Posted on by Mark Movsesian

The National Day of Prayer

Today, by federal statute, is the National Day of Prayer. Many of our foreign readers will find it odd, but the U.S. Code requires that the President issue an annual proclamation designating the first Thursday in May as a day on which Americans “may turn to God in prayer and meditation at churches, in groups, and as individuals.” Note the phrasing. The President is not to direct people to pray — that would be unconstitutional, obviously — or even to request that they pray. He is required only to designate the day as one on which Americans may pray. And meditate. But not “pray or meditate.”  Lots of lawyers’ hours must have gone into all this.

Anyway. Although the statute only dates from the 1950s, the practice of declaring national days of prayer goes back to President Washington. Consistent with the American tradition of public religion, the prayers have tended to be non-sectarian. In fact, a group calling itself the “National Day of Prayer Task Force,” which promotes observance of the day around the country, highlights its  “Judeo-Christian” character. On Monday, President Obama issued this year’s proclamation, which invites Americans to pray and “give thanks for our democracy that . . . protects the religious freedom of all people to pray, worship, or abstain according to the dictates of their conscience.”

That’s about as inclusive as you can get in a National Day of Prayer proclamation, but not everyone is satisfied. The Freedom from Religion Foundation brought suit a while ago to declare the National Day of Prayer unconstitutional. The Seventh Circuit dismissed the case on standing grounds (no injury). This year, the American Humanist Association has declared a “National Day of Reason” to compete with the “National Day of Prayer.” I suppose reasonable theists can observe both.

Posted on by Mark Movsesian

State Legislature Moves Against Vanderbilt’s “All-Comers” Policy for Student Groups

Last night, by comfortable margins, the Tennessee legislature passed a bill prohibiting Vanderbilt University’s “all-comers” policy for student groups. The policy, which requires that student groups open leadership positions to all Vanderbilt students, even students who disagree with the groups’ core beliefs, has sparked a dispute between the university and some student religious organizations, which argue that the policy effectively dilutes their religious identity. The bill initially banned all-comers policies only at state universities, but an amendment extended the bill’s  coverage to private institutions that receive more than $24 million in state subsidies — which just happens to be the amount Tennessee gives Vanderbilt. The bill does not actually cut off  funding, for the moment, but sponsors threaten to do so in future if Vanderbilt does not change its policy. The bill now goes to Governor Bill Haslam for signature.

A couple of terms ago, in CLS v. Martinez, the Supreme Court held that a similar all-comers policy at the University of California-Hastings was constitutional. As I’ve argued before, though, even if an all-comers policy is constitutional, it’s very misguided. The point of campus diversity is to allow the expression of various viewpoints. It’s hard to see how a group can express a viewpoint if it cannot choose leaders who share its beliefs.

Posted on by Marc O. DeGirolami

Court Dismisses Muslim Harrassment Suit

The U.S. District Court for the Northern District of Illinois has dismissed a suit by a Saudi Arabian Muslim plaintiff who worked as a child care attendant at the Cook County Circuit Court, and who claimed that her supervisor harrassed her because she wore a headscarf, that he prayed with other employees, and that he referred to other employees as “good Christians.”  The plaintiff brought Establishment and Free Exercise Clause claims, and both were dismissed.  On the establishment front, the court held that there was no allegation of a “governmental policy or practice underlying the alleged misconduct at issue in this case or any entanglement by any governmental entity with religion or preference of any religion by a governmental entity.”  As for free exercise, the court held that the only fact related to this claim in the complaint was an allegation that one of the defendants on one occasion denied the plaintiff time off for an Islamic religious observance.  This was insufficient to make out a free exercise violation.

The case is Huri v. Circuit Court of Cook County, 2012 WL 1431268 (N.D. Ill. April 25, 2012).

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2012 Religious Legal Theory Conference Lectures Now Available

Lectures from the 2012 Legal Theory Conference – “The Competing Claims of Law and Religion” – are now available online in audio and video format.  Marc DeGirolami’s lecture, entitled “The Method of Tragedy and History Applied” is available here and Mark Movsesian’s lecture, entitled “Crosses and Culture: Public Religious Symbols in the U.S. and Europe” is available here (lecture begins at 35:15).

Posted on by Mark Movsesian · 1 Comment

Mojave Desert Cross Case Settles

On Monday, a federal district court in California approved a settlement ending the long-running litigation in Salazar v. Buono, the Mojave Desert Cross case. The case, the most recent Supreme Court ruling on public religious displays, involves a Latin cross on a war memorial on federal land in the Mojave Desert. After a district court enjoined the government from displaying the cross as a violation of the Establishment Clause, the government attempted to convey the land to a private association, the Veterans of Foreign Wars. The district court ruled that the conveyance violated the terms of the injunction, but, in 2010, a divided Supreme Court reversed and remanded for further consideration.

This week’s settlement allows the government to convey the land to the VFW in exchange for other property. The National Park Service will install and maintain a fence with signage indicating that the land is privately owned and maintain roads allowing for “safe and suitable” public access. The government will not replace the cross, which someone stole after the Supreme Court’s decision, but the new owners are of course free to do so, and in fact, the VFW has a cross ready. The government will restore the plaque designating the spot as a national war memorial and has reserved the right to have Park Rangers explain to visitors what they’re looking at. H/T:  Religion Clause.

Posted on by Marc O. DeGirolami

“Dubious”

The editorial page of the New York Times has come out in favor of Judge Richard Stearns’s decision in ACLU v. Sebelius.  The editorial is entirely bereft of legal analysis, other than offering the obviously heartfelt but otherwise unilluminating view that the opinion  is “sound.”  The editorial concludes with this:

The sound ruling could have implications for the faith-based initiative begun by President George W. Bush and continued under President Obama by calling into question the dubious notion of giving churches and other groups wide latitude to use public money for their religion-based social service programs.

I am not sure whether this was intended seriously or not, but on the assumption that it was, I’m afraid it is sorely, wildly mistaken — indeed, positively “dubious” as a legal matter.  On no plausible understanding of the Establishment Clause could the activity of distributing public money on a neutral basis to organizations which perform secular functions with religious motivations violate the Establishment Clause, at least not as the Clause has been interpreted by the Supreme Court, or as a matter of historical practice, or as a matter of tradition, or by any other constitutional methodology that has any serious adherents.  The claim is sufficiently extraordinary to motivate me to create a special new tag, “The New York Times on the Religion Clauses.”

Posted on by Mark Movsesian · 2 Comments

The Indiana Statehouse Chapel

Last week, I spent a couple of days in Indianapolis at a roundtable on law and the Protestant Reformation directed by my friend and sometime co-author, John McGinnis of Northwestern. During a break, I walked over to the Indiana Statehouse where, much to my surprise, I discovered the Indiana Chapel — that’s its official designation, though the sign on the door (right) says “Meditation Room” — on the fourth floor. It is apparently the first statehouse chapel in the United States, and one of only six, the others being in statehouses  in Arkansas, Florida, Illinois, Kentucky, and Texas. The chapel is a small room without sectarian symbols; to me, it resembles a Victorian parlor. There is, nonetheless, a Protestant feel to the room, no doubt created by the lectern at the front with a King James Bible, the hymnal on the electric organ, and the bookcase filled with Bibles, presumably for the  Bible studies advertised on a bulletin board outside the door (below). According to this website, a private evangelical Christian group called the Capitol Commission of Indiana regularly uses the room, though it doesn’t seem other groups are excluded. I don’t know if anyone has ever thought to bring a lawsuit about the Indiana Chapel, but, assuming the room really is open to everybody on an equal basis,  I don’t think an Establishment Clause challenge  would succeed, either under the Lemon/endorsement test or Marsh v. Chambers, the legislative chaplain case. In 1988, the Seventh Circuit held that a similar non-sectarian chapel/meditation room in the Illinois state capitol did not violate the Establishment Clause.

Posted on by Marc O. DeGirolami

Justice Scalia at St. John’s Law School

The Center for Law and Religion is pleased to announce that Justice Antonin Scalia will visit us at St. John’s Law School next Monday, April 2, at 4:15 pm.  His is the fifth session in our ongoing seminar, Colloquium in Law: Law and Religion.  Justice Scalia will discuss his opinions in several of the Court’s religion clause cases, focusing especially on Employment Division v. Smith; Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah; Lee v. Weisman; Bd. of Education of Kiryas Joel Village Sch. Dist. v. Grumet; Lamb’s Chapel v. Center Moriches Union Free Sch. Dist.; Capitol Square Review and Advisory Bd. v. Pinette; and McCreary County v. ACLU.

Academics in the New York area and beyond are welcome to attend, but for this visit, an RSVP to me or to Mark is essential.

Posted on by Mark Movsesian

Cert Petitions Filed in Church Property Disputes

Howard Friedman at Religion Clause reports that coordinated cert petitions have been filed in three recent property disputes between national church bodies and local congregations.  Two decisions, discussed by CLR Forum here, arise from the Georgia Supreme Court; one comes from the Connecticut Supreme Court. All three cases question the application of the “neutral principles of law” doctrine, one of the two main approaches to church property disputes, which allows civil courts to resolve such disputes using regular civil law principles. The local congregations that lost these cases, two Episcopalian and one Presbyterian, are the petitioners; the national church bodies have not yet filed their responses.

Posted on by Marc O. DeGirolami

Awarding Government Contracts to Catholic Organizations Violates the Establishment Clause

I blogged about this issue back in October.  During the Bush Administration years, HHS had awarded a contract to the United States Conference of Catholic Bishops for providing services to victims of human trafficking.  But the Obama Administration, in keeping with the general approach of its HHS, chose not to renew the contract, awarding it to another organization.  Just before that, the ACLU sued HHS claiming that its decision to award the contract to the Bishops violated the Establishment Clause.

And now Judge Richard Stearns (D. Mass.) has pronounced that awarding a government contract to a Catholic organization for the provision of services to victims of human trafficking, when that organization declines to refer victims for abortion services or to distribute contraceptives, violates the Establishment Clause.  There were standing issues involved here, but the merits determination apparently comes down to the judge’s belief that allowing the placement of restrictions on the implementation of the contract amounts to an endorsement of Catholicism, as well as an impermissible delegation of governmental functions to a religious entity (see, e.g., Larkin v. Grendel’s Den and Kiryas Joel).  On the latter point, Judge Stearns claims that the awarding of a government contract to the USCCB provides a “significant symbolic benefit to religion.”  I am not persuaded by this argument.  Even though I think the decision in Kiryas Joel is wrongly decided, I fail to see how the situation in Grendel’s Den is analogous to this case.  Grendel’s Den involved the delegation of a kind of blanket veto power to religious institutions as to liquor licenses within a certain distance from the institution.  The benefit there was hardly symbolic.  The benefit here is to much more attenuated, much more symbolic, and of different orders of substantiality.  The judge also saw fit to include long tracts of Justice Black’s separationist spiel in Everson, notwithstanding the fact that the current Supreme Court has largely abandoned the separationist view of the Establishment Clause.

At all events, the Obama Administration could not have gotten a more favorable outcome for its interests, it seems to me.  Its own decision to withdraw the contract from the USCCB has now been declared the only constitutionally viable option.