On Tuesday, the New York Times ran an editorial criticizing U.S. District Judge John Kane’s decision in one of the HHS Contraception Mandate cases, Newland v. Sebelius. Judge Kane issued a preliminary injunction blocking enforcement of the mandate against a corporation, Hercules Industries. The Times believes this ruling misreads the Constitution:
There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute protecting such exercise should not be in play.
Some of this critique is wrong, some is sloppy, and some is debatable. But the key problem is that the critique is entirely inapposite. As my colleague Marc explained last week, Judge Kane expressly declined to address the corporation’s constitutional claims. He based his ruling solely on plaintiff’s RFRA argument. If you’re going to criticize a judicial opinion, you really should read it first. (H/t: John McGinnis)
Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median. In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received, the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).
Next month, Cambridge University Press will publish Islamic Societies to the Nineteenth Century: A Global History by Ira M. Lapidus (University of California, Berkeley). The publisher’s description follows.
Ira Lapidus’ global history of Islamic societies, first published in 1988, has become a classic in the field. For over two decades, it has enlightened students, scholars, and others with a thirst for knowledge about one of the world’s great civilizations. This book is based on parts one and two of Lapidus’ monumental A History of Islamic Societies, revised and updated, describes the transformations of Islamic societies from their beginning in the seventh century, through their diffusion across the globe, into the challenges of the nineteenth century. The story focuses on the organization of families and tribes, religious groups and states, depicts them in their varied and changing contexts, and shows how they were transformed by their interactions with other religious and political communities into a varied, global and interconnected family of societies. The book concludes with the European commercial and imperial interventions that initiated a new set of transformations in the Islamic world, and the onset of the modern era. Organized in narrative sections for the history of each major region, with innovative, analytic summary introductions and conclusions, this book is a unique endeavor. Its breadth, clarity, style, and thoughtful exposition will ensure its place in the classroom and beyond as a guide for the educated reader.