Author Archive for katherine

Appeals Court Says University Must Relax Restrictions on Campus Proselytizing

Published
by
katherine
on May 2, 2012
.

Tennessee Technological University (TTU) requires all non-students who wish to speak (or preach) on campus to follow detailed regulations which require, among other things, a two-week advanced notice.

The U.S. 6th Circuit Court of Appeals recently held (PDF) that a non-student evangelist — John McGlone — may challenge TTU’s campus speech regulations, and this is a big deal.

A campus preacher

So what’s going on here? First, realize that to bring suit in federal court, you have to have “standing.” The court determines whether you have standing by asking: 1) Have you suffered an actual injury; 2) Is the injury traceable to the conduct of the person or organization you’re suing; and 3) Would the injury likely be helped by a decision in your favor.

The (lower) district court held in part that because McGlone never applied for a permit (and was, in turn, never denied a permit), and was never arrested or prosecuted for his speech, he suffered no actual injury and therefore did not have standing to sue.

The 6th Circuit disagreed. According to the judges there, McGlone had a constitutional right to free speech, and that right was violated by TTU’s policies.

Under the facts of the case, this seems right to me.

McGlone requested a waiver of the 14-day notice period, that waiver was denied, and he was threatened with arrest if he decided to speak anyway.

But TTU’s campus is private property, so why can’t they allow or disallow people to speak on their campus as they see fit? After all, if someone wanted to proselytize in my backyard, I could get them booted for trespassing, right?

Right. But when deciding whether an individual can exercise his or her speech rights, courts differentiate between traditional public forums, designated public forums, and nonpublic forums. Traditional public fora, such as streets, sidewalks, and parks are places which (by long tradition or by government fiat) “have been devoted to assembly and debate.” Designated public fora are nontraditional places that the government has opened for public discourse. And nonpublic fora are, for example, my backyard.

While the trial court did not reach the issue, the 6th Circuit held that TTU’s perimeter sidewalks are traditional public fora, and the University’s interior grounds are designated public fora, which means that TTU cannot abridge a person’s right to free speech except under very limited circumstances.

Even though campus proselytizers are awfully annoying, I think this decision is right (in addition to being legally correct). By requiring people to register two weeks in advance to speak, the University was severely limiting peoples’ ability to speak when they wanted. Campus grounds are — and should be, I think — one of the places where people go to share ideas, whether they attend the school or not. Even though I disagree with McGlone’s message, limitations on this type of speech should be… well… limited.

What do you think?

Italy and Israel: Fewer Special Favors for the Religious

Published
by
katherine
on February 25, 2012
.

This week has produced two exciting pieces of news, although (sadly) neither one pertains to the United States.

First, Italy is strongly considering charging the Vatican property taxes on all non-church properties. The Vatican owns quite a bit of commercial property in Italy, including hostels, hospitals, etc., but doesn’t pay property taxes on any of it. Churches would still be exempt, but this proposal could raise millions — or even billions — of Euros a year if implemented.

Tax benefits for religious organizations are a pet peeve of mine, so I’m thrilled to see social pressure creating an impact in another country.  The way I understand it, Italians are getting fed up with foregoing such a huge source of income, especially because money is so tight in this economy.  Which begs the question: why aren’t Americans more upset about this in our country?  Many people think religious organizations do good (and they sometimes do, of course), and therefore should be subsidized, but I also imagine that many people simply haven’t thought about it.

Under Section 501(c)(3) of the Internal Revenue Code, religious organizations and other non-profts are exempt from paying federal income taxes.  And at the state level, they’re exempt from paying property taxes.  Part of the deal, though, at least at the federal level, is that these organizations cannot engage in “political activity.”  If they do, they lose their tax exempt status.  And that means that no congregation leaders ever endorse candidates for public office, or if they do, then they lose their tax benefits immediately. 

What?  You don’t think that’s the way it actually works?  Then check out Project Fair Play for some additional info.  And maybe social pressure can make some changes here in the U.S., too.

…

Second, the Israeli Supreme Court has invalidated a military exemption for ultra-Orthodox Jews.  Again, there seems to have been social pressure from the rest of the population: simply stated, it seemed unfair that one group would get a special exemption while the majority of citizens did not.

The First Amendment provides religion a special place in this country, and that’s OK.  But the more people speak up about this kind of favoritism, then (perhaps) the more questions will be asked about how special that place needs to be.

Death Row Inmate Argues That Prosecution Favored Mormon Jurors, ‘Blood Atonement’

Published
by
katherine
on January 31, 2012
.

A Utah man convicted of two counts of murder and sentenced to death has appealed his conviction, arguing in part that potential jurors were discriminated against on the basis of their religion.

Von Lester Taylor - Utah Department of Corrections

 

After Von Lester Taylor pled guilty to murdering a mother and her daughter, a jury sentenced him to death.  Taylor now claims that one juror should have been disqualified due to his belief in “blood atonement” and that the entire jury selection process was invalid because evidence suggests the prosecution was deliberately excluding jurors who were not members of the Church of Jesus Christ of Latter Day Saints.

The Supreme Court of Utah ultimately held Taylor should have raised these claims earlier in the appeals process and that, because Taylor provided no valid reason for his delay, it is now too late for the court to consider the claims.

Even though the decision focuses on procedure rather than on religion, the case poses some really interesting questions:

First, the blood atonement issue.  Blood atonement is generally understood as the belief that murder is so atrocious that it can only be forgiven if the murderer’s blood is shed.  In a murder trial such as Taylor’s, this seems problematic: Does this mean the juror would only feel comfortable sentencing a murderer to death, rather than some lesser punishment like life in prison?

In Taylor’s case, the answer happened to be no, as the Supreme Court of Utah held in an earlier appeal that the juror “believed the doctrine of blood atonement referred to the Christian belief that Jesus Christ died for the sins of the world and not to the principle that anyone who kills must be killed,” and the juror believed “there may be circumstances in which a defendant who deliberately killed another person might not deserve the death penalty.”

But what if the answer had been yes?  What if the juror believed that the only acceptable punishment for murder was death?  Certainly it would not be fair for the defendant to be sentenced by this juror, as the juror’s sentence recommendation might always be death, regardless of the circumstances.

Which leads to another interesting question: Can attorneys reject jurors on the basis of their religion?  When selecting a jury for trial, attorneys are allowed to exclude potential jurors because, for example, there is good reason to believe the juror would not be able to be fair (that would be “for cause” exclusion).  Attorneys are also allowed a certain number of peremptory challenges, which they may use to exclude potential jurors that they simply don’t care for.  In Batson v. Kentucky (1986), however, the Supreme Court held “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.”

Does this prohibition extend to religion?  Religion, like race, carries a lot of import in this country.  If attorneys can’t exclude jurors on the basis of their race, then must they also be neutral with respect to religion?  Taylor himself complains that the prosecutor unfairly excluded non-Mormons, even though Taylor wanted the blood atonement juror excluded on the basis of a religious belief.

When I first read this case, my gut reaction was that Taylor was right (if the facts were exactly as he claimed them to be): A juror who believes in blood atonement should be excluded, yet prosecutors should not be able to favor Mormons in the jury selection process.  But how is this legally defensible, as both involve discriminating on the basis of religion?

This question has not been answered by the United States Supreme Court, but a case out of the Tenth Circuit suggests a resolution.  In U.S. v. Prince (2011), the Tenth Circuit explained there is a difference between religious belief and religious affiliation.  A prosecutor may strike a potential juror on the basis of religious belief (like the belief in blood atonement), but may not strike a potential juror on the basis of religious affiliation (like not being Mormon).  The court explains a prosecutor “may undoubtedly strike a juror for being unwilling to sit in judgment of another human being, but he may not infer solely from a prospective juror’s race, gender, or religion that he will be unwilling to sit in judgment of another, and then offer that unwillingness as a permissible basis for a peremptory challenge.”

Here, the existing law lines up quite nicely with my visceral reaction to the facts of the case.  What was your visceral reaction to these facts?  If you were on trial, who would you want excluded from your jury, and why?

Will Religious Universities and Hospitals Be Forced to Cover Contraceptives in Employees’ Insurance Plans?

Published
by
katherine
on January 25, 2012
.

As part of President Obama’s health care reform, almost all employers will be required to provide their employees with health insurance that covers birth control free of charge.

That includes religiously-affiliated organizations, too.

 

 

The Obama administration announced it will provide these religious institutions with an extra year to meet the requirement, but will not completely exempt any institutions other than churches from the contraception requirement.

Some of those institutions, such as Catholic hospitals and religious universities, have requested an indefinite exemption to the requirement, arguing that they, like churches, object to the use of contraception and that requiring them to provide it violates their First Amendment rights.

The Center For Inquiry objects to the exemption:

… HHS has provided a one-year compliance exemption for religious hospitals, charities, and universities. This means that hundreds of thousands of women will be left without reproductive health coverage until August 2013 simply because of their employer’s religiously motivated objections. CFI sees no compelling reason why organizations with secular purposes ought to receive any exemption from the law.

No suit has been filed (yet), but if one of the hospitals or universities does file suit, I suspect they will rely at least in part on the recent Supreme Court decision preventing ministers from suing for employment discrimination.  The two cases seem different, as one involves federal employment law and churches, and the other involves federal health care law and hospitals or universities.  But at heart they both ask the same question: At what point has the federal government become too involved with the management of religiously-affiliated institutions?

My hunch is that this provision of the health care mandate will stand.  The religious universities and hospitals won’t get preferential treatment, especially since both often employ many, many individuals who (I imagine) don’t subscribe to the institution’s religious message.  And preventing a hospital or university from denying its employees free access to contraceptives does not present the same threat of government entanglement with religion as would allowing the courts to have a say in which ministers a church hired or fired.

Supreme Court Rules That Ministers Cannot Sue Churches Over Employment Discrimination

Published
by
katherine
on January 13, 2012
.

In the recently-decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Employment Commission, the Supreme Court held (PDF) that “ministers” cannot sue their churches under federal employment discrimination laws.  For background on this case, see this previous post.

Relying heavily on the history of the Constitution, the Court explained that the First Amendment was designed, in part, “to ensure that the new Federal Government — unlike the English Crown — would have no role in filling ecclesiastical offices.”  The Court explained:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The Court argues, in essence, that applying federal discrimination laws to churches regarding church hiring and firing (of ministers) would unduly entangle the government with the church.

This decision has disappointed some, and it seems to me that this disappointment comes in two varieties.

First, some people are worried that churches, synagogues, etc. will simply call most of their employees “ministers,” thereby avoiding federal employment laws.  This would allow the church to fire these employees for any number of discriminatory reasons without the possibility of a lawsuit.  I believe this concern to be unfounded.  Although the Court does not present a “rigid formula” for determining when someone is a “minister,” the Court considered a variety of factors before holding that Cheryl Perich (the fired employee) was in fact a minister at Hosanna-Tabor (the church that fired her):

Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious ser­vice. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious in­struction, Perich played an important part in transmitting the Lu­theran faith.

Only time will tell, of course, but given these factors I do not believe churches will be able to circumvent federal employment law simply by referring to all of their employees as “ministers.”

A second common concern, and one I believe is well-founded, is that actual ministers are now without access to legal recourse if their church has violated federal employment law. As explained by Americans United in their press release, “A pastor who objected to being sexually harassed, for example, could be fired for raising that issue and have no recourse in the courts.”

The best we can hope for, then, is that ministers who have been harassed or discriminated against (and now have no legal recourse) are able to use that experience to raise awareness within their own communities.  Or — dare I say it? — maybe they should consider choosing an entirely new community.

Court Rules That Oklahoma’s Anti-Islamic Amendment Is Probably Unconstitutional

Published
by
katherine
on January 12, 2012
.

On Tuesday, the Tenth Circuit Court of Appeals confirmed the likely unconstitutionality (PDF) of a proposed amendment to the Oklahoma constitution. The proposed amendment, called — I kid you not — the “Save Our State” Amendment, commands that courts “shall not look to the precepts of other nations or cultures” and would have prohibited judges from considering both “international law or Sharia Law” and the laws of other states that “include Sharia Law.”

Image via Shutterstock

This law would have been weird enough without the anti-Islamic sentiment because I don’t see a problem with allowing judges to consider the laws of other countries or cultures. Judges cannot treat religious or foreign laws as binding precedent, so where is the harm in judges carefully considering the wisdom (or lack thereof) behind laws of other countries and cultures when there’s not applicable U.S. law? Still, if the legislature and people of Oklahoma want to prohibit this, that’s their business (for instance, legislatures can enact laws dictating how the courts can interpret statutes).

But when the voters accepted a proposed amendment that singles out Islamic law, they got carried away. In a case called Larson v. Valente, the Supreme Court held that when a law discriminates among religions (as compared to a law that discriminates between religion and non-religion), the law is constitutional only if it is narrowly tailored to further an important government interest. The proposed Oklahoma amendment pretty clearly points a finger at Islamic law in particular, no matter how much the state tries to argue Sharia law is named only as “an example.”  Furthermore, the state offers very little in the way of a compelling government interest, remarking only that the state has an interest in dictating how its courts are run.

So the Tenth Circuit found the proposed amendment to be discriminatory and found that the state did not offer any compelling justifications for the discrimination. (It’s worth mentioning this case was argued in the context of a preliminary injunction, which means the law is not officially off the books but rather is “preliminarily” off the books until a permanent injunction can be litigated. However, given that the Tenth Circuit has already provided a clear and lengthy constitutional analysis, there’s not much left to be decided. In other words, the “Save Our State” amendment is probably gone for good.)

A final note to those of you who worry this means courts might be able to incorporate religious law into their decisions: they can’t. As I explained above, religious law is not acceptable precedent, and only really becomes an issue when you have people like the plaintiff in this case, a Muslim man who included in his will a request that a probate judge look to Islamic precepts if his wishes weren’t clear. And even then, if the Islamic precepts violated United States legal precepts, the U.S. law would trump. So no need to fret.

Court Rules That Judges Cannot Order Religious Divorces

Published
by
katherine
on January 9, 2012
.

As explained by Eugene Volokh, a recent case out of New Jersey has found judicial orders requiring a husband to provide his wife with a “Jewish divorce” (called a get) are unconstitutional.

From what I understand, if a Jewish woman is not given a get by her husband, then she is still considered married in more conservative Jewish communities.  This means she cannot remarry within that community, and any children she has with another partner will be considered illegitimate by them. The same goes for a man whose wife refuses to accept a get from him, although it seems this is a less common scenario (and even if a wife does refuse to accept the get, the husband can get around it with one of these, while the wife has no such option).

In this New Jersey case, the parties agreed they would first present their divorce to a rabbinical court and abide by that judgment.  That court granted the divorce but left the decision of the get to the couple. When the couple went to “real” court, however, the judge ordered the husband to provide the wife with a get.

By doing that, the divorce court forced him to perform a religious action to which he had not previously consented.  In other words, the husband and wife consented to do whatever the rabbinical court decided, but then the divorce court added an additional religious requirement (the get).  The appellate court in New Jersey then decided that this amounted to attempted coercion of religious activity and was therefore unconstitutional.

This is the reasonable outcome, as judicial coercion of a religious act has been held to violate the Establishment clause. Note that the incorporation of the rabbinical court order is not constitutionally problematic because the parties had already agreed to abide by that order: the civil court was enforcing a contract, not coercing religious action.

Even if we ignore Supreme Court law, I still think this is the best outcome, mostly because it would be a huge mess if the courts got involved in people’s religious rites and ceremonies in this way.

But if I put myself in the shoes of the woman who is being denied the religious divorce: OH MY GOSH THIS WOULD DRIVE ME CRAZY.  As the wiki page and the Volokh article explain, sometimes husbands use the denial of the get as a bargaining chip: “Give me the kids and I’ll give you the get,” for example.  (Really classy, guys.) But can we blame them?  The husbands are, after all, just taking advantage of a bargaining tool provided to them by their religion.  If I were going through a divorce –- or any sort of dispute, really -– I would probably take all the (legal) advantages I could get.

The truly frustrating thing to me is that the religious law itself sets men up in an advantaged position.  My (somewhat limited) research suggests that men who refuse the get often receive social sanctions, which is great, but… I would really want some legal sanctions too, if I were in that situation.  Wouldn’t you?

Public Elementary School in North Carolina Offers Bibles to Kids

Published
by
katherine
on December 24, 2011
.

Ginger Strivelli, a parent in North Carolina, got in touch with her local chapter of the ACLU after her fifth-grade son came home from his public school with a copy of the Bible without her prior knowledge or consent.

Image courtesy of shutterstock

The school denies any wrong-doing, noting the box of Bibles was dropped off by the Gideons, who weren’t allowed any contact with the children. The Bibles were kept in the office where students could stop by for one if they wanted, and if any other religious group wanted to drop off their own texts, it would be handled in the same way.

The relevant case law suggests the school was out of line. 

In Peck v. Upshur County Board of Education, a case out of a federal court of appeals in 1998, religious groups were allowed to distribute information at public high schools.  Through written disclaimers, it was made clear that the school was not sponsoring these distributions and that the students were free to take the material if they wished. Because both religious groups and non-religious groups could use the tables, and because no one could sit at the tables and pressure students to take the material, the court held that this practice was not an endorsement of religion and it could therefore continue.

However, with respect to elementary schools, the court noted something a little different:

In elementary schools, the concerns animating the coercion principle are at their strongest because of the impressionability of young elementary-age children. Moreover, because children of these ages may be unable to fully recognize and appreciate the difference between government and private speech — a difference that lies at the heart of the neutrality principle — the County’s policy could more easily be (mis)perceived as endorsement rather than as neutrality. Thus, because our obligation as a court of appeals is to reason as we believe the Supreme Court would, we do hold that the School Board’s policy is unconstitutional to the extent that it allows the display of Bibles and other religious material in the elementary schools of the County.

Case law aside, this just offends my sensibilities. 

According to Strivelli, her son went to pick up the Bible because his teacher told the class they could all leave to get a copy and everyone else was going. 

If you’re in fifth grade, and your teacher tells you that you can leave the classroom, and everyone else is leaving, OF COURSE you’re going to go, too.  And if that happened to involve picking up a Bible, no big deal, right…?  Come on.

Strivelli also remarked that she had been required to sign a permission slip to allow her son to watch a PG-rated movie in class, yet he came home with a Bible without any of the school administrators batting an eye.  Don’t tell me that isn’t a public school tacitly favoring Christianity. (“Why would we need to tell parents their kids might come home with a Bible?  No one could ever find that offensive!  Now ‘How to Train Your Dragon’ . . . that’s another story!”)

And then we have the school’s claim that any other religious material would be treated similarly.  I don’t buy that for a second. 

You’re telling me that if a group of Muslims dropped off copies of the Koran, the teacher would have told her class they could all take a break to grab a copy?  No way. 

Or what if it was a book of Pagan spells that was dropped off? 

Interesting side note: Strivelli is a Pagan herself, and according to Pagan blogger Jason Pitzl-Waters and Strivelli’s own Facebook page, she’s working on getting some spell books into the school office ASAP. 

I’m sure the school will be thrilled! The first question is whether or not they will comply. The next question is whether or not this practice should be allowed at all.

Two Homophobic Students; Two Different Outcomes

Published
by
katherine
on December 23, 2011
.

In recent days, I’ve heard stories about two different students, both expressing anti-gay sentiments in a school setting and both being penalized for that expression.  They each filed suit after their respective penalties were imposed, so they should each get the same result, right? 

I don’t think so.

Jennifer Keeton

First: Jennifer Keeton was a graduate student in counseling at Augusta State University and made no secret of her belief that homosexuality is a choice (and a morally wrong one at that).  According to Keeton, faculty members confronted her about those beliefs — how could she properly counsel GLBT individuals if she believed there was something inherently wrong with them? — and required her to complete a “remediation plan” that included reading articles on homosexuality, attending workshops, and increasing her exposure to the GLBT community. 

The University informed Keeton that if she refused to comply, she would be expelled.  Keeton didn’t want to participate in the plan, so she sued the University, claiming that the University violated her First Amendment rights to free speech and freedom of religion with its enforcement of this remediation plan.

The court denied Keeton’s request for a temporary order prohibiting the University from expelling her, noting that she was not likely to win her case when it went to trial.  (Note: Keeton wanted what is called a “preliminary injunction.”  When a party loses their request for such an injunction, they often don’t take their case to trial, since the court denying the injunction has found that they would be unlikely to win at trial.) 

The court of appeals later affirmed that decision, explaining that the University could lose its accreditation if it allowed Ms. Keeton to sidestep the requirements of a counseling degree.  The court compared the rules for counselors to the rules for judges: you have to apply the law even if you don’t agree with it.  If you can’t do that, then don’t become a judge (or counselor, in this case).

I whole-heartedly agree with the court’s decision here.  If Keeton is so hung up on telling gay people there’s something wrong with them, then she can get a degree from a non-accredited university or open some terrible conversion therapy office of her own.  But under no circumstances should Augusta State have to tolerate that behavior from one of their counseling graduate students.

…

Daniel Glowacki

Second:  Daniel Glowacki is a high school student in Michigan.  On October 20th, 2010, his school district observed an anti-bullying day to raise awareness of the negative impact of bullying, specifically the bullying of members of the LGBT community.  In one of Daniel’s classes, his teacher, Johnson McDowell, asked a student with a Confederate flag belt buckle to remove it, telling her it was offensive.  Daniel then asked why it was permissible to wear a rainbow flag, which some people found offensive, but not a Confederate flag, which other people found offensive.  McDowell asked Daniel if he supported gay rights, and when Daniel responded that his Catholicism prohibited him from doing so, McDowell asked him to leave the room.  Daniel’s mother, with help from the Thomas More Law Center, is now suing the school district and McDowell, claiming that Daniel’s rights to free speech and equal protection were violated.  The suit also requests that a religious exception be added to the school’s definition of “harassment speech,” meaning that expression of moral opposition to homosexuality would not be considered harassment.

This case has not been argued or decided yet, so what follows are just my opinions:

First of all, it sounds like McDowell handled this whole situation pretty poorly.  I’ve never been a teacher, and it’s easy to play Monday-morning quarterback, but doesn’t this seem like the definition of a “teachable moment”?  The story I’ve heard so far doesn’t indicate that Daniel was being belligerent, but rather like he was being a teenager who’s been taught one thing his whole life and is parroting it to whomever asks.  What would have happened if McDowell had engaged the class in a discussion on the different symbolism and connotations of the Confederate flag versus the rainbow flag?  Teenagers are young in some ways, but aren’t they old enough to be thinking critically about these things, and to discuss different viewpoints respectfully?  I certainly think so.  And if they have trouble with respectful discussion, then isn’t an anti-bullying day the perfect opportunity to improve upon those skills?

Legally, there are facts about this case that both help and hurt Daniel’s claim.  The big issue is that all of this took place in a school setting.  If it had been a town council meeting, for example, and Daniel had been asked to leave the meeting because he said that his Catholicism informs his disapproval of homosexuality, the council would be in trouble.  But this is a school.  Teachers and administrators have a lot more leeway to regulate speech because they need to be able to maintain order.

Courts usually balance the speech rights of the individual against the school’s need to maintain discipline: here, it seems like that balance favors Daniel.  As I said, it doesn’t seem to me, based on the facts I’ve seen, that Daniel said anything that would have caused a major disruption. In fact, it seems his comment could have, if handled differently, promoted a worthwhile discussion.

One final note on Daniel’s mother’s request for a religious exemption to the definition of harassment speech: First, this has already been addressed by the legislature, at least as it pertains to a similar proposed state law, and they agreed that one’s faith shouldn’t give anyone a free pass to harass others.  Second, even if a law does impede someone’s ability to practice their religion, that law is often still valid if it is a “neutral law of general applicability.”  The definition of harassment speech seems to fit the bill: religion isn’t specifically targeted in any way, and everyone has to abide by the same rules.

…

Alright.  That about sums it up.  Do you think that’s a fair assessment of the two cases?

Veiled Testimony: Is It Fair If You Can’t See Your Accuser’s Face In Court?

Published
by
katherine
on December 19, 2011
.

 

I have an affinity for cases in which the Establishment Clause of the First Amendment bumps up against some other law, especially some other fundamental right, such as Freedom of Speech.

Here is a compelling example of just that kind of case coming out of Canada: Are the rights of the accused violated if a witness is allowed to testify while wearing a veil? Or, put another way, can people testify in court if you can’t see their entire face?

The Sixth Amendment in the U.S. Constitution guarantees those accused of crimes the right “to be confronted with the witnesses against [them].”  This right provides the foundation of our modern hearsay laws and requires that the accused may “confront” witnesses against them in court, generally in the form of cross examination.

But what if your accuser is there in the courtroom… while wearing a niqab?  You’d have the ability to cross examine the witness, which seems to be the main thrust of the right, but is there more to it than that?

Only one case here in the U.S. has addressed this issue and this is how it went down:

[The case] involved a Muslim woman who went to small-claims court in Michigan to contest a charge from a rental-car company. Hamtramck District Judge Paul Paruk refused to let her testify with a veil on, and the woman, Ginnnah Muhammad, sued him in federal court alleging violations of her First Amendment right to free exercise of her religion.

“One of the things that I need to do as I am listening to testimony is I need to see your face and I need to see what’s going on and unless you take [the veil] off, I can’t see your face and I can’t tell whether you’re telling me the truth or not and I can’t see certain things about your demeanor and temperament that I need to see in a court of law,” Paruk had told her.

A court in Canada has suggested a balancing test: the veil must be removed, but only if wearing it “truly jeopardizes” the accused’s right to a fair trial.

It’s hard to argue against a balancing test — it seems so fair! — but if I were accused of a crime, I’d be pretty upset if the person pointing the finger was completely covered.  It just wouldn’t seem fair.  I’d be there for all the world to see, and the jury (or judge, if it’s not a jury trial, but let’s not split hairs) could look at me and see if I seemed like a liar or a criminal or a generally bad person.  But then the person accusing me of the crime would be hidden from view.  No one would really be able to tell what she looked like, much less whether she seemed truthful or forthright.  And I imagine that if you’re the one facing jail time, then you want to be able to take full advantage of your right to show the jury that the person accusing you of the crime is not truthful.  That said, when a government actor (here, the court), orders someone to violate one of the tenets of their religion, there had better be an awfully good reason.

How would you come down on this issue?

(Image courtesy of shutterstock)

Two Wrongs Don’t Make a Right When It Comes to the Lowe’s Advertising Controversy

Published
by
katherine
on December 18, 2011
.

We’ve heard how Lowe’s, after receiving pressure from the (one-man-operation) Florida Family Association, decided to pull its ads from the new show All-American Muslim.  Not cool.

But now Ted Lieu, a California state senator, has threatened Lowe’s with the “encouragement of boycotts” and an examination of potential legislative remedies if Lowe’s does not apologize to Muslims and run its ads on the show. 

That’s not cool either.

It’s great that Lieu called out Lowe’s for being bigoted and ignorant, and that’s well within his rights as an elected official.  But threatening the store with possible legislative action crosses the line.

Eugene Volokh agrees and says that Lowe’s is well within its right to pull ads from the show:

“[T]he claim is that Lowe’s is refusing to advertise on a program that sends a positive message about Islam in America. And that decision not to support a particular ideological message — whether motivated by Lowe’s management’s disagreement with the message, or just a decision that this message is too controversial for Lowe’s to endorse — strikes me as part of Lowe’s First Amendment prerogatives. And of course the analysis would be the same if an [advertiser] wanted not to advertise on a pro-Scientology program, or on a pro-atheism program (think a militantly anti-religious and advertiser-supported version of Penn & Teller’s Bullshit), or on an evangelical Christian broadcasting network. Likewise, some jurisdictions ban discrimination in places of public accommodation, including stores, based on political affiliation; but advertisers have the right to refuse to advertise in pro-Republican or pro-Democrat or pro-Communist or pro-Nazi magazines.”

How do you think Lieu should have responded to this situation?

From a Macy’s Dressing Room to the ‘Theater of the Absurd’

Published
by
katherine
on December 8, 2011
.

… or so say the folks over at Liberty Counsel:

Mathew Staver, Founder and Chairman of Liberty Counsel, commented: “Macy’s policy which allows men to use the women’s dressing room is fraught with problems. This policy will cause significant problems and will alienate the majority of Macy’s customers. Macy’s has essentially opened women’s dressing rooms to every man. The LGBT agenda has become the theater of the absurd.”

 

 

Some background on Staver’s statement: A Macy’s employee in San Antonio, Texas was fired after she refused to abide by the store’s LGBT policy that allows transgendered people to use both male and female dressing rooms.  Natalie Johnson, the employee in question, saw someone whom she perceived to be a “cross-dressing young man” exit the women’s dressing room.  She told him that he could not reenter, saying that only women could use the women’s dressing room.  When informed that Macy’s is LGBT-friendly, Ms. Johnson responded that “Macy’s is also non-discriminatory toward religion, and that it would go against her religious beliefs to lie that he was a woman or compromise with homosexuality.”

“Compromise with homosexuality”?  What?!

Still, and it pains me to admit this, Ms. Johnson might have a point.  Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination of employees on the basis of religion.  In addition to prohibiting the hiring and firing of employees based on religion, Title VII requires that employers “reasonably accommodate” an employee’s “sincerely held religious beliefs,” so long as doing so would not cause the employer “undue hardship.”

No lawsuit has been filed in this case, so the facts are a little sparse, which means that it’s hard to tell what, if anything, Macy’s might have been able to do to accommodate Ms. Johnson, or whether doing so would have resulted in undue hardship to the store.  Perhaps Macy’s could have moved Ms. Johnson to another area of the store (one that did not require her to manage dressing rooms), or could have moved her to a desk job off of the sales floor.

This is a complicated and often emotional area of the law.  I suspect that the law was designed to require employers to accommodate yarmulke-wearing, prayer breaks, etc.  And that sounds totally reasonable to me.  But when I first learned of this story, I was reminded of pharmacists who refuse to fill birth control prescriptions, and of clerks who refuse to sign marriage licenses for same-sex couples.

With this case as no exception, I think that firing employees who outright refuse to do their jobs should be an acceptable practice.  But where is the line between refusal to do one’s job and merely requesting a religious accommodation?

Is the threat of religious discrimination in the workplace substantial enough that this element of Title VII makes sense?

No More Religious Services in NYC Public Schools

Published
by
katherine
on December 7, 2011
.

It’s official: Religious organizations can no longer use NYC public schools to hold worship services after hours.

The legalese: The Supreme Court recently declined to review a Second Circuit decision, Bronx Household of Faith v. Board of Education of the City of New York, which upheld New York City Standard Operating Procedure (SOP) § 5.9 (now SOP § 5.11), which prohibited the use of school property for religious services.

 

 

What’s really going on: In 1994, the Bronx Household of Faith (BHF) applied to use space in a public school for its Sunday morning church services.  Their application was denied because of something called SOP § 5.9.  The BHF brought suit in federal court… and their suit was dismissed.  This dismissal was later affirmed by the Second Circuit.

Then, however, the Supreme Court held in Good News Club v. Milford Central School (PDF) that it was unconstitutional for a public school district to exclude from its buildings a religious organization that planned to use the space to teach religious morals to school-aged children through the use of song, verse memorization, and lessons.  The Court held that such exclusion amounted to “viewpoint discrimination,” because the district otherwise permitted use of the space “for the teaching of morals and character,” and was excluding the plaintiffs solely on the basis of their religious affiliation.

After this decision, BHF reapplied for a permit, was again denied, and again brought suit in federal court.  This time, the district court issued a preliminary injunction against the Board forbidding them from denying the permit.  The Second Circuit affirmed that preliminary injunction.  When BHF petitioned for summary judgment (hoping for a permanent ruling in their favor, rather than a temporary injunction), the district court cited the decision in Good News Club and BHF succeeded: they were able to use school space for their services.

The Board then appealed to the Second Circuit.  (Seeing a pattern here?) The Second Circuit held that the Board was allowed to exclude BHF in spite of the Supreme Court’s decision in Good News Club. According to the Second Circuit, in cases like Good News Club, “the policy being enforced categorically excluded expressions of religious content. Here, by contrast, there is no restraint on the free expression of any point of view. Expression of all points of view is permitted. The exclusion applies only to the conduct of a certain type of activity — the conduct of worship services — and not to the free expression of religious views associated with it.”

Put differently, the Second Circuit accepted the SOP because it prohibited an activity (worship services) and not a viewpoint (Christianity, Christian morals, etc.).

To be blunt, I was shocked when I first read this case.  I’m still a little shocked because, to me, the distinction between the activity of worship and the expression of Christian viewpoints sounds incredibly thin (especially considering that the activities at issue in Good News Club included singing).  Where do you draw the line?  If your group is teaching religious morals, then you’re good to go.  But what if you’re teaching religious morals AND singing or praying?  Does the activity cross over into “worship” as soon as a more overt act, like singing, genuflecting, etc. takes place?

According to the Second Circuit, “A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church.”  That doesn’t really help too much with the line-drawing, but what comes next actually makes me pretty happy: The court expresses concern that allowing such services in public schools will “promote a perception of endorsement.” This is excellent news!  The court is concerned that allowing worship services in public schools will cause people to think that the government is pro-religion, or that religion is the right way to go.  And honestly, I usually assume that this is exactly what the government thinks. (I’m not entirely wrong here, either: the United States Department of Justice filed an amicus brief supporting BHF.)  Maybe I’m being overly optimistic, but it seems that we have here a court saying: Hey!  It is important for people to understand that the government isn’t tilting the scales in favor of religion!  It’s cool with us if you’re not religious, and we don’t want you feeling like we favor those who are.

This puts me in a good mood.  Now if only we could do something about those tax breaks…

A Primer on RLUIPA

Published
by
katherine
on December 6, 2011
.

Gary Mortara, pastor at the Faith Fellowship Church in San Leandro, CA, wanted to move his congregation into a bigger building (PDF). The plans he submitted to the city, though, called for use of a building located in an area of town that was zoned for a job promotion initiative and did not permit religious assembly, so Mortara’s plans were rejected.

Gary Mortara's image, courtesy of his own church

Done deal, right? Not so fast.

This is where the Religious Land Use and Institutionalized Persons Act comes in. The act, otherwise known as RLUIPA (perhaps the least-helpful acronym ever), requires that, if the government imposes a substantial burden on a landowner’s sincerely-held religious beliefs, then the government must show that it is acting in furtherance of a compelling state interest, and that it has pursued that interest in the least restrictive way possible.

While this seems like a pretty big boon to house-of-worship owners everywhere, RLUIPA actually replaced an earlier statute that allowed local governments even less authority to enact laws that burdened religious activity (that earlier statute was declared unconstitutional).

RLUIPA poses, in my opinion, a handful of interesting questions, both legal and political (only two of which I’m mentioning here).

First: why was Congress so emphatic about getting this law on the books? The Supreme Court had already noted: “It is difficult to maintain that [laws that impact religion] are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.” In other words: Religion doesn’t really have anything to worry about here.

The easy answer is that it’s all politics. This is a very religious country, and voting for laws that help religion helps one’s career. (To be honest, I think that in this case the easy answer is the right answer.)

But for the sake of argument, I wonder if that’s too simple, which leads me to…

Second: What is the proper balance between the Establishment Clause and the Free Exercise Clause? Most of us reading this website are somewhat partial to the Establishment Clause (I know I am), so it’s easy for me to say, “Balance? What balance? This isn’t the 18th century, so let’s just focus on keeping religion out of the government and call it a day.” But the freedom to worship is inextricably linked to the freedom NOT to worship. It is also deeply connected to freedom of speech. Not only can we say what we want, but we can believe what we want, too. So perhaps it’s important to ensure that local governments aren’t phasing out unpopular religious groups through questionable “zoning regulations.” All I know is that atheists are fighting an uphill battle, and it’s one we’ll never win without the First Amendment.

So how do we walk the line between using the Establishment Clause to our advantage, without forgetting that the Free Exercise Clause isn’t going anywhere?

And what will become of Pastor Mortara? The Supreme Court declined to hear his case, and the 9th Circuit has held that summary judgment in favor of the city was improper. This means that, unless a settlement is reached, Mr. Mortara’s case is going to trial. Stay tuned.

Should You Be Able to Purchase Religious Foods with Food Stamps?

Published
by
katherine
on December 6, 2011
.

As it turns out, stores that accept food stamps can be disqualified from participating in the food stamp program if they violate certain regulations, such as accepting food stamps as payment for ineligible goods like cigarettes. If this disqualification would cause “hardship” to the food stamp customers, however, store owners might be charged a fine rather than be disqualified.

In a recently-filed lawsuit, Mehrab #1 Corp. v. United States, a Chicago grocer who sold Zabiha-Halal meats was disqualified from the food stamp program for accepting food stamps for ineligible goods.  The store challenged this decision on the basis that “it is the oldest and most trusted Indian and Pakistani Grocery Store providing Authentic Zabiha-Halal Meat and the only store in the Greater Chicago Land Area who can prove to sell only Zabiha-Halal Meat, and also that Mehrab’s prices are on average … 10-15% cheaper than the competition.”  In other words, the hardship to Mehrab’s customers was the inability to find halal meat at an equivalent price in the general vicinity of the disqualified store.

The court in Mehrab found that the inability to find these foods might constitute a sufficient hardship, such that the case must go to trial and a money penalty may be imposed on the store rather than a disqualification.  Interestingly, the court held that the case must go to trial only to determine whether any “retailer in Mehrab’s vicinity offers an equivalent variety of Zabiha-Halal items at comparable prices.”  This holding necessarily implies that if there are no such retailers, Mehrab’s customers will experience a hardship sufficient to charge Mehrab a fine rather than disqualify it.

So is this a legitimate interpretation of the Food Stamp Act, or is the court catering to the religious?  The statute states that a money penalty is an option if “the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.”  The court’s decision in Mehrab #1 means that halal foods, kosher foods, etc. can be considered “staple food items.”

Legally, that is probably the correct interpretation.  If this food stamp policy prevented religious people from abiding by their dietary restrictions, then it would likely run up against the Free Exercise Clause, in that the government would be imposing a burden on religious people that was not similarly imposed on those without religious dietary requirements.

I wonder, though, if specialty religious foods are more expensive than “regular” foods. If so, it seems a shame that families who participate in the food stamp program would use their limited resources to pay extra for food that has been blessed, when they could just opt for the sinful food and get more of it.

Church Votes Against Interracial Couples Becoming Members

Published
by
katherine
on December 2, 2011
.

I thought it was a typo when I read that a Pike County (Kentucky) church had “taken a stand” against interracial couples. What?! They mean the church is taking a stand for interracial couples, right?

Nope.

Prompted by the attendance of the couple above, Gulnare Freewill Baptist Church in Pike County, Kentucky has voted to deny church membership to interracial couples, forbidding them from taking part in certain “worship activities.”

It sounds to me like they’re doing those couples a favor.

In case you’re wondering, this rule is perfectly legal. In general, if there’s no state action, then there’s no right to equal treatment. (That’s a pretty big over-simplification of the issue, though. Businesses that serve the general population — like hotels — cannot violate the Civil Rights Act of 1964 by, say, discriminating against African Americans.) That said, the government can’t mandate that churches refrain from discriminating against interracial couples.

Is this what we mean by separation of church and state? Should it be?

When I read this story, my first thought (as mentioned above) was that the church was doing this couple a favor: they can now get the heck out of there and do some serious questioning of their beliefs and their community. But let’s say, hypothetically, that this was the only church in town, in a town that’s dominated by religious life, such that excluding the couple from the church amounted to excluding them from a large swath of social and political life.

Should the government get involved then? Again, legally, the answer is no. Personally, my answer would be no as well, but I can see how, for some people, the answer might be yes. What’s the answer for you?

Legal issues aside, I’ve always found this type of behavior to be incredibly bizarre. The church is doing this, presumably, because the Hebrew Bible has a problem with the Israelites getting it on with foreigners. But unless the church also recommends stoning your daughter if she has sex before marriage and avoiding shellfish, I don’t see why the passage in question here should be taken seriously by anyone.