On Wednesday, a federal district court in Tennessee ordered local officials to grant an occupancy permit to a controversial mosque in that state. Construction of the mosque, in the city of Murfreesboro in Rutherford County, has been tied up in litigation for years; some neighbors have been very hostile, to put it politely, to the presence of a mosque in their city. The mosque’s opponents won a victory last month, when a state court barred the issuance of an occupancy permit for the mosque, ruling that the Rutherford County zoning board that had approved construction had violated the state’s open meetings law. The mosque and DOJ then sued the county in federal court, arguing that denial of the permit violated both the Free Exercise Clause and RLUIPA. On Wednesday, in the DOJ lawsuit, the federal court issued a TRO requiring the county to grant the occupancy permit in time for the start of Ramadan yesterday. For a detailed account of the litigation, see this article in the New York Times. The case is US v. Rutherford County (M.D. Tenn., July 18, 2012) (H/T: Religion Clause).
Sadeghi, “The Logic of Law Making in Islam”
This September, Cambridge University Press will publish The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition by Behnam Sadeghi (Stanford University). The publisher’s description follows.
This pioneering study examines the process of reasoning in Islamic law. Some of the key questions addressed here include whether sacred law operates differently from secular law, why laws change or stay the same, and how different cultural and historical settings impact the development of legal rulings. In order to explore these questions, the author examines the decisions of thirty jurists from the largest legal tradition in Islam: the Hanafi school of law. He traces their rulings on the question of women and communal prayer across a very broad period of time – from the eighth to the eighteenth century – to demonstrate how jurists interpreted the law and reconciled their decisions with the scripture and the sayings of the Prophet. The result is a fascinating overview of how Islamic law has evolved and the thinking behind individual rulings.
Horwitz, “First Amendment Institutions”
This November, Harvard University Press will publish First Amendment Institutions by Paul Horwitz (University of Alabama School of Law). The 
publisher’s description follows.
Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Read more
German Parliament Resolves to Keep Circumcision Legal
Germany’s lower house of parliament has adopted a resolution calling on the government to keep male circumcision legal in that country. The resolution responds to a regional court’s ruling last month that doctors who perform circumcisions on boys for religious reasons could be prosecuted under German law and requests that the government submit a bill this fall. Jewish and Muslim groups in Germany have united to oppose the court’s ruling — impressive what a common threat can do, isn’t it? — though, according to polls, Germans narrowly support a ban on circumcisions.
Wheaton College Files Suit Against HHS Mandate
When it rains it pours. Wheaton College, a Christian liberal arts college in Illinois, filed a federal lawsuit yesterday in the District of Columbia (the same jurisdiction in which Belmont Abbey filed) claiming that its constitutional and statutory rights are violated by the Mandate. Causes of action include RFRA, free exercise, free speech, and an APA claim. Wheaton’s specific complaint has to do with providing “health insurance for abortion-causing drugs, abortion procedures, and related services.” “Wheaton College has no conscientious objection to providing coverage for non-abortion-causing contraceptive drugs and services.” (¶ 39)
States’ Lawsuit Against the HHS Mandate Dismissed
Yesterday was an active day for the HHS Mandate litigation. The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness.
The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.
Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs. These conjectures were too speculative to confer standing.
Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to. Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.
I’m sensing a pattern here…
Belmont Abbey College HHS Mandate Suit Dismissed on Standing and Ripeness Grounds
Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment. The grounds are lack of standing and ripeness. The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status. It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”
But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor. It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking. “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.” The court also dismissed the case for lack of ripeness.
There is an interesting feature of the case that appears in the ripeness discussion. Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception. The court said this:
This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.
Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking. Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be. Dismissal was without prejudice.
It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.
Marshall & Nichol on Standing and the Establishment Clause
William P. Marshall (University of North Carolina School of Law) and Gene R. Nichol Jr. (University of North Carolina School of Law) have posted Not a Winn-Win: Misconstruing Standing and the Establishment Clause. The abstract follows.
In Arizona Christian School Tuition Organization v. Winn, the Supreme Court, in a 5-4 decision, held that state taxpayers did not have standing under the Establishment Clause to challenge a state tax program in which taxpayers were given dollar-for-dollar tax credits for their contributions to private, non-profit state tuition organizations (STOs) that had been set up specifically to accept these contributions and then use the donated funds for “scholarships to students attending private schools, including religious schools.” Implicitly rejecting intangible, wisdely-shared, “psychic” harms as a basis for standing, the Winn majority held that though taxpayers might have standing to contest legislative appropriations designed to aid religious enterprises as in Flast v. Cohen, they had no standing to challenge legislative tax credit programs intended for the same purpose because there is no “extract[ion] and spend[ing]” of tax money in aid of religion in the latter program.
Read more
More on the “Now that’s real religious persecution” argument
Over at Mirror of Justice, Matt Lister posted a smart, critical reaction to my previous post on this argument. Here are some thoughts.
I’ll frame my comments as a response to Matt’s first point about the non-uniqueness of the argument (though I think I’ll rope in his second point too). As an initial matter, I think Matt is right, as I’ve also heard this style of argument in the context of poverty, or more generally in the context of deciding to which moral cause it is most useful to allocate one’s energies. But I had two thoughts:
(1) The argument makes a bit more sense to me when the subject is individual morality — the questions of what is the right way to act, and to what issue or moral problem it is worth devoting one’s finite resources. That’s not to say that I agree with it, but I at least can understand it. In the context of constitutionally protected rights, it makes less sense to me. And perhaps in part for that reason, I guess, one tends to hear it much less in the rights context. Can you think of any other context involving a constitutional right in which one hears the argument? I think it would be very odd to hear it in, e.g., the free speech context. It would be highly unusual to hear something like the following: “Well, sure, the Stolen Valor Act may or may not be a violation of the constitutional right of free speech, but look at all of the terrible ways in which free speech is violated abroad! That’s real suppression of free speech for you, and it suggests that something like the protection of intentional lying just isn’t that important.” My guess is that the reason such an argument as to free speech would seem odd to us implicates Matt’s second point. That is, our culture of free speech protection is extremely vibrant. And that goes for most other constitutional rights too: most people think that a right is a right, and ought to be vindicated irrespective of how gross the violations of it may be in other places in the world. But, as Matt suggests in his second point, the current condition or status of religious liberty by comparison with other fundamental rights is more contested, and therefore weaker: we may agree about the extremes, but there is currently a broader (and perhaps ever broadening?) range of (reasonable) disagreement in the middle than there is for, e.g., free speech.
(2) I nevertheless take Matt’s point that the argument itself is not unique to religious liberty. Still, there seems to me to be something in addition going on. It isn’t just the claim that if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest. That sort of argument would apply in the poverty context that Matt raises. But in the religious liberty discussion, there is a further argumentative move going on: if you really cared about X, then you’d concentrate your efforts elsewhere in the world where violations of X are gravest, and you’d realize how good you’ve got it here, and that whatever violations of X you perceive here just aren’t that serious. I am dubious that this latter move is being made in the poverty example that Matt raises — I certainly don’t think it’s necessary conceptually to make that latter move. But Matt is much more familiar with the egalitarian poverty literature than I am (many people are), so I am happy to be put straight.
They Really Should Check Their Mailing Lists
Israeli parliamentarian Michael Ben-Ari, a member of the religious National Union Party, has caused a stir by publicly shredding a copy of the New Testament sent to him and all other Knesset members by a Messianic Jewish group, the Bible Society in Israel. Although the Knesset Speaker, Reuven Rivlin, condemned the shredding, Ben-Ari defended it, stating that the New Testament had caused the massacre of millions of Jews over the centuries. Another Knesset member from the religious Shas Party stated that the books should be burned instead, as they had been prepared by a “heretical” Jewish group. Here is a report from the Jerusalem Post.