The Volokh Conspiracy

I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:

(b) ... The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.

Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights of those parents who don’t favor “a life of service,” or whose vision of “a life of service” is different from the court’s. And a recent case, Wood v. Wood (Tenn. Ct. App. May 16, 2013) (nonprecedential) (emphasis added), suggests that this isn’t just an empty phrase that would be equally satisfied by all reasonable educational plans:

Mother argues that this factor favors her because she values education more than Father as she has a college degree whereas Father was suspended from college for failing grades. In addition, Mother argues that she cares more about the child’s education because she enrolled the child in a college preparatory school. While we agree that Mother appears to care substantially about the child’s education, even Mother agreed that the proposed school in Union City is a good school for the child to attend. In addition, while Father’s own college endeavors proved unsuccessful, nothing suggests that Father does not value education for the child. Further, beyond school, Father testifies that he exposes the child to a church environment, which may help the child prepare for a life of service. Accordingly, we conclude that this factor favors neither parent.

Yet preferring more religiously observant parents over less observant ones, whether because “a church environment” promotes “a life of service” or for some other reason, strikes me as a violation of the First Amendment; see also Part I.D of my NYU Law Review article on the First Amendment and child custody.

The origin of the phrase in Tennessee law seems to be Bevins v. Bevins (Tenn. Ct. App. 1964); the Tennessee statute seems to, among other things, codify part of the Bevins court’s analysis. Here’s the relevant passage:

The real matter to be considered is what is the best thing to do with these children that they may be left in a home where they are nurtured, loved, appreciated and where the environment is such that is conducive not only to the physical welfare of the child, but to its emotional and moral welfare, and where it can have the instructions from those who have control over it to inspire it to activities so as to develop a personality prepared for a life of service, and to successfully compete in the society which the child faces when an adult. Stated in a few words, it surely could be said that if there is a supreme rule to follow, that the consideration to be given determinative significance is in “respect to its temporal, and its mental and moral welfare” of the child as such, and the personality that it is expected to be when it becomes an adult.

For an earlier reference to the term in another state, see In re Hock, 88 N.E.2d 597 (Ohio. Ct. App. 1947): “It is difficult to conceive of any justiciable subject upon which courts may be required to pass which assumes the grave importance incident to the determination of what shall be the environment of a human life, especially when such determination is made shortly after such life has come into existence. The decree of disposition may result in a happy life of service, or it may be permanently calamitous in its effect upon all concerned.”

If anyone can elaborate further on whether “life of service” has any meaning other than the one I gathered from some quick search — a life of service to the community (or to some other higher cause, such as God) — I’d love to hear it.

Agence France Press reports:

A Saudi court jailed a Lebanese man for six years and sentenced him to 300 lashes after convicting him of encouraging a Saudi woman to convert to Christianity, Saudi dailies reported Sunday.

The same court sentenced a Saudi man convicted in the same case to two years in prison and 200 lashes for having helped the young woman flee the ultra-conservative, US-backed Sunni kingdom [without her family's permission, which is a crime], local daily Al-Watan said....

The woman, known only as “the girl of Khobar,” was granted refuge in Sweden where she lives under the protection of unspecified NGOs, according to local press reports....

Both men, who could also be prosecuted over other charges including corruption and forging official documents that allowed the woman to leave the country without her family’s agreement, will appeal.

The accused and the young woman were coworkers at an insurance company, so I suspect the woman was an adult. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

So reports CNN’s belief blog, as one of the “[f]ive takeaways” from the Pew Research Center’s new survey of Muslims around the world:

Despite views that Islam should influence politics and law, an overwhelming number of Muslims told Pew that religious freedom was a good thing.

Ninety-seven percent of Muslims in South Asia, 95% in Eastern Europe, 94% in sub-Saharan Africa and 85% in the Middle East and North Africa responded positively to religious freedom, according to the poll.

“Overall, Muslims broadly support the idea of religious freedom,” the study states. “Among Muslims who say people of different religions are very free to practice their faith, three-quarters or more in each country say this is a good thing.”

Lovely! But here’s what the CNN blog post doesn’t report: In many countries huge percentages of Muslims favor “the death penalty for people who leave the Muslim religion” (Q92b). For instance, in South Asia, death for apostates is favored by 79% of Afghan Muslims, 75% of Pakistani Muslims, and 43% of Bangladeshi Muslims. In the Middle East and North Africa, the numbers were 88% in Egypt, 83% in Jordan, 62% in the Palestinian Territories, 41% in Iraq, 18% in Tunisia, and 17% in Lebanon.

Respondents to the survey did respond very positively to the notion of religious freedom for members of other religions. But CNN’s labeling this as “support [for] the idea of religious freedom” seems rather misleading, give how much support there is for lethal denial of what most Americans would likely see as a fundamental aspect of religious freedom — the freedom to choose what to believe.

I should note that the survey helps remind us that the Islamic world is hardly monolithic, both among regions, among countries within a region, and within each country. Support for the death penalty for apostates is 12% or lower in Southeastern European countries, Central Asian countries (1% in Azerbaijan, for instance), and Turkey. Likewise, 16% of Indonesian Muslims support the death penalty for apostates, while 58% of Malaysian Muslims do; and I noted above the Lebanon/Jordan gulf and Egypt/Tunisia gulf. Still, one shouldn’t deny, I think, that there are very anti-religious-freedom views that appear to be dominant in several important countries, and common in many others.

UPDATE: See also this Deseret News article:

The idea of Sharia as a legal code strikes fear into many Westerners who hear about its severe penalties for crimes or apostasy. For example, Oklahoma lawmakers passed a bill in April that would prohibit Sharia or other foreign laws from being enforced in that state’s courtrooms.

Senzai believes such actions can be attributed to concerted efforts since 9/11 to demonize Islam as antithetical to democracy. But, he said, survey results showing that Muslims’ support for democracy (regional medians ranging from 72 percent to 45 percent) and religious freedom (medians ranging from 97 percent to 94 percent) indicate that Islamic law and Muslims themselves are more nuanced in their views of religious law in the public sphere than Westerners realize.

So fear about “severe penalties for ... apostasy” stems from efforts “to demonize Islam,” while in reality Muslims throughout the world support “religious freedom.” Those evil demonizers, just making stuff up!

FURTHER UPDATE: I e-mailed the author of the Deseret News article, and to his credit he promptly responded: “I didn’t connect the Muslim concept of religious freedom to the concepts of democracy and punishment under sharia as well as I should have. How it was explained to me was that majorities of Muslims in some of the countries you cited believe sharia should apply only to Muslims and in only certain cases, such as family and property disputes, allowing other faiths to be free worship as they will. But, I think Egypt has been an exception to that, although the scholar from Princeton , Jamal, said leaders in the Muslim Brotherhood there are backing off their push to apply sharia broadly because they don’t see they have the public fully behind them.”

STILL FURTHER UPDATE: The Deseret News article has been updated, with some text (italicized below) inserted into the paragraph following the ones I quote:

The Pew study found Muslims are most comfortable using Sharia to settle family or property disputes. In most countries surveyed, there was less support for severe punishments, such as cutting off the hands of thieves. In Pakistan, where 84 percent of Muslims support codifying Sharia, those same people say it should only apply to Muslims. That exclusiveness explains why 96 percent of Pakistani Muslims support religious freedom for others, yet 76 percent support executing apostates from Islam.

So reports one of the Dutch chief rabbis, because Queen Beatrix’s retirement celebration is happening Sept. 14, which will be Yom Kippur. (“Beatrix, who celebrated her 75th birthday on Jan. 31, announced in January that she was abdicating and handing the crown over to her oldest son, Prince Willem-Alexander. The abdication officially takes effect this Tuesday.”)

Let me offer a somewhat different perspective: There are about 30,000 Jews in the Netherlands, which is about 0.2% of the population. I think religious minorities deserve not to be singled out for persecution. I think it may often makes sense to exempt religious objectors from generally applicable prohibitions or job requirements, when such an exemption would impose virtually no burden on others: For instance, if headgear is banned in courtrooms for reasons of tradition and symbolism, it may makes sense to exempt religious headgear. Likewise, if a college can let people take makeup exams when the main exam falls on some people’s religious holiday, that’s good.

But I don’t think that governments or institutions have an obligation — even an obligation of good manners — to change their own schedules in a way that accommodates every religious minority, including the 0.2% religious minorities. That doesn’t mean that the minority “do[esn't] belong”; it just means that it’s a minority, and that the majority sensibly schedules its events without letting the religious preferences of the 0.2% trump the other preferences that are juggled to schedule a major governmental event. And it seems to me that feelings of “pain[]” on such occasions are unnecessary pain, and breed more unnecessary pain for the future.

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

UPDATE: The rabbi is apparently one of the Dutch chief rabbis, not the sole one.

For centuries, American law has allowed clergy to solemnize marriages, though of course judges can do it, too. But what about religions that don’t have official clergy? In re Dhanoa (Va. Cir. Ct. Mar. 29, 2013) holds unconstitutional a Virginia statute that allowed only one religious group member per “religious society” to solemnize such marriages, and required a $500 bond:

Marriages between persons belonging to any religious society which has no ordained minister, may be solemnized by the persons and in the manner prescribed by and practiced in any such society. One person chosen by the society shall be responsible for completing the certification of marriage in the same manner as a minister or other person authorized to perform marriages; such person chosen by the society for this purpose shall be required to execute a bond in the penalty of $500, with surety.

An excerpt from the court’s reasoning:

Petitioners and Respondent are in agreement that the requirement that individuals authorized under § 20-26 pay a $500 bond with surety is unconstitutional. Prior to 1981, and at the time that Cramer was decided, § 20-23 [which provides for solemnizing by clergy] and § 20-26 both required such a bond. In light of the statutory changes in 1981, Respondent “declines to defend the constitutionality of this discrimination between religious sects for purposes of solemnizing marriages under the authority of the Commonwealth.”

The Court agrees with the parties that this bond requirement is clearly unconstitutional. The General Assembly cannot favor one type of religion over another without a compelling government interest and a narrowly tailored method. Section 20-26 impermissibly burdens Petitioners’ religion when compared with celebrants from other religions who qualify under § 20-23, and thus it is not sufficiently tailored to the government’s interest. The bond requirement will therefore not be required of Petitioners and Petitioners will be authorized to perform marriage ceremonies without it....

Petitioners assert that § 20-26 permits only one person per society to be authorized to officiate at a marriage. They argue that because Dr. Ajaib Singh and Gurminder Singh Bhatti are both members of the Sikh Foundation of Virginia, and Balbir Singh and Jagtar Singh Dhanda are both members of Singh Sabha Gurdwara, at most one person from each temple can obtain court approval to perform weddings. Petitioners view this as an unconstitutional burden because, under their interpretation of the Code, if the one person who is authorized to complete the requisite paperwork is ill or out of town, no one can be lawfully married within the religious society. There is, in their view, “no good reason to prohibit organizations without ordained clergy from designating more than one person” to complete the certificate of marriage when other religions can have as many people designated as there are ordained ministers. To Petitioners, any person who is selected by their group, and who is literate, should be eligible for authorization....

This Court finds that the one person per religious society requirement of § 20-26 unconstitutionally discriminates against Petitioners on the basis of their religion. Petitioners will all be authorized without any restriction as to the number of other authorized individuals from the same religious societies, provided that they are individuals “chosen by the society” who have demonstrated that they are capable of “completing the certification of marriage in the same manner as a minister or other person authorized to perform marriages.”

The Guardian (UK) reports (thanks to Prof. Howard Friedman (Religion Clause) for the pointer):

Four foreigners have been arrested in Libya on suspicion of being missionaries and distributing Christian literature, a charge that could carry the death penalty....

Libya retains a law from the Muammar Gaddafi era that makes proselytising a criminal offence potentially punishable by death. The arrests underlined the sometimes difficult relationship between churches and the new authorities.

“Proselytising is forbidden in Libya. We are a 100% Muslim country and this kind of action affects our national security,” security official Hussein Bin Hmeid told Reuters....

Benghazi lawyer and human rights activist Bilal Bettamer said Libya was a wholly Muslim country and Christians should not be trying to spread their faith. “It is disrespectful. If we had Christianity we could have dialogue, but you can’t just spread Christianity,” he said. “The maximum penalty is the death penalty. It’s a dangerous thing to do.” ...

On Sunday, Libya’s de facto head of state, speaker of congress Mohammed Magariaf, pledged that Libya would incorporate sharia law into its future constitution, during a speech in Benghazi to mark the second anniversary of the 2011 revolution.

Fortunately the target, Lars Hedegaard, was not injured. The BBC reported Feb. 5:

Mr Hedegaard heads Denmark’s Free Press Society, which argues that religious and ideological interests are threatening freedom of expression.

He also heads the International Free Press Society, founded in 2009, which launched an international campaign to support the Dutch anti-Islam politician Geert Wilders’s right to criticise Islam.

Mr Hedegaard was fined in 2011 for making insulting statements about Muslims but Denmark’s supreme court dismissed the judgment the following year.

This is apparently the third such incident in Denmark in a bit over 3 years:

Somali refugee Mohamed Geele was jailed for trying to kill cartoonist Kurt Westergaard [the author of the Mohammed-turban-bomb cartoon -EV] with an axe in January 2010.

Lors Dukayev, a Chechen asylum seeker, was jailed for terrorism over an attempted letter bombing of Jyllands-Posten [which first published the Mohammed cartoons -EV] in September 2010.

Last week, I blogged about a letter sent by the principal of North Great Neck High School, a public high school on Long Island:

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in charge who clearly believes that what he is doing is perfectly okay. He is sincere and sure in his belief system and, while he says he wants to “cooperate,” so far he is unwilling to take the simple steps that we have asked him to take which is simply to create with us parent permission slips and notification so that we are sure that parents understand and approve of their children attending religious instruction during the school day, religious instruction that is in no way at all supervised or approved by the Great Neck Public Schools or by anyone close in supervisory authority other than this Rabbi and his Temple.

At first the Rabbi agreed to set up a permission letter with us but then called and said he had to consult with lawyers. We asked him to desist in his lunches and lectures until the matter is settled. He refused.

We have contacted the police and the local authorities who up to now say that there is nothing they can do. We have discussed the matter with our P.T.S.A. leadership and concerned parents. We are contemplating further steps and actions, but at this point thought it important to inform all of you of the situation.

We will continue to press the Rabbi to institute, at the very least, parent notification and permission, and we will keep you informed of developments.

Now The Jewish Week reports:

[I]n a second letter to parents mailed Friday, Kaplan wrote that “upon reflection, my letter of Jan. 31 ... was an unintended infringement on students’ rights. The principal of a public school cannot cannot interview with religious practice conducted outside of the school’s purview.”

Kaplan apologize[d] to those who “were affronted by my letter” and urged parents to discuss lunchtime activities with their kids.

Sounds right to me, and I’m glad the principal admitted his mistake and apologized for it — just the thing we try to teach our children to do, as it happens.

1. So reports the Rutland Herald:

A pastor was taken back to jail Thursday for continuing to refuse to tell a [federal] grand jury what he knows about a woman who fled the country to escape a custody dispute with her former lesbian partner....

Miller told the judge that the week he has spent in jail has strengthened his resolve that his beliefs require him to follow God’s law when they conflict with civil law. He said he is willing to pay the price, even if it means more time in jail.

“If I were to bring testimony against a fellow member of Christ’s kingdom, for honoring Christ’s kingdom’s laws, I would be disloyal to his kingdom and to Christ,” Miller said.

Miller has refused to testify about another man involved in the 2009 flight of Lisa Miller and her daughter, Isabella, rather than allow the girl to spend time with Lisa Miller’s ex-partner. The Millers are not related.

2. Of course, under the Free Exercise Clause as interpreted by Employment Division v. Smith (1990), the pastor’s religious belief would likely be constitutionally irrelevant — the duty to testify would likely be viewed as a generally religion-neutral law of general applicability, and even sincere religious objectors would not be entitled to a constitutional exemption. (I generally think this is the right approach.) There are some possible counterarguments: One might argue that the law is not generally applicable because the duty to testify includes a religious exemption for clergy (of any denomination) who refuse to testify about confidential communications that they feel religiously obligated to keep confidential. One might also argue that this case involves a “hybrid rights” claim, involving a supposed combination of a Free Exercise Clause claim and a freedom-from-compelled-speech claim.

But on balance I think these counterarguments are weak, and I suspect that courts would find no serious Free Exercise Clause issue here.

3. The federal Religious Freedom Restoration Act does create a statutory presumptive right to religious exemptions from federal laws. If a law — such as the duty to testify — substantially burdens religious practice, for instance by requiring someone to do something that he sincerely thinks is religiously forbidden, then the objector is presumptively entitled to an exemption. To rebut this presumption, the government would have to show that denying the exemption “passes strict scrutiny,” i.e., is the least restrictive means of serving a compelling government interest.

Yet I suspect that courts, if confronted with a RFRA claim in such a case, would conclude that strict scrutiny can be satisfied here. The interest in getting information for a criminal investigation would be seen as compelling. And while in some journalist privilege cases under the Free Press Clause, some circuit courts have held that strict scrutiny isn’t satisfied when the evidence can be gotten from other sources, I doubt that the courts will so rule here. First, giving any such exemption would be too likely to undermine confidence in the legal system (to the extent that religious people of certain groups are seen as being able to shield their coreligionists). Second, giving any such exemption and to lead to many more such exemption requests, whether sincere or not, since the exemption would be so tempting to many people who don’t want to testify. The case of United States v. Lee (1982), in which the Court held that evenhanded application of tax laws, with no tolerance for individualized religious exemption requests, passes strict scrutiny, seems to me quite on point here.

4. Interestingly, there is some caselaw on another kind of claim of a religious exemption from a duty to testify: Some Jews and at least one Mormon have argued that they are religiously obligated not to testify against their family members. One district court has held in favor of such a religious exemption claim, but two circuit courts have rejected them. Compare In re The Grand Jury Empaneling of the Special Grand Jury (3d Cir. 1999) (holding that the Free Exercise Clause didn’t allow a religiously motivated refusal to testify against a family member, at least in this case), and In re Doe (10th Cir. 1988) (same), with In re Greenberg, 11 Fed. R. Evid. Serv. 579 (D. Conn. 1982) (holding the opposite), and In re The Grand Jury Empaneling (McKee, J., dissenting) (same). Cf. Grossberg’s Parents Ask to Keep Talks Confidential, Newark Star-Ledger, Nov. 26, 1997, at 43 (“The parents of Amy Grossberg, the college student accused of killing her newborn in Delaware ... argued in court papers that talks with their daughter should be kept secret and that it is a violation of their right to the free exercise of religion [for prosecutors] to force them to divulge information. Rabbi Joel Roth, a legal expert at the Jewish Theological Seminary [a prominent Conservative institution] in New York City, confirmed yesterday he wrote an affidavit for the Grossbergs, stating that ‘under Jewish law, a mother and/or a father are not allowed to give testimony against their child in any legal proceeding.’”). But I think the much broader claim of a right not to testify against coreligionists in a wide range of cases would be seen by courts as even less palatable.

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

[UPDATE: A week later, the principal said he had erred, and apologized.]

Here’s a letter from the principal of Great Neck North High School, on Long Island:

January 31, 2013

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in charge who clearly believes that what he is doing is perfectly okay. He is sincere and sure in his belief system and, while he says he wants to “cooperate,” so far he is unwilling to take the simple steps that we have asked him to take which is simply to create with us parent permission slips and notification so that we are sure that parents understand and approve of their children attending religious instruction during the school day, religious instruction that is in no way at all supervised or approved by the Great Neck Public Schools or by anyone close in supervisory authority other than this Rabbi and his Temple.

At first the Rabbi agreed to set up a permission letter with us but then called and said he had to consult with lawyers. We asked him to desist in his lunches and lectures until the matter is settled. He refused.

We have contacted the police and the local authorities who up to now say that there is nothing they can do. We have discussed the matter with our P.T.S.A. leadership and concerned parents. We are contemplating further steps and actions, but at this point thought it important to inform all of you of the situation.

We will continue to press the Rabbi to institute, at the very least, parent notification and permission, and we will keep you informed of developments.

It’s hard for me to see what the high school can do here, at least as a matter of law rather than social pressure. The school lets students go out during lunch, and students can go to a restaurant, go to a bookstore, talk with people on the street, or whatever else. Conversely, adult residents can try to sell students food or books, can try to get them to take leaflets, can engage them in political arguments, or can try to lecture them about Judaism (whether on its own or in exchange for food).

Nor is the lack of parental permission legally significant, I think. Stores don’t need parental permission slips to sell high school students food or books. Likewise, a synagogue doesn’t need parental permission slips to talk to high school children or feed them. Indeed, requiring permission slips of religious institutions but not of others would itself violate the Free Exercise Clause, by discriminating against religious practices (see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)).

Indeed, the violent video game case — Brown v. Entertainment Merchants Ass’n (2011) — is powerful precedent against any such permission requirement. There the Court struck down a ban on selling video games to children, even though parents (and some other relatives) could distribute the games to the children. (To be sure, the exception was for direct delivery by parents, and not for parental permission slips, which is what’s suggested to hear; but it seems pretty close.) In the process, the majority stated,

At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].”

If that’s what the Justices thought about limits on conveying violent videogames to children, I would think that limits on conveying religious ideas to children would be even more troublesome. And the fact that the ideas are combined with the provision of free food strikes me as not changing the analysis.

None of this means that this practice is proper, effective, or neighborly. But it seems to me that it’s indeed legally protected, and the school can’t do anything about it, at least so long as it has a policy of letting high school students leave campus during the day.

So reports Fox News, citing a story in “the Arabic-language Egyptian paper Al-Masry Al-Youm”; the Vatican’s AsiaNews.it runs a similar story. From the Fox News account:

Nadia Mohamed Ali, who was raised a Christian, converted to Islam when she married Mohamed Abdel-Wahhab Mustafa, a Muslim, 23 years ago. He later died, and his widow planned to convert her family back to Christianity in order to obtain an inheritance from her family. She sought the help of others in the registration office to process new identity cards between 2004 and 2006. When the conversion came to light under the new regime, Nadia, her children and even the clerks who processed the identity cards were all sentenced to prison.

AsiaNews reports that the sentences were 15 years for the mother and each child, and 5 years for each of the registration office clerks. Thanks to InstaPundit for the pointer.

So reports the Egypt Independent:

“The Constitution only recognizes the three Abrahamic religions,” Ibrahim Ghoneim told Akbar Al-Youm newspaper Saturday. “And as religion is a subject taught in schools, they do not meet the requirements for enrollment.”

Thanks to Louis Offen for the pointer.

Al-Bawaba reports:

Saudi religious police stormed a house in the Saudi Arabian province of al-Jouf, detaining more than 41 guests for “plotting to celebrate Christmas,” a statement from the police branch released Wednesday night said.

The raid is the latest in a string of religious crackdowns against residents perceived to threaten the country’s strict religious code.

The host of the alleged Christmas gathering is reported to be an Asian diplomat whose guests included 41 Christians, as well as two Saudi Arabian and Egyptian Muslims. The host and the two Muslims were said to be “severely intoxicated.” ...

The kingdom, which only recognizes Islamic faith and practice, has in the past banned public Christmas celebrations, but is ambiguous about festivities staged in private quarters....

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

It’s been a significant week for litigation over the contraception mandate. On December 20, a motions panel of the U.S. Court of Appeals for the Tenth Circuit denied employer Hobby Lobby’s motion for an injunction pending appeal. As a private employer, Hobby Lobby is not eligible for the safe harbor from enforcement, and will be subject to the mandate at the start of the new year. As a consequence, Hobby Lobby filed an emergency application for a stay with the Supreme Court, which Justice Sonia Sotomayor denied with a brief four-page opinion. According to Justice Sotomayor, Hobby Lobby could not meet the extraordinarily demanding standard for such an injunction. Lyle Denniston has a brief report on SCOTUSBlog, and Ed Whelan critiques the decision on Bench Memos (see also here). for what it’s worth, I am not as convinced as Whelan that Hobby Lobby’s rights under the Religious Freedom Restoration Act are “indisputably clear.” While I think religious institutions have a strong RFRA-based free exercise claim, and that religious institutions — and not the government — define the contours of what the exercise of a given religious faith requires — I am not sure that private, for-profit corporations can avail themselves of RFRA in the same way as avowedly religious institutions., even when privately held by religiously devout individuals, nor am I aware of any case law that would clearly establish this point (but see below).

Meanwhile, the U.S. Court of Appeals for the Seventh Circuit is looking more favorably on another private employer’s challenge to the contraception mandate. In what Lyle Denniston calls “the most significant federal appeals court ruling so far on the new federal health care law’s contraceptives mandate,” a divided panel of the Seventh Circuit granted a private employer’s emergency motion for an injunction against enforcement of the contraception mandate. Judges Flaum and Sykes voted in favor of the employer’s claim; Judge Rovner against. Here are some key excerpts:

The Kortes are Roman Catholic, and they seek to manage their company in a manner consistent with their Catholic faith, including its teachings regarding the sanctity of human life, abortion, contraception, and sterilization. In August 2012 they discovered that the company’s current health‐insurance plan includes coverage for contraception. The plan renewal date is January 1, 2013. The Kortes want to terminate this coverage and substitute a health plan (or a plan of self‐insurance) that conforms to the requirements of their faith. The ACA’s preventive‐care provision and implementing regulations prohibit them from doing so. . . .

The Kortes contend that the contraception mandate substantially burdens their exercise of religion by requiring them, on pain of substantial financial penalties, to provide and pay for an employee health plan that includes no‐cost‐sharing coverage for contraception, sterilization, and related medical services that their Catholic religion teaches are gravely immoral. They further contend that the mandate fails RFRA’s strict‐scrutiny requirement because the government’s interest in making contraception and sterilization accessible on a cost‐free basis is not sufficiently strong to qualify as compelling, and that coercing religious objectors to provide this coverage is not the least restrictive means of achieving that objective. They point out that some health plans are either grandfathered or exempt from the mandate, illustrating that the interest served by the mandate is far from compelling. And they argue that the government has other methods of furthering its interest in free access to contraception without imposing this burden on their religious liberty—for example, by offering tax deductions or credits for the purchase of contraception or incentives to pharmaceutical companies or medical providers to offer the services.

In response, the government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.

The government also argues that any burden on religious exercise is minimal and attenuated, relying on a recent decision by the Tenth Circuit in Hobby Lobby Stores, Inc. v. Sebelius, No. 12‐6294 (10th Cir. Dec. 20, 2012). Hobby Lobby, like this case, involves a claim for injunctive and declaratory relief against the mandate brought by a secular, for‐profit employer. On an interlocutory appeal from the district court’s denial of a preliminary injunction, the Tenth Circuit denied an injunction pending appeal, noting that “the particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity condemned by plaintiff[s’] religion.” Id. at 7 (quoting Hobby Lobby Stores, Inc. v. Sebelius, 870 F. Supp. 2d 1278, 1294 (W.D. Okla. 2012)). With respect, we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.

And from Judge Rovner’s dissent:

Although the Kortes contend that complying with the Patient Protection and Affordable Care Act’s insurance mandate violates their religious liberties, they are removed by multiple steps from the contraceptive services to which they object. First, it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company. Second, the firm itself will not be paying directly for contraceptive services. Instead, their company will be required to purchase insurance which covers a wide range of health care services. It will be up to an employee and her physician whether she will avail herself of contraception, and if she does, it will be the insurer, rather than the Kortes, which will be funding those services. In the usual course of events, an employer is not involved in the delivery of medical care to its employee or even aware (by virtue of physician‐patient privilege and statutory privacy protections) of what medical choices the employee is making in consultation with her physician; only the employee, her physician, and the insurer have knowledge of what services are being provided. What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services. . . . If an employer has this right, it is not clear to me that limits there might be on the ability to limit the insurance coverage the employer provides to its employees, for any number of medical services (or decisions to use particular medical services in particular circumstances) might be inconsistent with an employer’s (or its individual owners’) individual religious beliefs. In short, the Kortes have not shown that complying with the insurance mandate substantially burdens the free exercise of their religious rights, in violation of the Religious Freedom Restoration Act.

As noted above, I think the Seventh Circuit’s approach is clearly correct as applied to religious institutions — universities, hospitals, and the like — as the creation and operation of such institutions is often part of the religious calling of those of particular faiths. Imposing a requirement to cover contraception (including abortifacients and sterilization procedures) is almost certainly a substantial burden on the free exercise of religion by such institutions under RFRA. I am less confident, however, that this argument can (or should) be extended to private, for-profit corporations. Although the owners of such companies have free exercise rights under RFRA, it’s not clear that the imposition of regulations governing the operation of the corporation constitutes a “substantial burden” as the creation and operation of the business is not part of their religious calling. To prevent the Catholic church from operating hospitals, schools and charities is to inhibit the church’s ability to fulfill its religious calling. But to prohibit or constrain a Catholic individual from operating a business with over 50 employees does not inhibit free exercise in the same way. I agree with the Seventh Circuit that the use of the corporate form is not dispositive, but I would place more weight on the nature of the “corporation” involved. To be continued.

Yesterday, Lyle Denniston at SCOTUSBlog reports, the U.S. Court of Appeals for the D.C. Circuit effectively overturned a district court’s dismissal of a challenge to the so-called “contraception mandate,” a regulation issued by the Department of Health and Human Services that employer-provided health care plans include coverage for all FDA-approved forms of contraception without cost-sharing. Various religious employers have objected to this requirement citing the First Amendment’s free-exercise clause and (more persuasively) the Religious Freedom Restoration Act (RFRA).

The D.C. case was filed by Wheaton College and Belmont Abbey College. The district court had dismissed the case for lack of standing and ripeness. In its brief order, the D.C. Circuit explained that the district court was wrong to dismiss the suit against the mandate for lack of standing as “the colleges clearly had standing when these suits were filed.” The ripeness question “is more difficult,” the court explained, because HHS has promised to address religious employers’ claims in a new rulemaking. Taking HHS at its word, the D.C. Circuit concluded the lawsuits should be held in abeyance, pending further action by HHS. As it explained:

In the Federal Register notice announcing their February 2012 Final Rule, the appellees left the religious employer exemption unchanged but created a safe harbor from enforcement of the contraceptive coverage requirement for entities like the appellants, which remains in effect until the first plan year that begins on or after August 1, 2013. 77 Fed. Reg. at 8728. (The plan years of both appellants begin January 2014.) The notice also announced the appellees’ intention to “develop and propose changes to these final regulations that would meet two goals” — providing contraceptive coverage without cost-sharing to covered individuals and accommodating the religious objections of non-profit organizations like appellants. Id. at 8727. Thereafter, on March 21, 2012, the appellees issued an Advance Notice of Proposed Rulemaking (ANPRM), which states: “The Departments intend to propose that, when offering insured coverage to a religious organization that self-certifies as qualifying for the accommodation, a health insurer may not include contraceptive coverage in that organization’s insured coverage. This means that contraceptive coverage would not be included in the plan document, contract, or premium charged to the religious organization.” 77 Fed. Reg. 16,501, 16,505 (Mar. 21, 2012). (The ANPRM went on to state: “Instead, the issuer would be required to provide participants and beneficiaries covered under the plan separate coverage for contraceptive services . . . without cost sharing . . . .” Id.)

At oral argument, the government went further. First, it represented to the court that it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services. Oral Arg. Recording at 36:25 – 36:33. There will, the government said, be a different rule for entities like the appellants, Oral Arg. Recording at 37:25 – 38:46, and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. Oral Arg. Recording at 35:39 – 36:02.

We take the government at its word and will hold it to it. Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time because “[i]f we do not decide [the merits of appellants’ challenge to the current rule] now, we may never need to.”

As a consequence of this ruling HHS will have little choice but to issue a rule relieving many religious employers of the obligation to provide coverage for contraception. The interesting question will be how this is to be accomplished under existing statutory authority. Moreover, the Administration’s proposed fix — allowing religious employers to exclude contraception coverage but requiring insurers to provide separate contraception coverage to employees at no charge — would do nothing to alleviate the burden on those religious employers that self-insure (which many do because, among other reasons, it provides a way to escape state-level contraception mandates).

Meanwhile, on November 28, the U.S. Court of Appeals for the Eighth Circuit stayed a district court decision dismissing a suit against the mandate filed by a private employer professing religious objections. (Judge Arnold dissented from the order without opinion.) Further, as Stuart Taylor notes in this overview of the litigation for Kaiser Health News, three other district courts have issued preliminary injunctions against the mandate in separate cases, and literally dozens more cases are pending. So as predicted, the contraception mandate appears to be having trouble in federal court.

For more, I posted on the mandate here, here, and here.

[Note: In the original post, I mis-identified one of the plaintiffs in this case as the Catholic University of America. CUA is challenging the mandate, but in a different case. I've corrected the error.]