The Volokh Conspiracy

A comment reminded me of this passage from Justice Stevens’ opinion in County of Allegheny v. ACLU:

It is also significant that the final draft [of the Establishment Clause] contains the word “respecting.” Like “touching,” “respecting” means concerning, or with reference to. But it also means with respect — that is, “reverence,” “good will,” “regard” — to. [Footnote: "Respect," as defined in T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796). See S. Johnson, A Dictionary of the English Language (7th ed. 1785); see also The Oxford English Dictionary 733-734 (1989); Webster's Ninth New Collegiate Dictionary 1004 (1988).] Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion.

This seems to be a very weak argument — more a play on words than legal analysis.

First, the Clause doesn’t ban laws respecting religion. It bans laws respecting an establishment of religion.

Second, the fact that an English word has multiple meanings doesn’t mean all those meanings are applicable in each context. Indeed, any usage of a word in a legal document (rather than in a joke or in a poem) is usually understood as triggering just one meaning, at least when the meanings are relatively far removed from each other.

For instance, one can debate what “common law” means in the Seventh Amendment protection of a jury trial in suits “at common law,” since at various times (and even at the time of the Framing) “common law” has meant several things: (1) judge-made law (or, if you prefer, judge-found law, though that’s a legal fiction) as opposed to statutes, (2) a particular body of law that was once made by judges, even if now it is codified in statute, as opposed to law that was originally created by a legislature, (3) Anglo-American law as opposed to European civil law, which is derived from Roman law, and (4) law that is sufficiently linked to the sort of law historically enforced in common-law courts as opposed to the sort of law historically enforced in so-called courts of equity. But once courts conclude — and rightly so, I think — that “common law” in the Seventh Amendment is rightly understood using definition 4, they don’t then also bring in the other definitions.

“Congress shall make no law respecting an establishment of religion” has long been understood to mean “no law with reference to establishment of religion” [UPDATE: i.e., either an establishment of a national religion or an interference with state establishments of religion] and this understanding of the word “respecting” was pretty clearly the understanding at the time of the Framing (as well as the Fourteenth Amendment). Compare, for instance, article IV, sec. 3, cl. 2 (emphasis added): “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.” Or compare the uses of the word “respecting” in the Federalist. That doesn’t tell us just what qualifies as a law that is with reference to establishment of religion [UPDATE: nor does it tell us how the Fourteenth Amendment should affect all this]; but it does give us a general sense of the meaning of “respecting,” though not the meaning of “establishment of religion.”

What reason is there to then read “no law respecting an establishment of religion” as also having the “richer” meaning of “no law that expresses reverence for religion” (omitting the phrase “establishment of” before “religion”)? I see none, other than an interpreter’s preference for the particular result.

The Court just agreed to hear Town of Greece v. Galloway, a case involving legislative prayer. In Marsh v. Chambers (1983), the Supreme Court upheld legislative prayers against an Establishment Clause challenge, based on the very long American tradition of such prayers (dating back to the same First Congress that proposed the Establishment Clause); nonetheless, the scope of Marsh is unclear, and in particular it’s unclear to what extent legislative prayers might be seen as unconstitutionally preferring a particular religion or denomination.

Or that at least is the narrow question raised by the case. But I think it’s also possible that the Court may use the case as a means of reconsidering the “endorsement test,” under which the Establishment Clause is read as barring government speech (or even government action) that a “reasonable observer” would see as “endorsing or disapproving” of religion (either a particular religion or religion generally). The test has long been controversial; it was relied on by the decision below, so it’s very much in play in this case; and I suspect that there are five votes to overrule it. (Justices Kennedy, Scalia, and Thomas are on the record as rejecting it, and I suspect Chief Justice Roberts and Justice Alito take a similar view.) Should be a very interesting decision, which will be out in the first half of next year.

The proposed law, Senate Bill 323 seems pretty clearly aimed at the Boy Scouts, who would lose the exemption unless they reject both their policy against gays and their requirement of belief in God. The sales/use tax exemption is likely not a very big deal for the Scouts, but I take it that there might well be similar proposals with regard to the nonprofit property tax exemption, the charitable institution income tax exemption, and the tax deductibility of contributions to such institutions. (I assume the argument would be, “We already strip these groups of the sales tax exemption, how are the newly proposed property tax/income tax exemptions any different?”)

I doubt that this is a good idea, but I do think it is constitutional: As I’ve argued in my Freedom of Expressive Association and Government Subsidies (2006) that such proposals are constitutional, notwithstanding the groups’ expressive association rights — just as the government may refuse to subsidize, for instance, constitutionally protected abortion, lobbying, or electioneering, so it may refuse to subsidize constitutionally protected expressive association decisions. The Court’s decision in Christian Legal Society v. Martinez (2010) strengthens that argument. And the Court has long held (see, e.g., Taxation With Representation v. Regan (1983)) that tax exemptions are tantamount to subsidies for Free Speech Clause purposes. If this proposal is defeated, it would likely have be to defeated in the political process, not in court. So far, it has cleared a State Senate committee.

Thanks to Nick Lum for the pointer.

From McCarthy v. Fuller (7th Cir. Apr. 10, 2013), an interesting opinion by Judge Posner (some paragraph breaks added), with the first appearance of “exclaustration” in a Westlaw-accessible American court decision:

These three interlocutory appeals arise from a complicated and acrimonious litigation, charging RICO, trademark, and copyright violations along with Indiana torts, that has been percolating in the district court for almost five years. The origins of the litigation go back to 1956, when Sister Mary Ephrem ..., a Catholic Sister of the Congregation of the Sisters of the Most Precious Blood of Jesus ..., had experienced a series of apparitions of the Virgin Mary, in the course of which Mary had told Sister Ephrem (according to the latter’s report): “I am Our Lady of America.”

The Archbishop of Cincinnati ... was convinced of the truth of her report of the apparitions, and with his support an elaborate program of devotions to Our Lady of America was launched. Our Lady has been credited with healing sick people who appealed to her for a cure, although whether either the apparitions or the cures are authentic has not been ruled on by the Congregation for the Doctrine of the Faith, the body within the Roman Catholic hierarchy that is responsible for making such determinations.

Perhaps inspired by her visions, Sister Ephrem joined with other sisters within the Congregation of the Sisters of the Precious Blood in seeking to form a “contemplative cloister” — a “strictly cloistered house for members of the [Congregation] who were principally dedicated to a contemplative life.” In 1965 Pope Paul VI approved the creation of the cloister, in New Riegel, Ohio, designating it a “papal enclosure.” ... The New Riegel cloister lasted until at least 1977, when its three surviving members, including Sister Ephrem and Sister Mary Joseph Therese, left the Congregation of the Sisters of the Precious Blood and formed a new congregation that they called the Contemplative Sisters of the Indwelling Trinity, dedicated to promoting devotions to Our Lady of America....

[Eventually] Sister Ephrem willed all her property to Sister Therese [referred to in the litigation by her birth name, Patricia Fuller]. In 2005 Kevin McCarthy, a lawyer and Catholic layman, and Albert H. Langsenkamp, who claims (whether truthfully or not is in dispute) to be a Papal Knight of the Holy Sepulcher, approached Fuller and offered to help her with the devotions to Our Lady of America. She accepted their offer and the three worked together until 2007, when they had a falling out that erupted the following year into this bitter lawsuit....

McCarthy and Langsenkamp brought this suit against Fuller charging all manner of tortious conduct, including conversion (theft) of both physical and intellectual property, fraud, and defamation. Fuller counterclaimed vigorously, accusing them of the same things, including theft of the statue of Our Lady of America and of the website of Our Lady of America Center, and of defaming her by calling her a “fake nun.” ...

[McCarthy] contests the claim of defamation by denying (among other things) that he lied in saying Fuller is not a nun. Whether or not that’s accurate (given the uncertainty that we noted concerning the precise meaning of “nun” in the Catholic religion), calling her a “fake nun” could readily be understood to deny that she had any religious vocation whatsoever — and in fact McCarthy does deny this, and obtained from the Apostolic Nunciature of the Holy See a statement that Fuller is no longer either a nun or a religious sister. Located in the Vatican, the Holy See is the central governing body of the Roman Catholic Church, and the Apostolic Nunciature is the Holy See’s diplomatic mission to the United States.

McCarthy asked the district judge to take judicial notice of (and thus defer to) the Apostolic Nunciature’s statement of the Holy See’s ruling on Fuller’s status in the Church. McCarthy’s ground was that the court, being a secular body, could not reexamine the Holy See’s ruling but must accept it as authoritative. The judge refused ....

A secular court may not take sides on issues of religious doctrine. The district judge in this case has ruled that a federal jury shall decide whether Patricia Fuller is a member of a Roman Catholic religious order, though if the jury decides that she is it will be rejecting the contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters.

Continue reading ‘Canon Law in American Courts, or, Real Nun or Fake Nun?’ »

A bunch of readers pointed me to a North Carolina bill that would express the legislators’ view that the Establishment Clause shouldn’t be seen as applicable to the states, so I thought I’d offer some general thoughts about the subject. Here is the bill, in relevant part:

The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

Recall that the Bill of Rights originally didn’t apply to the states, and indeed several states (not including North Carolina) had official establishments of religion at the time the Bill of Rights was enacted, with the last being disestablished in the 1830s. It’s the Fourteenth Amendment that has been read as applying the Bill of Rights to the states, through its statement that “nor shall any State deprive any person of life, liberty, or property, without due process of law,” though many scholars and some judges have argued that the incorporation should have taken place through another clause of the Amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

And a few scholars and judges have indeed argued that this language should not be read as incorporating the Establishment Clause; the most prominent examples have been Justice Thomas and Prof. Akhil Amar. The chief argument for this view is that the Establishment Clause was originally understood as a federalism guarantee, with the ban on federal laws “respecting an establishment of religion” meaning that the federal government could neither establish a national religion nor disestablish (or otherwise modify) state establishments of religion. Another possible argument is that the Establishment Clause differs from most Bill of Rights guarantees in that much action that is seen as violating the Establishment Clause — such as government endorsement of religious messages and symbols — doesn’t deprive anyone of liberty, or abridge any citizen’s privileges or immunities. (Action that does directly implicate people’s liberty, such as coercion of religious practice, might be prohibited by other provisions, such as the Free Exercise Clause and Free Speech Clause, which have been relatively uncontroversially incorporated against the states; likewise, action that denies people tangible benefits based on their denomination or their irreligiosity might be seen as prohibited by the Free Exercise Clause or the Equal Protection Clause.) The North Carolina legislators seem to be siding with this position.

Of course, state law can’t trump federal court decisions on this, and if a federal court orders state officials to (for instance) discontinue certain kinds of prayers at the start of city council meetings, or to remove some monument, state officials will still have to follow such a court order. And if the “does not recognize federal court rulings” language proposal is read as a call for outright disobedience of court orders on such matters, that would be bad. In theory, government officials’ disobedience of court orders may be proper, in cases of extreme moral urgency, despite the damage that such disobedience does to the rule of law; but it’s hard for me to see this as such a case.

But if that language means that the legislators aren’t actually trying to call for refusal to enforce court orders, but are just trying to get the North Carolina Legislature to express its view that the decisions incorporating the Establishment Clause are unsound and even illegitimate, then the proposal becomes just a political statement in favor of the “Establishment Clause is not incorporated” position. The legislators’ hope, under this reading, would be that over time this stance — presumably coupled with similar stances in other states — will influence the Supreme Court to change its view.

The proposal would thus be part of a conversation about what the law ought to be, a conversation in which the Supreme Court generally has the final legal voice (subject to the Article V amendment process, the President’s power to nominate new Justices, and similar constraints) but in which it rightly can’t have the final political voice. And there are plausible original meaning arguments and plausible political morality and prudence arguments in favor of the “no incorporation of the Establishment Clause” view, though of course also plausible arguments against that view. (As a policy matter, I think the country would be better off without legislative prayers, and even without “under God” in the Pledge of Allegiance and Ten Commandments monuments. But I’m not sure that the country is better off as a result of the federal courts’ decision to police such matters, especially at the state and local level — it may well be that the incorporation of the Establishment Clause, especially as to government speech, has caused more religious tension than it has prevented.)

UPDATE: I originally said “several states (not including North Carolina) had official establishments of religion until the 1830s,” but a commenter correctly pointed out that, though several states had official establishments after the Bill of Rights, only one — Massachusetts — endured into the 1830s.

Co-blogger Eugene Volokh recently linked to a Virginia state court decision striking down as unconstitutional a state law that allowed religious societies without official clergy to designate only one member as having the power to perform wedding ceremonies, while religious groups that do have clergy can designate more. The court concluded that the First and Fourteenth Amendments bar this law because “The General Assembly [Virginia's state legislature] cannot favor one type of religion over another without a compelling government interest and a narrowly tailored method.”

I think the same reasoning should lead to the invalidation of another form of religious discrimination in the marriage law of our beloved Commonwealth, which I blogged about in this 2009 post:

My fiancee and I are not religious, and we plan to have our wedding performed by Judge Jerry Smith of the Fifth Circuit, the federal judge I clerked for. Unfortunately, however, Judge Smith lives in Texas. This would be fine under state law if he were a minister or other religious leader; but secular wedding officiants must be state residents.

Virginia law allows any minister of a religious denomination to perform a wedding, even if he or she is not a resident. The same applies to religious leaders of faiths that don’t have any official ministers. Similarly, state law allows any Virginia resident to perform a wedding if he posts a bond, and permits federal and state judges resident in Virginia to officiate even without posting a bond. However, Virginia does not allow out-of-state judges or any other nonresident secular personages to officiate. Thus, we have a clear case of discrimination on the basis of religion. Nonresident ministers and other religious leaders can perform weddings in Virginia; but nonresident secular leaders cannot. This holds true even if the secular figure and the religious one are exactly identical in every respect other than the fact that one is religious and the other is not (e.g. – if they are equally skilled at performing weddings, have the same high standing in their respective communities, and so on).

Under the Equal Protection Clause of the Fourteenth Amendment, courts strike down state laws that discriminate on the basis of religion unless the law in question passes “strict scrutiny.” To overcome the strict scrutiny hurdle, the state would have to show that the religious classification was “narrowly tailored” to the promotion of a “compelling state interest.” Without going into an exhaustive analysis, I think it highly unlikely that the Virginia marriage law can meet this standard. No good purpose is served by categorically forbidding the performance of marriages by nonresident secular figures, much less a “compelling state interest.”

In the end, my then-fiancee and I didn’t sue, and instead got married in the District of Columbia (in large part because she preferred a site in the District over the Virginia sites we looked at). But had we sued, I think we should have prevailed under the same reasoning as in the case noted by Eugene. The only difference between the two cases is that in one the state is discriminating in favor of some religious officiants relative to others, while in the other it is discriminating in favor of out-of-state religious officiants relative to out-of-state secular ones. But discrimination in favor of the religious against the secular is still clearly discrimination on the basis of religion, and thus subject to strict scrutiny. As the Supreme Court explained in Torcaso v. Watkins (1961), “[N]either a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion.’ Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers.” (emphasis added).

Hopefully, someone else will challenge this small but annoying example of unconstitutional religious discrimination in Virginia marriage law.

Scotland is considering a new law that would grant official recognition to wedding ceremonies performed by practitioners of the new “Jedi” religion:

The Force is strong with the Jedi in Scotland. A bill under consideration in Scotland would grant those who have literally made “Star Wars” a religion the power to perform marriage ceremonies.

The BBC reports that the Marriage and Civil Partnership Bill would apply to other nonreligious groups such as the Flat Earth Society and the Jedi Knights Society, aka Temple of the Jedi Order.

And while it may sound like a joke to most, the Jedi religion is quite popular in some parts of Europe. In England, it is the second-most popular “alternative religion,” with more than 175,000 people listing themselves as Jedi in the 2012 nationwide census.

“Our current consultation covers not only the introduction of same-sex marriage but also the detail of important protections in relation to religious bodies and celebrants, freedom of speech and education,” a Scottish government spokeswoman said.

“At the moment, marriage ceremonies by bodies such as humanists have been classed as religious, even though the beliefs of such organizations are nonreligious....”

The Scottish government plans to hold a public consultation on the bill and, of course, not all traditionally religious groups are happy about creating a new category for ceremonies that are by their very nature, arguably, a religious practice.

“There are loads of people in a diverse society like this for whom belief can mean virtually anything—the Flat Earth Society and Jedi Knights Society—who knows?” the Rev. Iver Martin told the BBC.

“I am not saying that we don’t give place to that kind of personal belief, but when you start making allowances for marriages to be performed within those categories, then you are all over the place.”

For their part, the Jedi say the very nature of their beliefs would prevent them from tarnishing any other religious institutions.

“We believe in Peace, Justice, Love, Learning and using our abilities for Good so it’s unlikely that our way conflicts with your beliefs and traditions,” reads a statement on the group’s website.

The Jedi faith may now be the fourth largest religion in Britain, though there is some question as to whether it’s really a religion, as opposed to a secular philosophy.

Despite the objections of the Reverend Iver Martin, I don’t see the problem with letting them perform officially sanctioned weddings. Most liberal democracies already allow wedding ceremonies performed by every conceivable religious group, as well as purely secular ones. Western civilization can easily survive having a few ceremonies performed by Jedi Knights, especially if The Force is truly with them.

Still, the fact that the possible legalization of Jedi weddings in Scotland is an outgrowth of a bill intended to legalize gay marriage might reinforce claims that gay marriage leads to a dangerous slippery slope. If we allow gay marriage, we will end up legalizing Jedi weddings, and weddings performed by Sith Lords wielding the power of the Dark Side can’t be far behind. To paraphrase Darth Vader, “[t]he ability to destroy a planet is insignificant next to the power of the Force to perform weddings”!

So claim the plaintiffs in Hartmann v. California Dep’t of Corrections & Rehabilitation (9th Cir. Feb. 19, 2013), and the Ninth Circuit let the case go forward:

Plaintiffs allege that the Policy violates the Establishment Clause because it “favor[s] some religions over others on a preferential basis.” They further assert that defendants do not apply any “neutral, equitable, and unbiased criteria” to determine chaplain hiring needs or other religious accommodations for inmates of various faiths. They submit that there are more inmates practicing the Wiccan religion at CCWF [the Central California Women's Facility] than there are practicing Jewish, Muslim, and Catholic inmates at CCWF. Yet, they claim that chaplaincy positions are available for the benefit of Jewish, Muslim, and Catholic inmates but not for Wiccan inmates.

Prison employment of full-time chaplains to assist inmates in their religious exercise is a permissible accommodation within the established parameters of the First Amendment. Unlike Plaintiffs’ claims that the Policy deprives them of a “reasonable opportunity” to practice their religion and imposes a “substantial burden” on their religious exercise, their Establishment Clause claim asserts that the Policy constitutes an unconstitutional endorsement of one religion over another. Accepting Plaintiffs’ allegations as true, the prison administration has created staff chaplain positions for five conventional faiths, but fails to employ any neutral criteria in evaluating whether a growing membership in minority religions warrants a reallocation of resources used in accommodating inmates’ religious exercise needs. While federal courts refuse, “even where claims are made under the First Amendment, to substitute [their] judgment on ... difficult and sensitive matters of institutional administration, for the determinations of those charged with the formidable task of running a prison,” a prison administration accommodating inmates’ rights under the First Amendment must do so without unduly preferring one religion over another.

The court is not making a finding that there would necessarily be a violation of the Establishment Clause. Such a finding can only be made in light of all the circumstances surrounding the defendants’ decisions. On remand, Plaintiffs must actually prove their allegations. For example, at a minimum, a court would have to ascertain whether paid staff chaplains work only at the CCWF or are required to travel to other prisons, jails, and correction facilities in the State. The allegations in Plaintiffs’ complaints suggest the former, but evidence presented during discovery may suggest that the latter is the case.

Another example of evidence relevant to an Establishment Clause violation would be a survey of inmate religious affiliation in the CCWF prison population and the broader CDCR [California Department of Corrections & Rehabilitation] prison population. Such a survey is prominently mentioned in [an earlier decision], which is discussed in footnote 4 of this opinion. If such a yearly survey was conducted and filed as a public document, the district court could take judicial notice thereof, or the parties could include such a survey in their papers. We recognize that this comes to us as a decision on the pleadings and that the defendants may have such proof, but it has not been made a part of the record.

Note that, according to the footnote 4 mentioned in the excerpt, a survey of inmates in California prisons generally “indicated 42,666 Protestant inmates, 28,884 Muslim inmates, 23,160 Catholic inmates, 8,296 Native American inmates, 3,296 Jewish inmates, 183 Wiccan inmates, and 2,678 inmates identified as ‘other.’” This suggests that, if the chaplains are indeed hired on a system-wide basis and are supposed to also serve other jails, then the lack of Wiccan chaplains might be quite justifiable. (Earlier, the court notes that the Free Exercise Clause doesn’t require the government to provide chaplains for each denomination represented in the prisons, so the only question here is whether the government is deliberately preferring some denominations over others, out of proportion to inmate needs.)

The Daily Mail (UK) reports:

A muslim who raped [in the sense of statutory rape -EV] a 13-year-old girl he groomed on Facebook has been spared a prison sentence after a judge heard he went to an Islamic faith school where he was taught that women are worthless.

Adil Rashid, 18, claimed he was not aware that it was illegal for him to have sex with the girl because his education left him ignorant of British law.

Yesterday Judge Michael Stokes handed Rashid a suspended sentence, saying: ‘Although chronologically 18, it is quite clear from the reports that you are very naive and immature when it comes to sexual matters.’

Earlier Nottingham Crown Court heard that such crimes usually result in a four to seven-year prison sentence.

But the judge said that because Rashid was ‘passive’ and ‘lacking assertiveness’, sending him to jail might cause him ‘more damage than good’.

Earlier the court heard how Rashid had ‘little experience of women’ due to his education at an Islamic school in the UK, which cannot be named for legal reasons....

In ... interviews with psychologists, Rashid claimed he had been taught in his school that ‘women are no more worthy than a lollipop that has been dropped on the ground’. ...

[The sentencing judge] said that Rashid knew what he was doing was wrong.

‘It was made clear to you at the school you attended that having sexual relations with a woman before marriage was contrary to the precepts of Islam,’ he said....

My quick thoughts:

1. In the abstract, while ignorance of the law is generally not a defense to a crime (an oversimplification, but one that’s apt here), it might sometimes play a proper role in sentencing. For instance, to the extent that one is sentencing a person to incapacitate him from committing future crimes, or to specifically deter him from committing future crimes, one might treat differently (A) someone who did the act knowing it was a crime from (B) someone who didn’t know the act was a crime. Person B, under the right circumstances, might be quite willing to change his ways simply because he learns that the conduct is illegal; one can’t say the same about person A.

One can see that especially clearly as to minor offenses that vary from place to place or are just not widely known, whether we’re talking about sentencing or just law enforcement discretion. If you’re busted for turning right on red in a place where that’s forbidden, and the police officer sees from your license that you’re from a place where it’s allowed, it might make sense for the officer to give you a break. You can imagine the same as to sentencing for regulatory offenses where the defendant seems otherwise law-abiding, and seems likely to abide by this law as well, now that he knows it.

2. This having been said, when the legal system sees the offense as serious enough — and inherently serious — there ought to be some substantial punishment just as a matter of retribution, and not just incapacitation or special deterrence of this particular offender.

3. This is especially so when there aren’t separate indications that this is an otherwise highly law-abiding person who has just made an error, or when the person’s own defense suggests a propensity for serious misbehavior (as the “women are no more worthy than a lollipop that has been dropped on the ground”); there, punishment for incapacitation or special deterrence might be quite useful. To be sure, we don’t deliberately treat people as guilty just because they hold reprehensible moral beliefs, or lack evidence of being generally law-abiding. But if a person is guilty of the crime, and seeks lenient treatment on the grounds that a harsh sentence isn’t really needed, then looking at his broader character is relevant to evaluating just how dangerous he is, and how much of a lesson he needs.

4. Finally, when the claim is “I didn’t know because I was raised in an insular community,” there is reason for punishment precisely to send a message to members of insular communities (and leaders of those communities) that they need to work harder to learn the important commands of the legal system. Conversely, cutting slack to people who don’t know the law because they grew up in an insular community — or to people who claim not to know the law for this reason — reinforces the tendency of many in insular communities to focus more on following the norms of their community than trying to learn and abide by the norms of society.

From Wallace v. Conagra Foods, Inc. (D. Minn. Jan. 31, 2013):

This case arises out of Defendant’s representations that its Hebrew National products are “100% Kosher.” In particular, Plaintiffs claim that Defendant misrepresented its Hebrew National products as being made from “Premium cuts of 100% Kosher Beef.” Defendant’s website further states that the Triangle K symbol utilized on its Hebrew National products “signifies ‘kashruth’ (kosher) as defined by the most stringent Jews who follow Orthodox Jewish Law.” [Footnote: Triangle K is the organization “responsible for the overall supervision of the kosher processing activities at multiple beef processing facilities....”]

Plaintiffs assert that Defendant, through its contractors (Triangle K and AER), failed to slaughter cattle used in its products in compliance with “objective” standards, as set forth by Triangle K and AER, that must be followed as required by the tenets of Kashrut. Specifically, Plaintiffs state that the animals and meat used in Defendant’s Hebrew National products have not been consistently inspected, slaughtered, cleaned, and segregated in the manner “required to be considered kosher under the standard Defendant represents to the public.” In their Amended Complaint, Plaintiffs provide a detailed account of the ways in which Defendant and its contractors (Triangle K and AER) have failed to follow such procedures. Thus, Plaintiffs allege that “the representation on Hebrew National products that they are 100% kosher pursuant to the standard Defendant represents is inaccurate and misleading.” ...

Plaintiffs’ Amended Complaint asserts the following causes of action against Defendant: (1) Negligence; (2) Violation of Nebraska Uniform Deceptive Trade Practices Act; (3) Violation of Nebraska Consumer Protection Act; (4) Violation of State Consumer Protection Laws; and (5) Breach of Contract....

While the Court finds the allegations in the Amended Complaint highly disconcerting, the Court lacks the subject matter jurisdiction required in order for it to adjudicate Plaintiffs’ claims on the merits.

“The First Amendment ‘severely circumscribes’ the role that civil courts may play in resolving disputes touching on matters of faith.” “Civil court review of doctrinal matters inhibits free exercise of religion and usurps the power of religious authorities” to resolve matters purely of religious concern. As such, Supreme Court precedent has firmly established the principle that civil courts may not be called upon to interpret doctrinal matters or tenets of faith. See Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976) (recognizing “the general rule that religious controversies are not the proper subject of civil court inquiry”); see also Kaufmann v. Sheehan, 707 F.2d 355, 359 (8th Cir.1983) (“Milivojevich and its underlying rationale prevent this court from deciding what are inherently religious issues.”); Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 363 (8th Cir.1991) (determining that a review of personnel decisions by church-affiliated institutions affecting clergy “would require the courts to determine the meaning of religious doctrine and canonical law and to impose a secular court’s view of whether in the context of the particular case religious doctrine and canonical law support the decision the church authorities have made”). Adjudication of Plaintiffs’ claims in this case would clearly require a review of doctrinal and religious matters.

Plaintiffs assert that Defendant’s method of cattle slaughter, as carried out by its AER contractors, violates several tenets of Kashrut. Plaintiffs suggest that Defendant has failed to comply with a somehow “objective” standard of kosher slaughter as defined by Triangle K and AER. The laws of Kashrut, however, and the determination of whether a product is in fact “kosher,” are intrinsically religious in nature. Any judicial inquiry as to whether Defendant misrepresented that its Hebrew National products are “100% kosher” (when Triangle K, an undisputedly religious entity, certified them as such) would necessarily intrude upon rabbinical religious autonomy. “An examination of the gradations in the rules” of Kashrut or the “severity with which the rabbis enforced those rules is precisely the type of religious-based claim the Court is forbidden from entertaining.” Such an inquiry would be “akin to evaluating ‘the conformity of the members of a church to the standards or morals required of them,’ which has long been forbidden.”

Notably, Defendant is a secular entity, and Plaintiffs appear to concede that Defendant is not responsible for making kosher determinations with respect to the meat it uses in its Hebrew National products. For better or for worse, Plaintiffs made the tactical decision to leave Triangle K (the organization whose Orthodox rabbinical authority granted Defendant’s Hebrew National products kosher certification) and AER (the entity whose employees are responsible for performing the kosher slaughters) out of this lawsuit. [Footnote: The Court expresses no opinion as to the validity of any claims Plaintiffs may have against Triangle K or AER or whether such claims would be justiciable.] Importantly, however, for purposes of Defendant’s advertising and labeling, Defendant relies on Triangle K for its certification that Defendant’s Hebrew National products are kosher.

Plaintiffs contend that, as opposed to the religious doctrine and ideological standards of Orthodox Judaism, a system of quotas determines what meat, and how much of it, will be certified as kosher. [Footnote: In particular, Plaintiffs allege the following: "Pressure is put on the employees inspecting and slaughtering the cows to maximize kosher meat production by slaughtering unclean cows. Further, certain quotas are applied at the AFG facilities to ensure than a certain predetermined amount of the total cattle population (approximately 70%) brought to the AFG facility for slaughter produces kosher meat to provide Defendant. By setting artificial, pre-determined quotas, the kosher inspection process becomes defective and unreliable. Because of these quotas, meat from cows that should not qualify for kosher certification ends up being marked kosher and used in Hebrew National products.E"] ven assuming Defendant applies pressure to Triangle K to certify a certain percentage of meat as kosher, if any fraud has actually taken place with respect to the certification of Hebrew National Products as kosher, such fraud would be on the part of Triangle K, if Triangle K intentionally certified meat as kosher while knowing that it failed to meet Triangle K’s own stated requirements for certification.

Moreover, to the extent Plaintiffs allege that AER employees reported many of the “transgressions” that occur at Defendant’s AFG facilities, that information was reported directly to Triangle K rabbis (Rabbi Aryeh Ralbag and Rabbi Moshe Fyazakov) and AER managers (Mashgichim); yet, according to Plaintiffs, the transgressions continued. There is no allegation, however, that Defendant itself makes any determinations as to whether the animals slaughtered at its AFG facilities satisfy the laws of Kashrut. Rather, as Plaintiffs acknowledge, Defendant “contracts with third-party kosher certification agency Triangle K to provide kosher food supervision and certification services.” It is Triangle K and its Orthodox rabbis who make such determinations. Naturally, therefore, this Court cannot determine whether Defendant’s Hebrew National products are in fact kosher without delving into questions of religious doctrine.

CONCLUSION

The definition of the word “kosher” is intrinsically religious in nature, and this Court may not entertain a lawsuit that will require it to evaluate the veracity of Defendant’s representations that its Hebrew National products meet any such religious standard. Because all of Plaintiffs’ claims derive from Defendant’s alleged misrepresentation that its Hebrew National products are “100% kosher,” all counts of the Amended Complaint are barred by the First Amendment. The Court finds that it lacks the requisite subject matter jurisdiction to preside over this dispute. Therefore, the Amended Complaint is properly dismissed in its entirety.

The Court recognizes that the laws of Kashrut and other issues of Biblical and Talmudic interpretation are quite properly the subject of rabbinical debate and have evolved over the course of many centuries. While perhaps perplexing, any change in Rabbi Ralbag’s, or Triangle K’s, position with respect to whether or not a common standard set of “objective” requirements for kosher slaughter exists is immaterial for purposes of the Court’s analysis here. Regrettably, however, the Court recognizes that its decision likely leaves consumers without a remedy — save opting not to purchase or ingest Defendant’s Hebrew National products, or other products certified by Triangle K — hould the allegations in the Amended Complaint prove true. Nevertheless, whether such products are indeed “100% kosher” is a religious question that is not the proper subject of inquiry by this Court.

Seems quite right to me; see this post for a related story from 2002.

From Katz v. Katz, 2013 WL 150262 (N.Y. Sup. Ct. Kings Cty. Jan. 11):

This is a dispute between two (2) parents, who have until now been able to recognize and resolve any differences relating to the child, who is seven (7) years old. The mother wishes to travel with the child to Israel to attend, on January 23, 2013, the wedding of Moshe Labin, the child’s maternal uncle, to Miriam Yitty Teitelbaum. The mother described this wedding as a significant event within the Satmar community because Miriam Yitty Teitelbaum is “the daughter of a very famous and influential rabbi and this wedding will be a most momentous event in Israel.” ...

The father’s counsel annexed the affirmation of Rabbi Chaskel Teitelbaum dated December 31, 2013, to his responsive papers. In Rabbi Chaskel Teitelbaum’s affirmation dated December 31, 2013, he states:

1. I am a Rabbi of the Synagogue for the Synagogue for the Congregation Yetev Lev D’Satmar Inc., located at 165 Clymer Street, Brooklyn, N.Y. 11211. Our Synagogue observes the religious beliefs of the Ultra–Orthodox Satmar Community and follows the teachings of our leader, the father of pure Judaism in America Grand Rabbi Joel Teitelbaum, the founder of the Ultra–Orthodox Satmar Community in the U.S. (the “Grand Rabbi”).

2. I am familiar with [the child] because he attends my Synagogue on Clymer Street in Brooklyn, has been raised as Ultra–Orthodox Satmar (“Satmar Hasidism”) and taught to follow the teachings of the Grand Rabbi.

3. At the core of Grand Rabbi’s teachings is his belief that the State of Israel (the “State”) and the Zionist idea upon which the State is built on, constitutes an absolute denial of all the central tenets of our faith in G-d and the Holy Torah. Observers of Satmar Hasidism belive as the Holy Torah says that Jews are nation, that G-d, the G-d of Israel is the King and we are His servants, His chosen nation, He took us out of Egypt, He gave us the land of Israel and then He exiled us amongst the nations because of our sins, and only He shall redeem us and gather us back to Israel through the Messianic King.

4. In Stark contrast, Zionism denies those teachings in the Torah and declares that Jewish people are like all other nations. Jews too have power to arm themselves to wage war, demand rights, and to free themselves from the exile through building the State of Israel.

5. As a result, our great Grand Rabbi opposed any travel to the State of Israel because of the spiritual influence and impression that a visit to the State would create by seeing the glory and splendor of institutions that do not follow the views of our great Grand Rabbi.

... Rabbi Chasekel Teitelbaum [who is the father's uncle] states that it is clear that “an impressionable child being raised as Ultra–Orthodox Satmar should not be traveling to the State of Israel” because the “child is at risk of having his religious beliefs undermined by the splendor of the State, the splendor of those communities that do not follow the Grand Rabbi’s approach.” Rabbi Chssekel Teitelbaum states that travel to Israel would confuse the child and “would be against [the child's] best interests because he is too young to understand the differences that he will be exposed to in Israel, which oppose the foundations of his faith and the education that the Child has received until now”....

The mother posits that the wedding is a significant event in their community and that it is important that she and the child travel to Israel. The mother notes that the father himself has traveled to Israel. The father acknowledges that he has traveled to Israel on three (3) occasions, and as recently as within the last 12 months, but that each time he traveled to Israel it was in his adult life, not as a child.

The judge’s ruling:

Whether the [parties'] agreement is valid and thereby the parties have joint custody but cannot reach an agreement on the limited issue of this child’s travel to Israel or the agreement is not valid and the issue is before this court de novo, under these particular facts and circumstances, the applicable standard is the best interest of the child....

The attorney for the child, who met with his client on one (1) occasion with the assistance of a Yiddish interpreter supplied by the mother, has taken the position, on behalf of his client, that his client would miss the mother if she were to travel to Israel, but that he was experiencing serious and significant confusion and concerns about a child of his community being in Israel.

The Court need not at this juncture examine whether or not the concerns were based upon fact or not, or where the child obtained information which has led to serious confusion. Certainly, those issues can be explored during a trial after forensic evaluations of the parties and the child and an in camera interview of the child. At this juncture, it is not in this child’s best interest to require him to travel to Israel for a celebration; the emotional risk to him outweighs any benefit that conceivably would be derived from the experience. Furthermore, the mother did not demonstrate any serious adverse affects that would be contrary to the child’s best interests if he were to stay with the father during the time that the mother traveled to Israel for her brother’s wedding from January 19, 2013 to January 30, 2013. The mother has failed to meet her burden that a temporary order of custody for the purpose of travel would be in the child’s best interest.

The Court notes that the parties had chosen not to litigate the issue in a civil proceeding until now [the initial application was filed Dec. 5, 2012 -EV], that delay and the decision not to commence a civil lawsuit places them both in a position of first having to commence the custody issue in its present context. Parties are permitted to chart their own course when deciding to commence a civil divorce proceeding, but there are necessary delays that may ensue if that decision to litigate has been delayed by their action[.]

Several months ago, the South Dakota Legislature enacted this law:

No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.

My question: What exactly does it mean to “enforce any provisions of any religious code”? If the law is (A) limited to barring courts from enforcing religious law because it’s religious law (e.g., “because the defendant is a Muslim, we will apply Islamic law to him”) or from interpreting contracts or wills that call for application of religious law (e.g., “interpret this prenuptial agreement according to Jewish law”), then I suspect that the law is merely duplicative of existing law. Courts already can’t enforce religious law just because it’s religious law, or interpret religious law even when interpreting an contract or a will (though there’s some dispute about that).

But if the law (B) bars courts from enforcing statutes that mirror a religious prohibition, foreign laws that mirror a religious prohibition, or terms in contracts or wills that mirror a religious prohibition, then it would be much broader: It would, for instance, invalidate wills that provide that each son inherit twice what each daughter inherits, when that’s intended to follow Islamic law. It would invalidate contracts that are structured in order to comply with Islamic law prohibitions on paying interest. It would invalidate contracts or covenants that bar the sale of alcohol on certain property, when that’s intended to follow either Christian beliefs (to the extent that they are seen as forming a “religious code”) or Muslim beliefs.

It would render unenforceable contracts that provide that disputes be resolved using religious arbitration, whether Christian or Jewish, if those contracts are intended to follow perceived Christian or Jewish religious obligations not to have one’s disputes resolved by outsiders. And it might render invalid foreign divorces that were entered by Sharia courts, as they are both in countries that generally follow Sharia and also in countries (such as Israel, India, and Lebanon) that follow the millet system, under which family law matters are handled by the religious courts of the religion to which the family belongs. (Or would such recognition of foreign divorces not constitute enforcement of the legal system that created them?)

I’m inclined to think that the most sensible interpretation of the provision, both based on its text and its consequences, is the one I label (A); but the trouble is that this might well make the law entirely redundant of existing law. So I wanted to get readers’ sense — do you think the law should be read under interpretation (B), or perhaps under some third interpretation? I ask partly because I’ll be giving a talk on this general subject in a couple of months, and possibly writing an article on it as well.

UPDATE: Some commenters suggested that I look at the discussion of the law in the South Dakota Legislature. I’m not sure how much weight such discussions should have, given that they at most reveal the views of the few legislators who have spoken, and for that reason some judges refuse to pay attention to such floor statements altogether, and others pay little attention to them (though still others sometimes pay a good deal of attention to them).

This having been said, I did look this up — audio of South Dakota legislative hearings is fortunately available online — and here’s what I saw from the Representative who introduced the law, Roger Hunt: (1) Part of the purpose of the bill is to codify a South Dakota Supreme Court decision (Wipf v. Hutterville Hutterian Brethren) — and U.S. Supreme Court decisions along the same lines — that courts generally can’t interpret religious doctrine in resolving disputes, especially intrachurch disputes. (2) Another part is “to deal with what I’m going to say generally has been referred to as Sharia Law.” (3) The law is not supposed to limit religious arbitration, or presumably the enforceability in secular courts of the decisions of religious arbitral tribunals. Here’s a relevant quote on the Sharia question, from the House Judiciary hearing:

[2:30:15] Part of the purpose of 1253 is to deal with what I’m going to say generally has been referred to as Sharia Law.... [2:31:02] [O]ur code does address how we treat foreign laws, but it obviously doesn’t take care of all issues and all questions, and so 1253 will in essence accomplish, in my opinion, two things — it helps to codify the decision of the Supreme Court [essentially holding that courts may not interpret religious law in resolving church disputes] and secondly, it also gives us the provision needed to in essence deal with religious codes that might be sought to be utilized and enforced in the State of South Dakota. I want to emphasize the fact that we have purposely left out reference to arbitrator and arbitration, because we want any religious groups to be able to utilize that type of mechanism in order to resolve their responsibilities within their particular group.

The Telegraph (UK) reports:

Turkey’s Supreme Board of Radio and Television (RTUK), the state broadcasting regulator, levied [an approximately $30,000] fine on the cartoon’s Turkish broadcaster for airing an episode on September 20 that was found to be insulting to religion ....

In one segment of the episode, titled “Dial D for Diddly”, the religiously-devout character Ned Flanders goes on a killing rampage after being given orders by what he thinks is the voice of God. Later in the episode, the Devil demands God bring him a cup of coffee. “Yes sir,” God responds, revealing it is actually the Devil that runs the world.

RTUK stated that the episode shows “one of the characters is abusing another one’s religious beliefs to make him commit murders.

The Bible is publicly burned in one scene and God and the Devil are shown in human bodies.”

RTUK also said that God serving the Devil coffee can be considered an insult to religious beliefs.

The fine was handed to Turkish broadcaster CNBC-E for “making fun of God, encouraging the young people to exercise violence by showing the murders as God’s orders.”

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

[Updated with link to Prof. Hayes's new paper.]

The man-bites-dog story of Germany legalizing then banning bestiality raises the question of the constitutionality of such laws in the U.S. 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 heterosexual conduct comes from the same source. Thus if laws against premarital heterosexual sex (with or without contraceptives), sodomy, etc. are unconstitutional – and I think it clear that courts would find them to be – this must be justified by some special protection for sexual choice.

Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate. Given that bestiality taboos existed long before animal rights movements, one can assume their legalization or delegalization is largely based on the old taboos or stereotypes, perhaps in the sheep’s clothing of animal rights. (Similarly in the VMI case, the Court refused to let the state “update” the rationale for an old practice to something that might sound more in line with current thinking.) But insisting that bestiality bans simply regulate animal welfare is insufficient. Those regulations do not typically intrude on protected interests.

Bestiality bans regulate human sexual expression. And in the Supreme Court’s jurisprudence, sex is special. The government can also regulate, even ban, consumer products, but not when they are condoms, because that is also a regulation of sexuality. Cock fighting can be banned not because the animal suffers, but because the government needs little excuse to ban any commercial activity. Sexual activity is different.

Similarly, while government can regulate animal cruelty, the Supreme Court recently struck down a law targeting “crush films” involving weird sexualized animal torture because the statute was not precisely tailored, and could sweep in some cases where animals did not in fact suffer. Blanket bestiality bans are not narrowly tailored. Thus many European countries make zoophilia legal, but punishable under existing animal welfare laws when cruelty can be shown – but it cannot be presumed.

Constitutional protection of sexual conduct is mostly valuable for conduct that is widely perceived as deviant – when it is someone else’s ox getting gored. Otherwise it is itself merely a tool for reaffirming current mores. With bestiality, one assumes that most folks have have no dog in the fight – and that is what makes it interesting to seriously consider the constitutional issues.

The closest analogy would not be gay sex, or straight sex, but rather other kinds of autonomous sexual activity like sex toys. There are still sex toy bans in some states, including some newly enacted ones. But they’ve been getting struck down since Lawrence by courts (including the Fifth Circuit) that read Lawrence as standing for general sexual libertarianism.

One could argue that ick factor aside, bestiality should if anything be more protected than the dominant social paradigm of 2-person sex. Once there are two people involved, it is a social issue, not purely “private.” Thus such laws can be justified by some purported negative social consequences: uncared for kids with heterosexual fornication; unmarried poor men for polygamy; mutation for incest. By these standards, bestiality (or any other kind of one-person sexual activity) is the most innocuous, as it involves only a person and his property. Spill-over effects on other humans are minimal.

The New York Times several years ago had a very sympathetic piece on Washington state men who have sex with horses, which strongly suggested, based on graphic evidence, that the horses were not unwilling, and that the men seemed reasonable people for whom the activity was meaningful. The bans may well be based on (not yet outmoded) stereotypes and biases.

After the sex toy cases, why not go whole hog and extend the protection of idiosyncratic autoerotic conduct to zoophilia? Indeed, Antonio Hayes, a Fellow at Cornell Law School, has a fascinating paper just posted on SSRN critically examining the various rationales for bestiality laws and finding them wanting. He stresses that animals do not necessarily find such practices painful, and may even enjoy them. As a political matter, I’m not bullish on the success of this argument. And I know this post will really get the animal rights folks’ goat, as the sex toy analogy assumes that animals are more like things than like people.

The AP reports that an Egyptian court has sentenced seven Egyptian Coptic Christians, plus American pastor Terry Jones, to death in absentia. (All are now outside the country, so the sentence won’t have any legal effect on them unless they return, or go to a country — likely a Muslim one — that is willing to extradite them to Egypt.) The sentences are to be automatically reviewed by Egypt’s “chief religious authority” over the next two months. “Egypt’s official news agency said the court found the defendants guilty of harming national unity, insulting and publicly attacking Islam and spreading false information.”

Those convicted include Mark Basseley Youssef, who was the chief creator of the film, Terry Jones, who was involved in its distribution, and Morris Sadek, who posted clips from the film; but they also include several Coptic activists who have opposed the Egyptian regime but say they have nothing to do with the film. “They include two who work with Sadek at a radical Coptic group in the U.S. that has called for an independent Coptic state, a priest who hosts TV programs from the U.S.[,] a lawyer living in Canada who has previously sued the Egyptian state over riots in 2000 that left 21 Christians dead,” and “a woman who converted to Christianity and is a staunch critic of Islam.”