Posted on by Mark Movsesian · 1 Comment

Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).

Posted on by Mark Movsesian

The Memorial Day Prayer for Peace

Monday is Memorial Day in the United States, a national holiday. The day commemorates the men and women who have died serving in the US military. There will be speeches, parades, picnics and wreath-layings across the country.

There will also be an officially-promoted prayer. By law, the President “is requested” each year to issue a proclamation “calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace.” The proclamation is supposed to designate a time on Memorial Day for the prayer and invite the media to participate. This year’s proclamation, issued yesterday, reads in part as follows:

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim Memorial Day, May 28, 2012, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer. I also ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day.

I’m not sure why, but the Memorial Day Prayer for Peace hasn’t drawn the same attention as the yearly presidential Thanksgiving Day Proclamation. Perhaps this is because the Memorial Day prayer is a more recent phenomenon, dating, like the inclusion of the words “under God” in the Pledge of Allegiance, only from the 1950s. Perhaps people are too busy enjoying their picnics to notice. In any event, notwithstanding the Court’s occasional pronouncements about the need to avoid even generic official endorsements of religion, non-sectarian endorsements like the Memorial Day prayer are very much a part of the American constitutional tradition. Americans, on the whole, seem to like them and want them to continue. Happy Memorial Day.

Posted on by Michael Helfand

The New Footnote 4?

For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:

A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor.  Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.

But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.

For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that Read more

Posted on by Marc O. DeGirolami

Religion and Bankruptcy: Sturges v. Crowninshield

One of the activities that the CLR co-sponsored last year was the conference by our excellent bankruptcy colleagues Ray Warner and Keith Sharfman (who together run the Center for Bankruptcy Studies at St. John’s) on Religion and Bankruptcy.  You can see some discussion of the conference here, here, here, and here.

As often happens to me, I came upon a neat topic of discussion months after the conference was over.  Sturges v. Crowninshield (1819), authored by Chief Justice Marshall, dealt in part with New York’s power to create a “bankrupt” law (a bankruptcy law) or instead “whether the power is exclusively vested in the congress of the United States” pursuant to Article I section 8 which gives Congress authority to enact “uniform Laws on the subject of Bankruptcies throughout the United States.”  It’s not my area, and so I am likely missing lots of important details (please fill them in), but I’m apprised by some bankruptcy folks that the old rule was that states could have bankruptcy rules so long as Congress did not pass a federal one, which meant that for much of the period  before 1898, states did have, and could have, their own bankruptcy laws.

Crowninshield is a long and extremely complicated case, involving the Contracts Clause as well.  But I thought to highlight one interesting piece of dicta in a later portion of the decision involving the relationship of bankruptcy and the religious ideas of the discharging of debt, expiation, and the alleviation of public misery and poverty.  Note also the natural law language used by Marshall in discussing the states’ “inherent” power to achieve these aims, as well as the way in which the Court wrestles with the problems of prison, debt, and freedom in the cultivation of good citizenship.

Read more

Posted on by Mark Movsesian

District Court Enjoins Lord’s Prayer at County Council Meetings

Another legislative prayer case, this time from Delaware. For several years, the Sussex County Council has opened its weekly meetings with the Lord’s Prayer. In December, plaintiffs represented by Americans United for Separation of Church and State brought suit to enjoin the practice, arguing that it violated the Establishment Clause. Last week, a federal district court agreed. Although Marsh v. Chambers allows legislative prayers, Judge Stark explained, the prayers must be nonsectarian, in order to avoid the implication that government endorses any particular religion. The Lord’s Prayer was undeniably a Christian, and thus sectarian, prayer; in fact, the version the Council used was a recognizably Protestant version of the prayer. (Comparative religion buffs take note: Jesus Seminar scholar John Dominic Crossan testified in the case that the Lord’s Prayer is not, in fact, exclusively Christian, an assertion Judge Stark dismissed). “The fact that the Lord’s Prayer has been the only prayer recited at the beginning of Council meetings for over six years,” Judge Stark argued, suggests that “the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.” Judge Stark, sua sponte, stayed his injunction for a period of one month’s time in order to give the Council a chance to adopt a practice of nonsectarian prayers that would satisfy the Establishment Clause. The case is Mullin v. Sussex County (D. Del.) (May 15, 2012).

Posted on by Michael Helfand

The Role of Private Law in Litigating Religion: Part II

In my last post, I began responding to Mark’s spot-on question: in order to ensure that parties have a forum to adjudicate disputes turning on religious doctrine or practice, why not simply have parties to an agreement incorporate religious arbitration provisions?  So long as the parties specify a particular institution that will select arbitrators, such a tactic avoids the Establishment Clause problems that might arise from a court having to interpret a religious term in an agreement (such as the panel will be made up of “three Orthodox rabbis” or some sort of religious term used to describe required performance).  If this is true, then why is it I also have been advocating for courts to play a more active role in resolving disputes that turn on religious doctrine or practice?

As I noted previously, I wholeheartedly concur with Mark’s point; this is one of the key reasons why I am a strong proponent of religious arbitration.  Such tribunals can resolve disputes that courts, as a matter of current constitutional law, cannot.  I’ve expressed this point, among others, in two of my recent articles, here and here.

But relying on religious arbitration is only part of the puzzle.  If we take as a goal that we would like to ensure parties have a forum to resolve all disputes – including disputes that turn on religious doctrine or practice – then we’re going to need courts to play a significant role.

True, some disputes can be resolved by religious arbitration.  When sophisticated parties draft agreements, they are likely to craft religious arbitration provisions that ensure disputes arising under the agreement are Read more

Posted on by Mark Movsesian · 1 Comment

A Question for Mike Helfand on Religious Arbitration

Mike, thanks for the very interesting posts you’ve been doing this month. I wonder if I could ask about something in your last post, in which you discuss the case with the arbitration agreement calling for “three Orthodox rabbis.” A state court refused to enforce the agreement, since enforcement might have required the court to decide whether the named arbitrators were, in fact, “Orthodox,” which would impermissibly have entangled the court in a religious question. You suggest that the court’s concern with entanglement was overstated, and I have some sympathy with that view.

I wonder whether last week’s Second Circuit decision in Commack Self-Service Kosher Meats has any implications for your argument. In that case, the Second Circuit upheld a NY law requiring sellers of kosher products to indentify which private organization had made the kosher certification. The law did not raise entanglement concerns, the court argued, because the law did not require civil government to certify that particular products were, in fact, “kosher.” The law simply facilitated private decision-making by requiring sellers to disclose the basis for their assertions about their products. If sellers wished to sell, and consumers wished to purchase, products with a “kosher” certification from the United Methodist Church, for example, the state would not object.

Might a mechanism that defers to the decisions of private organizations avoid entanglement issues in arbitration agreements? For example, we could require parties who seek religious arbitrators to specify ahead of time which private associations will name the arbitrators. For example, the parties could agree that any disputes between them “will be resolved by three Orthodox rabbis from the Beth Din of America.” In enforcing such an agreement, a civil court would not be endorsing the proposition that rabbis from the Beth Din of America are, in fact, “Orthodox.” The court would merely be deferring to the parties’ decision to defer to the Beth Din’s decision. Of course, this solution would privilege organizations like the Beth Din over less institutional arbitration mechanisms, and that might pose an establishment problem under current doctrine. But is it worth thinking about?

Posted on by Mark Movsesian

Second Circuit Upholds NY’s Kosher Labeling Statute

New York’s Kosher Law Protection Act of 2004 requires sellers who market food products as kosher to label the products “kosher” and identify the person who has made the “kosher” certification. Unlike an earlier statute, which defined “kosher” by reference to Orthodox Jewish kashrut rules, the 2004  act does not define the term or authorize state inspectors to determine whether products satisfy particular kashrut requirements. It simply requires sellers to affix a label and disclose the basis for their assertion that the products are, in fact, kosher.

A New York deli that sells kosher food under the supervision of a non-Orthodox rabbi challenged the 2004 statute under the Establishment and Free Exercise Clauses. The deli pointed out that non-Orthodox interpretations of Jewish law do not require kosher food to bear a label, and argued that the labeling requirement thus amounted to an establishment of Orthodox Judaism. The deli also argued that the labeling requirement burdened its free exercise of a non-Orthodox form of Judaism.

Yesterday, the Second Circuit dismissed these claims. With respect to establishment, the court applied the  Lemon test. It held that the 2004 act had the secular purpose of preventing consumer fraud and did not advance religion. It’s true that the labeling requirement coincided with Orthodox Jewish practice, the court reasoned, but that did not amount to a legislative endorsement of Orthodox Judaism. A reasonable observer would see the labeling requirement as a neutral guide for consumers who wished to purchase kosher food — 70% of whom, the court noted, were not even Jewish, according to market research (who knew?). And, because the statute did not require the government to assess the correctness of a kosher designation, but only required sellers to identify the private persons that had made the designation, the statute did not threaten any entanglement with religion. With respect to the free exercise claim, the court held under Smith that the 2004 act was a neutral and generally applicable consumer protection law that did not violate plaintiff’s rights. The case is Commack Self-Service Kosher Meats v. Hooker, 2012 WL 1633143  (May 10, 2012).

Posted on by Marc O. DeGirolami

The Watercolor of Religious Liberty

United States v. Macintosh does not usually appear in the religious liberty canon, but it should.  The case involved a Canadian national who emigrated to the United States as a student, was eventually ordained as a Baptist minister, and later joined the faculty of the Yale Divinity School.  He returned to Canada in advance of the First World War to serve as a military chaplain on the front.  After the war, when he came back to the United States and applied for citizenship in 1925, he was asked, pursuant to Section 4 of the Naturalization Act, to swear that he would agree to bear arms on behalf of his country.  He replied that his “first allegiance was to the will of God” and that he could not agree to bear arms categorically, in advance of knowing the particulars.  The federal district court denied his petition for naturalization on the ground that he was insufficiently “attached to the principles of the Constitution.”  In a 5-4 opinion authored by Justice Sutherland, the Supreme Court affirmed.  Chief Justice Hughes wrote the dissent.

What is wonderful about Macintosh is that in just a few quick and short strokes, the Court sets out the fundamental conflict between allegiance to state and to conscience.  All at once it evokes, on the one hand, Gobitis and Barnette, and, on the other, Reynolds, Sherbert, Smith, and Hosanna-Tabor.  But the case is not technically a Free Exercise Clause case, and so it is sometimes overlooked.  If you are looking for the grand oil masterpieces of the religion clauses, you’re liable to walk right by this unimposing gem of a watercolor. 

Read more

Posted on by Mark Movsesian

Giving the Ministerial Exception a Bad Name

Over at PrawfsBlawg, our friend Paul Horwitz notes an interesting piece in the New York Times yesterday on doings at the Trinity Broadcast Network, an extremely successful Christian cable channel. Well, “doings” is perhaps too polite. TBN, which advocates the so-called “Prosperity Gospel,” has received many millions of dollars over the years in donations from the faithful — $93 million in 2010 alone. An insider now claims that much of the money has gone to fuel the lavish lifestyle of TBN executives, particularly the network’s founders, the husband-and-wife team of Paul and Janice Crouch. I won’t go into the details, except to say that the portrait is one of high-spending, low-rent excess, and that the allegations come from one of the Crouch’s own granddaughters, who other family members say was the real sponger.

IRS regulations prohibit “excess compensation” for executives of non-profit organizations. According to the Times, though, TBN has been able to avoid scrutiny by relying on the ministerial exception. TBN has allegedly ordained “dozens of staff members . . . including chauffeurs, sound engineers, and others,” as ministers, thus allowing TBN to give them rent-free luxury “parsonages” and to avoid paying Social Security taxes on their salaries. TBN’s lawyer defended the network’s actions, arguing that the hundreds of ordained employees, including performers at a TBN-affiliated religious theme park, had experienced a true religious vocation.

Who knows how these allegations will sort out? One issue that seems sure to arise, though, is fraud. Some of the Court’s church autonomy cases suggest that fraud is a limitation on the ministerial exception, though the cases don’t really develop the idea. If the IRS were to go after TBN, it could argue that the ordinations for company workers without any theological or pastoral training were phony. Questioning such ordinations would obviously raise free exercise concerns, though, and at least one legal expert the Times quotes thinks it won’t happen: “absent clear fraud, the government is not going to touch that.”