The Volokh Conspiracy

Judge Michael McConnell, one of the nation's leading scholars of church-state and religious freedom law, has just written a characteristically thoughtful opinion on the subject. Much worth reading if you're interested in American religious accommodation law and how it plays out in practice. Thanks to How Appealing for the pointer.

The Wausau Daily Herald has details; YouTube has video, which seems consistent with the Wausau article. The display was an array of crosses aimed at symbolizing the deaths of aborted fetuses.

For confirmation that the vandal (Roderick King) was a Student Senator, see here. The vandal's rationale:

In 1973 it was made a Constitutional right for a woman to have an abortion. It's not your responsibility. Since it's a right, you don't have the right to challenge it.... Do not put this [display] in front of all of us ... it is not your right.

I'd like to hear what actions the university or the student senate will take against Senator King for his vandalism.

Note, incidentally, that it appears that the use of the university's property for the exhibit had indeed been authorized by the university. (Even if the parklike area on university property was a traditional public forum in which speech had to be allowed, or a designated public forum that the university opened up for speech, it's likely that the university could bar installations planted in the ground — but it appears that the university did not impose any such content-neutral limitation.) Thanks to my friend Prof. Rick Garnett (PrawsBlawg, Mirror of Justice) for the pointer.

UPDATE: UWSP's response:

The University of Wisconsin-Stevens Point has received several communications regarding the May 1, 2008, display by the student organization, Pointers for Life, and the disruption of that display by opposing students.

The university values free expression and the open exchange of ideas. Pointers for Life is a recognized student organization that followed university procedure in staging its event.

The student who disrupted the display not only exhibited inappropriate behavior, but demonstrated intolerance that is unacceptable on the UWSP campus.

University procedures are being followed. In accordance with the Family Educational Rights and Privacy Act, which protects our students from disclosure of their educational records, results of those procedures will not be made public.

I can't speak to the FERPA question, but generally I think UWSP's statement is exactly correct. Many thanks to Thomas Muth for the pointer.

A Snyder v. Alternate Energy Inc., a New York City Civil Court decision from last month, allows this in certain circumstances, and canvasses past opinions on the subject. It then analyzes things this way:

[S]o long as Nelson's physical whereabouts remain a secret, reaching him and his company by ordinary means remains every bit as difficult as reaching the defendant in Hollow v. Hollow [an earlier New York state case -EV]. For the plaintiffs here, like the plaintiff in Hollow, the internet may very well offer the best hope they have of ever being able to reach the defendants Nelson and Corporate Energy.

The problem with the internet is that it is hard to be absolutely sure that the message is actually received by the person it is intended to reach. Despite the information plaintiffs' counsel has supplied tying defendant Nelson to e-mail address EnergyAEI@aol.com, there is still the chance, however slight, that the address belongs to someone who for some unknown reason is merely pretending to be Nelson. And even if the address is indeed Nelson's, then at any given time some other person say, a friend, family member or co-worker may be the one using the address and thus end up intercepting the message being sent to Nelson.

Concerns about the uncertainty of an e-mailed summons and complaint making its way across the internet to its intended target is reason to proceed with caution when being asked to authorize e-mail service. But such concerns are not reason enough to summarily reject an application for alternate service simply because the method sought involves e-mail. Strange as it may sound, the validity of a particular form of service is not necessarily dependent on the likelihood of receipt. As the court of Appeals wrote in Dobkin, "Our law has long been comfortable with many situations in which it is evident, as a practical matter, that parties to whom notice was ostensibly addressed would never in fact receive it." Dobkin v. Chapman, 21 NY2d at 502.

The Federal Circuit just held that the Takings Clause generally doesn't apply to takings of foreign property owned by foreign citizens who have no connection to the U.S. In the process, the court of appeals also canvassed the precedents on the broader question, which can also involve the Fourth Amendment, the criminal procedure provisions, and other Bill of Rights clauses.

Much worth reading, and should be pretty readable even to nonlawyers. Thanks to How Appealing for the pointer.

How come there aren't more comments on the Maryland court decision that refuses to recognize a Pakistani (Islamic law) divorce? What, not enough sex? Not enough politics? Not enough prosecutorial misconduct?

here.

Mason v. Dwinnell, decided yesterday, upheld a trial court's decision that awarded joint custody of a child to the biological mother (Dwinnell) and the mother's lesbian ex-partner (Mason). The child had been conceived when Mason and Dwinnell were a couple, and was raised by Mason and Dwinnell together until the two broke up when the child was four; the two had then, by mutual agreement, had joint custody until the child was seven.

The court stressed that "[a]lthough this appeal arises in the context of a same-sex domestic partnership, it involves only the constitutional standards applicable to all custody disputes between legal parents and third parties." And the court reasoned -- applying what looks like the "psychological parent" doctrine that quite a few courts have applied in recent years -- that because Dwinnell voluntarily let Mason help raise the child for several years, and let the child treat Mason as a parent, Dwinnell voluntarily surrendered her constitutional right to exclusive control over the child. The proper standard was thus the "best interests" standard applicable to disputes between parents; and the trial court's decision that joint custody was in the child's best interests was not an abuse of discretion.

I haven't thought much about the psychological parent doctrine, but I'm inclined to think that it is sound. And if it's sound in general -- for instance, when the psychological parent is a stepparent who raised the child from infancy (with the other biological parent out of the picture) -- then it's equally sound for same-sex relationships. Whatever one might say about whether in the abstract it's better for a child to be raised by a woman and a man or by two women, a child who has formed deep emotional bonds with two women deserves the same protection for those bonds as does a child who has formed such bonds with a woman and a man.

The case, decided yesterday, is Aleem v. Aleem. The court reasoned that, while foreign divorces are generally recognized unless they violate the state's public policy, the sex-discriminatory nature of Islamic divorce law does violate Maryland public policy, at least where the parties are Maryland residents.

"If the Pakistani marriage contract is silent, [footnote: The places in the “contract” where a division of property would normally appear were simply left blank in the case at bar.] Pakistani law does not recognize marital property. If a pre-marital or post-marital agreement in Maryland is silent with respect to marital property, those rights are recognized by Maryland law.... In other words, the ‘default’ under Pakistani law is that Wife has no rights to property titled in Husband’s name, while the ‘default’ under Maryland law is that the wife has marital property rights in property titled in the husband’s name. We hold that this conflict is so substantial that applying Pakistani law in the instant matter would be contrary to Maryland public policy."

The talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state and we decline to give talaq, as it is presented in this case, any comity. The Pakistani statutes providing that property owned by the parties to a marriage, follows title upon the dissolution of the marriage unless there are agreements otherwise, conflicts with the laws of this State where, in the absence of valid agreements otherwise or in the absence of waiver, marital property is subject to fair and equitable division. Thus the Pakistani statutes are wholly in conflict with the public policy of this State as expressed in our statutes and we shall afford no comity to those Pakistani statutes.

Additionally, a procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and, without prior notice to the wife, perform "I divorce thee ..." three times [which is what happened in this case -EV] and thus summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.

Earlier, the court also reasoned that "the enforceability of a foreign talaq divorce provision, such as that presented here, in the courts of Maryland, where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husband’s permission, is contrary to Maryland’s constitutional provisions [barring sex discrimination] and thus is contrary to the 'public policy' of Maryland." Just as Maryland courts refuse to enforce English libel law judgments, because those are arrived at without regard to American free speech principles, so the court refused to enforce the Pakistani divorce.

Note that this does not preclude the enforcement of prenuptial contracts that expressly limit marital property rights — the court expressly speaks of the default Maryland rule applicable "[i]f a pre-marital or post-marital agreement in Maryland is silent with respect to marital property." (There might be some minimum rights that a spouse might have under Maryland law notwithstanding any express prenuptial agreements, but the court clearly contemplates that a good deal of one's marital property rights can indeed be waived through such an agreement.) It also doesn't speak to what happens if the prenuptial contract doesn't give a specific limitation, but rather states, "in the event of a divorce, we agree that the property shall be divided by applying Pakistani law" or "... by applying Islamic law" or "... under a decision of an arbitral tribunal convened through [name of group]." Here the contract was entirely silent, so the court had no occasion to decide the matter.

My view is that the court decision is quite right on these facts, given the absence of any express agreement about marital property division. I'm inclined to say that if the parties had agreed to an uneven property division, or to a property division pursuant to sex-discriminatory rules, that agreement should be enforceable (again, subject to whatever minimum support requirement state law generally imposes, and setting aside child support issues, which are a matter of duty to the child and thus can't be waived by contract with the spouse). The wife was only 18 when she married the husband, but she was an adult, and should thus be held responsible for her contractual decisions, even if they are made under social or family pressure. But of course I'm aware that others may disagree, and may take a more paternalistic view with regard to contractual enforcement; and in any event in this case, there was no express contract to the first instance.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. Prof. Friedman also links to this Baltimore Sun article, which has more on the case, including commentary from Islamic law scholars.

Slate's Explainer answers, "Either the sheriff or the medical examiner"; but I don't think that's quite right.

A suicide note is a tangible item that was owned by the person who committed suicide; the property rights in it, as with all other property, go to the person's heirs under the will or under intestate succession rules (if the person died without a will). The government may well have considerable rights to hold on to the tangible item for quite a while, because it's evidence in the investigation of the person's death. But that doesn't mean the government now "owns" the note, only that the law allows it to keep temporary custody of the tangible item.

The same is true of the suicide note as a copyrightable work. Any note that's longer than a few words is protected by copyright, even if there's no copyright notice; that work is originally owned by the author, but when the author dies it goes to the author's heirs. The government's temporary custody of the note may physically block others from copying the copyrighted work, but the government doesn't own the copyrighted work.

As the Explainer points out, the government may also have -- depending on state law -- have the duty to place the contents of the note in the public record. I expect that such state laws do not violate federal copyright law, because such placement would be "fair use," despite the general principle that fair use is rarely available as to unpublished works. And fair use may also allow the media and others to further reprint what they see in the public record.

But none of this makes the government the "owner" of the copyright in the suicide note, because the government lacks a quintessential right of an owner: The legal right to exclude others from using the property. If, for instance, the suicide's heir reads the suicide note before the police show up, the heir may then publish the text of the note, and the government can't stop him: They don't actually own the copyright. If a third party publishes the text of the note, perhaps that might infringe the copyright in the note (unless that too would be fair use, which it well might be) -- but it would be the heirs, not the government, who would decide whether to sue over the infringement, because it is the heirs who own the copyright.

Now, as I said, it might well be -- especially if the note is placed in the public record and can then be copied freely from there (presumably on a fair use theory) -- that everyone would then be able to publish the note without copyright liability. But that just means that the note effectively wouldn't be owned by anyone: It would effectively stop being property at all, much like the works of Shakespeare stopped being property. (I say "effectively" because, unlike with Shakespeare's works, the note would still be technically covered by copyright law, but by hypothesis that formal protection would have no effective bite because of the broad fair use rights.)

So, the suicide note as tangible item would remain owned by the heirs, though the government would have temporary custody (as the body of the Explainer item discloses). The suicide note as copyrighted work would either be owned by the heirs -- subject potentially to some considerable rights on the government's part to place the note in the public record -- or would be effectively no-one's property, if the fair use rights are so broad that anyone would be free to copy it. The copyrighted work would never become the government's property in the sense of the government's having the right to stop others from using it.

Finally, this highlights a broader point: One often hears that the options are whether one entity owns the property or another entity owners the property, for instance "Do consumers own their personal information or do merchants?" But there's also often a third option -- no-one owns the property any more, and it's free for everyone to use. That's generally the case, for instance, as to facts (such as information about certain transactions, which the consumer, the merchant, and anyone else who learns about it are all free to disclose). And it may end up being the case for suicide notes that end up in the public record.

An interesting item from Linnell v. Linnell, 2008 WL 1913991 (Conn. Super. Apr. 15):

The children, by the parties' agreement prior to their birth, have been raised in the Muslim faith. The children, or at least Kelsey at this point, attend weekly religious instruction. They observe the Muslim holidays, as well as some of the Muslim rules (i.e., no consumption of pork). The Plaintiff testified that he agreed to raise the children in the Muslim faith, "so long as we were married." The Defendant testified that she "wouldn't compromise on religion." The children's faith should not be premised on the status of the parties' relationship. Further, the record would support that but for the Muslim faith, the children would have no faith at all. Neither party presented evidence that would suggest their original commitment to raise the children as Muslims should no longer be honored and respected.

The order isn't clear on whether the court ordered that the father continue to cooperate in raising the children Muslim. But the discussion in the opinion very strongly points to this, and I take it that divorcing parents don't lightly ignore the judge's sentiments as expressed in the opinion.

Two thoughts about this:

(1) The court says here that the plaintiff agreed to raise the children as Muslims "so long as we were married." Later, though, the court says there was a "commitment to raise the children as Muslims." Is that really accurate? Even if premarital contracts to raise children in a particular religion are enforceable (as I'm inclined to say they would be), it's not clear to me that there was such an agreement.

(2) More importantly, what's this about "Further, the record would support that but for the Muslim faith, the children would have no faith at all"? Can that really be a constitutionally permissible factor? Seems to me that under the First Amendment, the Court may not prefer one religious upbringing over another (at least in the absence of some showing of imminent likely harm to the children), a religious upbringing over an irreligious one, or an irreligious upbringing over a religious one. Whether it's better to be a Muslim or to have no faith at all is not a matter for secular courts, including secular family courts, to decide.