The US Fish and Wildlife Service this month granted a permit to the Northern Arapaho Tribe to capture and kill two wild bald eagles a year for use in religious ceremonies. Although some conservation and animal-rights groups question the need for killing, suggesting the tribe use the carcasses of eagles killed accidentally instead, the tribe maintains that wild birds are necessary. The tribe had filed a lawsuit against the Service to force the grant of the permit, but the Service says its decision was unrelated to the pending litigation. Federal law protects bald and golden eagles, but the government has granted permits for killing eagles in religious ceremonies to several Native American tribes.
Religious Arbitration and the Church of Scientology
CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.
Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.
Vatican Office Rules American Bishop Wrongly Closed Parishes
According to news reports, a Vatican office has taken the extraordinary step of overruling a bishop’s decision to close 13 parishes in his diocese. The Bishop of Cleveland, Richard Lennon, ordered the parishes closed as part of a diocesan downsizing three years ago. Parishioners challenged the closings as violations of canon law, and yesterday the Congregation for the Clergy, an office in the Roman Curia, ruled in their favor. According to the parishioners’ lawyer, the Congregation held that Bishop Lennon had failed to follow the canonical procedure for closing parishes, for example, by neglecting to consult clerical advisers and issue a formal decree. Bishop Lennon may now appeal to the Vatican’s high court. This week’s ruling is yet another example of the growing interest in canon-law litigation in the Catholic Church.
District Court Finds New York City Department of Education’s “Worship”-Exclusion Regulation Facially Unconstitutional
The United States District Court for the Southern District of New York has issued a preliminary injunction finding the regulation issued by the Board of Education of the City of New York facially unconstitutional under the Free Exercise Clause. The case is in part interesting because the Second Circuit had narrowed the scope of the District Court’s TRO to the plaintiff, Bronx Household of Faith. As I explained in this post, however, the plaintiff is challenging the regulation as being facially unconstitutional. That would invalidate it as to everyone, not just Bronx Household of Faith.
And that is exactly what the district court held in issuing its preliminary injunction. In the final footnote of the opinion, the court said:
The Court is, of course, aware of the Court of Appeals’ order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party.
With respect from these quarters, too, it seems to me that Judge Preska is surely right about this. If a regulation is found facially unconstitutional (as Judge Preska found this one to be), the state is prohibited from enforcing it not only against the plaintiff, but against everybody. The finding is that there are no situations in which enforcement of the regulation would be constitutional.
The other interesting note is that Judge Preska reaffirmed her TRO findings that the regulation is not neutral on its face because it singles out worship for specially negative treatment, and because it discriminates against structured forms of religious expression in favor of unstructured forms of religious expression. The district court also found that the Department of Education did not have a compelling interest here in conveying the appearance of not violating the Establishment Clause by issuing the regulation (this formed part of the basis for Judge Leval’s earlier Second Circuit majority opinion). Neither the Second Circuit nor the Supreme Court has held that any interest in avoiding the appearance of an Establishment Clause violation is sufficiently powerful to justify viewpoint discrimination — a clear violation (rather than merely the appearance of a violation) of the Free Speech Clause.
Second Circuit Clarifies Scope of TRO in Bronx Household of Faith Case
The Second Circuit Court of Appeals issued an order clarifying the scope of the TRO issued by the district court in the Bronx Household of Faith case. The order states:
We call to the district court’s attention an appearance of overbreadth of its order. The district court stated that it “issues a temporary restraining order enjoining defendants from enforcing” regulation D-180. As stated the order could be construed to enjoin the Board from enforcing its regulation not only against the plaintiffs, but also against non-parties as well. The Board has thus complained that, at the last minute, it is being required to process more than 23 new permit applications. This is a misunderstanding of the order. The order should be understood as enjoining the City from enforcing its regulation against the parties to the case—not as enjoining the City from enforcing its order against non-parties. The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties.
My understanding is that the plaintiff is challenging this regulation as being facially unconstitutional, so if it eventually prevails on the merits of that claim, that would prevent the City from enforcing the regulation against non-parties. But because at present this is only before the court on a motion for TRO, it applies only to Bronx Household of Faith, and the City is at liberty to throw everybody else out.
Obama Administration Files Motion to Dismiss in Contraception Mandate Case
Back in November, Belmont Abbey College sued Secretary of Health and Human Services Kathleen Sebelius after the Obama Administration announced the original HHS mandate — the one in which religious entities like the Catholic Church would be compelled to list and pay for contraceptive and abortifacient products right under the terms of their employee health plan. That mandate, and not whatever modification the President suggested on February 10, now has the force of law. The Obama Administration itself made the original mandate the final rule.
The Department of Justice has now filed a motion to dismiss. DOJ takes no position in this motion on the constitutionality of the mandate, or on its permissibility under the Religious Freedom Restoration Act. It further admits that the original mandate, and not the February 10 proposed modification, has the force of law (see p.6). Instead, DOJ says that Belmont Abbey College (A) might have its health plan grandfathered; (B) can’t demonstrate that it will suffer an imminent injury (because it will not be subject to the mandate until 2014); and (C) has not shown that the case is “ripe” for review under the justiciability doctrine of ripeness.
I am not familiar enough with which health plans get grandfathered-in to know whether (A) is a plausible ground for the motion. (B) seems puzzling. After all, the health care mandate which is itself the subject of the Affordable Care Act litigation is being litigated right now, with arguments scheduled before the Supreme Court at the end of March. Yet that mandate to purchase insurance does not go into effect until 2014 either.
I am not a standing scholar, but (C) seems to me the least plausible ground for the motion. The original contraception mandate now has the force of law. Whatever may happen after the election with respect to the proposed February 10 modification, the original mandate is now final — nothing “informal or tentative” about it. Abbott Laboratories v. Gardner (1967). Any hypothetical future modifications — bracketing the issue of whether they would work any appreciable change — are entirely speculative. I’d appreciate illumination from readers who are expert in standing doctrine, however.
Bronx Household of Faith Obtains TRO on Free Exercise Grounds
CLR Forum’s educated readership knows that the Free Exercise Clause was interpreted in Employment Division v. Smith to mean that neutral laws of general application which do not specifically target religion for discriminatory treatment are constitutional. Of course, the majority of the Court in Smith, unlike some of Smith’s most ardent academic supporters, was quite friendly to legislative accommodations for religion. Smith was about what the Constitution mandated, not what it permitted.
Yet in the fabric of Smith was an important exception — or, perhaps it’s not even right to call it an exception, as it seems to follow from the very rule that Smith announced. Where a law is not neutral, or not of general application, it warrants the strict scrutiny that applied in the Court’s pre-Smith free exercise jurisprudence.
And that seems to be the reason for Judge Loretta Preska’s decision to issue a temporary restraining order enjoining New York City’s Board of Education from barring Bronx Household of Faith and all other religious organizations from using public school buildings for religious worship services. Readers will remember that the Second Circuit, in an opinion by Judge Pierre Leval, held that the municipality could exclude “worship” even though (under Good News Club v. Milford Central School), it could not exclude “religious expression.” And the Supreme Court, regrettably, denied cert. But the Second Circuit’s decision did not involve a free exercise claim, and Bronx Household of Faith had preserved that claim.
If one looks at the memorandum in support of Bronx Household’s motion for the TRO, the free exercise claims involve allegations of non-neutrality (the policy of exclusion specifically targets religious worship, and even more specifically targets Judeo-Christian religions which engage in organized worship) and the lack of general application: the policy is “substantially underinclusive” — it allows “prayer, singing hymns, and religious teaching,” while at the same time excluding worship. The district court also agreed with the plaintiff’s Establishment Clause claim as a reason to grant the order.
Israel’s Rabbinical Court Jails Husband Indefinitely for Refusing to Divorce Wife
A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.
This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”
Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals. Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.
European Human Rights Court Rules Clergy Have a Right to Unionize
Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.
In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and Read more
“Big Mountain Jesus” Stays for Now
An update on a story we covered last November. The Forest Service this week approved a permit for the continued display of a six-foot statute, known as “Big Mountain Jesus,” on federal land in Big Mountain, Montana. The statute has been there since 1954. Its sponsor, the Knights of Columbus, says that the statue, which replicates statues seen by American soldiers fighting in Europe in World War II, serves as a war memorial. The Forest Service had decided last August not to renew the permit, but reversed itself this week in response to public outcry. The Freedom from Religion Foundation, which argued that renewal of the permit would violate the Establishment Clause, has announced plans to file a federal lawsuit as early as this week.
Cases about public religious displays are notoriously unpredictable. The Supreme Court has indicated that such displays cannot violate the government’s duty of religious neutrality, but the Justices have defined that duty in various, and not completely consistent, ways. Categorical tests are not very helpful; cases turn on specific facts and historical context. With respect to Big Mountain Jesus, it will be interesting to see which interpretation of the statue prevails: is the statue really a war memorial whose religious associations are only incidental, or is it, as FFRF argues, an unconstitutional sectarian endorsement? Watch this space for further developments.