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May 23, 2014

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

Cross-posted from Justia's Verdict. Co-authored with Prof. Alan Brownstein.

Earlier this month, in Town of Greece v. Galloway, a closely divided (5-4) Supreme Court upheld a practice in Greece, New York (located upstate) of starting town board meetings with a short prayer. Under the practice (which goes back around fifteen years) the Town has invited local clergy to offer an opening prayer after the presentation of the Pledge of Allegiance. Prayer givers deliver their words over the Board's public address system, and many clergy have asked members of the audience to bow their heads, stand, or join in the prayer recitation. Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

In upholding the Town's actions, the Court rejected both equality-based and liberty-based arguments that had been raised by the plaintiff challengers. The U.S. Court of Appeals for the Second Circuit had invalidated the Town's policy largely on the basis of equality concerns-because the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. As we made clear in an earlier column, we agreed with this reasoning, but we also felt that the plaintiffs had good arguments that the prayers at board meetings implicated liberty concerns and were coercive, insofar as nonbelievers or persons of non-Christian faiths might feel compelled to participate (or feign participation) in a town's prayers, lest these minorities risk being viewed by the audience and, importantly, by the town board members themselves, as "outsiders" whose needs and interests might get less respect from local government on that account. For us, the coercion argument was much stronger here than it was in Marsh v. Chambers, a 1983 case in which prayers offered at sessions of the Nebraska state legislature that were upheld against an Establishment Clause challenge. Importantly, because persons who attend local government sessions are likely to be participants rather than just spectators, the pressure to conform and participate is significantly higher here than in the state or national legislative arenas. Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council/town board meetings. In the setting of a city council, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

In the paragraphs below, we offer our reaction to the reasoning employed by the Court in resolving these equality- and liberty-based arguments. Given space constraints, we necessarily focus only on the principal opinion in the case, but we recognize that other Justices expressed significant observations and analyses that we hope at some future point to explore.

Should the Town Practice Have Been Viewed as Discriminatory?

Justice Kennedy's opinion-which announced the judgment of the Court and which was joined in full by the Chief Justice and Justice Alito and in part by Justices Scalia and Thomas-was to us quite surprising and disappointing. As we read and reread it, we feel it does not adequately address and respect the core constitutional values of religious liberty and equality, and often characterizes factual matters in strained ways. The analysis ignores critical legal distinctions or assigns substantive meaning to facts that should not matter. And perhaps most problematically, Justice Kennedy's apparent understandings of social reality do not accord with our sense of human behavior, cultural meaning, and proper institutional functioning. In that respect, our disagreement is not just with Justice Kennedy's interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

Justice Kennedy begins by characterizing the Town's prayer practice as nondiscriminatory, which explains his conclusion that the policy does not violate constitutional principles of religious equality. But as the Second Circuit found, the Town's policy is glaringly discriminatory. The Town reaches out and calls congregations listed in local directories, and invites them to provide someone to offer a prayer at meetings. True, the Town asserts that it would permit individuals not affiliated with these congregations to offer prayers at meetings if such individuals asked permission to do so, but the Town acknowledges that it takes no affirmative steps to notify anyone in the community that such requests would be granted. Reaching out to some religious adherents in particular, and ignoring others who may not be affiliated with established congregations, hardly seems neutral.

Nor is the equality problem limited to unaffiliated religious persons; other Town residents may be affiliated, but with congregations located outside yet nearby Greece. Justice Kennedy observes that the Constitution does not require a town "to search beyond its borders for non-Christian prayer givers," but it is common in modern America (especially outside big urban areas) for religious minorities in one town to worship in a congregation in a neighboring community. To formalistically ignore such persons is to deny them the same respect afforded to the members of established local congregations; the Town is simply not treating all of its denizens equally in this regard.

Justice Kennedy's focus on the latitude the government-invited clergy should enjoy to say what they want without constraint also seems to us to completely miss the unequal respect issue, and also the liberty of conscience problem. He observes that once the government "invites prayer into the public sphere . . . it must permit a prayer giver to address his or her own God or gods as conscience dictates." But in the Town of Greece, prayer givers generally have not been expressing purely personal prayers. Instead, they have claimed to be leading a prayer made by the audience and the community. When government invites a prayer giver to speak on behalf of others, more than one individual's conscience is at stake, and the consciences of all of the people in whose name the prayer is offered must be given equal respect.

It is far from respectful to say, as Justice Kennedy does -- in response to concerns by audience members that they are being asked to stand and bow their heads and join in prayers -- that the clergy in question are used to "directing their congregations in this way." The key point is that the audience at a town board meeting is not a congregation -- a group of self-selected worshippers who decided to attend the prayer giver's church because they adhere to his beliefs and practices. Instead, audience members are a diverse group of citizens attending the board meeting on government business to address their representatives. They deserve to be treated as citizens, not congregants. Clergy who cannot distinguish between parishioners in the pews and the audience at a government meeting need to be reminded of this difference. The decision to attend a board meeting is not a decision to attend a church.

Justice Kennedy's Treatment of the Coercive Aspects of Town Prayers

Perhaps even more unconvincing and undeveloped is Justice Kennedy's response to the plaintiffs' contention that the prayer practice adopted by the Town of Greece is inherently coercive in nature because attendees will feel pressure to conform and participate in this religious exercise. Here, he argues that a town's practice must be understood in terms of the historical tradition of having legislative prayers, a tradition recognized and upheld in Marsh. But, as even Justice Kennedy curiously concedes, there is almost no evidence in the record establishing a long tradition of state-sponsored prayer at local government meetings. And this lack of tradition makes sense because, as noted above, Marsh is distinguishable insofar as citizens have no right, opportunity, or expectation to participate in state legislative or congressional sessions or to petition their representatives from the visitors' gallery the way they do at the local government level. Since passive spectators at state legislative and congressional sessions are not petitioning government, they could hardly complain that they feel compelled to join in state sponsored prayer out of concern that their petitions would be denied. Active participants at local government meetings, to the contrary, are attempting to influence their representatives and will be subject to pressure to conform to avoid alienating the very decisionmakers they are addressing.

Justice Kennedy offers precious little by way of substantial response to this crucial distinction. And what he does offer is so unrealistic, it is hard to accept that he truly believes these arguments himself. He begins this part of his opinion with the unlikely assertion that "the principal audience for the[] [Town Board] invocations is not, indeed, the public but lawmakers themselves." How can that be his interpretation of the facts? The individual clergy member offering the prayer generally faces the public audience with his or her back to the lawmakers. The clergy member asks the members of the public to stand, bow their heads, and join in prayer. The public -- obviously understanding the prayer as being directed at them -- stands and responds to the prayer giver's requests. The prayer giver often asserts that the prayer is being made on behalf of the audience and the community. Yet in Justice Kennedy's understanding, these prayers are primarily directed to the lawmakers and not to the public.

What's more, Justice Kennedy believes that there is a sharp distinction between the town board members asking the audience to stand and pray, and the invited clergy member who is offering the prayer telling the audience to do so. To us, this distinction has no significant relevance to the key question, namely, whether audience members reasonably feel pressure to join in state-sponsored prayers lest they offend or alienate the town board decisionmakers they will be petitioning a short time later. If a judge, employer or teacher were to invite clergy to offer a prayer in court, on the job, or at school, respectively, and then invited all persons in attendance to pray, the coercive nature of the circumstance would not be significantly mitigated by the fact that the prayer directive came from the invited clergy rather than the judge, employer or teacher.

Justice Kennedy also suggests that the fact that coercion may be intrinsic to these contexts is constitutionally insignificant as long as board members do not explicitly assert that they will take a person's refusal to pray into account in deciding matters before them, and so long as the citizens have no direct proof that board members have discriminated against residents who decline to pray. But basic constitutional law principles recognize that power is subject to abuse, including (perhaps especially) at the hands of petty functionaries. We structure many aspects of our system prophylactically to minimize the opportunities for abuse, particularly First Amendment abuse. Unfortunately, we simply cannot share Justice Kennedy's almost naïve sense that "should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy." For better or worse, in the real world, culture wars, friction between members of different faiths, and acrimony and retribution (whether conscious and unconscious) between religious and non-religious individuals and groups is very real. There is a reason Establishment Clause claims are sometimes brought by John or Jane Doe litigants.

Contested Views Regarding the Religious Nature of Prayer and the Relative Coercion in Different Settings

Most surprising and problematic of all is Justice Kennedy's seeming understanding of the nature of prayer and its meaning to the religious individual. To Justice Kennedy, public prayer at a town board meeting does many things and serves many functions, most of which are largely ceremonial in nature. He never suggests or even really acknowledges that prayer might be something else-that it is a personal, meaningful expression of the individual to G-d. But for many Americans that is precisely what prayer is, and its expression in a public meeting does not alter its fundamental nature. Indeed, the reason so many of the prayers offered before town board meetings in Greece are explicitly sectarian is that the person offering the prayer understands prayer as a meaningful communication to G-d and an expression of heartfelt faith.

Justice Kennedy's dismissal of the impact of these prayers on members of minority faiths or those who are not religious can be reasonably understood only if one accepts a watered-down definition and understanding of prayer. It is only in this sense that he can argue that if religious minorities and nonreligious citizens remain in the meeting room and stand along with everyone else for the prayer, no serious harm is done. He believes that their conduct would not "be interpreted as an agreement with the words or ideas expressed." But this argument presupposes that these town board prayers do not serve the function of true prayer, and that the people standing and bowing their heads are not engaging in a meaningful religious act. If the majority of individuals participate in these collective prayers as authentic expressions of prayer, of course a nonreligious individual or member of a religious minority engaging in the exact same behavior would necessarily be perceived as engaging in a similarly authentic religious exercise. Why would anyone interpret that individual's conduct differently?

In the past, Justice Kennedy has been more attuned to the real-world position in which non-majority persons find themselves when dealing with religion in the public sphere. Justice Kennedy wrote the majority opinion in Lee v. Weisman, where the Court struck down state-sponsored prayers at public middle and high school graduations. His sensitivity to context and to the coercive burden on students in that case stands in stark contrast to the ungrounded analysis that permeates his opinion in Town of Greece. Justice Kennedy asserts that the offering of state-sponsored prayer at a middle school or high school graduation is more coercive than the offering of prayers at a town board meeting. But in doing so, once again, his analysis misses the crux of the coercion argument in Town of Greece. Because they have completed their studies, graduating seniors at public school graduations no longer risk the exercise of discretionary authority by teachers and principals who might be offended if students refused to stand during a benediction. They are no longer subject to the control of school authorities. Residents seeking to influence town board members on one or more matters involving their personal needs and interests experience far greater coercion because they are subject to the discretionary decisions of the board that has orchestrated the offering of a prayer in which they publicly refuse to participate.

Nor was the challengers' claims in Lee stronger than those raised in Town of Greece simply because minors were involved in the former case. While it may be true that adults are more capable of standing their ground than are children, pressure is pressure whether or not someone gives in to it. For that reason, the fact that many adults might simply refuse to participate in town prayers and risk the alienation of the board-rather than sacrifice their religious principles-does not make their First Amendment claims any the weaker; coercion is impermissible because it violates the Constitution for the state to force someone to choose between adherence to one's religious beliefs or the risk of harm or loss, without regard to how the victim responds to the illicit pressure.

It seems that the world -- or at least Justice Kennedy's view of it -- has changed since Lee was decided.

April 18, 2014

Professor Bennoune on "Ijtihad: Feminism & Reform in Islam"

Professor Karima Bennoune, author of "Your Fatwa Does Not Apply Here: Untold Stories from the Fight Against Muslim Fundamentalism," recently appeared at this event on Capitol Hill. Organized by the group Muslims for Progressive Values, the event was titled "Ijtihad: Feminism & Reform in Islam."

Here is the event poster.

November 8, 2013

A Breakdown of this Week’s Supreme Court Oral Argument in the Town of Greece v. Galloway Case Involving Prayer at Town Board Meetings

Co-authored with Alan E. Brownstein. Cross-posted from Justia's Verdict.

 

In the space below, we offer our analysis of the oral argument that was held two days ago at the U.S. Supreme Court in this Term's most important case addressing the First Amendment's Establishment Clause, Town of Greece v. Galloway. The litigation involves a decade-plus-long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer. Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence. But since then, the Town has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayers over the Board's public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation. The Town asserts that anyone-followers of any religion, agnostics, and atheists alike-can request to offer an invocation, and that it has never turned down any request. But in practice, Christian clergy have given nearly all the prayers since 1999, and they have been invited to do so by the Town, which often calls them "chaplain[s] of the month."

Some Background on the Legal Theories in Play

As we explained in an earlier column, the U.S. Court of Appeals for the Second Circuit invalidated the Town's practice, finding that the prayers, in context, were best seen as a public endorsement of Christianity, which violated the First Amendment's ban on laws respecting an establishment of religion. In our earlier writing, we agreed with the Second Circuit that the Town's practice violated equality norms that are inherent in the Establishment Clause insofar as the Town was sending messages of inclusion and exclusion. This was especially true, we noted, because the Town's policy focused on majoritarian sects-the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce's directory-and thus effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.

We also argued that, even apart from equality-based arguments, the Town's policy violated the Establishment Clause's prohibition on religious coercion. In particular, we argued that unlike prayers used to open legislative sessions at the state legislative level (one of which was upheld by the Supreme Court, largely on the basis of unbroken historical tradition, in Marsh v. Chambers), prayers that open local government meetings are very likely to pressure attendees to conform, primarily because the audience at city council meetings has a different role and purpose than the audience at sessions of the state legislature. Most of what a state legislature does involves the formulation and enactment of laws of significant breadth and scope that impact large groups and constituencies. By contrast, the work of a city council or board, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Often town councils and boards act as administrative tribunals in a quasi-adjudicatory capacity, hearing personnel grievances or land-use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions. While the people who attend a session of the state legislature are passive observers of the legislature's work, the audience at a city council meeting has a much more participatory role to play. Town residents attend council meetings to speak to, influence, and petition their government before it makes decisions that may significantly impact their lives. So in the setting of a city council meeting, citizens who wish to address the council are coerced to participate in any city sponsored prayers that are offered, since a failure to stand and bow one's head or otherwise join in the prayer would risk alienating the very political decision makers whom they hope to influence.

What Did the Oral Argument Reveal?

Against this background, what do we make of the oral argument that took place earlier this week? With the caveat that it is always dicey to make firm predictions about outcomes from the tenor of an oral argument, and recognizing too, that an hour-long argument will generally contain many more important exchanges than can be summarized in a short essay like this one, we think it may be helpful to focus on five aspects of the controversy that emerged on Wednesday.

First, there seemed to be some agreement among the Justices that the Town's policy is problematic because it does not cast a broader invitation net. From the more liberal side of the Court, Justice Breyer pointed out forcefully that the Town could have done a better job of reaching out to groups that were not Christian, or not even religious at all, to let them know that they were welcome to "appear and to have either a prayer or the equivalent if they're not religious." And the more conventionally conservative Justice Alito explicitly talked about the problems of limiting invitations to congregations that are located in town (a practice we criticized in our earlier writing), instead of including minorities who live in town but who attend houses of worship outside of town.

What this broad agreement means is that the challengers to the Town's policy may well win-in the sense that the policy as it currently operates cannot continue. But the question then becomes whether the victory will be limited to the concern about outreach, or will instead be more broadly focused on the problems with having prayers in this setting more generally, even if all groups are invited to participate.

That brings us to our second point: Justice Kennedy's likely take on the case. To win big-that is, to strike down or limit city council prayers in any significant way-the challengers will likely have to win over Justice Kennedy, the swing vote in this area of constitutional law. How will Justice Kennedy see things? It's hard to say, but interestingly enough, Justice Kennedy might have an easier time invalidating all prayers before city council meetings than he would invalidating "sectarian" prayers but leaving room for non-sectarian ones to continue, the latter position being the one advanced by the challengers and presented to the Court by the eminent law professor Douglas Laycock.

The position Professor Laycock asserted-which, again, would allow non-sectarian prayers but forbid sectarian ones-would seem to represent something of a middle ground, an option that might be thought to appeal to the "center" of the Court. And Professor Laycock pointed out that there is a long tradition of the use of inclusive, non-sectarian prayers in public settings. He observed that early prayers in American public arenas, while undeniably Christian, were not denominationally divisive because America was then a homogeneously Protestant nation. He mentioned, as well, that thirty-seven State legislatures and the U.S. House of Representatives give guidelines to clergy giving prayers in those chambers. And he reminded the Court that, in cases like this one involving local government, the U.S Court of Appeals for the Fourth Circuit has utilized a prohibition on sectarian prayers only that seems to be working out reasonably well.

While these arguments have substantial force, they may not persuade a sufficient number of, or the right individual, Justices. In particular, Justice Kennedy seems to be very resistant to having government engage in any oversight concerning the content of prayers. As Justice Kennedy put it, a line between sectarian and non-sectarian prayers "involves the State very heavily in the censorship and the approval or disapproval of prayers," and would "involve[] the government very heavily in religion." If Justice Kennedy does not believe that the Establishment Clause can require government to control the content of state-sponsored prayers in any way, however, and that no such line is workable, then Justice Kennedy will be forced to support either banning all prayers in this context, or allowing a free-for-all in which even aggressive proselytizing prayers that demand active participation and validation by audience members would have to be permitted. It appears from Justice Kennedy's questions that he would be more comfortable choosing one of these stark choices than accepting a distinction between sectarian and non-sectarian prayers.

In addition to the practical problem of Justice Kennedy's ostensible opposition to this argument, the sectarian/non-sectarian line has another flaw: It addresses equality-based concerns, but not really coercion-based concerns. Even if most religious groups would accept the generic content of nonsectarian prayers, those individuals who cannot participate in, or attend, such prayers as a matter of conscience are still pressured into conforming by the risk that their non-participation/absence will alienate the very decision makers they are trying to persuade.

A third point involves not the substance, but the timing, of the prayer that is offered. Justice Alito asked Professor Laycock why the separation in time between the opening prayer and the city government's active consideration of specific items before it does not diminish any coercive effect the prayer might have: Audience members who are made uncomfortable by the prayer can simply wait outside and then enter later in the town session when their business items are transacted. Justice Alito's question presupposes that the only part of the meeting where audience members would need to participate involves the board or council's hearing formal proposals or grievances-essentially when the board is acting as an administrative body or in a quasi-adjudicatory capacity.

But Professor Laycock effectively explained that he is also concerned about an earlier part of the public meeting agenda that is quite close in time to the prayers-what we would call the public-comment component, during which the council might consider whether legislative fixes to problems that are identified are needed. As Professor Laycock explained, people raise very personal issues during public comment; even allegedly legislative decisions often involve disputes between very small constituencies, or impact so few individuals that the distinction between legislative and administrative functions has limited meaning or utility in this local government context.

The fourth point we want to mention deals with neither the substance of the prayer nor its timing, but rather the persons to whom the prayer can be attributed. Justice Scalia made the argument that the Board members are citizens, and as citizens they should be able to invoke the deity before beginning serious governmental tasks. What he was suggesting, in other words, is that what looks like a public prayer might be better understood as a private prayer of persons who happen to be convening a public meeting. The problem with this characterization, of course, is that the Board members act in their official-not private-capacity when they invite people to offer prayers at official meetings where government business is being transacted. Consider an analogy: Would we ever think of saying that because Board members are citizens, and because citizens can hold political rallies and raise money, Board members can hold a political rally to raise money for their campaigns at the beginning of Board meetings?

Fifth, and finally, consider an observation that Justice Kagan made about the goal of the religion clauses of the First Amendment being to allow people in this country of different faiths to live harmoniously together. In particular, Justice Kagan worried aloud that when the Court lays down rules enforcing the Establishment Clause, people might see the Court as hostile to religion and get angry as a result. And this runs counter to the constitutional objective of having people live together in a religiously peaceful and harmonious way.

We understand Justice Kagan's concern, but we think there are powerful responses to it. For starters, protecting minority liberty and equality rights often risks an angry reaction from the majority. And protecting minority rights is frequently challenged as disturbing the harmony of the community. But harmony that exists on a foundation of hierarchy and coercion is not true harmony; minority silence in the face of discrimination and burdens on liberty should not be misconstrued as peace, so much as seen as an enforced and temporary cease-fire.

Moreover, if it is legitimate for the Court to take into account how its decisions are processed by the citizenry, the great majority of whom value religion, the way for the Court to avoid being misunderstood as being hostile to religion would not be to undercut the anti-coercion, pro-equality values of the Establishment Clause, but rather to more rigorously protect meaningful Free Exercise rights. If Free Exercise rights were taken seriously, it would be more difficult for the Court to be criticized as anti-religious.

Lastly, if the Court ignores the liberty and equality interests of religious minorities in the name of achieving harmony, it sends an unmistakable message to religious minorities: You cannot rely on the Constitution to protect your liberty and equality interests, and the only way to protect yourself against discrimination and coercion is to live in communities where there are a sufficiently large number of people who adhere to your faith so that you can protect yourselves politically. Such a message would create a "harmony" only by virtue of a religiously fragmented and balkanized society where people of different faiths do not live together in religiously integrated communities. By contrast, we feel that what enables people of different faiths and no faith to all live together in meaningful harmony is the knowledge that the Constitution requires government to recognize that everyone, regardless of their beliefs, is of equal worth and must be treated with equal respect.

June 7, 2013

What Should the Supreme Court do With Town Board Prayers in Galloway v. Town of Greece? A Liberty-Based Analysis That Bolsters the Second Circuit’s Equality-Based Ruling

By Professors Vikram Amar and Alan Brownstein for Justia's Verdict.

Last week the U.S. Supreme Court granted review in an important case involving the First Amendment’s Establishment Clause, Galloway v. Town of GreeceGalloway involves a decade-plus- long practice in the upstate New York Town of Greece of starting Town Board meetings with a short prayer.  Before 1999, the Town (which has slightly fewer than 100,000 residents) began Board meetings with a moment of silence.  But since then, it has been inviting local clergy to offer an opening prayer after the Pledge of Allegiance has been recited. Prayer-givers deliver their prayer over the Board’s public address system, and many have asked members of the audience to bow their heads, stand, or join in the prayer during its recitation.  The Town asserts that anyone—followers of any religion, agnostics, and atheists alike—can request to offer an invocation, and that it has never turned down any request.  But in practice, Christian clergy have given nearly all the prayers since 1999, and have been invited to do so by the Town, which often calls them “chaplain[s] of the month.”

As fellow Verdict columnist Marci Hamilton pointed out last week in her analysis of this case, the U.S. Court of Appeals for the Second Circuit (with esteemed Judge Guido Calabresi writing) invalidated the Town’s practice, finding that the prayers, in context, had to be understood as a public endorsement of Christianity, which violated the First Amendment’s ban on laws respecting an establishment of religion.  We agree with much of Judge Calabresi’s reasoning, but in the space below we offer additional reasons—ones we feel the Second Circuit did not adequately explore—to be skeptical about what the Town has been doing.

The Town of Greece’s Practice Does Implicate Religious Equality Values

Disputes about the recitation of prayers before town board or city council meetings implicate many values underlying the Establishment Clause. The Second Circuit’s opinion, which focused on the so-called endorsement test, spoke primarily in terms of religious equality.  And there are powerful equality-based grounds for challenging the town of Greece’s government-sponsored prayers. For these constitutional purposes, equality means not only equality in material benefits but also equality of status and respect. This has been clear since the Court declared in Brown v. Board of Education that physically comparable but separate public schools that are segregated by race violated the equal protection clause because of the message of inferior status they communicated to African-American children. When government bodies select leaders of majoritarian religions to lead sectarian prayers to open local governmental proceedings, while ignoring the beliefs of other citizens, the message of lack of worth and disrespect for minority religions and the non-religious would be hard to avoid.

To be sure, there is nothing intrinsically disrespectful about being asked to stand while prayers of a different faith than our own are being offered. Most of us have probably been asked to do so when attending a wedding, bar mitzvah or other religious event in the house of worship of neighbors and friends. In those situations, however, we are guests in the sanctuary of a different faith community.  As outsiders, we do not expect our different religious identities to be recognized. There is no pretense that the rituals being observed reflect our own religious commitments. But citizens of a town or city are not guests and outsiders at the public meetings of their government. They belong to the political community and, quite reasonably, resent being treated as strangers who are not being shown the same respect afforded to its favored members.

And the Town has been essentially discriminating against minority religious voices. By focusing on majoritarian sects—the Town drew some prayer leaders from a list of congregations printed in the Chamber of Commerce’s directory—the Town effectively excluded religious adherents who live in the Town but who lack the numbers to establish a physical congregation within the community.  Oftentimes, as in the area surrounding UC Davis, where we both teach law, religious practitioners may have an insufficient number of members to establish a congregation in their own town, and for that reason they worship in a congregation in a neighboring town.  But if each town used only a directory of congregations located within that town as the source of clergy to be invited to lead prayers at Board meetings, many religions would be left out.

Equality Is Not the Only Establishment Clause Value at Stake Here, and Town Councils Differ From State Legislatures

As powerful as the equality concerns in this case are, they should not cause us to overlook the important religious liberty concerns that are also raised in this dispute. Plaintiffs argued that the prayers at Board meetings were coercive, but the Second Circuit opinion, construing these arguments to be focused only on children, quickly rejected these claims in a footnote. Plaintiffs were adults, the court reasoned, and the prayers at the Town Board meeting here were no more coercive than the prayers offered at sessions of the Nebraska state legislature that the U.S. Supreme Court upheld against an Establishment Clause challenge in Marsh v. Chambers in 1983. We think the court was far too quick to dismiss these religious liberty concerns on the authority of the Marsh decision.

There are critical distinctions between city councils and state legislatures that produce very different kinds of audiences who attend the meetings of these different government bodies. Most of what a state legislature does involves the formulation and enactment of general legislation that impacts large groups and constituencies. There may be some narrow bills that address limited issues, but the majority of the state legislature’s work relates to laws of significant breadth and scope. By contrast, the work of a city council, in most of the towns and cities of the United States, regularly deals with decisions affecting small groups and individuals. Land-use decisions impact individual neighbors and neighborhoods. Funding decisions may burden particular small constituencies. Often town councils and boards act as administrative tribunals in a quasi- adjudicatory capacity, hearing personnel grievances or land use appeals. Thus, these local government meetings are much more likely to be focused on particular individuals than are the general laws that state legislatures consider at their sessions.

Moreover, and related to these differences, citizens who watch the deliberations of the state legislature from the gallery are almost always passive observers of the government’s functions. They have no role to play in the legislative process. Citizens who attend city council meetings do so for very different reasons. Usually they are not passive witnesses attending the sessions to be better informed about government operations. They attend council meetings to participate in government by speaking to the Council during public comment periods. They want and expect to be seen and heard by the Council. Their goal is to influence decisionmakers, not to simply observe or monitor them. For that reason, the ability to address the Council in person is an important right of political participation.

Finally, outside of major metropolitan areas, there are stark difference between the size and format of state legislative chambers and sessions, and those of city councils. State legislators rarely know who is sitting in their legislative galleries. The size of the chambers and the number of legislators and visitors preclude any such knowledge or sense of familiarity.  Not so, in the small meeting rooms of a city council, where the physical proximity between the Council and the audience and the limited number of participants make it far easier for Council members to be aware of their audience.

Because of these differences, the decision in Marsh tells us very little about the coercive nature of government-sponsored prayer at city council meetings. In the setting of a city council meeting, citizens who wish to address the council are coerced when they are asked to stand or otherwise affirm the prayer that is being offered in their name. A failure to comply would risk alienating the very political decisionmakers whom they hope to influence.

The Town of Greece provides a good illustration.  Citizens there who feel excluded and burdened by the Board meeting’s prayers have no good alternatives. They can try to arrive at the council session after the pledge and prayer have been completed—but they may stand out in a small council meeting room for doing so. It would be even more awkward to stay and recite the pledge and affirm their loyalty to our country, leave for the prayer, and then return after the prayer is over. Or they can sacrifice their religious liberty by agreeing to have someone appointed by the government pray in their name. Visitors sitting in the gallery at the state legislature experience no such vulnerability or pressure.

Why the School Analogy Doesn’t Undercut Galloway’s Liberty Claims

Some commentators and jurists point to the school setting and argue that it suggests that coercion-based arguments depend upon the malleability of the listener.  They read the school cases for the proposition that state-sponsored prayer is unconstitutional in the context of public schools only because children, on account of their age and maturity, are uniquely susceptible to indoctrination and the pressure to conform.  By contrast, adults attending city council meetings, it is suggested, should be capable of withstanding such compulsions. This argument is unpersuasive. The major problem with religious coercion is not that it may actually change people’s religious beliefs and practices. It is that when religious individuals defy the state’s coercive efforts, they suffer burdens and penalties for doing so. Religious coercion is as unconstitutional when it fails as it is when it succeeds.

Prayer in the public schools is distinctively problematic, but not just because it is directed at children. It is particularly dangerous because teachers and administrators have so much discretionary power over the students in their charge. Both students and their parents know that it is treacherous to alienate school personnel because retaliation is so easy to mete out and hard to prove.

Citizens attending city council meetings for the purpose of influencing the council’s decision confront a similar burden that does not dissipate with age or maturity. The decisions of a city council often involve substantial political discretion in weighing the competing concerns of relatively small constituencies. Citizens who refuse to join in prayers offered by clergy invited by the council risk overtly or subconsciously retaliatory rulings.

A Final, Particular Way in Which the Town of Greece’s Practice Offends Liberty

The Town of Greece’s approach to public prayer at issue in this case involves a particularly egregious affront to religious liberty. There are at least two kinds of prayers that an organization may use to begin a session or meeting.  In one kind of prayer, the speaker prays in his or her own name for G-d’s blessing to be given for the meeting and its participants. There is a religious liberty issue implicated here, in that individuals may feel that they should not be required to be present while a prayer is expressed. The weight of that burden may be somewhat mitigated, however, by the fact that many people do not experience the fact that someone else is offering a prayer for their well-being as a burden on their liberty—even if the person who is doing the praying is of a different faith.

But a far greater affront to religious liberty occurs when the second kind of prayer is undertaken.  In this kind of prayer, the speaker claims to be offering a collective prayer expressing the beliefs of the audience, a collectivity to which audience members are asked to acquiesce by standing or bowing their heads. The decision about when and how to speak to G-d, and the words one chooses in that expression, belong to the individual. It is an extraordinary intrusion into the religious liberty of the individual for the state to usurp those decisions. The state cannot tell people that as a condition to attending and commenting during a city council meeting, they have to delegate to the state the power to appoint someone to pray to G-d in their name.

This basic commitment to personal religious autonomy is the foundation of the American understanding of religious liberty. When colonial proponents of religious liberty argued that religious freedom was an inalienable right, they were speaking literally, not figuratively. It made no sense to suggest that a person could somehow surrender his relationship with and duty to G-d to a government official, or to anyone else for that matter. Throughout the Great Awakening and continuing on to the ratification of the Constitution, advocates of religious liberty insisted on the right of the individual to choose who would minister to his or her spiritual needs and lead him or her in worship. Established religions violated these principles of religious liberty—and thereby prompted the First Amendment—precisely because they employed the coercive power of government to influence the private judgment of the individual in matters of religion.

Coercive collective prayer at city council meetings undermines religious equality by discriminating against minority faiths. And it abridges religious liberty by insinuating the state into the individual’s relationship with G-d and compelling people to engage in prayer that lacks personal authenticity. The Constitution prohibits the state from engaging in such practices.

May 28, 2013

40 Days after the Boston Bombing: We Must Stop Radical Jihad

By Professor Karima Bennoune for the Guardian (www.guardian.co.uk).

In many Muslim societies, the 40th day after a death is a time to gather and grieve again with loved ones. So, in honor of this the 40th day after the atrocities in Boston, I find myself thinking again about the 264 injured people, some of whom are learning to live without their legs, and about the dead victims: 23-year-old Chinese graduate student Lingzi Lu, who had just passed her exams, friendly 29-year-old waitress Krystle Campbell, and eight year-old Martin Richard who famously carried a sign that said "No more hurting people. Peace."

Bearing such losses in mind, I would ask anyone who wants to support the rights of people of Muslim heritage in the United States in the wake of the Boston bombings, please do not so by explaining that jihadist terrorism is simply a response to US foreign policy, or a consequence of the alleged difficulties faced by Muslim youth in integrating into American culture, or the result of Russian bombing of Chechnya.

Many of us have criticisms of US foreign policy and that of other countries; integrating may indeed be challenging for those from immigrant backgrounds in many contexts; and Chechens did suffer through the intolerable flattening of their country by the Russian military between 1992 and 2009. (As far as I know the United States never bombed the province.) However, most Muslims, immigrants and Chechens have not become terrorists as a result. These things are no excuse for – or even explanation of – the choice to deliberately murder children and young people at a sporting event. Such a grave international crime has nothing to do with legitimate grievances and everything to do with extremist ideology and movements that indoctrinate and instrumentalize young people. We must defeat those movements which have killed so many civilians, especially in Muslim majority countries like Afghanistan, Algeria, Iraq and Pakistan.

I have just wrapped up three years of interviewing hundreds of people of Muslim heritage working against fundamentalism and terrorism around the world, and I learned many lessons from them that are helpful today. For example, Cherifa Kheddar, president of Algeria's Association of Victims of Islamist Terrorism, or Djazairouna, who wrote right after 15 April to say how terrible the Boston bombings were. She told me that

"We cannot defeat terrorism by an anti-terrorist battle without doing the anti-fundamentalist battle."

In other words, it is not just the violence of radical jihadis, but the underlying ideology of Islamism that we must confront. That ideology discriminates between Muslims and non-Muslims (as evidenced by Tamerlan Tsarnaev's reported indignation that his Imam mentioned Martin Luther King, a non-Muslim, during a sermon), and between "good" and "bad" Muslims. It justifies egregious violence against women and civilians, or at least creates an environment conducive to them.

Of course, being an Islamist or a jihadist is not same thing as being a devout Muslim, and it is unhelpful when the US media simply describes radicalization as becoming "more religious". This process is rather the adoption of a dangerous political stance that deploys religion in the service of an extreme agenda. The best way then to take a pro-human rights stance in the face of recent events is to support those people of Muslim heritage who are risking their lives to denounce and defy these movements. Many have raised their voices around the world in places like Afghanistan, but have rarely been heard in the west.

Discrimination against Muslims in the wake of an atrocity like the Boston bombings is wrong and unhelpful, but so too is a politically correct response, which fosters justification and denial. A young Iranian-American scholar reported that at a recent conference at UC Berkeley on Islamophobia, she was bullied by older US academics for daring to raise the issue of Muslim fundamentalism, along with anti-racism, and, in the same week as the Boston bombings, was told that there was no such thing as what she called "the Muslim right". We must face the reality of extremism.

Many people in Muslim contexts have spoken out against terror even while facing it themselves. I think of Diep Saeeda, a peace activist I met who organized rallies against Taliban violence in Pakistan, or against the blasphemy laws despite the threat that suicide bombers would take down the protestors. Or the Women's Action Forum in Pakistan that regularly denounces terrorism in print. After a March 2013 attack on Shia residents of Karachi, they wrote:

"[o]nce again we share unspeakable horror at the carnage … Once again we express our condemnation and outrage. Once again we wonder how many more times we will do this before there is resolve to deal with religious militancy."

I think of the Libyans who took to the streets of Benghazi in 2012 after the murder of US ambassador Chris Stevens. Or of Somali American activist Abdirizak Bihi who campaigned against Al Shabaab recruitment in the Somali-American community in Minneapolis, after his own teenage nephew's recuitment and death at the hands of the militants. We have to support these people and listen to their voices.

In light of the national origin of the alleged Boston bombers, I have been thinking a lot about a wonderful Chechen journalist I interviewed in Moscow in December 2010. A devout Muslim, Said Bitsoev, then-deputy editor of Novye Izvestia – an independent newspaper – was terribly concerned about what such movements were doing to his home province. "There [a]re a lot of radical people who are really bad for Chechnya. They want to put the country back in the dark ages."

Before the Chechen wars, most followed a spiritual Sufi Islam, in contrast to the harsh dogma of the extremists. Said himself loathed the radicals, their new restrictions on women, and new forms of violence. He especially hated the thousands of foreign jihadis who came to Chechnya during the second war. "They brought a lot of fear. I was not able to sleep without a gun under my pillow." These foreign fighters left behind a new breed of Chechen "radical-thinking Islamists" in Bitsoev's view. "The worst thing," Said tells me, is that they were "hunting for those Muslims who were representatives of tolerant Islam, and killed these people". He gives the example of Umar Idrissov, 80, a mufti from Urus-Martan, southwest of Grozny, who was assassinated in 2000 by the Wahhabi group "Wolves of Islam". In fact, across the Caucasus liberal Muslim clergy have been regularly targeted in recent years by extremists.

Said Bitsoev was all too aware that Chechens like those murdered clerics, or like him, are relatively inconspicuous internationally. "Radicals are interesting for the public because they are loud. We normal people are boring," he said. We must support the daily struggles of people like Said, who are too often invisible, against those who twist the religion of their birth into a totalitarian terror manifesto.

May 10, 2013

The Breadth of the Ministerial Exception and Ecclesiastical Deference: A State Supreme Court Case Highlights Questions Left Open by Last Year’s U.S. Supreme Court Hosanna-Tabor Ruling

Cross-posted from Justia's Verdict.

In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment.  In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year's blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called "ministerial exception" enjoyed by religious institutions in employment discrimination suits.  I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.

The Supreme Court's Recognition of a "Ministerial Exception" to Employment Discrimination Law

The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music.  She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year.  She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws.  She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA).  The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.

The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of "minister" for these purposes.  The Court began with a brief history of the Constitution's religion clauses that highlighted the need for government not to interfere with important internal church processes.  It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church's hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose.   The resolution of these "quintessentially religious controversies," the Court reminded, is "strictly a matter of ecclesiastical government" that is committed to "the highest ecclesiastical tribunals" and not something for the courts to undertake.  Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a "ministerial exception" to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.

The Kant Lawsuit

The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS).  LTS is affiliated with the Disciples of Christ Christian denomination.  The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, "is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church's participation in God's mission for the world."  All of the Seminary's degree programs are faith-based, and are designed to prepare graduates for Christian ministry.

Mr. Kant is not a Christian minister; he is not even a Christian.  He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs.  While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture.  In 2006, he was awarded tenure.  The LTS Faculty Handbook (mentioned above) described tenure in the following terms:  "Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty."

In 2009, after the nation's financial crisis hit LTS's endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent.  Pursuant to this plan, LTS terminated Kant's employment in 2009.

Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here.  By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant's request for review) rejected Kant's lawsuit on two separate but related grounds.  First, the court held that the case "involved an ecclesiastical matter" that foreclosed the exercise of jurisdiction by a civil court.  Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor.  (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion "becomes the majority with my concurrence" and also commented in his opinion that LTS's restructuring "is an ecclesiastical matter over which no civil court has subject matter jurisdiction."  Thus, the majority opinion is best understood as having relied on both grounds.)

In both respects, the Kentucky court's ruling goes significantly beyond the Supreme Court's ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.

The "Ecclesiastical Matters" Rule Barring Judicial Resolution

Let us first consider the Kentucky court's decision that it could not weigh in on Kant's contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters.  The majority opinion says "Kant's claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances.  Indeed, an inquiry into the rationale for LTS's decision making as to who will teach its students-all of whom attend there with a desire to become pastors or ministers-would be an inquiry into an ecclesiastical matter by this Court."

This seems like a non sequitur to me.  The first sentence is undeniably correct; Kant's breach of contract claims require interpreting the promises-and the limits on those promises-made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies.  But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way.  If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters.  But deciding whether a contract has an exception for financial emergency does not.

To see this, imagine that Kant had taught physical education, rather than religious studies.  And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary's gymnasium after school hours for free.  If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?

Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services.  Let us suppose LTS hires a roofer to put on a new roof.  The contract states:  "In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y."  Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead).  If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid-the desire to spend the money on other religious-instruction-related programs-is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into "the rationale for LTS' decisionmaking" as to how to devote its resources.  Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters.  To the extent that the Supreme Court's invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.

The "Ministerial Exception"

This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing-Kant.  And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor.  In particular, the fact that Kant taught at a wholly sectarian Seminary-as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education-leans in LTS's favor.

Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.

First, Hosanna-Tabor involved an exception to anti-discrimination laws.  The Court there explicitly "express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract" [claims].  There will be enough time to address the applicability of the exception to other circumstances if and when they arise."  The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless-and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims-simply extends the exception.  Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so-and how far the exception should reach-is in order.

Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS-"teaching students who desired to become involved in Christian ministry."   As the court noted, "[b]ecause Kant's primary duties involved teaching religious-themed courses at a seminary," he is covered by the exception.  This seems far too quick.  For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs.  And on the record in this case, Mr. Kant may very well have been doing the latter.

More generally, and perhaps more fundamentally, there is a divergence between the Kant court's approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes.  In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used.  Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the "formal title" of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain "functions . . .  performed for the Church."  Three of the four factors (the first three) focus on title and status, rather than function.  Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing "to see any relevance in the fact that Perich was a commissioned minister."   As the Court observed, "the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee's position."  And yet the Kant court all but ignored the fact that Mr. Kant is not-and could not be, since he is openly Jewish-considered a minister within the Disciples of Christ church.  He professed no belief in, and was not commissioned under, any Christian faith.  Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.

It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function-and not just titles or status-should matter in deciding who is a minister.  But they seemed to be writing particularly about religions that don't use commissions or ordinations or titles of ministers; thus, their opinion needn't be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor.  Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation.  In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.

November 9, 2012

The Establishment Clause and the Free Speech Clause in the Context of the Texas High School Cheerleader Religious Banner Dispute

Co-authored with Professor Alan Brownstein and cross-posted from Justia's Verdict.

In the space below, we explore some very interesting and complex First Amendment issues that are implicated in a recent lawsuit in Texas. The suit was brought by a group of public high school (Kuntze High School) cheerleaders against the school district that told them to stop displaying religious-themed banners bearing bible verses and proclaiming things like “If G-d is for us, Who Can Be Against Us?” at football games.  The district barred the religious banners, through which the football players had run as they came onto the field, after complaints by The Freedom From Religion Foundation that the practice of displaying such banners at football games of a public high school violates the Establishment Clause of the First Amendment.

The cheerleaders who filed suit seeking to continue the practice claim not only that the Establishment Clause does not forbid what they are doing, but also that that they have a First Amendment right themselves, under the Free Speech Clause, to continue to display the banners.  The case is set for trial next year, but in the meantime, a Texas state court judge last month granted preliminary relief in favor of the cheerleaders, directing the school district to permit the cheerleaders to display the banners, because of his view that the cheerleaders will likely prevail on their claims when the case is fully resolved.  As we explain below, we think—in light of the facts that are alleged by the cheerleaders in their Complaint—that under existing Supreme Court case law, both the Establishment Clause and the Free Speech Clause of the First Amendment cut against the cheerleaders in this case.  (We should make clear that although some of the current Justices might disagree with the case law currently on the books, we analyze the cheerleaders’ dispute under current doctrine that is binding on lower courts and litigants.)

The Establishment Clause Analysis

Our starting point is that if the school officials themselves had decided—or had directed the cheerleaders—to use banners that included religious messages, this would violate the Establishment Clause.  It seems pretty clear under current case law that such state action would be unconstitutional.

But the cheerleaders (supported by positions adopted by Governor Rick Perry and the Texas Attorney General) argue that this situation is different, because the banners constitute private speech on behalf of the cheerleaders that is not attributed to the school.  Under the selection procedures used by Kuntze High School, cheerleaders are not selected by school officials, but rather are chosen, after tryouts, by a panel of (Lamar) University cheerleaders.

According to the allegations in the Complaint, Kuntze cheerleaders decide what goes on the banners; there is no control exercised by school employees over the content of the displays.  Moreover, the banners are paid for by cheerleaders, using money that comes from private sources, rather than public school funding.  And the school district regulations identify activities such as banner displays at football games as a limited public forum, suggesting that the school is permitting individual students to speak, but not associating itself with the messages students express.

Even in light of these facts, we think the cheerleaders’ display of bible-verse-bearing banners raises serious Establishment Clause problems.  A high school football games is a quintessential traditional school-sponsored activity, and providing banners for the players to run through is a part of that school-sponsored activity.  For that reason, to any objective outside observer, the cheerleaders and the banners they display bear the imprimatur of the school.  In a case (Hazelwood) permitting public high school officials to censor high school newspaper articles—even though the articles bore the bylines of individual student authors—the Supreme Court reasoned that school-sponsored activities implicate government promotion of speech, rather than just the toleration of speech.  As a result, even if the school disclaims any approval of a student’s message, the overall public imprimatur remains.

Putting a disclaimer on the school newspaper doesn’t change its status as a school-sponsored activity any more than a one-paragraph disclaimer can transform high school football games from school-sponsored activities into private events.  Although the high school newspaper could be considered to be part of the school’s curriculum, which creates an even greater imprimatur of school support– and football games are less easily characterized as part of the school curriculum—we think the analogy has some force.

What about the fact that the school does not pay for the banners?  We think that under existing case law, the private nature of the funding of religious displays does not necessarily control the Establishment Clause analysis. The key point is that the religious message is displayed on public property during a school-sponsored event, a football game.  Cases involving the prominent display on public property of privately created nativity scenes (such as the Allegheny County case) demonstrate that private religious displays, standing alone on public property, can violate the Establishment Clause.  Given the sensitivity in the case law to religious coercion and endorsement in the context of public schools, the possibility of an Establishment Clause violation might be even stronger here than it was in cases like Allegheny County—which involved a crèche in the foyer of a public building used for conventional governmental purposes.

Another key factor to be considered under the Supreme Court’s cases is the extent to which other students might be made to feel unwelcome because religious banners are displayed as part of the organized, pre-game activities.  Santa Fe Ind. Sch. Dist. v. Doe (a case forbidding a high school from permitting a student-elected Chaplain to lead a prayer at a high school football game) makes clear that football games are school-sponsored activities that are important to many students, and that it is not permissible to force students to have to choose between attending games or being exposed to unwelcome religious displays or messages.

When we widen the constitutional focus to locate Establishment Clause disputes in a larger perspective, we readily see that a government’s decision to delegate authority to private individuals as to what messages will be permitted at publicly sponsored events cannot reasonably be understood to avoid constitutional constraints. This would be obvious if we were talking about delegating authority that did not focus on expression. Suppose, for instance, that a school delegated authority to a student committee to decide where graduates sit on graduation day, and the committee decided that all the black graduates should sit in the back of the auditorium.  No one could deny that this would violate the Equal Protection Clause, even though the individual students on the committee, not school officials, made the discriminatory decision.

And the same reasoning often applies to decisions about who gets to speak and what they can say.  Kuntze High School is alleged to have delegated its authority to decide what messages are communicated on the banners the players will run through to enter the field at school football games to the high school cheerleaders. And it also seems that the very decision about which students get to be cheerleaders in the first place is delegated to cheerleaders from Lamar University.  But the school can’t escape constitutional responsibility for its decisions by giving authority over school-sponsored expressive activity to a private group of students or anyone else.

This almost has to be true if we care about safeguarding Establishment Clause values. If a school can delegate authority to student groups with regard to these kinds of activities and avoid constitutional review, then the cheerleaders could decide to lead the students at football games in prayers, rather than school cheers (and the Supreme Court’s decision in Santa Fe v. Doe clearly forbids that). Or the school could delegate to a student group the authority to decide upon whatever banners the group’s members want to hang on the interior walls of the school building.

If the student group decided to hang 30’ by 10’ banners proclaiming sectarian messages on the walls of the school building, would we say there would be no Establishment Clause violation here either, simply because the school had delegated its authority to students, rather than exercised its power directly? The Court rejected this kind of an argument in Santa Fe v. Doe when it held that a public high school could not avoid Establishment Clause requirements by ceding the power to decide whether or not to have a prayer at school football games to the student body.

Free Speech Analysis

But what about the free speech rights of the cheerleaders?  Plaintiffs argue that because the speech on the banners is not attributable to the school, it is private speech protected by the Free Speech Clause of the First Amendment. They thus suggest that they have a constitutional right to control the content of these banners free from government interference. They argue that the school has the authority to permit them to display their banners at the football game for the football players to run through, and that once the school does so, the Constitution protects them against regulations that would restrict the content of what they say.

The key problem with this argument is that even if we assume for purposes of argument that plaintiffs are correct that they are engaged in private speech (not attributable to the school), the school has not opened up its property (the football field) for expression by any other students. No one else besides the cheerleaders gets to place their banners in front of the football players entering the field; only the high school cheerleaders get access to this location for whatever expressive message they choose to communicate or facilitate.  This kind of selective control of, and access to, public property for private expressive purposes is constitutionally problematic.

Let us be clear:  This is not a situation in which the school here is passively opening up a public location and event to allow various private speakers to express their various messages.  Instead, the school (under plaintiffs’ argument) is authorizing a single private group, the cheerleaders, to decide (presumably by majority vote, although that is not clear) what messages get expressed on specific public property, without any guidance to limit the discretion they exercise in making such decisions.  No one gets access to have their message expressed on banners that the team will run through without the cheerleaders’ permission. The cheerleaders have complete discretionary control over the messages that may be communicated on banners leading the team in each and every football game.  The cheerleaders can express sectarian messages of only one faith while rejecting suggestions of messages of other faiths. They can embrace the virtues of one race and denigrate the worth of others.  They can express political messages for particular parties or candidates while rejecting messages from competing candidates or parties. They can adopt suggestions from their parents, friends, or pastors while ignoring messages proposed by people whose views they find objectionable.

This kind of unbridled latitude given to a select group of private citizens but denied to others to use public property resources for expressive purposes is inconsistent with free speech values and, indeed, quite possibly itself would violate the Free Speech Clause.  In other words, far from creating a free speech First Amendment right on the part of the cheerleaders, the school’s actions (under the cheerleaders’ characterization of them) here might themselves create a violation of the Free Speech Clause.

The Supreme Court has made it clear in Lakewood v. Plain Dealer Publishing Co. that giving unbridled discretion to government officials to decide who gets to speak in a public forum (limited or otherwise) is unconstitutional, because doing so raises “the specter of content and viewpoint discrimination.” That danger isn’t meaningfully avoided when government confers unbridled discretion to decide what messages are permitted to be expressed on public property upon a private group, rather than upon a government official.

Indeed, to return to the Establishment Clause, this is precisely the kind of unbridled discretion given to select private individuals that the Court rejected in Santa Fe v. Doe.  Giving the majority of the cheerleader squad the authority to determine whether scripture is displayed on banners, or prayers are offered before games, isn’t substantively different from allowing the majority of students to vote on whether a prayer will be offered at football games, the policy struck down in Santa Fe.  Reducing the number of students who get to make the decision doesn’t eliminate (and indeed may increase) the danger that minority viewpoints can (indeed, are likely to) be ignored by the students who are given the authority to determine what messages will be communicated.

Nor should it make any difference whether the group making the decision is selected on the basis of cheerleader athletic skills, or some other characteristic such as school spirit or how loud the students can yell. What is problematic about giving one group of private individuals the discretionary authority to decide what messages will be expressed on public property is that they may exercise that authority in content- and viewpoint-discriminatory ways.

Assessing The Two Clauses of the First Amendment Together

Of course, the school might avoid the restrictions imposed by the Free Speech Clause that we just described by accepting responsibility for the cheerleaders’ banners. Even though government cannot give unbridled discretion to a group of private individuals to control speech on public property, government can engage in its own speech, and in so doing necessarily engages in content or viewpoint discrimination when it expresses or sponsors its own message. The Free Speech Clause does not limit the state’s discretion to express its own messages on public property.

But if the school accepts responsibility for the religious messages on the banners, then it endorses religion in violation of the Establishment Clause principles that we described earlier.  And if (as the cheerleaders argue) the school has no constitutional responsibility for the messages on the banners (a proposition which we find less than convincing) then, in any event, the school would be seen as providing one group of private students discretionary control over access to public property for only those messages that the group favors. Giving that kind of discretionary, long-term control over access to public property to any private group undermines our constitutional commitments to open access to public property for minorities, religious or otherwise.

So under either characterization, it seems the only way for the school to obey the Constitution is to prohibit the religious display, which is why we think the cheerleaders could very likely lose their lawsuit if and when it winds its way up the appellate ladder.

June 29, 2012

Under What Circumstances Can a State Compel a Pharmacy to Provide “Morning After” Drugs Against the Religious Objections of Pharmacists?

Co-authored with Professor Alan Brownstein.  Cross-posted from Justia.com.

Much attention has been directed toward the asserted clashes between the federal government’s recently adopted policies concerning health insurance coverage for contraceptive services, on the one hand, and religious liberties, on the other.  But state laws and policies present just as much, if not more, potential for infringement of religious liberties.  In the present column, we analyze a recent case from the state of Washington that sheds important light on the current state of the constitutional right to the free exercise of religion, and that also illustrates many of the big unanswered questions concerning the meaning of the First Amendment’s Free Exercise Clause.

Background on the Case

The case, Stormans Inc. v. Selecky, which was decided by a federal district court in Seattle earlier this year, and is now presumably destined for resolution by the federal appellate courts, involves a pair of Washington State rules that operate in tandem: (1) the “stocking rule,” which requires pharmacies to stock “a representative assortment of drugs in order to meet the pharmaceutical needs of its patients,” and (2) the “delivery rule,” which requires pharmacies in Washington to timely deliver to patients all lawfully prescribed medications, including the emergency contraceptive known as “Plan B.”  Plan B is a drug that, when taken after unprotected sex, delays ovulation and can also prevent a fertilized egg from adhering to the wall of the uterus (implanting).  Plan B is most effective if taken within three days after sex occurs.

Some Washington pharmacists who hold the sincere religious belief that life begins at conception (that is, when an egg is fertilized by a sperm) refused to dispense Plan B to customers who sought it.  Under Washington’s rules, a pharmacy that fails to stock and deliver lawfully prescribed drugs is subject to discipline, including revocation of its license.  It is not enough that a pharmacy refers patients to other pharmacies that will provide the contested drugs; the rules require each pharmacy to dispense the drugs, regardless of the pharmacy’s religious convictions. (A conscience exemption does apply to individual pharmacists, but it does not extend to the pharmacy itself.  This distinction may raise problems for small pharmacies, and is particularly problematic in cases where the pharmacy owner himself or herself conscientiously objects to distributing certain drugs.)

In the federal lawsuit brought against Washington State officials to challenge the rules, the federal judge framed the question as whether “the State [can] compel licensed pharmacies and pharmacists to dispense lawfully prescribed emergency contraceptives over their sincere religious belief that doing so terminates a human life.”

The judge, Ronald Leighton, concluded that, in light of the entire record, Washington State could not compel delivery of Plan B consistent with the rights enjoyed by the pharmacies under the First Amendment’s protection of the “free exercise of” religion.

Deconstructing Free Exercise Doctrine:  What Does “Neutral and Generally Applicable” Mean?

In analyzing plaintiffs’ free exercise claim, Judge Leighton conceded, as he had to, that the pharmacy regulations are neutral on their face; they do not single out religious exercise for discriminatory treatment.  This was an important first step, because under the Supreme Court’s famous 1990 holding in Employment Division v. Smith, the Free Exercise Clause provides no protection to religious individuals who are substantially burdened by “neutral laws of general applicability.”

Judge Leighton’s analysis did not stop here, however. In some cases, even an ostensibly facially neutral law may not be a neutral law of general applicability for free exercise purposes.  And if a law that substantially burdens the free exercise of religion is not a neutral and generally applicable law, it must be justified under strict scrutiny to satisfy constitutional review.

The controlling Supreme Court precedent here is Church of Lukumi Babalu Aye v. Hialeah. At issue in that case were a series of Hialeah, Florida city ordinances prohibiting the ritual sacrifice of animals—a practice engaged in for religious purposes by members of the Santeria faith.  Although the challenged regulations never explicitly mentioned religion or the Santeria faith, the Court determined that the laws were not neutral and generally applicable regulations and struck them down under strict scrutiny review.

Justice Kennedy’s majority opinion in the case applied an extraordinarily complicated, multi-factor analysis to reach its conclusion.  First, Justice Kennedy determined that the challenged laws were not neutral. Looking behind and beyond the literal language of the ordinances, he concluded the Hialeah laws constituted a “religious gerrymander,” in that the impact of the laws fell exclusively on members of the Santeria faith, and no one else sacrificed animals in the area.  Also, the regulations were over-inclusive and far more prohibitive than the city’s asserted public health and preventing animal cruelty concerns would justify.

In addition, Justice Kennedy focused on one particular ordinance that prohibited the unnecessary killing of animals. This requirement apparently applied only to the religious sacrifice of animals; no other practice involving the killing of animals—including the use of live rabbits to train greyhounds for racing—was considered unnecessary or unlawful under Florida law.  Of equal concern to the Court was the degree of discretion exercised by government officials in determining whether the killing of animals would be considered necessary. This kind of individualized assessment of whether a law applies undermines the neutrality of a law that was important to the Smith holding.

Finally, Kennedy looked at the legislative history record to demonstrate that the Hialeah City Council was overtly hostile to the Santeria faith.  Significantly, however, only one other Justice joined this section of Kennedy’s opinion, and Justices Scalia and Rehnquist explicitly rejected the use of such direct inquiries into legislative motive to evaluate the constitutionality of a law.

Having established that the Hialeah ordinances were not neutral, Justice Kennedy went on to conclude that they were also not generally applicable.  The problem here was that the laws were unacceptably under-inclusive. Hialeah asserted public health interests and concerns about preventing cruelty to animals to justify its laws.  But many activities, such as hunting or the use of animals in medical experiments, were not restricted.  Again, it appeared that Hialeah’s laws targeted the prohibited conduct only when it was undertaken for religious purposes.

Applying Lukumi to Washington State’s Rules

The Lukumi framework is complicated and confusing. In particular, the Court provided no guidance as to whether all of the problems it identified in Hialeah’s laws were necessary to determine that a law was not neutral and generally applicable.  Nor did the Court suggest how much weight should be assigned to each of the factors it discussed.  The Selecky court occasionally got distracted winding its way through this morass, but the focus of its discussion went to the heart of the Lukumi analysis—the rejection of religious gerrymanders.

Here, in practice, according to Judge Leighton, the Washington regulatory scheme was not neutral because it was riddled with secular unwritten and written exemptions. Among other unwritten exemptions, for example, was the fact that a pharmacy could refuse to stock a drug because the drug had a short shelf life, was expensive or difficult to store, involved additional paperwork, fell outside the pharmacy’s business niche, or increased the likelihood that the pharmacy would be a target for crime.  Both the stocking rule’s unwritten exemptions, and the delivery rule’s written exemptions, were indeterminate and required discretion in their application. Moreover, many of these exemptions would clearly burden patient access to desired pharmaceuticals. If this potential burden was tolerable for all of these secular exceptions, why was it an intolerable risk to permit a pharmacy to refuse to stock and distribute Plan B?  Indeed, it did not appear that the stocking regulation in particular had ever been applied against any pharmacy other than that of the plaintiffs in this case.  Judge Leighton also opined that the background history of the regulations further supported his conclusion that the purpose and motive of the application of these regulations to plaintiffs was the State’s disagreement with conscience claims relating to Plan B.

Judge Leighton also ruled that Washington’s regulations were not generally applicable, because they were selectively enforced.  There are numerous outpatient or retail pharmacies in Washington affiliated with Catholic hospitals.  None of these pharmacies stocked or dispensed Plan B.  Yet the State had never enforced its stocking and delivery regulations against them.

The State attempted to distinguish Lukumi, in part by arguing that the secular exemptions it granted were categorical, unlike the individualized assessment of whether killing animals in Florida was “necessary.” Judge Leighton responded by explaining that many of the State’s exemptions did require discretion—particularly since the State interpreted the exemptions expansively to apply to analogous circumstances.  Moreover, the court concluded that it would make no difference to its analysis even if the exemptions were clear and categorical.

Two cases from the U.S Court of Appeals for the Third Circuit were cited by Judge Leighton to support his contention that the existence of even categorical secular exemptions to a regulation precludes the law from being characterized as neutral and generally applicable for free exercise purposes. The opinion in Fraternal Order of Police v. Newark, written by Judge, now Justice, Alito is more easily summarized. In that case, Muslim police officers sought a religiously motivated exemption from the Newark Police Department’s grooming standards that prohibit officers from having beards. Their request was denied. However, the Department categorically exempted officers from this grooming requirement if they suffered from a physical condition that makes regular shaving medically problematic.  Because there was a categorical exemption to the grooming regulation, Judge Alito held that the grooming standard was not a neutral and generally applicable law. The refusal to provide an accommodation to the Muslim officers was then subjected to strict scrutiny review and ultimately rejected.

Based on its analysis of Lukumi and Fraternal Order of Police, Judge Leighton applied strict scrutiny to the case before him. (It remains to be seen whether the Ninth Circuit will agree with him; already once, in this case, the Ninth Circuit had undone Judge Leighton’s preliminary order enjoining implementation of Washington State’s rules, and the Ninth Circuit opinion could plausibly be read to say that, under the Ninth Circuit’s reading of relevant Supreme Court case law, nothing beyond minimum rationality review applies.  If so, the Ninth Circuit will find Judge Leighton’s ruling defiant and likely reverse it.  Judge Leighton insisted that the Ninth Circuit’s prior ruling on the “thin” record of a preliminary injunction hearing did not control his analysis of the more complete record developed during trial.)

Under strict scrutiny, it is quite understandable that Judge Leighton concluded that the challenged regulatory scheme failed this rigorous level of review.  Indeed, from the court’s perspective, there was little to argue about. The only arguably compelling state interest that might justify the regulations was the need to provide patients timely access to the drugs they sought. The State’s tolerance of other exemptions already undermined this justification.  Further, from Judge Leighton’s perspective, the State had acknowledged that an accommodation allowing a pharmacy to refuse to stock and distribute Plan B, but requiring it to refer patients to other pharmacies that would provide this service, would eliminate any threat to patients who desired timely access to the drug.

Variations on Selecky That Highlight Free Exercise Quandaries

Under Judge Leighton’s analysis (and again, the Ninth Circuit may see things differently), Selecky is in many ways a relatively straightforward case.  There were numerous individualized secular exemptions to the regulations; there was no record of the regulations being enforced outside of the context of religiously based conscience claims; and a “refuse and refer” accommodation would not pose a threat to patients obtaining timely access to the drugs they were seeking. (We, of course, have not examined the record and express no opinion on the accuracy of these findings and conclusions.)

Because the specific drug in this case relates to abortion and contraception, the free exercise issues addressed here are particularly controversial. But suppose we change the facts so that a pharmacy raised a different religious or moral objection to a different drug.  Assume the drug in question was developed on the basis of questionable medical research that imposed unwarranted risks and suffering on human subjects, or that the drug was produced in sweatshop facilities in third world countries. Arguably, the conclusion in this case would seem less provocative in these different circumstances.

If we change other facts, however, it should be clear that the Selecky analysis raises far more questions than it answers. For example, the court in Selecky repeatedly refers to the history of the regulation to support the conclusion that the State’s purpose was to single out religious exemptions for discriminatory treatment. Suppose no such record existed. Should that make a difference? The unwillingness of most members of the Court to join the legislative motive section of Kennedy’s opinion in Lukumi, and the repudiation by Chief Justice Rehnquist and Justice Scalia of this approach, suggests at least the possibility that a direct purpose analysis in these kinds of cases is unnecessary and irrelevant.

A more problematic variation of the facts would be a situation in which a religious accommodation were rejected, some secular exemptions were granted, but other requested secular exemptions were also rejected. Here, the religious accommodations would be treated the same as some secular accommodations, but less favorably than other secular exemptions. Is that still a religious gerrymander?

If there were a history of the State rejecting some requested secular accommodations based on business needs or convenience, should the refusal to provide religious accommodations for dispensing Plan B be characterized as neutral rather than discriminatory?

What if, in the Lukumi case, there was also a secular fraternity operating in Hialeah that engaged in animal sacrifices as part of its pledge ceremony? If both the religious and non-religious acts of animal sacrifice were prohibited, should the Court’s analysis have been different?

Another difficult case would be one where the requested religious accommodation would, in fact, impose some significant burden on patient access to desired drugs.

There are really two legal inquiries here. First, would avoiding the burden on patient access constitute a sufficiently compelling state interest to satisfy strict scrutiny review? (The extent to which patient access was also burdened by secular exemptions the State had granted would be relevant to this analysis.)

Second, would the religious exemption violate the Establishment Clause prohibition against accommodations that reach too far and impose unacceptable burdens on third parties or the public interest?

It is not clear, at least to us, that the strict scrutiny standard for free exercise purposes and the unacceptable burden on non-beneficiaries Establishment Clause standard always require the same inquiry or results.

The last question left open in Selecky is whether the analysis in Fraternal Order of Police—which requires strict scrutiny review of any law substantially burdening religious exercise if there is any (even a categorical) secular exemption to the law—is really reconcilable with the holding of Employment Division v. Smith.  As many scholars have noted, a great many laws have some categorical exemptions to their application. If all these laws are subject to strict scrutiny review, the scope of the Court’s holding in Smith will be substantially undermined.

Does Washington’s Rule Implicate or Violate Other Rights Beyond Free Exercise?

In addition to relying on free exercise, Judge Leighton’s opinion also found that Washington’s rule violates the Fourteenth Amendment’s guarantee of equal protection, and may very well violate notions of substantive due process under the same amendment.  The invocation of equal protection and substantive due process highlight how free exercise doctrine might be similar to—but also different from—the requirements of these Fourteenth Amendment provisions.

As to equal protection, Judge Leighton said that a facially neutral law violates the equal protection norm if the plaintiff can prove invidious motive and intent to discriminate.  This is certainly true in the race setting; a law that does not mention racial groups but that imposes harm upon them, and that is demonstrated to be motivated by a desire to inflict this harm, is unconstitutional.  Judge Leighton cited Justice Kennedy’s opinion in Lukumi to support the idea that the same principles should govern free exercise cases. But, as noted earlier, Justice Kennedy’s approach was not embraced by seven members of the Court. Perhaps the Court in Lukumi did not disagree with Justice Kennedy, but rather felt only that it didn’t want to make new law by holding that motive analysis applies in the religion setting.  But if the Court is best understood as having rejected Justice Kennedy’s importation of motive inquiry into free exercise doctrine itself, then wouldn’t the Court also be reluctant to accept such inquiries when they are restyled as equal protection challenges directly?

As for substantive due process, Judge Leighton, while not actually ruling in the plaintiffs’ favor on this ground, intimated that it is his view that there is there a substantive due process right not to be compelled to facilitate killing someone else, and that this should protect the pharmacies against Washington State’s stocking and delivery rules.

But Judge Leighton was likely too quick in analyzing the key issue here:  Even assuming that there is a substantive due process right to be free from the compelled taking of life, would that principle apply to “morning after” pills?  In concluding that it would, Judge Leighton argued that while not every person might equate a “morning after” pill with the affirmative killing of another, the plaintiffs do, and the government cannot second-guess sincere religious beliefs. But that argument mistakenly mixes religion clause and substantive due process analysis.

We don’t second-guess what an individual understands his religious beliefs to require in free exercise cases. But under substantive due process doctrine, the question is not what any individual subjectively believes, but whether society’s tradition and history would protect a particular activity from government interference. Thus, in this case, the question would be whether society (not any particular individual) has traditionally recognized “morning after” pills to be taking human life in the same sense as, say, killing enemy soldiers or assisting a suicide takes life.

April 27, 2012

Five Free Speech Myths of Which College Demonstrators and Protestors Should Be Aware to Avoid Unexpected Trouble

Cross-posted from Justia's Verdict.

’Tis the season to be a college protestor.  With a momentous presidential election on the horizon, the Occupy Movement promising to kick into high gear again, and young adults facing uncertain job prospects and ever-increasing higher education costs and debt loads, students at campuses across the country are understandably seeking ways of demonstrating their deep discontent and anxiety about the status quo.

My own university—the University of California—has seen its share of unrest.  Protests at UC Berkeley, the birthplace of the so-called “free speech movement” in the 1960s, got ugly last fall, with police who were ostensibly trying to remove encampments using batons against students.  Things got out of hand here at UC Davis last fall too, with a campus police officer employing pepper spray against seated student protestors.

And more recently here at UC Davis, protestors—objecting to what they, at least, viewed as an example of the unhealthy privatization of higher education—obstructed access to a branch of a bank located on campus. (Many ardent advocates of higher education had no objection to the bank; the bank had leased space from the University to serve the campus community, and the lease would have provided two million dollars or more to the university over a 10-year period.)

After the blockades took place, notwithstanding repeated warnings from authorities that blockaders risked serious punishment, the university administration and campus police identified several students who had participated in the obstructive protests for prosecution by the County District Attorney, under state penal code sections making it a misdemeanor to willfully obstruct public walkways and places or to intentionally interfere with any lawful business. The bank provided evidence to the District Attorney’s office as well. Last month, 11 students and one faculty member were ordered to appear for booking and arraignment on misdemeanor charges of obstruction and conspiracy to commit a misdemeanor.

One of the things that has surprised me most about this episode and its aftermath is how many people—many of them sophisticated, well-educated folks—mistakenly believe that because the blockaders were obstructing the bank’s business for what they viewed as a righteous political reason, their actions were legally protected under constitutional principles of free speech.  In other words, many people are surprised to learn that the First Amendment permits punishment of this kind of expressive demonstration.  So in order to help students and other would-be protestors know when their activities will likely get them punished (so that protestors may then weigh, in an informed manner, the costs and benefits of proceeding), I offer five First Amendment myths that apparently need debunking:

Myth No. 1:  The Expressive Intent or Motive of the Protestor Is the Most Important Factor in Determining Whether His/Her Speech Can Constitutionally Be Prohibited

On rare occasions, people who are doing something to express a message—especially a political message—are immune from a regulatory law on account of their message and the particular place and time at which they need to express that message in order to be effective in communicating it.  And the Supreme Court has often said (for example, in last year’s funeral protestors case, Snyder v. Phelps) that speech about “matters of public concern” (e.g., public policies, elections, etc.) receives the highest level of First Amendment protection.

But just because you are involved in an expressive activity about something you think is important does not mean you have an automatic exemption from generally applicable laws that were passed, and are enforced, for reasons that are unrelated to the suppression of expression.  As one commentator (my brother, Yale Law Professor Akhil Amar) has put the point, The New York Times has no First Amendment license to ignore air pollution regulations.   And the U.S. Supreme Court itself has made the same kind of observation in a number of cases, perhaps most famously in United States v. O’Brien, where the Court upheld the prosecution of a Vietnam War protester who intentionally burned his government-issued official draft card, because the law prohibiting destruction of draft cards was designed not to censor, but rather to facilitate the administration of the Selective Service System.

In another seminal case, this one involving cross burning, a majority of the Court repeated the same essential idea:  “[N]onverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.”

Even some of the Justices who did not join the majority concurred on this point:  “It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is pro-Republican; and it is true that the public burning of the American flag can be regulated because it involves public burning and not because it involves the flag.”

So it turns out that motive or intent does matter in First Amendment cases—but it is the government’s motive or intent, not the would-be speaker’s, that largely determines whether the First Amendment permits government punishment of an activity that someone is undertaking in order to send a message.

Myth No. 2:  Laws Regulating the “Time, Place and Manner” of Speech in a Content-Neutral Way Are Unimportant or Are a Pretext for Speech Suppression, and Thus Do Not Really Need to Be Enforced

Rules that govern the time, place and manner in which speech occur often serve weighty purposes, including the creation of an environment where those who shout the loudest are not the only ones whose speech gets to be heard. Unsurprisingly, then, the idea that no one need ever obey such rules because the rules are pretextual or unimportant finds no support in court decisions.

As the Supreme Court of California stated in an oft-cited free speech case, In Re Kay:

[T]he state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizen’s rights of free association and discussion. … Freedom of everyone to talk at once can destroy the right of anyone effectively to talk at all. Free expression can expire as tragically in the tumult of license as in the silence of censorship.

So things like physical obstruction and blockades are conduct that government has always had the legitimate authority to proscribe, because the conduct so obviously obstructs the liberty and the lawful pursuits of others. Government prohibition of blockades or obstruction has been held to be permissible under the First Amendment too many times to count. To cite just one example, a federal law, the Freedom of Access to Clinic Entrances Act (FACE), that prohibits anyone from physically obstructing any person from obtaining or providing reproductive health services, has been upheld repeatedly against constitutional challenge, and that statute raises harder questions than do generic obstruction laws (like the kind at issue at UC Davis) because FACE targets specific places where protestors with particular messages may be expected to gather.

To see an easy example of why anti-obstruction laws are necessary and proper, consider what would otherwise happen when two groups of opposing protestors both want to blockade a facility (say, the US Supreme Court, the day of the Affordable Care Act arguments) at the same time, or two opposing political groups want to blockade each other’s protests.  Without valid and enforceable time, place, and manner rules applicable to political protestors, political protests could easily and literally devolve into melees.

One critical reason why blockades and similar obstructions can be prohibited is that they are not intended to, and do not, persuade anyone of the merits of the protestors’ position.  They are employed to coerce third parties to change their behavior, not their minds. As such, blockades and the like are in some respects actually antithetical to, rather than in furtherance of, the values on which freedom of speech and academic freedom are grounded—a commitment to the power of ideas, rather than the use of force, to change the way that people act.

Myth Number 3:  Expressive Conduct Is Treated No Differently Than Pure Speech Is

There is a kernel of truth to this statement, in that courts often do rule in favor of people who act, rather than utter words, to get their message across.  So, for example, a few decades ago the Supreme Court twice ruled in favor of protestors in striking down laws that tried to prohibit flag burning.  And it often makes sense to downplay the speech/conduct distinction, in that all speech requires conduct or action—moving the muscles in one’s fingers or arms to make a point shouldn’t be categorically different than using the muscles in one’s jaw.  So the government’s regulation of conduct can certainly raise free speech concerns.

Yet, crucially, these free speech concerns in the conduct setting arise when the government’s regulation of conduct is intended to suppress the message that the conduct is attempting to communicate. In those instances, government is not punishing protestors in order to protect the rights of third parties.  Rather, it is regulating protestors’ expressive conduct in order to censor the protestors’ message.  So, on closer inspection, the notion that expressive conduct is protected is simply a restatement of the idea discussed above in connection with Myth No. 1—that is, the idea that the government’s motive is important.  If government regulates your expressive conduct because it is expressive, then that is a problem.  A censorial government purpose is always illicit, whether the government is targeting your words or your actions.

That is the theoretical frame.  But in practice, when the government regulates your conduct, it often can point to many non-censorial motives, such as keeping good order, preventing violence, facilitating access to public space for everyone, and so on.  As a result, the government in the real world has a much easier time regulating conduct that is mixed with speech than regulating pure speech.  Put another way, the inference of problematic government censorship is easier to generate when the government regulates pure speech, rather than speech mixed with conduct, because the government doesn’t have as many plausible innocent objectives to which it can point when speech alone is at issue.

Myth Number 4:  The Authorities Could, if They So Chose, Cut Protestors a Break When the Protestors Are Trying to Speak Out on Important Issues to Accomplish Just Results

Some have suggested that authorities should excuse violations of time, place, and manner rules when the violations are politically motivated.  If the meaning of the word “political” here is understood expansively, then this argument would seem to reject the enforcement of all content-neutral time, place and manner rules.  After all, every intentional refusal to obey a rule can be understood to express the “political” message that the actor considers his or her conduct to be more important than any obligation he or she might have to comply with the rule.

Nor does the problem go away if we define the term “political” more narrowly. Perhaps some believe that obstruction and other violations of law should be excused whenever individuals are acting in the furtherance of politically salient beliefs, that is, beliefs concerning the big issues of the day.  Obstruction and blockades that protest things like government privatization, under this analysis, should be treated as permissible expressive activities.

If this is the argument, it too has costly consequences. Presumably, under this view, laws like FACE, which protect women attempting to enter medical clinics to obtain abortion services, also could not be enforced against “political” anti-abortion activists who obstruct the entrances to clinics; anti-abortion protestors (or military funeral protestors, etc.) are assuredly expressing themselves on salient public policy questions.

And even if we could stomach the costs of permitting all protestors who are addressing big issues to do as they please, a government’s decision to prohibit all blockades except those maintained in order to express a limited class of political messages would itself likely violate the First Amendment.  That is because government cannot constitutionally discriminate on the basis of the subject matter of speech when it regulates expressive activity.

In Carey v. Brown, for example, the U.S. Supreme Court struck down a law prohibiting residential picketing that excluded labor picketing that was connected to a place of employment from its coverage.  Similarly, if government were to treat obstruction as permitted speech, it could not permit some blockades and not others based on the government’s (contested) sense of the political salience of the protestors’ message.

Some people may try to define the desirable exceptions more narrowly still.  For example, in the UC Davis bank episode, some have suggested that participants in the blockade of the bank should not be punished because they are promoting a political cause that is just. But, of course, treating one political perspective more favorably than another constitutes viewpoint discrimination.  And a public agency that engaged in viewpoint discrimination in regulating expressive conduct would blatantly violate the core principles on which the First Amendment is based.  So the narrower the exception from enforcement is, the larger the First Amendment problem becomes.

Government can make enforcement decisions based on things unrelated to the content or viewpoint of the expression that is involved.  So enforcement decisions based on the extent of harm actually caused or threatened by the protestors, or based on how repetitive the violations of law are, etc., are permissible.  But enforcement agencies can get into First Amendment trouble if their enforcement pattern suggests any favoritism based on particular messages; as a result (and in order to avoid being unable to enforce laws when the laws are violated in the future), many government enforcement decisionmakers tend to act more mechanically than would otherwise be expected.

Myth Number 5:  Even if Rules Have to Be Enforced By Ordinary Governments, University Campuses Are Special Places Where More Expressive Conduct Should Be Permitted

As with some of the other propositions I’ve discussed, there is a grain of truth to this statement; universities are indeed dedicated to promoting free speech, and what counts as “disruption,” or “obstruction” might be different in the context of a university quad than in the context of, say, a post office parking lot.  So, provided that public universities do not treat protestors differently based on the subject matter or viewpoint of their message (which would violate the First Amendment), they may permit a bit more operational inefficiency than do other government actors, in the name of promoting free speech.

But the problems of governing a community with tens of thousands of residents who have conflicting desires to access services and use scarce property do not disappear simply because the community is also an institution of higher education.   Again, any relaxed enforcement stance by public universities with respect to liberal protests would necessarily mean that campus authorities could not step in when on-campus student health facilities providing contraceptive services or advice about abortion are blockaded by politically motivated students who oppose the use of their student fee dollars to subsidize such services.  And you always have the problem of managing the use of limited property among competing protestors; when protestors want to counter-blockade each other’s protests, then enforcement of neutral time, place and manner rules are the only way to keep order.

One might think that private universities would be free to pick and choose how to enforce their rules, because they are not bound by the content- and viewpoint-neutrality norms of the First Amendment.  But in California, there is a statute that subjects private universities to the same constraints that the First Amendment imposes on public actors.  As long as this statute is not invalidated itself (and I do think it is open to some constitutional challenge), Stanford is no freer to selectively enforce its rules than is the UC.

Finally, I note that there is one other respect in which universities may be different (as least with regard to their students) than are other communities.  Namely, universities often have an administrative disciplinary system of enforcement (e.g., academic suspension, expulsion, etc.) at their disposal.  For this reason, criminal prosecution may not always be an appropriate or supportable response to protests that violate campus regulations or even penal laws governing on-campus conduct. In some cases, in-house discipline imposed by the university itself may be adequate and preferable, so long as decisions about which mode of enforcement to pursue are not made on the basis of the content or viewpoint of expression.

So the issue of what kind of sanction makes sense is an important one to keep in mind in the university setting.  So, too, are the related questions of how much, and what kinds of, force are appropriately used against students who violate university rules.  These two questions are beyond the scope of my column today, but obviously deserve careful attention.