Archive | Religion and the Law

Mauritanian Convicted of Apostasy

AllAfrica and The Malay Mail Online, as well as other outlets, so report. From AllAfrica:

A young Muslim man in Mauritania is facing a possible death sentence after being convicted of apostasy and jailed for having written an article criticising the prophet Mohammed, a judicial source said … He … “was convicted of lack of respect for the prophet,” and jailed, the source told AFP.

The author of the article will be brought before a judge and given the chance to repent but if he refuses, “he risks the death penalty,” the source added.

The author apparently “questioned the decisions taken by Islam’s prophet and his companions during the holy wars,” as well accusing Mauritanian society “of perpetuating ‘a sinful social order’” and and “marginali[zing] and discriminat[ing] against [many Mauritanians] from birth.” [...]

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O Hear the Angel Voices

An interesting case, In re Stephen O. (Alaska Dec. 17, 2013), dealing with the recurring question of how religious claims can be relevant to mental commitment proceedings. From the three-Justice majority (some paragraph breaks added):

Shortly after Christmas 2009 Stephen O. experienced what he believed to be a religious conversion and, as he described it, “got [his] relationship back” with Jesus. In the weeks leading up to the holiday that year, Stephen had been “a little nervous” because his children were about to depart for a visit to their mother in Seattle for their Christmas vacation, the first Christmas he had spent without the children in a decade. Stephen and his wife of eleven years had separated in May 2009, when she left their home in Haines to live with her mother….

Stephen testified that when the children returned from their visit shortly after Christmas, he began to hear the voice of Jesus speaking to him, telling Stephen that his sins were forgiven and he should “get on a path of repentance.” According to Stephen, Jesus told him to go to church and, in particular, to talk to a neighbor across the street who attended a Pentecostal church. Stephen visited and prayed with the neighbor, who put Stephen in touch with his pastor. The pastor invited Stephen to attend his church.

Around this same time, Stephen’s father became concerned about him after Stephen’s 12–year–old daughter reported that Stephen’s behavior was “creeping her out.” Stephen had awakened his daughter at night and talked to her about Jesus, going to church, and following “a path of repentance.”

Stephen’s father and daughter were alarmed because they believed Stephen’s behavior was similar to behavior he had exhibited about six years earlier, in 2004, when he heard voices that led him to jump off

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Brown v. Buhman and Bestiality

The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.

Now seems like a good time to revisit a post on bestiality from earlier this year, which surely seems less radical now. Bestiality bans are [even?] less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions (though presumably limits one to unusually broad-minded spouses). Nor does it oppress women, the empirical claim behind bans on polygamy, as well as prostitution. Here is the body of the post:

Most states criminalize zoophilia and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.

The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of [...]

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Brown v. Buhman isn’t so complicated

To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).

I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.

Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).

Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. [...]

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Wind Farm Permits to Kill Protected Eagles

Yesterday the Department of Interior finalized a rule that allows wind farms to get 30-year permits allowing them to kill federally-protected eagles. Eagles are frequent accidental victims of power plants and wind turbines, and the government has long taken the position that it is a federal crime to kill an eagle even unintentionally. To get the permit, the farms have to take various conservation measures.

Apropos of Eugene’s blogging this week, there is also a RFRA connection. In 2008, the Tenth Circuit decided a case called United States v. Winslow Friday, in which Mr. Friday was prosecuted for killing a bald eagle to use in his tribe’s religious ritual. One of Mr. Friday’s arguments on appeal was that RFRA requires the federal government to treat tribal killings and power-company killings of eagles with parity. The Court did not disagree with this premise, but concluded, at the time, that “with respect to both religious and secular threats to the eagle, the government appears to take a similar approach.” [...]

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Tax Exemption for Ministers’ Housing Expenses Violates the Establishment Clause

So holds yesterday’s Freedom From Religion Foundation v. Lew (W.D. Wisc. Nov. 22, 2013). Section 107(2) of the Federal tax code exempts from the income of “a minister of the gospel” (read broadly to not just be limited to Christian denominations) “the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.”

The court analogized to Texas Monthly, Inc. v. Bullock (1989), in which the Court struck down a sales tax exemption for the sale of religious literature. Here is the court’s reasoning, which I think is persuasive, given that both cases involve tax exemptions that favor the dissemination of religious messages (both books and ministers being major mechanisms for disseminating such messages):

Consideration of the question whether § 107(2) violates the establishment clause must begin with Texas Monthly, Inc. v. Bullock, the only case in which the Supreme Court has addressed the constitutionality of a tax exemption granted solely to religious persons. In Texas Monthly, the statute at issue exempted from the state sales tax “[p]eriodicals that are published or distributed by a religious faith and that consist wholly of writings promulgating the teaching of the faith and books that consist wholly of writings sacred to a religious faith.”

The justices in the plurality opinion (Justices Brennan, Marshall and Stevens) and those concurring in the judgment (Justices Blackmun and O’Connor) agreed that the statute violated the establishment clause…. [T]he plurality emphasized that the exemption provided a benefit to religious publications only, without a corresponding showing that the exemption was necessary to alleviate a significant burden

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Amicus Brief in Religious Exemption Case

I thought I’d pass along two briefs that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. One, on behalf of the Becket Fund, is in Overall v. Ascension Health (E.D. Mich.). My students Nate Barrett, Garry Padrta, and Paulette Rodriguez-Lopez worked on the brief, and Daniel P. Dalton of Dalton & Tomich was kind enough to serve as local counsel (many thanks to him for that!). I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. (The other brief is quoted in this post.)

Please note that, in all Clinic cases, the students, local counsel, and I act as advocates for the client. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

Summary of Argument

Out of respect for religious freedom, legislatures have long provided religious groups with exemptions from generally applicable laws. This tradition continues to this day, with a vast range of state and federal statutes providing various exemptions for religious institutions or religious believers.

Plaintiff’s Establishment Clause logic puts such exemptions in jeopardy unless they are made available to secular claimants

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Response From Religious-Liberty Scholars Supporting a “Marriage Conscience” Exemption

Last week I wrote about the response of a group of us (Andy Koppelman, Doug NeJaime, Ira Lupu, William Marshall, and me) to calls for broad religious-liberty exemptions in laws authorizing same-sex marriage.  Specifically in the context of the proposed marriage bill in Illinois, which has since passed, we argued that the proposals from several religious-liberty scholars urged for several years now in state legislatures around the country are, in short, overblown and overdrawn.  It is the first time a group of scholars has formally and publicly responded to what some legislators might have thought was a solid scholarly consensus behind the idea that same-sex marriage creates a distinct crisis for religious liberty.

Several of the scholars favoring broad exemptions have now replied to our critcisms in the form of a blog post at Mirror of Justice, the Catholic legal blog, although the group is not limited to Catholic opponents of same-sex marriage.  The replying scholars are Tom Berg, Carl Esbeck, Edward Gaffney, Rick Garnett, Doug Laycock, Bruce Ledewitz, Christopher Lund, Michael Perry, and Robin Fretwell Wilson. Some of the differences between the two groups of scholars seem to involve a venue question of whether marriage laws — as opposed to antidiscrimination laws — are the appropriate place for clarifying existing religious-liberty protections.  Some of the differences are deeper, involving what should be recognized as an appropriate religious-conscience exemption from generally applicable antidiscrimination laws.  In any event, I recommend that readers interested in this dispute among legal scholars about religious liberty and same-sex marriage read this latest installment from those who favor broad exemptions. [...]

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Religious Liberty and SSM: A Response to Concerns in Illinois

The Illinois legislature is considering a bill that would extend marriage to same-sex couples. In response, a group of religious-liberty scholars have urged the governor and legislative leaders to include what they call a “marriage conscience protection” that would significantly expand the scope of religious exemptions already provided in the bill, and would insert additional substantive exemptions that would broadly expose married same-sex couples to discrimination in both the public and private spheres.  The letter objecting to the Illinois marriage bill follows very similar warnings about religious liberty that these same scholars have sent to many other states considering same-sex marriage legislation.  (See, for example, a link to some of their letters here.)

There has been significant debate about whether same-sex marriage actually generates additional problems for religious liberty, and about whether and to what extent gay-marriage bills should incorporate special protection for religious liberty.  (See, for example, my posts here, here, and here, and the excellent work of Doug NeJaime here.) But there has been no formal response by scholars to the call for broad exemptions in the context of a pending state same-sex marriage bill.  That may have given some legislators the mistaken impression that there is a scholarly consensus behind the specific concerns and broad carve-out proposals advanced by this particular group of religious-liberty scholars.

That starts to change as of today in Illinois.  Law school professors who support both protecting religious liberty and recognizing the marriages of same-sex couples have signed an open letter responding to the religious-liberty scholars’ concerns and their proposed “marriage conscience protection.”  The signers of the response are Andy Koppelman (Northwestern University), Doug NeJaime (University of California-Irvine), Ira Lupu (George Washington University), William P. Marshall (University of North Carolina), and me.  The letter was coordinated with the help of Third Way, especially its Director of Social Policy & Politics (and my former student [...]

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Disciplinary Charges Filed Against “Messiah” Judge

In August, Tennessee family court judge Lu Ann Ballew changed a child’s name from “Messiah,” over the parents’ objection:

“The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” Judge Ballew said….

According to Judge Ballew, it is the first time she has ordered a first name change. She said the decision is best for the child, especially while growing up in a county with a large Christian population.

“It could put him at odds with a lot of people and at this point he has had no choice in what his name is,” Judge Ballew said.

As I noted at the time,

The first reason strikes me as clearly unconstitutional under the Establishment Clause. A judge may not reject parents’ decisions based on her view of the messianic status of Jesus — that is a theological question that cannot be used as the basis of government decisionmaking about people’s rights. This principle most often arises in church property disputes, where the Supreme Court has held that courts may not decide which faction in a church is the more religiously orthodox, but it also applies more broadly to prohibit the government from adjudicating people’s rights based on theological judgments (see, e.g., United States v. Ballard). But beyond this constitutional question, I quite doubt that Tennessee law authorizes judges to make decisions based on their theological judgments.

The second reason — the risk of social difficulties for the child — was, I argued, more defensible, though still on balance not terribly persuasive. A month later, the decision was reversed.

Now, the Tennessee Board of Judicial Conduct has filed charges against Judge Ballew, faulting the judge for relying on the first reason [...]

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Court Enforces Religious Arbitration Agreement, Over Objection of Plaintiff

In Spivey v. Teen Challenge Inc. (Fla. Ct. App. Oct. 11, 2013), Pamela Spivey’s son, Nicklaus Ellison, then age 19, “enrolled in a year-long program at Teen Challenge’s substance abuse facility,” which “assist[s] young men in overcoming addiction through the application of biblical principles.” Ellison fell off the wagon several times, and eventually died from a drug overdose. Spivey sued, claiming Teen Challenge essentially committed malpractice by negligently treating Ellison.

But when Ellison entered into the Teen Challenge program, Ellison signed an arbitration agreement that provided for arbitration by Christian conciliation. Under Florida law, in a wrongful death case the plaintiff acts as a representive of the decedent, and “stands in the shoes” of the decedent, being bound by any arbitration agreements that the decedent had signed. Spivey sought to avoid this, largely on the grounds that she hadn’t entered into the arbitration agreement, and that it would violate the First Amendment to require her to go through religious arbitration, which may involve prayer and other religious activity:

Ms. Spivey points to a provision in the Rules providing for prayer as a normal part of the mediation and arbitration process. She argues that she, as personal representative, should not be forced to engage in a process involving a Christian prayer (even though she is a Christian) because to do so violates principles prohibiting governmentally-coerced religious acts. She asserts that her right to the free exercise of her personal religious beliefs is inalienable and cannot be waived, even in the context of her duties as a personal representative.

But the court disagreed:

[A] personal representative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative; personal representatives serve the estate’s interest, not vice-versa. See Kasmer v. Guardianship of Limner, 697 So.

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Prosecution of Religious Kidnapping-for-Hire Ring

From the Criminal Complaint in United States v. Epstein (D.N.J. filed Oct. 7, 2013):

I. According to Jewish law, in order to effect a divorce, a husband must provide his wife with a document known as a “get.” Although a divorce may only be initiated by the husband issuing a get, the wife has the right to sue for divorce in a rabbinical court, known as a “beth din,” which may order the husband to issue the get. If the husband refuses the court’s demand, he may be subjected to various penalties in order to pressure him into consenting to the divorce, i. e., giving the get. A woman whose husband will not consent to a divorce is known as an “agunah” (“agunot” in plural).

2. Defendants MENDEL EPSTEIN and MARTIN WOLMARK are Jewish Rabbis who charge agunot and their families thousands of dollars to obtain gets from recalcitrant husbands by means of violence.

3. Defendants ARIEL POTASH and FNU LNU a/k/a “Yaakov” are Orthodox Jewish men who assist Defendants MENDEL EPSTEIN and MARTIN WOLMARK in obtaining gets from recalcitrant husbands by means of violence.

4. Essentially the Defendants’ organization operated as follows. The family of an agunah made contact with the Defendants. The agunah ‘s family then made payment to the Defendants, after which the Defendants convened a beth din, which issued a contempt order, known as a “seruv,” against the husband. If the husband failed to respond, the beth din issued a ruling, known as a “psak din,” authorizing the use of coercion and/or violence to obtain the get. The Defendants then arranged to kidnap the recalcitrant husband and assault him until he consented to the divorce, i.e., until he “gave the

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Europe’s Proposed Circumcision Ban: How Far Back We’ve Gone While Making Progress

The Council of Europe in Strasbourg has recommended nations consider banning child circumcision. Jewish groups, and the State of Israel, are predictably outraged by the recommendation, which if adopted would make traditional (and not just religious) Jewish life impossible on the Continent. Thus the law has been denounced as anti-Semitic.

While I have recently criticized European hypocrisy in matters related to Jews, here I find little to object to as a formal matter. European nations are well within their rights to ban such practices, despite the significant disruption it creates for religious minorities.

If democratically adopted, such bans would mean that a significant segment of European society thinks, as the Council said, that circumcision represents a barbaric mutilation of a child. That is a legitimate position of conscience; indeed, it is a quasi-religious belief itself, in that it is based on deeply held moral views about essentially unverifiable matters. As a believer in the covenant of Abraham I do not share these views, but they are far from absurd if one does not accept the validity of the covenant.

A majority has a legitimate right and interest to conduct society according to its moral views when articulated in laws that are generally and equally applied. Government is in part an instrument for the expression and transmission of values, and all legislation takes explicit or implicit moral positions. If the values that stand behind generally applicable legislation conflict with the views of religious or ethnic minorities, the majority should not be neutered or have its values annulled to protect the sensibilities of minorities who hold different views.

There are some who think the law is discriminatory, aimed at the religious groups who practice circumcision. It seems to me that circumcision, in a non-religious context, is common [...]

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It’s a Crime to Say This About Muslim Men in Denmark

According to the Copenhagen Post (Sept. 18, 2013), Danish-Iranian artist Firoozeh Bazrafkan was convicted under “anti-racism legislation” for posting this blog entry on a newspaper Web site, quoting and endorsing an earlier statement by Lars Kragh Andersen:

I am very convinced that Muslim men around the world rape, abuse and kill their daughters. This is, according to my understanding as a Danish-Iranian, due to a defective and inhumane culture — if you can even call it a culture at all. But you can say, I think, that it is a defective and inhumane religion whose textbook, the Koran, is more immoral, deplorable and crazy than manuals of the two other global religions combined.

“By publishing the statement in the blog, the defendant presented statements in which a group of people are mocked and degraded because of their belief,” the court ruled, and that was enough to make the speech criminal.

I oppose bans on “hate speech” generally, but bans on criticism of religion strike me as especially wrong. Religions are connected to ideologies and to cultures. They can do good and they can do harm. They deserve to be evaluated and criticized, just as any ideologies deserve to be evaluated and criticized.

Islam, Christianity, and Judaism, and any other religions — and their adherents — should have no more immunity from criticism than Communism, libertarianism, liberalism, conservatism, or any other belief system, especially since belief systems produce action systems. Sad to see what has become unsayable in Europe, and what European governments are apparently trying to make unthinkable as well.

Thanks to Walter Olson (Overlawyered) for the pointer. [...]

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Bill Introduced by House Republicans Offers Broad Exemptions to Opponents of Same-Sex Marriage (and Non-Marital Sex)

Sixty members of the U.S. House of Representatives (58 Republicans and 2 Democrats) have introduced legislation, the “Marriage and Religious Freedom Act” (MARFA), that would prohibit any “adverse action” by the federal government against any “person” who acts on the basis of a religious belief opposing same-sex marriage or opposing sexual relations outside of opposite-sex marriages.  “Adverse actions” include action by the IRS to strip a group of favorable tax treatment, like tax-exempt status.  But it also includes actions related to employment, accreditation, grants, contracts, or benefits otherwise available under federal law.  And it broadly prohibits “discrimination” against those who oppose same-sex marriage and non-marital sex. “Person” includes  nonprofit and for-profit corporations, companies, associations, firms, partnerships, societies, and joint stock companies.

MARFA raises very interesting questions of statutory construction, public policy, antidiscrimination law, and potential applications and burdens for married same-sex couples.  It also raises potential Establishment Clause issues in its partiality toward certain religious doctrines (i.e., applying only to those who oppose, rather than favor, same-sex marriage for religious reasons).  After United States v. Windsor, there are also potential Equal Protection problems in MARFA’s targeted protection of acts motivated by opposition to same-sex marriage.  I haven’t looked at the proposal in detail, but my preliminary reaction is that parts of MARFA (especially those constraining the IRS) will be politically popular, and that other parts may be seen as overreaching.  Whether there is an actual need for any of it, politically popular or not, is an additional question, and whether its protections justify the burdens it may place on married couples is yet another.  When I’ve had a chance to look at it more closely, I may offer more detailed thoughts.

I have a copy of the legislation and will post a link as an update when available.

UPDATE:  The text of the bill is available here. [...]

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