Seventh Circuit Says Hein Applies to State Funding Decisions

I posted about a Sixth Circuit case last week applying Hein‘s restrictive standing doctrine to dismiss an Establishment Clause challenge to a federal spending decision. Yesterday, the Seventh Circuit applied Hein to dismiss an Establishment Clause challenge to a state spending decision. An Illinois state agency had approved a $20,000 grant to a private organization, “Friends of the Cross,” to help restore the Bald Knob Cross, a local tourist attraction. Plaintiff brought suit, arguing that the grant failed the endorsement test, and claiming standing as an Illinois taxpayer.

The Seventh Circuit dismissed the challenge on standing grounds. Hein limited taxpayer standing to cases alleging specific legislative appropriations, not executive decisions, the court explained, and this limit applied to state as well as federal spending decisions. Here, the legislature had appropriated a $5 million lump sum for “member initiatives”; following Illinois tradition, a single legislator had requested that the executive direct part of the grant to the Friends, and the executive had complied.  Because the ultimate decision to fund the Friends had come from the executive branch, the court ruled, plaintiff lacked standing to challenge it under Hein. The case is Sherman v. Illinois, 2012 WL 1970592 (7th Cir. June 4, 2012).

Throne and Altar

Judging by church attendance and the percentage of people who say religion plays an important role in their lives, Europe is a secular place. And yet, as sociologists of religion have observed, Christianity continues to have a major cultural and legal role. Nowhere is this clearer than in Britain, where the Monarch is the “Supreme Governor” of the state church. Britain today commemorated the Jubilee of Queen Elizabeth II with a Thanksgiving service in London’s St. Paul’s Cathedral. The Prime Minister read from the New Testament and the Archbishop of Canterbury delivered a sermon praising the Queen for manifesting the values of St. Paul himself:

Dr Rowan Williams paid tribute to the Queen’s selfless devotion, saying: “I don’t think it’s at all fanciful to say that, in all her public engagements, our Queen has shown a quality of joy in the happiness of others; she has responded with just the generosity St Paul speaks of in showing honour to countless local communities and individuals of every background and class and race.”

One would think such ceremonies, to borrow the phrase from American law, send a message of exclusion and disparagement that religious minorities resent, but that is apparently not the case, or at least not typically. It’s not the American way of doing things, but, as Joseph Weiler has written, “there is something inspiring and optimistic by the fact that even though the Queen is the Titular Head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as ‘their Queen’ too.”

Kar on the Eastern Origins of Western Law

Robin Kar (Illinois) is doing a series of articles that takes issue, among other things, with parts of the Berman thesis I mentioned yesterday in my post on John McGinnis. Here is the abstract for the second in the series, On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Earliest Legal and Cultural Origins (Part 2):

Western law and Western civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East” and explains many of their special capacities and characteristics. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western civilization finds its origins in ancient Greek, Roman, and Hebrew culture is, however, so familiar and so pervasive that it has rarely — until recently — been questioned in the West.

This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. If we are genuinely interested in understanding our origins in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western law and Read more

The Eighth Circuit on “Substantial Burden”

The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom.  The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened.  After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up.  On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.”  The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score. 

Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion.  The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up.  That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Also important is the issue of “inconsistency.”  Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge.  The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect).  The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden: 

[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs. 

This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong.  But if the Eighth Circuit is right, then these sorts of arguments are not relevant to assessing the question of substantial burden for RFRA purposes.

The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).