First Amendment Law Prof Blog

First Amendment Scholarship Update

Here is this week’s collection of newly available scholarship addressing religion and speech topics:
 
1. Michael Heise (Cornell Law School) and Gregory C. Sisk  (University of St. Thomas School of Law -Minnesota), Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts, 110 Mich. L. Rev. --- (2012). The abstract states:

In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.

Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establish¬ment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.

A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.

Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.

2. Alexander Volokh (Emory University School of Law), Everything We Know About Faith-Based Prisons.The abstract states:

This Article examines everything we know about the effectiveness of faith-based prisons, which is not very much.

Most studies can’t be taken seriously, because they’re tainted by the “self-selection problem.” It’s hard to determine the effect of faith-based prison programs, because they’re voluntary, and volunteers are more likely to be motivated to change and are therefore already less likely to commit infractions or be re-arrested. This problem is the same one that education researchers have struggled with in determining whether private schools are better than public schools.

The only credible studies done so far compare participants with non-participants who volunteered for the program but were rejected. Some studies in this category find no effect, but some do find a modest effect. But even those that find an effect are subject to additional critiques: for instance, participants may have benefited from being exposed to treatment resources that non-participants were denied.

Thus, based on current research, there’s no strong reason to believe that faith-based prisons work. However, there’s also no strong reason to believe that they don’t work. I conclude with thoughts on how faith-based prison programs might be improved, and offer a strategy that would allow such experimentation to proceed consistent with the Constitution.

3. Shane J. Ralston (Pennsylvania State University – Hazleton), American Enlightenment Thought , forthcoming in INTERNET ENCYCLOPEDIA OF PHILOSOPHY. The abstract states:

Though there is no consensus about the exact span of time that corresponds to the American Enlightenment, it is safe to say that it occurred during the eighteenth century among thinkers in British North America and the early United States inspired by the ideas of the British and French Enlightenments. Based on the metaphor of bringing light to the Dark Age, the Age of the Enlightenment (Siècle des lumières in French and Aufklärung in German) shifted allegiances away from absolute authority, whether religious or political, to more skeptical and optimistic attitudes about human nature, religion and politics. In the American context, thinkers, such as Thomas Paine, James Madison, Thomas Jefferson, John Adams and Benjamin Franklin, invented and adopted revolutionary ideas about scientific rationality, religious toleration and experimental political organization - ideas that would have far-reaching effects on the development of the fledgling nation. Some coupled science and religion in the notion of deism; others asserted the natural rights of man in the anti-authoritarian doctrine of liberalism; and still others touted the importance of cultivating virtue, enlightened leadership and community in early forms of republican thinking.

4. Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy), The Hollow Promise of Freedom of Conscience. The abstract states:

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first clarifies contemporary understandings of conscience by systematically analyzing its treatment in positive law. It looks beyond the traditional medical, military, and religious contexts, giving a descriptive account of law’s treatment of conscience across various substantive realms, including tax evasion, civil disobedience, discrimination, and even violent terrorism. It demonstrates that legal accommodations are typically granted on an ad hoc basis, only to the extent that exercises of personal conscience align with generally accepted and politically palatable moral principles. If there is a consistent and principled justification for treating cases differently, our legal system has thus far failed to provide it.

This Article argues that, in order for American law to reflect the kind of robust, autonomy-based respect for conscience to which every pluralistic society aspires, we must agree on a content-neutral guiding principle for negotiating future claims for legal accommodation. The alternative, the Article posits, is to concede that American society has abandoned the fundamental purpose of conscientious accommodation – namely, protecting the individual from oppressive majoritarian understandings of morality.

5. Chi Mgbako (Fordham University - School of Law), Aiding Children Accused of Witchcraft. The abstract states:

My law students’ research revealed that witchcraft accusations against children in countries including Angola, Cameroon, Central African Republic, the Democratic Republic of Congo, and Nigeria have increased in recent years, sparked and sustained in part by unrelenting poverty and conflict, family structures weakened by HIV/AIDS, and burgeoning religious sects that encourage child witch-hunts. These accusations often result in tragic tales of child abuse and abandonment.

During the mobile legal-aid clinic we proposed potential solutions tailored to each client's case, such as legal advice dissuading clients from making witchcraft accusations and police referral letters in serious cases of violence. But with some cases, we had to humbly accept that the power of the law is not always enough.

6. Charlotte Garden, Citizens, United and Citizens United: The Future of Labor Speech Rights, forthcoming in William & Mary Law Review. The abstract states:

Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest labor unions - even though the decision applies equally to unions and for-profit corporations. The reason is clear: there exist both practical and structural impediments that will prevent unions from benefitting from Citizens United to the same extent as corporations. Therefore, Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible “silver lining” for labor. It posits that, in articulating a wide-ranging vision of associations’ free speech rights, the Court undermined the intellectual basis of a lengthy string of cases limiting the First Amendment protection applicable to labor-related speech in other contexts, including picketing, boycotting, and striking. Additionally, by discounting the First Amendment interests of dissenting shareholders, Citizens United also calls into question the validity of restrictions on unions’ use of lawfully collected dues and fees for political speech and new organizing. Accordingly, this Article concludes that Citizens United has the potential to impact significantly unions’ First Amendment rights outside of the campaign finance arena.

JFB

 

 

In France National Front Party Foments Anti-Muslim Sentiment

Now led by Marine Le Pen, daughter of founder Jean-Marie Le Pen, the National Front party has been gaining popularity in France, polling at levels comparable to that expressed for the more traditionally popular parties. As recounted in reports from the New York Times and NPR, Ms. Le Pen has redirected rhetorical hostility away from her father’s most familiar target, Jews, and now focuses on allegations that Muslims immigrants are unwilling to accept French values and threaten the French way of life.  This theme,joined with her opposition to the European Union, appears to be attracting support from workers in industrialized areas currently experiencing job shortages. 

JFB

CNN Documentary "Unwelcome: The Muslims Next Door" Airs Tonight at 8

Tonight on CNN Soledad O'Brien examines the controversy surrounding the construction of a mosque in Murfreesboro, Tennessee. CNN’s website offers a trailer for the program.

JFB

AFA Commentator Claims First Amendment Not Intended to Protect Adherents of Islam

On Volokh Conspiracy, Eugene Volokh addresses the validity of the claims advanced by American Family Association radio host Bryan Fischer about the constitutional status of Islam.  In a posting on the Renew America website, Fischer writes:

The First Amendment was written by the Founders to protect the free exercise of Christianity. They were making no effort to give special protections to Islam. Quite the contrary. We actually at the time were dealing with our first encounters with jihad in the form of the Barbary Pirates, which is why Jefferson bought a copy of the Koran. He was told by the Bey of Tripoli that Islam requires Muslims to rob, kill and pillage infidel Christians wherever they find them. Jefferson naturally found that hard to believe, so he bought a copy of the Koran to read it for himself. Sure enough, it's right in there, in the 109 verses of the Koran that call for violence against the infidels.

Islam has no fundamental First Amendment claims, for the simple reason that it was not written to protect the religion of Islam. Islam is entitled only to the religious liberty we extend to it out of courtesy. While there certainly ought to be a presumption of religious liberty for non-Christian religious traditions in America, the Founders were not writing a suicide pact when they wrote the First Amendment.

Our government has no obligation to allow a treasonous ideology to receive special protections in America, but this is exactly what the Democrats are trying to do right now with Islam.

From a constitutional point of view, Muslims have no First Amendment right to build mosques in America. They have that privilege at the moment, but it is a privilege that can be revoked if, as is in fact the case, Islam is a totalitarian ideology dedicated to the destruction of the United States. The Constitution, it bears repeating, is not a suicide pact. For Muslims, patriotism is not the last refuge of a scoundrel, but the First Amendment is.

In a concise analysis of the relevant historical resources, Volokh effectively refutes Fischer’s tirade, concluding: “I know of no sources that suggested that anyone during the Framing era understood the Constitution as excluding “Mahometans,” or non-Christians more generally, from either the Free Exercise Clause or the No Religious Test Clause.”

JFB

Chechnyan Women Face Headscarf Mandate

The Religion Clause Blog notes the release of  a new Human Rights Watch report, “You Dress According to Their Rules” -Enforcement of an Islamic Dress Code for Women in Chechnya.

JFB

Post-DADT Training Begins for Military Chaplains

USA Today reports that the Army and the other service branches have begun a training program for their chaplains as the military prepares to implement the repeal of “Don’t Ask, Don’t Tell.” Lt. Col. Carleton Birch, a spokesman for the Army chief of chaplains, is quoted as describing the training as follows:

Our training is an opportunity for our senior chaplains to have an honest and open conversation about the repeal policy, its effects on them and their ministry… And it's going very well. ... In no way are we giving the message, shape up or ship out.

According to Lt Col. Birch only one Army chaplain has decided to resign in response to the change in policy. 

JFB

Religious Faith and A Governor’s Decision

In yesterday’s New York Times, Samuel Freedman examines the role Illinois Governor Pat Quinn’s Catholic faith played in his deliberations prior to signing a bill to outlaw the death penalty. The article notes the particular influence the thinking of the late Cardinal Bernadin had on the governor. 

JFB

 

Senate to Hold Hearings on Civil Rights of Muslims

On March 29, 2011, the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights will hold a hearing on the civil rights of American Muslims. Announcing the hearing in a press release, subcommittee chairman Senator Dick Durbin stated: “Our Constitution protects the free exercise of religion for all Americans. During the course of our history, many religions have faced intolerance. It is important for our generation to renew our founding charter’s commitment to religious diversity and to protect the liberties guaranteed by our Bill of Rights.” Hearing witnesses will include Muslim civil rights leader Farhana Khera, Cardinal Theodore McCarrick, Assistant Attorney General Tom Perez, and former Assistant Attorney General Alex Acosta. 

JFB
 

W. Va. School Immunization Requirement Upheld Against Free Exercise Challenge

This week in Workman v. Mingo County Board of Education, the Fourth Circuit rejected constitutional challenges to West Virginia's statutory mandate that children be vaccinated as a condition of attending school. The parent had presented Free Exercise, Equal Protection, and substantive due process objections to the vaccination regime. Reporting on the decision, NSBA Legal Clips identifies another recent vaccine-related ruling from the Eastern District of New York, Caviezel v. Great Neck Public Schools, in which the court refused to grant a preliminary injunction ordering to the admission of an unvaccinated child. The district court concluded that the evidence presented by the parent did not establish that a genuine and sincere religious belief was the basis of her objection to the school district’s vaccination requirement.   
Legal Clips also flags the introduction of a bill in Washington state that would condition the granting of a vaccination exemption on the parent’s submission of documentation from a health provider that the parent has been advised of the risks and benefits of immunization. Current state law authorizes an exemption if a parent signs a form stating the parent has religious, philosophical, or personal reasons for refusing to have the child vaccinated prior to school enrollment.

JFB
   
 

New Report Examines Catholics’ Views on Rights of Gays and Lesbians

The Public Religion Research Institute (PRRI) has released a report on how American Catholics view same sex marriage, adoption by same sex couples, and the extension of civil rights protection to gays and lesbians.  Finding that “Catholics are more supportive of gay and lesbian rights than the general public and other Christians,” the PRRI data also indicated that “seven-in-ten Catholics say that messages from America’s places of worship contribute a lot (33%) or a little (37%) to higher rates of suicide among gay and lesbian youth.” The PRRI press release on the report’s findings also highlighted these notable statistics:

Nearly three-quarters of Catholics favor either allowing gay and lesbian people to marry (43%) or
allowing them to form civil unions (31%). Only 22% of Catholics say there should be no legal
recognition of a gay couple’s relationship.

Nearly three-quarters (73%) of Catholics favor laws that would protect gay and lesbian people against discrimination in the workplace; 63% of Catholics favor allowing gay and lesbian people to serveopenly in the military; and 6-in-10 (60%) Catholics favor allowing gay and lesbian couples to adopt children.

Less than 4-in-10 Catholics give their own church top marks (a grade of an A or a B) on its handing
of the issue of homosexuality; majorities of members of most other religious groups give their
churches high marks.

A majority of Catholics (56%) believe that sexual relations between two adults of the same gender is not a sin.   

JFB

DOJ Suit Alleges that Denial of Teacher’s Request for Leave to Make Mecca Pilgrimage Constituted Religious Discrimination

Today’s Washington Post spotlights a civil rights suit filed by the Department of Justice on behalf of a Muslim math teacher whose request for three weeks leave for a pilgrimage to Mecca was denied by her employer, a Chicago area school district. The middle school teacher, who had worked for the district for only nine months at the time of her request, resigned when it was denied. According to the district, the requested leave would have hampered her school’s ability to complete end of semester grading. 

JFB

Bill Seeks Faster Public Access to Court Records in CA

State Senator Leland Yee has recently filed the Court Transparency Bill, SB 326,  which would require state courts to make newly filed court records available for public inspection no later than the end of the day on which those record were received by the court.  The bill’s   proponents, which include by the California Newspaper Publishers Association, Courthouse News Service, the First Amendment Coalition, and Californians Aware, assert that  delays in access to filed documents are widespread. Journalists have underscored that such delays take on greater  significance in a media environment with constantly accelerating news cycles.  State court officials have countered that resource constraints in a time of budget crisis impede granting speedier access to newly filed material.  Courthouse New Service, one of the media entities, pressing for enactment of the bill provides further information about the controversy.  

JFB    

Ninth Circuit: RLUIPA Applies to County Courthouse Holding Facility

In an en banc ruling in Khatib v. County of  Orange, the Ninth Circuit concluded that the Orange County Santa Ana Courthouse holding facility fell within the definition of an “institution” for purposes of RLUIPA and the statute’s protections therefore apply to persons detained there.  The court noted that their conclusion was based on an individualized review of the specific facility at issue, and the unique characteristics of other courthouse facilities might not prompt a similar conclusion in other cases. The Ninth Circuit did not address the accommodation question in the case, noting that an evaluation of the obligations imposed by RLUIPA would turn on an assessment of “serious practical considerations regarding institutional safety, security, and the feasibility of a requested accommodation” in the institutional context presented.

The case arose out of the experience of Souhair Khatib, a Muslim woman who wore a hijab to Orange County Superior Court when she and her husband appeared at the facility. They were seeking an extension of the deadline for completing their community service sentence, imposed when they pled guilty in to a misdemeanor violation of California welfare law. At the court appearance, Ms. Khatib’s probation was revoked, and she was taken into custody at the courthouse’s holding facility. There, a male booking officer ordered her to remove her headscarf, and she then spent the day with her head  uncovered in the view of male officers and inmates. Later that day, the court reinstated her probation and granted an extension of time for the completion of her community service obligation.  Ms. Khatib subsequently filed suit arguing that her treatment at the courthouse holding facility violated RLUIPA.

In response, the County had argued RLUIPA that did not apply to the courthouse because the Act should be read to cover only inmates at long-term residential facilities. The Ninth Circuit found this temporal limitation on RLUIPA’s coverage would be inconsistent with the scope of intended protection, noting the Act instructs that it is to be construed “in favor of broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.”

Hat tip to How Appealing. JFB

Canada Supreme Court Will Examine Whether Muslim Witness Should Be Permitted to Wear Niqab During Testimony

The Religion Clause Blog notes that Canada's Supreme Court has agreed to review N.S. v.Majesty the Queen in which the highest appellate court of Ontario ruled that a judge conducting a preliminary inquiry in a criminal case should conduct a full analysis of the case context and circumstances in order to evaluate whether a witness's wearing of the niqab would compromise the accused's right to conduct his defense. If so, the accused’s right would prevail over the witness's religious freedoms and would justify ordering the removal of the niqab.  In the case, the Muslim woman was the alleged victim of a sexual assault and sought to wear her niqab while testifying. The covering conceals the face except for the eyes. JFB
 

 

 

First Amendment Scholarship Update

Here is this week's collection of newly available scholarship on speech and religion topics:

1. Susanna Mancini (Johns Hopkins University - Bologna Center), The Free Exercise of Exclusion: On Veils, Enemies, and Militant Democracy. The abstract states:

This paper focuses on the mechanisms of exclusion of Islam from the European public sphere, in the light of veil-related laws and cases adopted and decided in different European jurisdictions. It depicts the exclusion of Muslim symbols from the public sphere as a contemporary and distorted implementation of a “militant” model of democracy, i.e. of a democracy that exclude ex ante movements that supposedly advocate non democratic political agendas. It argues that, under the pretenses of removing an obstacle to democracy, anti-veil measures actually aim at artificially reinforcing the cultural and religious homogeneous character of the European public sphere, thus pursuing an “identitarian” (schmittian) model of democracy.

2. Michael A. Helfand (Pepperdine University School of Law), Fighting for the Debtor's Soul: Regulating Religious Commercial Conduct, 19 Geo. Mason L. Rev. --- (2011). The abstract states:

While courts often think of religion in terms of faith, prayer, and conscience, many religious groups are increasingly looking to religion as a source of law, commerce, and contract. As a result, courts are being called upon to apply the church autonomy doctrine – which bars courts from reviewing matters of faith, doctrine, and church governance – where commercial conduct is religiously motivated. In this Article, I consider an example of the challenges faced by courts when trying to interpret and regulated religious commerical conduct: the constitutionality of imposing sanctions for violating the Bankruptcy Code’s automatic stay by submitting a dispute for religious arbitration. In considering this example, I suggest that courts, instead of trying to take religion out of the equation, need to develop an increasingly sophisticated understanding of the religious dynamics of a case to know when they can – and cannot – review and regulate the conduct in question.

3. Barak Y. Orbach and Allison S. Woolston  (University of Arizona), Censoring Crimes. The abstract states:

Concerns regarding the harmful influence of films on youth and adults have always motivated censorship and justified, in some minds, greater government control over content. Many motion pictures portray illegal conduct - theft, robbery, embezzlement, arson, drug dealing, assault, rape, murder, treason, and other crimes. Despite the perpetual fear of the “capacity for evil” of films, the legality of motion pictures that commercialize crimes has not been studied as a concept. This Essay explores the reasons for this neglect and examines the problems this omission created during the debates over the ban on crush videos. The Essay shows that the evolution of content regulation in the motion picture industry, the actions of special interest groups, and the simplified manner in which lawmakers sometimes address complex issues have led to censorship regimes that ban genres rather than types of content. The Essay shows that historically, without addressing the specific question, film genres that commercialize crimes have been banned. Thus, the Essay argues that a general legal rule could be drawn for this category of films.

4. Douglas E. Abrams (University of Missouri School of Law), Recognizing the Public Schools’ Authority to Discipline Students’ Off-Campus Cyberbullying of Classmates, forthcoming in New England Journal on Criminal and Civil Confinement. The abstract states:

The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary.

Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school activities", or (2) "collision with the rights of other students to be secure and to be let alone". To fulfill their "basic educational mission", school authorities may also discipline cyberbullying that compromises efforts to teach "the boundaries of socially appropriate behavior", "habits and manners of civility" and respect for "the sensibilities of fellow students".

In the Internet Age, the Court’s holdings reach cyberbullying, including messages that a student sends from off campus but foresees will have the requisite harmful effect on campus. By upholding off-campus application, lower courts remain true to advice delivered by Justice Louis D. Brandeis in Olmstead v. United States (1928).

Olmstead held that the Fourth Amendment did not prohibit the government from placing remote telephone wiretaps because “[t]here was no entry of the houses or offices of the defendants.” Nearly forty years later, the Court vindicated Justice Louis D. Brandeis’ Olmstead dissent from the five-Justice majority’s refusal to apply existing Fourth Amendment doctrine to technological advances wrought by the telephone. Because “[t]ime works changes, brings into existence new conditions and purposes,” Justice Brandeis argued, “a principle to be vital must be capable of wider application than the mischief which gave it birth.” In Berger v. New York in 1967, the Court overruled Olmstead and acknowledged that “[t]he law . . . has not kept pace with . . . advances in scientific knowledge.”

Much as the capacity for government wiretapping of telephones from remote locations lay beyond the contemplation of the Fourth Amendment’s framers, the capacity for student cyberbullying from the Internet and other remote locations lay beyond the Supreme Court’s contemplation when it articulated and later refined Tinker’s First Amendment doctrine. Where student cyberbullies foresee that their off-campus speech will reach classmates on campus, courts remain true to Tinker and its progeny by applying their express holdings to technology that the Supreme Court had no reason to anticipate when it decided those cases.

5. Andrew D. Selbst, The Journalism Ratings Board: An Incentive-Based Approach to Cable News Accountability , 44 U. Mich. J. L. Reform 467 (2011). The abstract states:

The American establishment media is in crisis. With newsmakers primarily driven by profit, sensationalism and partisanship shape news coverage at the expense of information necessary for effective self-government. Focused on cable news in particular, this Note proposes a Journalism Ratings Board to periodically rate news programs based on principles of good journalism. The Board will publish periodic reports and display the news programs’ ratings during the programs themselves, similar to parental guidelines for entertainment programs. In a political and legal climate hostile to command-and-control regulation, such an incentive-based approach will help cable news fulfill the democratic function of the press.

JFB

European Court of Human Rights Finds No Human Rights Violation in Mandated Display of Crucifixes in Italian Schoolrooms

Friday the Grand Chamber of the European Court of Human Rights reversed a 2009 Chamber Judgment that had found that the mandated display of crucifixes in Italian schoolrooms violated the European Convention on Human Rights. The Grand Chamber 15-2 ruling acknowledged that a crucifix “undoubtedly refers to Christianity,” Italy’s majority faith, but concluded:

[A] crucifix on a wall is an essentially passive symbol .. and cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities.... [T]he presence of crucifixes is not associated with compulsory teaching about Christianity.

Eliding the potential analytical significance of the distinction between the state presenting a symbol associated with one faith and the manifestations of faith by private citizens in the school environment, the Grand Chamber added:

Italy opens up the school environment in parallel to other religions.... [I]t was not forbidden for pupils to wear Islamic headscarves or other symbols or apparel having a religious connotation; alternative arrangements were possible to help schooling fit in with non-majority religious practices; the beginning and end of Ramadan were "often celebrated" in schools; and optional religious education could be organised in schools for "all recognised religious creeds" .... Moreover, there was nothing to suggest that the authorities were intolerant of pupils who believed in other religions, were non-believers or who held non-religious philosophical convictions.

Thanks to the Religion Clause Blog for the link to the Court’s ruling.

JFB

Screening Out Offensive Content on Personalized Illinois License Plates

License plates have become a perennial subject of First Amendment litigation. The Chicago Sun Times looks at the Illinois process for screening out offensive plates.  The CST article  is accompanied by a list of some of the rejected plates.  Out of the 150,000 personalized plates the state issued each year only two percent are rejected.

HT: How Appealing.

Marking Freedom of Information Day

Today is FOI Day and the First Amendment Center is holding a conference on FOI issues at the Newseum in D.C.  The AP frecently found a mixed record in its examination of governmental openness at the state level.  At the federal level, despite beginning his first term with a pledge to pursue greater governmental  transparency, President Obama’s administration has, according to a recent AP report cited by the First Amendment Center, also amassed a mixed record in its responses to FOIA requests.  The Administration has not invoked the "deliberative process" exemption as often as the Bush Administration did when withholding requested materials.  However, the Obama Administration has refused to release any documents in more than a third of filed requests and has been resistant to requests for expedited consideration of applications for documents. Last week Politico also reported that the Obama Administration has aggressively prosecuted federal workers who have leaked secret information, a move seen by some commentators as likely to deter whistleblowers but defended by others as a necessary response to an escalating number of leaks relating to national security material.

This term the Supreme Court has issued  two opinions narrowing exemptions under FOIA in FCC v. AT&T and  Milner v. Department of the Navy  As SCOTUSblog highlights, the Court will, in this week’s conference, consider another FOIA exemption cert petition filed in The Clearing House Ass’n, L.L.C. v. Bloomberg, L.P..

Finally, on Tuesday the Senate Judiciary Committee held a hearing on  “The Freedom of Information Act: Ensuring Transparency and Accountability in the Digital Age. ” The Committee’s site provides a webcast of the hearing, and the Reporters Committee for Freedom of the Press summarizes the testimony presented at the hearing.

JFB

Mother of Matthew Snyder: “Glad Free Speech Prevailed,” Had Refused to Join Suit, Fearing Case Would Give Westboro Baptist Church Platform for Vile Message

In a letter to the editor entitled “Church did not ruin our goodbye,” Julie Francis, Matthew Snyder’s mother, explains why she refused to join her ex-husband’s suit against the Westboro Baptist Church. Here is the text of her letter: 

Five years ago, my son's father asked me to join him in bringing a lawsuit against the Westboro Baptist Church. I declined. I truly believe this is an issue of free speech - I do not like it and I do not like the WBC. I was certain that in the end, what would be accomplished was that a relatively obscure group of people would be given the platform they were seeking. And they were.

I do not want the perception that Matt's funeral was a "circus." We did not see the WBC, and Matt's funeral was a beautiful and loving tribute to a young man well-loved and well-respected. The WBC was not able to overshadow the beauty of our beloved Matt and of those who surrounded him with grace, honor, dignity and love. Most important, I do not want my son remembered as just a young Marine associated with a vile group of people. He deserved then, and continues now in spirit, much more than that. However, people who were not even there believe that these seven members of an insignificant church were able to "ruin" this goodbye to our Matt.

The Supreme Court decision came March 2, ruling 8-1 on the side of free speech in a very hard and distressing case. I am glad free speech prevailed. I love my son and as a Marine, Matt was entrusted with defending and protecting our rights, liberties and Constitution. I do believe our blessed Matt would feel the same way.

It can be misconstrued by those who don't know me that I support the WBC and that has never been the case. Thank you to those who have supported my position during this difficult time. It has meant very much to me.

The letter was published in York (PA) Daily Record.

Air Force Academy Announces Review of Its Religious Climate

According to an AP report in USA Today, the Air Force Academy has announced that Patrick K. Gamble, a retired four-star general, will "look at the overall climate at USAFA relating to free exercise of religion."  Gamble currently serves as President of the University of Alaska.  In a strongly worded statement, the Military Religious Freedom Foundation (FRFF) responded skeptically to the announcement of the Gamble review:

[T]he Pentagon has already stated that the marching orders for Gamble and his team of three fellow travelers is to ONLY take a “subjective look at the overall climate at USAFA relating to FREE EXERCISE OF RELIGION”. Sadly, THAT myopic analysis is the very CORE of the fundamentalist Christian abusive disgrace at USAFA. The First Amendment has TWO clauses relating to religious freedom; the aforementioned Free Exercise Clause and “that other clause”; the one USAFA brutally and viciously violates with arrogant impunity, the No Establishment Clause. USAFA’s train-wreck, long history of Constitutionally-violative religious oppression has ALWAYS sprung from it’s[sic] blatant violations of the No Establishment Clause and NOT the Free Exercise Clause.

The Nation recently examined MRFF’s efforts to combat aggressive proselytizing and other manifestations of hostility to non-Christians and non-believers in the military. 

JFB