Posted on by Mark Movsesian

European Court Rules Clergy Cannot Unionize Over Church’s Objection

In a much-anticipated decision, the Grand Chamber of the European Court of Human Rights ruled today, 11-6, that Romania did not violate the European Human Rights Convention when it refused to register a trade union that Romanian Orthodox priests had formed against the wishes of the Romanian Orthodox Church. The decision, with important implications for church autonomy, overrules a contrary judgment by a chamber of the court last year.

Article 11 of the European Convention grants citizens–including, the Grand Chamber ruled today, clergy–the right to form trade unions, subject to restrictions that are necessary to advance legitimate governmental interests, including the “protection of the rights and freedoms of others.” Here, the Grand Chamber reasoned, Romania had restricted the priests’ right to form a union in order to protect the autonomy of Romanian Orthodox Church. Among other things, the proposed union was meant to promote members’ ability to obtain representation in the Holy Synod, the Church’s highest authority, and to strike in order to advance members’ interests within the Church. By registering a union with goals like these, the Grand Chamber reasoned, the state would hamper the ability of the Church to organize and govern itself according to its own rules:

Respect for the autonomy of religious communities … implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity. It is … not the task of the national authorities to act as the arbiter between religious communities and the various dissident factions that exist or may emerge within them.

In other words, because the union posed a real risk to the organizational integrity of the Romanian Orthodox Church, Romania was justified in refusing to register the union–particularly given the wide “margin of appreciation” the Convention grants states with respect to church/state relations.

The Grand Chamber’s decision contains language suggesting a sweeping view of church autonomy, but one could also see it as somewhat narrow. The Grand Chamber noted that nothing would stop clergy from forming a union “that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.” And it emphasized the the fact-specific nature of the inquiry, stating at one point that “national courts must … conduct[] an in-depth examination of the circumstances of [a] case and a thorough balancing exercise between the competing interests at stake.” The resistance to a categorical rule is reminiscent of the US Supreme Court’s analysis in Hosanna-Tabor, the “ministerial exception” case. A third-party submission by the Becket Fund and the International Center for Law and Religion Studies discussed Hosanna-Tabor, but the Grand Chamber did not expressly rely on the American decision in its own reasoning.

The case is Sindicatul Pastoral cel Bun v. Romania (July 9, 2013), available at the ECtHR’s website, here. The Becket Fund’s press release about the decision is here.

Posted on by Mark Movsesian

California Court Rules School Yoga Program Does Not Violate Constitution

The Crisscross-Applesauce Position (New York Times)

An update on a case I wrote about in May: a California state court has ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. Under current Supreme Court precedent, public schools may not endorse any particular religion (or, for that matter, religion generally). In yesterday’s ruling, the San Diego Superior Court reasoned that the Encinitas Union School District has scrubbed religious references from its yoga classes–the Lotus position has been renamed the “Crisscross-Applesauce” pose, for example–so that what remains is merely a fitness and stress-reduction program for kids. The court apparently did not find persuasive the testimony of an Indiana University religious studies professor, Candy Gunther Brown, who argued that yoga, a Hindu practice, is inherently religious. A lawyer for parents who brought the lawsuit against the school district says his clients will likely appeal.

Posted on by Marc O. DeGirolami · 1 Comment

New York Times Editorial on the Contraception Mandate

Here is the New York Times offering an opinion about the Obama Administration’s decision to press on ahead with the contraception mandate and about the Tenth Circuit’s decision in the Hobby Lobby case (the case was handed down when Mark and I were at a conference last week, and it is quite long, so I haven’t quite yet had a chance to review it). The Times quotes Professor Marci Hamilton as saying that the Tenth Circuit decision is a “fantasy.” The opposition in the Times editorial has almost nothing to do with the specific issue decided in Hobby Lobby–whether for-profit corporations may exercise religious liberty rights. The Times’s position is that the mandate is “an important advance in public health” and that the Obama Administration “has gone further than fairness or the First Amendment require to reach a compromise that respects the concerns of some religious entities without sacrificing an employee’s right to make her own decisions regarding contraceptives and not to conform to the religious beliefs of her employer.” It then says this:

Contrary to the majority opinion, a corporation like Hobby Lobby is plainly not a “person” covered by the Restoration Act. In any case, the contraceptive rule still leaves the company’s owners free to rail about the different forms of birth control to which they object and to try to convince employees not to use them. As the Justice Department cogently argued, the burden imposed on any religion is trivial in allowing employees to make their own independent decisions to obtain free contraceptives.

Note that unless one is putting a whole lot of emphasis on the phrase “like Hobby Lobby,” this opinion really has nothing to do with the issue in Hobby Lobby itself. And the points thereafter about freedom of owners to object (is it a great concession that the Obama Administration did not curtail the freedom of individuals to object?) and the triviality of the burden on religion do not depend on the status–for-profit or non-profit–of a particular corporation. All of these points would apply with equal force to a non-profit, like a church. If the burden imposed on religion is “trivial,” then it would be important to understand why it is so in the case of for-profits and not in the case of non-profits. Otherwise, it’s trivial as to both (to be clear, some people take this view. But that’s not a particular claim about the issue in Hobby Lobby, so much as skepticism that “fairness” requires any accommodation at all).

Posted on by Mark Movsesian

District Court Rules in Favor of Big Mountain Jesus

Image from the Flathead Beacon

An update on a story we’ve been following: Yesterday, a federal district court ruled that the US Forest Service did not violate the Establishment Clause by renewing a permit for “Big Mountain Jesus” (left), a six-foot-tall statue on land the Service leases to a private ski resort in Big Mountain, Montana. The statue has been in place since 1954, when the Knights of Columbus donated it–though this part is a matter of some dispute–as a war memorial. In response to an objection from the Freedom From Religion Foundation (FFRF), the Service decided not to renew the statue’s permit in 2011. This decision led to public outcry–the service received 95,000 comments in less than two months–and the Service reversed itself, whereupon the FFRF sued.

Under current Supreme Court precedent, official display of a religious symbol violates the Establishment Clause if a reasonable observer would think that the government is endorsing a religious message. In yesterday’s opinion, the court ruled that a reasonable observer would not perceive an official endorsement of religion in the case of Big Mountain Jesus. The statue is on land the government leases to a private owner and is maintained by a private organization–facts an inscription on the statue’s base explains. Many observers would be unaware of any governmental involvement at all. Moreover, although a statue of Jesus is obviously a Christian symbol, the secular, even irreverent associations of this particular statue minimize any religious message. At least some people think of the statue as a war memorial. Some people value the statue’s historical significance. And most observers, the court suggested, see the statue as a kind of campy joke: “Typical observers of the statue are more interested in giving it a high five or adorning it in ski gear than sitting before it in prayer.”

It’s unfortunate that current doctrine favors the trivialization of a religious symbol as evidence of its constitutionality, but that’s where we are. (Remember the candy canes and reindeer around the creche?) The court also noted that Big Mountain Jesus had been around for about 60 years before anyone had thought to object. This, too, is an important factor under Supreme Court precedent: “longevity demonstrates that ‘few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.'”

The Becket Fund for Religious Liberty, which intervened in the case on behalf of the Knights of Columbus and other parties, has a press release about the case here. The FFRF says it will likely appeal.

Posted on by Marc O. DeGirolami

Law and Religion in Justice Thomas’s Fisher Concurrence

As Supreme Court followers will already know, the Court issued decisions in several cases today, including an employment discrimination case, a case about the reach of the Necessary and Proper Clause (take note, my old students!), and, of course, a case dealing with affirmative action in public universities.

There isn’t much involving law and religion in any of these cases. But not nothing either. I am still digesting Fisher v. University of Texas, but the upshot seems to be a clarification of sorts by the Court that, in applying a strict scrutiny standard in this context, while deference is due to a university’s belief in the importance of “the educational benefits flowing from student body diversity,” deference is not due to the manner in which the university attempts to achieve the asserted interest in diversity (where narrow tailoring of the means to the end is necessary). Good faith efforts by the university to achieve narrow tailoring are not sufficient to satisfy the narrow tailoring element of strict scrutiny. Justice Kennedy, writing for the Court, offered this: “Strict scrutiny must not be ‘strict in theory but fatal in fact.’….But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact.” The case was vacated and remanded to the Fifth Circuit for reconsideration in light of the Court’s clarification of the applicable standard.

In a sizable and strongly worded concurrence, Justice Thomas agreed that the Fifth Circuit did not apply strict scrutiny but also argued that the Court should have overruled Grutter v. Bollinger, where the Court offered its fullest statement about educational diversity. Justice Thomas’s concurrence is framed in large part as a series of comparisons between arguments made by segregationists and arguments made by proponents of what he calls “race discrimination” in admissions, among which is the following:

Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”) . . . .

Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state,or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.

Posted on by Mark Movsesian

Is Yoga Constitutional?

Last month, I  wrote about a controversy surrounding the White House’s inclusion of a yoga garden in its annual Easter Egg Roll. The problem is this: yoga is a Hindu spiritual practice. Arguably, therefore, state-sponsored yoga is a religious endorsement that violates the Establishment Clause under existing Supreme Court case law.

Yoga Class at Encinitas School (New York Times)

It turns out that very issue is being litigated this week in a California  court. The Encinitas Union School District has introduced yoga as part of the phys ed program in elementary schools. Some parents object that the program highlights yoga’s spiritual elements and amounts to religious indoctrination. The school argues that it has eliminated religious references and that what remains is nothing more than an enriched gym class. An Indiana University religious studies professor who testified at trial demurs. She says that that it would be odd, from a Hindu perspective, to separate yoga’s physical and spiritual elements.

Under Supreme Court precedent, government can separate “cultural” from “religious” messages and promote the former. That’s why official Christmas displays with reindeer and elves survive constitutional scrutiny, but not solo nativity scenes. The logic is that the secular decorations swamp the religious message and ensure that passersby don’t think the government is endorsing Christianity, as opposed to Christianity’s cultural accretions.

This logic has saved some Christmas displays, but offended some Christians. To them, the Supreme Court’s reasoning suggests an unfortunate hostility to their religion: Christmas is acceptable in the public square only if its spiritual associations are diluted. To be sure, the Supreme Court  has said only that official displays must avoid religious associations, but people rarely compartmentalize things so logically. Culture often follows law.

So here’s a question: if official yoga programs are allowed on the theory that they have been scrubbed of religious associations, will pious Hindus object?Will people start demanding to keep the yoga  in yoga?

Posted on by Marc O. DeGirolami · 1 Comment

Certiorari Granted in Legislative Prayer Case

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town’s practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit’s very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court’s radar. But one never knows exactly why the Court decides to take up an issue.

For some discussion of the Second Circuit decision, see this post.

UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.

Posted on by Mark Movsesian

UK Supreme Court Decides Important Ministerial Employment Case

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

Posted on by Mark Movsesian

The Becket Fund’s Cert Petition in the Wisconsin High School Graduation Case

Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.

The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.

Posted on by Marc O. DeGirolami

District Court Rejects September 11 Cross Challenge

In my book, The Tragedy of Religious Freedom, I have a chapter that tells “A Tale of Four Crosses” in an effort to flesh out my approach to questions of religious liberty, and specifically government display of religious symbols.  One cross in the tale is the September 11 cross–a collection of beams which fused together amid the debris of the tragedy and was discovered by a rescue worker.  The cross provided inspiration, solace, and hope to many people who were grieving at the time.  After various developments, the state decided to display the cross in a museum about the events on that day, but this was opposed by American Atheists, Inc.  I conclude in that chapter that, applying my method (and not the Supreme Court’s tests), display of the cross in a state museum is almost certainly constitutional.

Applying the Supreme Court’s tests, the United States District Court for the Southern District of New York agreed.  In an opinion issued March 28, the court granted the defendants’ motion for summary judgment in a case brought by American Atheists, Inc., which challenged the constitutionality of displaying the September 11 cross in a state museum.  The Port Authority donated the cross to the National September 11 Memorial and Museum at the World Trade Center Memorial Foundation, Inc.  The Foundation attempted to display the cross in the museum, but American Atheists sued to block this from happening on Establishment Clause grounds.

That claim was rejected by the district court (Batts, J.).  After finding that the activities of the Foundation constitute state action, the court laid out the Establishment Clause standard in Lemon v. Kurtzman and the Supreme Court’s subsequently elaborated “endorsement” test.  The parties agreed that display of the cross satisfied Lemon’s requirement of “secular purpose,” inasmuch as the reason for its display was “historical and secular.”  As to secular “effect” (which generally is the same as perceived “endorsement” in this context), the court said this–and note in particular the permissibility of “acknowledgment” on the part of the state:

[S]ince the cross is housed in the Museum, its inclusion–in the September 11 Museum context with placards to explain why it was included in the Historical Exhibit–does not advance or endorse religion.

Plaintiffs assert that because the cross was used during Christian religious ceremonies, it is unlike historic religious objects that are housed in museums.  They, however, cite no case law making such a distinction.  Rather, the fact that the artifact is housed in the Historical Exhibit helps to negate any “sacred message” even though it “undeniably has a religious message.” . . . . Also helping to negate any potential endorsement is the fact that the explanatory placards will accompany the artifact . . . . Moreover, the acknowledgement that many rescuers and volunteers found [solace] in the cross is not an endorsement of their religion . . . .

Plaintiffs also argue that because the artifact is seventeen feet tall, its size signals endorsement because no other artifact is as large as the cross . . . . Although the size of the item may be a factor in determining whether government endorsement exists, here, the cross is seventeen feet tall because that was the artifact’s size when it was found.