Targeting, Unequal Application, and Free Exercise

This may be obvious to readers of this blog, but perhaps it’s worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of “constitutional violations.” Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service.

I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side).

Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group’s plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing “sacrificing” an animal defined sacrifice as “to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption.” The Court struck down these ordinances as violations of the Free Exercise Clause.

How might these cases apply here? Suppose that the government’s explanation for delaying and/or denying a particular group’s application for tax-exempt status was that the group “is not educational” or “is political” or “does not present all views.” As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, “No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views” without violating the Free Exercise Clause as interpreted by Smith (of course, it would be violating other provisions of the Constitution, but I am focusing specifically on free exercise).

Things don’t end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn’t really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or “targeting,” it did not. Only two Justices–Kennedy (writing for the majority) and Stevens (who joined him on this point)–relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City’s desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be–given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be “narrowly tailored” to the government’s aims, and the failure of that narrow tailoring in turn suggests that the government’s interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law’s aims and application is.

One might wonder whether this difference is important. A law that is motivated by the desire to “target” religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might “target” religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a “leap of faith” off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to “target” this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the “dangerous” (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the “targeting” legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.

In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government’s subjective intention to “target” particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.

Panel on Islamic Law and the Arab Spring (June 4)

In Washington on June 4, the Law Library of Congress will host a panel, “The Role and Impact of Islamic Law in Transitioning Arab Spring Countries”:

The panel, led by moderator Mary-Jane Deeb, Chief of the African and Middle Eastern Division, will discuss the role of Shari’a law in the recent and ongoing constitutional drafting processes of Egypt, Tunisia and Libya. The discussion will also concentrate on the broader impact of Islamic law on the legal systems of Arab Spring states, looking particularly at personal status issues. Other points of discussion will include the compatibility of Shari’a law and human rights, and some of the challenges facing women and minorities in transitioning Arab Spring countries.

The distinguished panel will include Nathan J. Brown, Professor of Political Science and International Affairs at the Elliot School of International Affairs at the George Washington University; Lama Abu-Odeh, Professor of Law at Georgetown University Law Center; and Issam Saliba, Senior Foreign Legal Specialist at the Law Library of Congress.

Details are here.

Around the Web This Week

Some interesting law & religion stories from around the web this week:

Castellino & Cavanaugh, “Minority Rights in the Middle East”

MinorityRights_MIddleEastThis April, Oxford University Press published Minority Rights in the Middle East by Joshua Castellino (Middlesex University) and Kathleen A. Cavanaugh (National Univ. of Ireland, Galway). The publisher’s description follows.

Within the Middle East there are a wide range of minority groups outside the mainstream religious and ethnic culture. This book provides a detailed examination of their rights as minorities within this region, and their changing status throughout the twentieth and twenty-first centuries. The rights of minorities in the Middle East are subject to a range of legal frameworks, having developed in part from Islamic law, and in recent years subject to international human rights law and institutional frameworks. The book examines the context in which minority rights operate within this conflicted region, investigating how minorities engage with (or are excluded from) various sites of power and how state practice in dealing with minorities (often ostensibly based on Islamic authority) intersects with and informs modern constitutionalism and international law.

The book identifies who exactly can be classed as a minority group, analyzing in detail the different religious and ethnic minorities across the region. The book also pays special attention to the plight of minorities who are spread between various states, often as the result of conflict. It assesses the applicable domestic legislative instruments within the three countries investigated as case studies: Iraq, Syria, and Lebanon, and highlights key domestic remedies that could serve as models for ensuring greater social cohesion and greater inclusion of minorities in the political life of these countries.

Devji, “Muslim Zion”

Muslim_ZionIn August, Harvard University Press will publish Muslim Zion: Pakistan as a Political Idea by Faisal Devji (Univ. of Oxford). The publisher’s description follows.

Pakistan, founded less than a decade after a homeland for India’s Muslims was proposed, is both the embodiment of national ambitions fulfilled and, in the eyes of many observers, a failed state. Muslim Zion cuts to the core of the geopolitical paradoxes entangling Pakistan to argue that India’s rival has never been a nation-state in the conventional sense. Pakistan is instead a distinct type of political geography, ungrounded in the historic connections of lands and peoples, whose context is provided by the settler states of the New World but whose closest ideological parallel is the state of Israel.

A year before the 1948 establishment of Israel, Pakistan was founded on a philosophy that accords with Zionism in surprising ways. Faisal Devji understands Zion as a political form rather than a holy land, one that rejects hereditary linkages between ethnicity and soil in favor of membership based on nothing but an idea of belonging. Like Israel, Pakistan came into being through the migration of a minority population, inhabiting a vast subcontinent, who abandoned old lands in which they feared persecution to settle in a new homeland. Just as Israel is the world’s sole Jewish state, Pakistan is the only country to be established in the name of Islam.

Revealing how Pakistan’s troubled present continues to be shaped by its past, Muslim Zion is a penetrating critique of what comes of founding a country on an unresolved desire both to join and reject the world of modern nation-states.