First Amendment Law Prof Blog

Enforcement of N.C. Laws Regulating Slaughterhouse Operations Affects Muslim Rite of Sacrifice

As the LA Times reported yesterday, Muslim families in the Research Triangle area who had previously gone to a rural N.C. farm to participate in a ritual animal sacrifice as part of their celebration of Eid-al-Adha will no longer be able to do so.  Eddie Rowe, the owner of the farm that had become part of local Muslims' holiday experience, was charged with operating an unsanitary and illegal slaughter facility. Rowe had allowed the male head of each family to slit the throat of a lamb or goat, and a farmhand would then dispose of the animals' bodies in an adjacent woods. The N.C. Department of Agriculture and Consumer Services had received reports that the animals' throats were not cut properly, allowing the animals to suffer for some time before dying. A department spokeperson also indicated that Rowe had previously engaged in illegal slaughter unrelated to his arrangement with local Muslim families.

Under the N.C. agricultural code, a farm owner can slaughter an animal it has raised without having to meet commercial meat processing standards. However, the sale of such an animal to others triggers the application of commercial regulations.  After the issuance of a restraining order against Rowe, some Muslim families were still buying animals from him with the intention of slaughtering them at a site other than the farm.

JFB                  

Judge Rejects Tariq Ramadan's Challenge to Visa Denial

In a decision issued December 20, federal district judge Paul Crotty dismissed Islamic scholar Tariq Ramadan's challenge of the U.S. government's refusal to issue a visa for travel from Switzerland to Notre Dame, where he had been offered a teaching position.  The visa was refused based on Ramadan's donations to a charity identified as having provided "material support" for a terrorist organization, Hamas.

In a press release reacting to Judge Crotty's ruling, the ACLU, which had represented Ramadan, described the result as "legally wrong and deeply unjust". The ACLU asserts that the real basis for the denial of Ramadan's vias application was his public opposition to and criticism of Bush administration policies. The ACLU's press release emphasized that Ramadan has maintained that he did not know that the charity to which he donated supported Hamas but, under the controlling statute, he would be required to prove that negative proposition by clear and convincing evidence.  A prior post provides further details about the Ramadan controversy and about the ACLU's campaign against what it labels "ideological exclusion" of foreign scholars who have criticized U.S. policies.

JFB             

New Glimpse Inside Village of Kiryas Joel

As recounted in a New York Times article earlier this week, the decision by a woman in the Hasidic Jewish enclave of Kiryas Joel to take liberties with the code of modest dress to which all women are expected to adhere has led to threatening phone calls, the slashing of the tires of her family car, and the painting of "Get out, defiled person" in Yiddish on the car windshield. The woman had chosen to wear denim skirts, wigs made of human hair and seamless stockings rather than more traditional clothes and headcoverings.

These threats and vandalism appear to be an extreme manifestation of the group's practice of enforcing religiously-based social norms through the shunning of non-conforming village residents. A rabbinically appointed modesty committee is formally responsible for the enforcement of conduct and dress codes.  A local rabbi described this role as non-governmental but noted that a failure of a woman to abide by such rules could result in the family's children being refused entry into the local religious schools. The unwillingness of members of the community to cooperate has led the New York State Police to end their investigation of the incidents.

Life in the New York village of Kiryas Joel drew national attention in 1994 when the U.S.Supreme Court invalidated a special New York state law that allowed the village, composed entirely of members of the Satmar Hasidic Jewish sect, to operate a public school district in order for the large number of handicapped children among the Satmars to receive special education services. Non-handicapped children would continue to be educated in the village's private religious schools. A majority of the Court found that the law violated the Establishment Clause appearing to give preferential treatment to the Satmars. A plurality also saw the New York law as the delegation of a sensitive form of public authority, the managment of a public school district, to a group defined by religion. 

JFB    

   

Suit Against Lawyer Rating Website Dismissed on First Amendment Grounds

As reported in the Seattle Post-Intellingencer, a federal district judge has dismissed a suit filed by lawyers who alleged that their professional reputations and business opportunities were hurt by the ratings they received on a website that provides lawyer profiles as well as quality ratings that are derived in part from information that lawyers can provide themselves and from client comments. Although characterizing the kind of rating system used on the AVVO site as "ludicrous", Judge Robert Lasnik's ruling found that the First Amendment would not permit the lawyers to "prevent the dissemination of opinions regarding lawyers and judges."

JFB

Landmark Designation of DC Church May Prompt Legal Challenge

Early in December, the D.C. Historic Preservation Review Board decided that the Third Church of Christ Scientist would be declared a landmark because it represents what some observers would deem the mercifully abandoned architectural style known as Brutalism. The structure was designed by I.M. Pei's architectural firm and built in the early 1970's. Church leaders, who asserted that the building does not meet the needs of the currrent small congregation, had opposed the grant of landmark status fearing the many expensive repairs the designation would entail.

According to a Washington Post article, the Becket Fund, an organization that litigates religious rights cases, may now pursue claims under the Religious Land Use and Institutionalized Persons Act and the Religious Freedom Restoration Act. The group had filed a legal opinion letter with the Board in which it outlined the nature of such a challenge based on the burdens landmark status would impose on the congregation's pursuit of its religious mission. In an essay in The American Spectator, Charles Paul Freund finds the designation ironic because, he contends, the landmark law originally sought to protect Victorian structures from destruction as redevelopment efforts sought to replace such buildings with new construction in styles like Brutalism.

JFB    

Huckabee Christmas Ad Draws Criticism

The recent TV ad run by former Gov. Mike Huckabee in New Hampshire, South Carolina, and Iowa features the candidate in front of a Christmas tree with Silent Night playing in the background. Although the ad suggests that the primary candidates should cease their bitter attacks during the holiday season, its directed appeal to Christians has been seen as divisive and inappropriately sectarian by some critics, including the Catholic League of America, as the Associated Press reported yesterday. Huckabee dismissed the criticism as reflecting an unreasonable insistence on political correctness, a charge not often levied at Catholic League President William Donahue.   

In addition, the extended but clearly not friendly candidate profile in the most recent New York Times Sunday Magazine includes remarks by Huckabee, an ordained Baptist minister, that could be read as slyly interjecting comments designed to play to bias against Mormonism. Huckabee has subsequently denied such a motive led him to ask his NYT interviewer, "Don't Mormons believe that Jesus and the devil are brothers?". 

JFB

Injunction Against Texas Strip Club Fee Denied

Yesterday, as the AP reports, a state court judge refused to issue an injunction to prevent a $5 per person strip club fee from going into effect January 1, 2008. The judge found insufficient evidence of irreparable harm to justify an injunction. Under the authorizing legislation, revenue from the fee will be used to fund sexual assault programs and health care for the uninsured. At yesterday's hearing, lawyers for the state appeared to suggest a connection between the clubs and sexual assaults.  In addition, in an effort to minimize the effect of the fee, the state's brief asserts that the fee "does not prohibit nude dancing, does not dictate where live nude entertainment may be presented, does not require any minimum clothing and does not govern the physical setting for the activity." 

Challenging the fee under both the Texas and federal Constitutions, the Texas Entertainment Association and an Amarillo club owner contend that the law imposes an unfair tax on activity protected by the First Amendment. Although the owners of sexually oriented businesses have not always won the same degree of solicitude for their First Amendment claims as other plaintiffs, taxing such businesses in this manner may draw heightened concern under existing precedent, as a slightly irreverent commentary in today's Houston Chronicle notes.

JFB       

         

New Allegations of Religious Intolerance Within Military

The Washington Post reports today that the Military Religious Freedom Foundation (MRFF) has released new photographs and videotapes which the group asserts document an environment in which aggressive proselytizing by evangelical Christian groups is permitted and military officers tolerate the expression of bias against non-Christians.  The photos and videos were collected to substantiate claims asserted by Army Spc. Jeremy Hall, an atheist, in a suit against Secretary of Defense Robert Gates and officials at Fort Riley, Kansas, where Hall says he faced threats of retaliation from officers after he tried to organize a meeting for atheists and non-Christians. (See prior post re: filing of Hall suit).

The photos and video present scenes from Fort Riley, Fort Jackson in South Carolina, and the Air Force Academy in Colorado Springs.  At Fort Riley, MRFF found that a quote from Ann Coulter was posted outside the military police battalion office.  The quote read, "We should invade their countries, kill their leaders and convert them to Christianity."  The Fort Riley post exchange also carried the book, " A Politically Incorrect Guide to Islam".  At Fort Jackson, MRFF also found Bible studies material from the Campus Crusade for Christ in which the military is described as an instrument to spread the word of God. 

In response, a Fort Riley spokesman said that the matter was under investigation and was taken seriously due to the potential conflict with the military mission and the Army value of respect.  Similarly, the Pentagon has previously emphasized that religious freedom will be accommodated in the military as long as the practices at issue do not adversely affect unit cohesion and discipline.

JFB      

Student Alleges Discipline for Facebook Photos Violates First Amendment

As today's St. Louis Post-Dispatch reports, sophomore Logan Glover surreptitiously took photos of a teacher while several of his friends posed by her desk and then posted the photos on Facebook. High school officials later learned of the photos and demanded Glover remove them from the site. The high school student complied but was suspended for three days and removed permanently from the teacher's class, where he had been placed as part of his IEP. 

Glover has now filed suit challenging the discipline as a violation of his First Amendment rights. School officials assert that the taking of the photos was disruptive to instruction as were the ensuing discussions when other students alerted the teacher to the posted photos. School officials also contend that the teacher was upset by the posting. The photos did not identify her and no captions or commentary explained their content, but the teacher was apprehensive about Glover's reasons for posting them.

The newspaper account does not address the specific terms of any school policy regarding the use of cellphone cameras or other relevant rules, and the school's quoted response to the suit appears to rest primarily on an invocation on the Tinker standard. The issue of a school's authority to discipline a student for out-of-school Internet postings arises with increasing frequency around the country and is addressed in Brannon Denning and Molly Taylor's forthcoming Hastings Constitutional Quarterly article, Morse v. Frederick and the Regulation of Students' Cyberspeech. 

JFB       

FOIA Applies to Secret Service Logs of White House Visits by Conservative Religious Leaders

As today's Washington Post reports, U.S. District Judge Royce Lamberth has ordered the Secret Service to turn over White House visitor logs sought by a watchdog group, Citizens for Responsibility and Ethics in Washington (CREW) . The Bush administration had claimed that the logs were not agency records subject to FOIA but should instead be treated as presidential records that had to be kept secret in order to protect the confidentiality of communications and policy deliberations by the President and Vice President. The purpose of the visits by conservative religious leaders such as James Dobson, Rev. Jerry Falwell, and Gary Bauer was not addressed in the logs. CREW is also seeking logs recording White House visits by lobbyist Jack Abramoff but faces the possible loss of access the records as they are periodically destroyed by the Secret Service.   

JFB          

Aspen's Light Posts and Banner Limitations

Aspen, Colorado allows local non-profit groups to use light posts to hang banners only on "significant anniversaries" relevant to the groups.  However, as described in today's Aspen Daily News, the frequency with which the city council has granted exemptions to groups seeking to use the light posts for the promotion of non-anniversary events has led the City Attorney to question whether the council could legally deny future applications for use of the light posts in the face of the assertion that the council has treated the light posts as a public forum.

JFB            

Pornography and the First Amendment Examined on NPR's Justice Talking

This week's edition of NPR's Justice Talking presents a variety of perspectives on the regulation of pornography. The guests include anti-porn activist Kristin Espeland, adult film actress and sex educator Nina Hartley as well as an adult video producer. Host Margot Alder also discusses record-keeping regulations imposed on the producers of pornographic films with Robert Peters, president of Morality in Media, and Diane Duke, executive director of the Free Speech Coalition. Other segments look at the constitutional questions raised by congressional efforts to address children's access to pornography on the Internet and how the First Amendment's overbreadth doctrine has been invoked to attack a child pornography prosecution in U.S. v. Williams, now pending before the Supreme Court. You can listen to the program on-line or download it to your MP3 player. 

JFB

DiIulio Book on Faith Based Social Programs Reviewed

The Sunday New York Times Book Review includes Prof. Noah Feldman's review of John DiIulio's new book, Godly Republic - A Centrist Blueprint for America's Faith-Based Future. DiIulio, who served as the first director of President Bush's Office of Faith-Based and Community Initiatives, is a professor in the University of Pennsylvania's political science department. The Times provides an extended excerpt from the book's first chapter.

Feldman, a constitutional scholar at Harvard Law School, praises DiIulio's candor in acknowledging that there is no clear empirical record documenting that faith based programs produce better outcomes for participants. However, Feldman finds that DiIulio's account of the Framers' beliefs about faith itself and about the relationship between church and state less accurate and objects to the criticism DiIulio levels at how Justice David Souter's Establishment Clause opinions have presented the views of James Madison.

JFB       

South Carolina School Districts Dispute Characterization of Church's Shoe Donation Program

In a December 11, 2007 press release, Americans United for the Separation of Church and State asserted that a South Carolina church donating new shoes to needy children at area schools "subjects disadvantaged students to ritual foot-washing as part of a shoe giveaway".  This characterization of the Laces4Love program conducted by the First Baptist Church of North Augusta was sharply disputed by school district officials. When interviewed as part of an AP story on December 11, David Mathis, the associate superintendent of Aiken County schools, described the program as an effort to help kids in need, "not a Biblical representation of washing feet".  In an AP account today, Mr. Mathis emphasized that the children receiving the shoes decide whether they would like to have their feet wiped off before a volunteer from the church group helps them put on new socks and shoes.

The description of the shoe donation project that appears on the church's website also does not present an account of what would be understood to be a "ritual foot-washing", but instead seems to refer to cleaning the children's feet as part of the process of putting them comfortably into their new shoes.  The church's description of the delivery of the shoes includes no reference to providing accompanying religious literature or to engaging in evangelizing while helping the children. The description does allude to giving the children "a small Christmas bag with little gifts and extra socks." The church's account of how Laces4Love operates states that the church asks local schools to identify children that meet the federal criteria for receiving free/reduced price lunch, and the church group then seeks parental permission for the children to participate in the program.    

The Americans United press release does not refer to any complaints from participating children or their parents and does not provide details about how the shoe delivery incorporates a ritualistic element. According to the December 11 AP report, Americans United Executive Director Barry Lynn would object to the program even if no ritual foot-washing occurred because it exerted religious influence on the children. Rev. Lynn was quoted as recommending church members provide the shoes anonymously.

JFB

          

Accommodating Modesty Requirements of Muslim Girls Playing High School Sports

The Associated Press reports on high school athletic associations' increasing acceptance of the wearing of the hijab by Muslim girls who want to play sports. Efforts by some Muslim girls to adhere to modesty requirements while engaging in competitive sports create questions about the extent to which modifications in uniform requirements can be granted in order to allow such players to wear the headscarves, long pants, and long sleeve shirts.  School districts seek the authorization for such modifications from their state high school athletic association, the regulatory body charged with overseeing competitive sports.  Such state associations are increasingly willing to offer exemptions from uniform requirements subject to confirmation that the change sought would not pose a safety hazard for the player or others. Despite this official response, Muslim girls wearing the head covering still report some harassment by opponents, including being called terrorists and being told to "go back to your own country". (See prior post on schools' efforts to accommodate the religious practices of Muslim students.)

JFB

Recently Published Scholarship on Religion Issues

The authors of these recent publications apply a variety of  analytical disciplines to the examination of the religious dimensions of domestic and international political arrangements. 

1) Ronan McCrea, Limitations on Religion in a Liberal Democratic Polity: Christianity and Islam in the Public Order of the European Union. The abstract of this working paper describes its content as follows:

This paper examines aspects of the European Union's approach to the accession of new member states and the integration of immigrants to show how the Union has viewed religion as a potential threat to the autonomy of the public sphere and to individual autonomy in the private sphere and has required acceptance of limitations on religious influence over law and law-making from both applicant states and individual migrants. It notes how, in common with the jurisprudence of the European Court of Human Rights, the EU has been willing to interfere with privacy and individual autonomy in order to protect such principles from the consequences of unlimited religious influence on law and society. Finally the paper considers how the Union's attempts to uphold limitations on religion in the public sphere have been complicated by the partial and contested nature of the secularity of its existing members. It shows how an Islamic presence in the public sphere has been identified by the Union as particularly threatening to the liberal democracy in contrast to its ready acceptance of the public roles of culturally and historically entrenched Christian denominations in many member states.   

2)Joshua Mitchell, Religion is Not a Preference. SSRN provides this summary of the article from the Journal of Politics:

The resurgence of religion around the globe poses a challenge for both empirical and normative social scientists. For the former, the question is whether the terms at their disposal are adequate to comprehend religious self-understanding and, therefore, human motivation and conduct. For the latter, the question is whether those terms confuse or clarify the way in which religion may be brought into public dialogue without violating the tenets of pluralism or toleration. How, then, do social scientists of both persuasions currently understand religion? I begin by distinguishing religious experience from other sorts of experience, with a view to demonstrating, first, that the two preeminent terms adopted by social scientists todaypreference and choicecannot comprehend religious experience. To do this, I provide a brief exposition of what I call the fable of liberalism, in order to explain why the terms preference and choice have achieved the currency that they have and what problems their invocation was intended to address. Second, I consider two other terms social scientists often invokevalue and identityand suggest that these terms also are inadequate for understanding religious experience. The first set of terms arises in the eighteenth century, out of the Anglo-American tradition' the second set of terms arises in the nineteenth century, out of the German tradition. None of these terms are able to comprehend religious experience, which antedates these sets of terms by centuries. I end by suggesting, first, that empirical social scientists would do well to reconsider whether terms that arose during specific historical moments in order to circumvent or to supersede religious experience can help them understand human motivation, let alone predict human conduct, whenever or wherever religion is involved' and, second, that the attempt by well-meaning normative social scientists to bring religion into the public sphere by treating it in terms of preference,choice,value, or identity distorts religious experience, and cannot succeed as a strategy for reintroducing religion into public dialogue, since religion is not what they wish to render it in terms of. 

3)Said Amir Arjomand, Islamic Constitutionalism.  On SSRN, the author describes this article, published in the December 2007 Annual Review of Law and Social Science, in these terms:

As the first survey of the topic, this review covers Islamic constitutionalism since its emergence a century ago, showing a significant range of historical variation. The first two phases of Islamic constitutionalism are separated by a watershed, the late coming of the age of ideology, which began with the creation of Pakistan in 1947, thus predating the contemporary resurgence of Islam by some two decades. In the first phase, Islam appeared as a limitation to government and legislation, without any presumption that it should be the basis of the constitution itself. In the second phase, Islam came to be considered the basis of the constitution and the state. In the incipient third phase of postideological Islamic constitutionalism, we witness a return to the idea of limited government - this time as the rule of law according to a constitution that is not based on but is inclusive of the principles of Islam as the established religion.   

4)Samuel Decanio, Religion and Nineteenth-Century Voting Behavior: A New Look at Some Old Data. Addressing a historical topic with clear contemporary relevance, this paper presents these conclusions: 

Recent studies of nineteenth-century voting behavior have focused on how economic variables influenced elections during this period. Employing underutilized individual-level data from the 1870s, this paper argues that such studies overstate the influence of economic variables upon electoral behavior. Specifically, Democratic voters principally cast ballots on the basis of economic issues and divisions, while Republicans were primarily concerned with religious and cultural issues. These results suggest that the Democratic and Republican parties attracted voters on the basis of different policy dimensions, indicating that both ethnocultural and economic considerations affected both political parties, albeit in divergent ways.    

JFB

Experts Address "Separation Anxiety"- Church State Relationships Subject of HDNet's Dan Rather Reports

A recent edition of Dan Rather Reports, the HDNet television program, addressing "Church and State: Separation Anxiety" is available for on-line viewing. Discussion participants include Judge Michael McConnell of the Tenth Circuit Court of Appeals, Notre Dame Law Prof. Rick Garnett, Princeton University Provost Christopher Eisgruber, and Holly Hollman, general counsel for the Baptist Joint Committee.

JFB

Religion Newswriters' Top Ten News Stories of 2007

The Religion Newswriters, an organization of reporters covering religion stories for secular publications, has released the results of its poll askingng members to identify the most significant  news items relating to religion in the past year.  The list includes: the role of evangelical voters in the selection of the Republican presidential nominee, the attention Democratic candidates have devoted to religious voters, the ways in which different American denominations are dealing with the question of the ordination of homosexuals clergy, the framing of global warming as an issue with a faith dimension, how religious groups have responded to the presence of illegal aliens in their communities, the role of Buddhisit monks in leading the political protests in Myanmar, the property disputes and other consequences arising from moves by conservative U.S. congregations seeking to leave the American Episcopal Church to affiliate with Anglican groups in Africa, U.S. Supreme Court decisions on partial birth abortion, student speech rights, and taxpayers' standing to challenge activities of the federal Office of Faith Based Initiatives, the deaths of prominent evangelical leaders, including Rev. Billy Graham and Rev. Jerry Falwell, and the financial fallout from American Catholic dioceses' multi-billion dollar settlements of clergy sex abuse cases.

JFB