (and more)

Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad."  The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.

Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.

Dworkin's article is worth a (re)read.

For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?"  Dworkin wrote:

We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.

And for those interested in the Court's current docket, Dworkin's post-oral argument analysis of Fisher v. UT is a must-read.

Dworkin's voice will be missed.

RR

Bishops Reject New Regs on Contraception

The U.S. Conference of Catholic Bishops released a statement today saying that the newly proposed HHS regulations on the contraception-coverage provision of the Affordable Care Act don't do enough to protect religious liberties.  According to the statement, the Conference has three problems:

• the narrow understanding of a religious ministry;
• compelling church ministries to fund and facilitate services such as contraceptives, including abortion-inducing drugs, and sterilization that violate Catholic teaching; and
• disregard of the conscience rights of for-profit business owners.

These are the same objections the Conference lodged earlier, in March 2012, well before HHS proposed the new regs.  In short, the Conference says that the HHS proposal doesn't do enough to address its original objections.

The Conference says that the proposed rules maintain an "inaccurate distinction among religious ministries" by not considering Catholic hospitals, universities, and charities as part of the Catholic ministry.  In particular, the Conference objects to the "accommodation" that these institutions receive from the contraception coverage requirement--an accommodation that provides their enrollees separate contraceptive coverage, with no co-pays, and at no (direct) cost to the religious organization.  The Conference seems to object both to the idea that these institutions get an "accommodation" (as opposed to a full free pass on the contraception requirement) and to the possibility that the institutions might end up indirectly paying the bill for contraception coverage even with the accommodation.  As to point three, the Conference balked at the lack of exception for private business owners who, for religious reasons, object to contraception.

The statement says that the Conference will submit its concerns in the notice-and-comment period for the proposed rules.

SDS

Daily Read: Commentary on the Canada Supreme Court's R. v. N.S. ("the niqab case")

Last month's long-awaited decision in R. v. N.S. by the Canada Supreme Court considered whether or not a witness in a criminal trial had a religious right to wear a niqab during testimony. 

The Court's fractured and ultimately unsatisfying decision has prompted some excellent commentary.  A quick round-up from Sonia Lawrence at the Institute for Feminist Studies at Osgoode Hall on the day of the decision has been followed by more discussion.

Canadian ConLawProf Beverley Baines has an excellent commentary over at Jurist.  Professor Baines provides an excellent synopsis of the case and situates it within Canadian constitutional jurisprudence.  She focuses on the Court's analogy between wearing the niqab and publication ban precedent.  Importantly,  she also raises a central question raised by the particular facts in N.S.:

Identity is a complex matter in R. v. N.S.. Given that the accused assailants were her uncle and cousin, they knew the identity of the testifying victim. From N.S.'s perspective, her identity as a Muslim woman was threatened by the niqab ban. Her faith requires her to cover her face in the presence of men who are not members of her immediate family. Removing her niqab would rob her of her religious identity just as would depriving a Jewish man of his kippah, a Sikh of his turban or an Amish of his hair. Nor is the link between the niqab and the presumption of innocence transparent, despite the chief justice's repeated reference to the niqab portending a wrongful conviction. If the niqab is such a serious impediment, might wearing it not result in a wrongful acquittal? 

Professor Natasha Bakht of the University of Ottawa Faculty of Law made a similar argument over at Blogging for Equality earlier this month, stressing the relationship between religious freedom and gender equality in Canadian constitutionalism:

The majority’s decision in NS while keeping the door open for Muslim women to wear the niqab while testifying in certain situations, did not adequately consider NS’s equality or section 7 rights.  Indeed the word equality never appears in the decision! To frame NS’s claim as only rooted in religious freedom is to fundamentally misconstrue the intersectional nature of the issue at stake.  NS is a sexual assault complainant.  Asking a niqab-wearing woman to remove her veil is like asking her to remove her skirt or blouse in court. It is, literally, to strip her publicly and in front of her alleged perpetrators. We know that sexual assault is one of the most underreported crimes in Canada.  Prohibitions on wearing the niqab while giving testimony will only discourage Muslim women from participating in the justice system.

Finally, Stephanie Voudouris at The Court  attempts to "peel back" the layers of the case, again focusing on sexual assault and religious freedom, but also considering demeanor evidence.  Voudouris' discussion is lengthy and provides a solid and objective overview of the case.  But in the end, Voudouris offers a conclusion similar to Baines and Bakht, criticizing the

skewed scale on which the Court balances the harms to trial fairness against the harms to freedom of religion; a scale that may lead lower courts to ban the veil more often than not. Aside from the difficulties with the Court’s attempts to understand freedom of religion generally, this case provokes controversy because, in the words of Justice Abella, the Court is deciding these issues against the backdrop of questions about “whether the niqab is mandatory for Muslim women or whether it marginalizes the women who wear it; whether it enhances multiculturalism or whether it demeans it”, and of whether these global questions matter when a single woman comes before the court to testify against those who have assaulted her, and asks to do so in accordance with her religious beliefs.

The majority opinion seemingly leaves wide discretion to the trial judge.  It will be illuminating to learn what the judge in N.S. - - -  and in other cases - - - ultimately decides. 

 RR
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Federal Judge Denies Injunction Against NYC Circumcision Notice Regulation

In a 93 page  Memorandum and Order in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene, Judge Naomi Reice Buchwald has denied a preliminary injunction against NYC's regulation requiring notice and consent for a specific circumcision practice known as MBP, involving oral suction of the wound.  We previously discussed the regulation and the complaint. 

Much of Judge Buchwald's opinion is devoted to the empirical basis supporting the NYC regulation.  As she states, there is a "strong scientific consensus that direct oral suction puts infants at a serious risk of HSV-1 infection,"  yet there is some dispute whether such has actually occured during a Jewish ritual.  Given this dispute, Judge Buchwald ultimately sidelines the scientific studies and focuses on the legal standards.

On the speech claim, Judge Buchwald concludes that "the interpretation of section 181.21 begins and ends with the regulation’s text. The text of section 181.21 does not compel speech, thus plaintiffs are unlikely to prevail on their claim that the regulation violates" the Free Speech Clause. 

On the free exercise claim, Judge Buchwald distinguished Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion in which the Court applied strict scrutiny.  The judge concluded that the NYC regulation has "several valid secular objects" and "there is also no indication in the record that it has a discriminatory object against religion in general or Judaism in particular."  Instead, the judge noted that the Department had been involved in extensive education outreach since 2005 to combat the risk of HSV-1 transmission:  "Viewed in the context of this educational outreach, the present regulation appears to be one component of a long-term, multifaceted strategy to reduce the incidence of neonatal herpes and promote informed parental decisionmaking," rather than any targeted hostility to a particular religious practice.

In an interesting construction, Judge Buchwald reframed the free exercise rights of the plaintiffs:

[the] mohels’ free exercise interest is inherently circumscribed by parents’ right to decide whether MBP is performed on their child or not. When mohels’ free exercise interest is framed thusly, one can see how limited the regulation really is: it ensures that a prerequisite to a mohel’s legitimate performance of MBP is in fact met. In light of these considerations, it is clear that the regulation is rationally related to the government’s interest in fostering informed parental decisionmaking.

Thus, the judge terminated her previous stay of the enforcement of the regulation.

RR

Daily Read: Leslie Griffin on Free Exercise and the ACA

In a guest post over at the American Constitution Society blog, Professor Leslie Griffin (pictured) discusses the numerous decisions in challenges to the ACA's mandate of reproductive coverage on the basis of the First Amendment's Free Exercise Clause. 

Griffin argues that in these cases, such as Hobby Lobby, the accomodation of religion could violate the Establishment Clause.  Moreover, she argues that neither selling crafts at a profit nor providing employees with benefits should constitute an "exercise" of religion.

The post helpfully provides a great overview and links to all the cases, useful for anyone working in this area.

Worth a read!

RR

No Aid, Establishment of Religion in Lease to Boy Scouts

A three-judge panel of the Ninth Circuit ruled this week in Barnes-Wallace v. City of San Diego that the City's lease to the Boy Scouts for property to use for youth recreational programs did not violate the California Constitution's No Aid Clause and the state and federal establishment clauses.  The plaintiffs said that the Boy Scouts prohibit atheists, agnostics, and gays and lesbians from being members or volunteers and require members to affirm a belief in God, and that a City lease to the organization on favorable terms therefore violated state and federal constitutional prohibitions on government aid to religion.  The ruling almost certainly ends this long-running case in favor of the City.

California's No Aid Clause prohibits the City from "mak[ing] an appropriation, or pay[ing] from any public fund whatever, or grant[ing] anything to or in aid of any religious sect, church, creed, or sectarian purpose . . . ."  Cal. Const. art. XVI Sec. 5.  The state Supreme Court has read into the Clause four requirements: (1) the government program must serve the public interest and provide no more than an incidental benefit to religion; (2) the program must be available to both secular and sectarian institutions on an equal basis; (3) the program must prohibit use of public funds for "religious projects"; and (4) the program must not impose any financial burden on the government.

The Ninth Circuit said the lease satisfied the four-part test.  It said that the lease was for the Boy Scouts to run youth recreational activities, not for any religious purpose; that the City leased property to scores of secular organizations; that no City funds went to "religious projects"; and that the leases weren't a financial burden on the government.  (The court said that even the favorable leases netted out to the City's benefit, because the Boy Scouts substantially improved and managed the leased property.)

The court said that both the California and federal establishment clauses turned on the Lemon test, and that the City's lease satisfied it.  The court held that the purpose of the lease was secular (to provide facilities and services for youth activities); that a reasonable observer could not conclude that the City was engaged in religious indocrination, or was defining aid recipients by reference to religion; and that the City wasn't involved at all in the management of the leased properties.

SDS

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

At issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

Court Reignites Health Care Reform Challenge

The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit.  The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.

Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim.  The Supreme Court declined to review that case, Liberty University v. Geithner.  But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.

The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others).  (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.) 

The district court ruled against the plaintiffs on all counts and dismissed the case.  The Fourth Circuit dismissed the case under the AIA and didn't reach the merits. 

The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause.  Thus after NFIB these issues appear to remain open on remand:

• Whether the mandates violate the Religion Clauses or the RFRA;
• Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
• Whether the mandates violate equal protection;
• Whether the mandate violates free speech and associational rights.

As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).

As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.

If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.

But then again, that's what many of us said about NFIB.

SDS

Thanksgiving 2012

The relationship between Thanksgiving and the First Amendment's religion clauses, as well as to the economy, is a recurrent topic of constitutional conversation at this time of year.

President Obama's Thanksgiving Proclamation for 2012 includes several references to "God," such as:

"On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence."

The President has been criticized in the past for not including sufficient mentions of "God" in conjunction with Thanksgiving.

Obama's 2012 Proclamation repeats earlier invocations of two presidents, stating this year:

When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break.

The current President does not mention FDR, the president responsible for Thanksgiving being the second to last Thursday - - - rather than the last - - - for economic reasons.  According to the National Archives:

In 1939, however, the last Thursday in November fell on the last day of the month. Concerned that the shortened Christmas shopping season might dampen the economic recovery, President Franklin D. Roosevelt issued a Presidential Proclamation moving Thanksgiving to the second to last Thursday of November. As a result of the proclamation, 32 states issued similar proclamations while 16 states refused to accept the change and proclaimed Thanksgiving to be the last Thursday in November. For two years two days were celebrated as Thanksgiving - the President and part of the nation celebrated it on the second to last Thursday in November, while the rest of the country celebrated it the following week.

Meanwhile, there is controversy about so-called "blue laws" banning the opening of stores on Thanksgiving day itself.  Recall that the United States Supreme Court, in an opinion by Chief Justice Earl Warren, rejected the First Amendment challenges and upheld a criminal conviction under a Sunday blue law in McGowan v. Maryland, 366 U.S. 420 (1961). 

RR
[image via]

District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance

The contraception provision requirement of the ACA continues to foment litigation.  However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after"  or "Plan B" contraceptive pill.

In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust.  Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.  

Denying the preliminary injunction, Judge Heaton concluded:

Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.

The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton.  His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.

RR
[image via]

Sixth Circuit Rejects First Amendment Claim of Anti-Muslim Advertisers

In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.

The potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month.  The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements.  In large part, the distinction between the two situations rests upon the policies of the transportation agencies.

SMART, a state transportation agency in Southern Michigan, does allow advertising on its vehicles, but its policy prohibits several categories of advertising including "political or political campaign advertising" and "advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons."  SMART - - - wisely - - - rested its rejection on the political rationale.  The advertisement that SMART had refused read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com."   Interestingly, to determine the meaning of "political," the court not only consulted the website in the advertisement but found confirmation in the language of American Freedom Defense Initiative's own complaint: 

According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote[] its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion.

 Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums.  Yet there is some circularity here:  SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion. 

The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.

RR

Daily Read: Arlen Specter on the Wall Between Church and State

Senator Arlen Specter (pictured), who died yesterday, was known for his involvement with many constitutional law issues including Supreme Court Justice nominations.

He also had a few things to say about the Establishment Clause:

The central problem with basing public policy on faith or religious belief is that, inevitably, there is the question of whose faith or religious belief. Put prayer in the schools and inevitably it becomes a question of whose prayer. Let us remember that most American Catholics began sending their children to parochial schools not because there was no prayer in America's public schools, but because the prayer that was there was the wrong kind of prayer. If we institutionalize school prayer, can we seriously expect that religious groups will not want to have some control over about the form and content of those prayers? Indeed, who other than religious groups could we possibly expect to fashion prayers and forms of devotion?

Arlen Specter, Defending the Wall: Maintaining Church/State Separation in America, 18 Harv. J.L. & Pub. Pol'y 575 (1995). 

Specter's essay explicitly states it was prompted by his "incidental reference" to "the basic American principle of separation of church and state” during the 1994 Iowa State Republican Convention that "caused the hall to erupt with boos." 

RR
[image via]