Posted on by Marc O. DeGirolami

Notre Dame Files HHS Mandate Complaint Against Obama Administration

The text of the complaint is here.  A whopping 43 other Catholic dioceses and organizations have also filed suit today (whoa).  A few thoughts about this complaint:

  • The leading cause of action is RFRA (beginning at paragraph 202).  This makes sense as it is the strongest legal claim.
  • On the free exercise claim, have a look at paragraph 235.  ND obviously knows that alleging a substantial burden alone is not sufficient to make out an FE claim.  It therefore emphasizes that the mandate is not a neutral law of general application “because it is riddled with exemptions.”  That technically is a claim about general applicability.  A law can be facially neutral inasmuch as it does not by its terms single out religion for discriminatory treatment.  But even if it does not discriminate on its face, a law may not be generally applicable if it is loaded with exemptions.
  • Also look at paragraph 236.  ND is not only making a claim about the lack of general application.  It is also saying that the Administration made this regulation knowing that it would burden ND’s religious beliefs.  That knowledge is in turn made the basis for a claim of “targeting” of religion.  This claim, if accepted, implicates the “neutrality” component of the Smith test.  This is an interesting claim to watch, inasmuch as I am uncertain whether knowledge is sufficient to ground a claim of discriminatory purpose (in the criminal context, sometimes knowledge is deemed sufficient — see, e.g.,  the law of conspiracy).
  • ND is also making an “excessive entanglement” claim which implicates the Establishment Clause.  “Excessive entanglement” with religion is the third prong of the Court’s still operative Establishment Clause Lemon test, and it is something the Court at least indirectly emphasized in the recent Hosanna-Tabor decision.  This sort of claim is also raised at paragraph 270 and following.

Also have a look at our friend Rick Garnett’s comments at Mirror of Justice.

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 Marc O. DeGirolami

Second Circuit Adopts Intermediate Test for Legislative Prayer

An interesting decision yesterday from the Second Circuit dealing with the issue of legislative prayer.  The town of Greece, New York, had begun its town board meeting sessions with a prayer since 1999; the town had a practice of inviting different people to give the opening prayer.  Objecting town residents sued in 2008 and the district court granted summary judgment for the defendant town.

In a panel decision authored by Judge Guido Calabresi, the Second Circuit reversed.  Crucial to the Court’s reversal was that in practice almost all of the prayers had been delivered by Christian clergy members — “from 1999 through 2007, every prayer-giver who gave the invocation met this description.”  After 2008 and the receipt of complaints, a Wiccan and Jewish prayer were delivered, but then between 2009 and 2010, the town again invited only Christians.  Typically the invocations “gave thanks” for life in the town and “requested assistance” with governance, “begin[ning] with some variant of ‘let us pray,’  and then [] speak[ing] about the matters for which ‘we’ pray . . . . Members of the audience and the Board have bowed their heads, stood, and participated in the prayer by saying ‘Amen,'” or on occasion by making the sign of the cross.  About 2/3 of the prayers contained specific references to Jesus Christ, while the remaining third “spoke in more generally theistic terms.”

The case was one of first impression for the Second Circuit on the issue of the constitutionality of legislative prayers.  In construing Marsh v. Chambers and County of Allegheny v. ACLU, and in considering various circuit court precedent addressing the issue of legislative prayer, the Court took a very interesting position.  It held that “denominational” references in legislative prayers are permissible, and that the distinction between “sectarian” and “nonsectarian” prayer is untenable.  Here’s a portion of the Court’s decision:

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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 Marc O. DeGirolami

Fourth Circuit Prison Beard Case Remanded

Ordinarily we do not post about too many cases brought by prisoners alleging a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which reinstated in the context of land use and prison disputes the strict scrutiny balancing regime that Employment Division v. Smith had rejected.  Yet it may be of interest for readers to know that these cases are brought quite frequently by prisoners.  The prisoners generally lose.

But the Fourth Circuit yesterday gave a prisoner suing under RLUIPA a win.  Plaintiff is a Sunni Muslim prisoner serving multiple life sentences in Virginia who brought a RLUIPA claim when prison officials refused to let him grow a 1/8 inch beard in compliance with the requirements of his faith.  In 1999, the prison instituted a grooming policy prohibiting the wearing of beards, unless someone obtained a “No Shave Pass” from the prison’s medical authority, in which case they were allowed to sport a 1/4 inch beard.

Writing for a unanimous panel (which included Retired Supreme Court Justice Sandra Day O’Connor and Judge Dennis Shedd), Chief Judge Traxler first found that the grooming policy imposed a substantial burden on the plaintiff’s religious practice.  The Court also held that the state had a compelling interest in the grooming policy — accepting the prison’s claims about security, health, concerns about prisoner identification, and others.

The case was vacated and remanded on the issue of whether the policy was the least restrictive means of advancing the state’s compelling interest.  The plaintiff argued that a religious exemption for a 1/8 inch beard would have been just such a less restrictive means, but the prison officials rejected that solution, reasserting their interests in security and health.  That was deemed an insufficient response by the court: the prison officials’ affidavits did not:

address[] the feasibility of implementing a religious exemption or discuss whether a one-eighth-inch beard would in fact implicate the identified health and safety concerns in the Policy . . . . [T]hey fail to explain how the prison is able to deal with the beards of medically exempt inmates but could not similarly accommodate religious exemptions.    

The key here was that the prison officials failed even to address the possibility of the 1/8 inch beard solution, or to explain why it would not fulfill the aims of the policy.  “That explanation, when it comes, will be afforded due deference.” 

The case is Couch v. Jabe, 2012 U.S. App. LEXIS 9602 (4th Cir. May 11, 2012).

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

No Establishment Clause Violation in RI Sports Field Allocation Dispute

The United States District Court for the District of Rhode Island has ruled that the City of Pawtucket’s football and soccer field permitting policies do not violate the Establishment Clause (readers may remember that the City of Pawtucket was the defendant in an important Establishment Clause case several years ago, Lynch v. Donnelly).

Plaintiffs, a collection of parents of public school students in Pawtucket, alleged that the City was “preferentially allocating permits for the use of publicly owned and maintained athletic fields to private religious schools.”  Because both the public and parochial schools within the City generally do not have athletic fields on their own respective grounds, they have had to share the City’s public fields.  The District Court’s excruciatingly detailed factual findings about the history of field allocation across the years indicate that for a long period, that arrangement seemed acceptable.  But an athletic director for one of the public schools became disgruntled about scheduling difficulties, and decided that displeasure as to the allocation of practice field permits warranted an Establishment Clause claim. 

Applying the Lemon and endorsement tests, the Court rejected the claim.  The City granted preference to public schools over the parochial schools in the scheduling of games, and public schools were advantaged in some ways, but not in others.  “The Court need not complicate a simple analysis: the City’s permitting policies implement the clearly secular purpose of allocating limited game and practice field space to all junior high and high school students within the City.” 

As to effect, the plaintiffs’ claim was that because the only private schools which benefited from the policy were Catholic, that in itself violated the Establishment Clause.  That argument was, quite properly, rejected by the court, which noted that

The Supreme Court has consistently rejected the premise that conduct which in some manner aids an institution with a religious affiliation violates the Establishment Clause. See Mueller, 463 U.S. at 393. It is “well-established” that a state may reimburse parents for expenses associated with transporting their children to and from school and that a state may loan secular textbooks to all schoolchildren within the state. Id. Some benefit flowing from the government to religion is permissible, as “not every [practice] that confers an indirect, remote or incidental benefit upon [religion] is, for that reason alone, constitutionally invalid.”  Lynch, 465 U.S. at 683.

The case is Rogers v. Mulholland, 2012 WL 1565091 (D.R.I. May 4, 2012).

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).

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 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.