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

A Thought on Evolutionary Textualism

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship.  And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here’s why. 

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Posted on by Marc O. DeGirolami

Michael McConnell at St. John’s Law School

The Center for Law and Religion is delighted to announce that Professor Michael McConnell (Stanford) will visit us at St. John’s Law School next Monday, March 19, at 5:30 pm.  His is the fourth session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor McConnell will reconsider Employment Division v. Smith in light of Hosanna-Tabor v. EEOC, and he will offer us his always illuminating thoughts about the future of free exercise (those who have not read Professor McConnell’s two 1990 pieces on free exercise — one on the historical origins of free exercise and one in response to Smith — will profit from them greatly).

Academics in the New York area and beyond are welcome to attend.  Please let me know.

Posted on by Marc O. DeGirolami

The Rhetoric and the Reality of Employment Division v. Smith

This column by Linda Greenhouse offering a defense of the HHS contraception mandate begins mistakenly, in my opinion, when it claims that the “obvious starting point” in considering the question of the claims of conscience being made against the mandate is “the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point in their reproductive lives.”  I think that is not the right place to begin, but it’s territory that has been covered at length elsewhere.

The more interesting point that Greenhouse makes is that Employment Division v. Smith demonstrates that the claim made by those who are opposed to the contraception mandate — a claim “to conscience that trumps law” — is one which the Supreme Court emphatically rejected in Smith.  “[T]hat,” Greenhouse writes, “is not a principle that our legal system embraces.”

Both the way of posing the proposition and the conclusion seem, again, mistaken to me, but let’s concede the former and explore the latter.  Suppose it is really true that we are dealing with a claim that “conscience trumps law.”  “Our legal system,” in fact, “embraces” just this claim in a great variety of situations.  If it did not, the Roman Catholic Church would be compelled to appoint female priests; it would be forbidden from offering sacramental wine to children; religious communities would be compelled to hire those who don’t share their religious commitments.  Moreover, as Greenhouse recognizes later, “our legal system” responded to Smith by passing some statutes which make it highly likely that in some situations, “conscience trumps law.”  So it simply is not true that “our legal system” does not make any room for the protection of conscience when it conflicts with law.

Greenhouse’s praise for Smith also represents, I think, a widespread misconception about Smith.  The misconception is that Smith is an iron rule with no exceptions — that any law which appears “neutral” when considered in some sort of antiseptic laboratory (i.e., neutral by the plain meaning of the text) is permissible.  But in fact, that isn’t at all what Smith held.  As I have discussed here, Smith’s exceptions are, or are rapidly becoming, at least as important as its rule.  The rhetorical appeal of Smith’s hard-edged language has given people the misimpression that “our legal system” admits of no exceptions for religious conscience, ever.  And this, from my point of view, is another problem with Smith.  It confuses the discourse about religious liberty — it warps it by suggesting a hard, exceptionless rule as somehow constitutive of “our” political and legal traditions.  But that rule — and the values which underwrite it — have never, in fact, represented our approach to religious liberty.

Posted on by Marc O. DeGirolami

Uniao do Vegetal Back In Court

União do Vegetal was the petitioner in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006), a case in which the Supreme Court held that the federal government’s seizure of a hallucinogenic tea, hoasca, which was used by the petitioner as part of a religious ritual violated the Religious Freedom Restoration Act.  In the process the Court clarified that RFRA did, in fact, continue to apply against the federal government (it held in City of Boerne v. Flores that it did not apply against the states).

In this complaint, União do Vegetal has now sued the municipality of Santa Fe, bringing claims under the Religious Land Use and Institutionalized Persons Act and the Free Exercise Clause, among others, in response to Santa Fe’s denial of a permit to build a temple on land outside Santa Fe.  The allegation is that the permit was denied because neighbors of the proposed temple site objected on NIMBY grounds.  Of special interest (to me) is the fact that the plaintiff’s free exercise claim alleges unequal (non-neutral) application of the individual assessment exception in Employment Division v. Smith.  (h/t Eric Rassbach)

Posted on by Marc O. DeGirolami

The Taming of Employment Division v. Smith

When Employment Division v. Smith was decided, it had committed opponents and supporters.  Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions.  There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.

CLR Forum readers will know that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional.  The first exception dealt with the idea of hybrid rights.  The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable.  Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways.  The second exception has proved to be far more important: where the law at issue is not truly a law of general application — where a system of individualized assessments with respect to exemption from the law has been adopted — then the law is again subject to strict scrutiny.  I’ve looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it).  It turns out…a whole lot.  Indeed, the latest example of the application of the individual assessment exception appears in a case reported by my colleague, Mark, just below, and just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim.  The court held that the school’s “no referral to other counselors” policy was not one of general application, because referrals for secular reasons had been permitted.  For more on the case, see Mark’s item below.  You might wonder just how powerful the individualized assessment exception is…you will have to wait for my book to see just how much!  For the third exception…follow the jump!

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Posted on by Mark Movsesian

Canada Bans Veils During Citizenship Ceremonies

Reuters reports that Canada’s immigration ministry has decided to forbid women at naturalization ceremonies from wearing veils that cover their faces, even for religious reasons. The ban will affect Islamic veils like the  niqab, which covers the face but has an opening to allow vision, and burqa, which has a mesh. The ministry argues that its decision will ensure that people who “join the Canadian family” do so “freely and openly,” but Reuters talks about a possible lawsuit by Canadians who believe the ban violates Muslims’s religious freedom. If such a case materializes, the governing precedent would likely be the Canadian Supreme Court’s 2006 Multani decision, the Sikh kirpan case, in which the court held that, under Canada’s Charter of Rights and Freedoms, any restriction on religious freedom must serve an important government objective and be proportional to that objective — a test that resembles the pre-Smith Sherbert doctrine in American law.

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Robinson on Rationalizing Religious Exemptions

Zoe Robinson (DePaul University College of Law) has posted Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion. The abstract follows. – ARH

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation – in terms of constituent voting support – against the costs borne. By modeling legislative accommodations as the result of benefit-maximizing behavior, the Article is proposing a significant paradigm shift that postulates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.