Two men were sentenced to death in Pakistan for “claim[ing] that they had seen God” and “invit[ing] other people to join them in their union with God through Chaman Sarkar” (apparently a local religious leader), The Express Tribune (affiliated with the International New York Times) reported Sunday. Thanks to Religion Clause for the pointer. [...]
A directive released on Tuesday by the Ministry of Justice and Religious Affairs stated that no Christian festivities could be held in Somalia….
“We alert fellow Muslims in Somalia that some festivities to mark Christian Days will take place around the world in this week,” said [the Director of the Religious Matters] during [a] press conference [to announce the ban], adding: “It is prohibited to celebrate those days in this country.”
[The Director General of the Ministry of Justice and Religious Affairs], on his part, stated that all security and law enforcement agencies had been instructed to counter any such celebrations….
The officials did not say anything on whether non-Muslim foreign workers or residents could celebrate or not.
It is the first time that a Somali government bans the celebrations since the last central government collapsed in 1991.
I’m no fan of the Utah federal court’s opinion striking down the Utah law criminalizing polygamy. But I do think that the law, at least as currently interpreted by Utah officials, is indeed unconstitutional. Here’s a brief sketch of my thinking.
1. The relevant statute states,
A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.
It isn’t limited to attempts to fraudulently claim a legal status of marriage, whether the claims are made to the government, to one’s supposed spouse, or otherwise. “Cohabits,” in Utah law, means “to live together as husband and wife.” State v. Barlow, 153 P.2d 647 (Utah 1944). Moreover, the prosecutor in this case stated (pp. 59-60) that simply being in a long-term sexual relationship and living together isn’t sufficient. Neither is being in a sexual relationship in which a person who is already married to A says, “I’m committed to this woman [B], I’m going to take care of her for the rest of her life.”
What is necessary, according to the prosecutor, is that “there be a marriage of some sort,” even one that doesn’t purport to be legally valid. According to the prosecutor, “I think it’s the representation that they make to the world as to what is their relationship. If they make it as husband and wife, then that constitutes marriage under the statute.”
2. Utah law, then, isn’t a regulation of sexual conduct (which would raise interesting questions under Lawrence v. Texas). People are free to have sex with lots of other people, and live with all those people. What triggers criminal punishment is saying something to the world — [...]
The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.
Now seems like a good time to revisit a post on bestiality from earlier this year, which surely seems less radical now. Bestiality bans are [even?] less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions (though presumably limits one to unusually broad-minded spouses). Nor does it oppress women, the empirical claim behind bans on polygamy, as well as prostitution. Here is the body of the post:
Most states criminalize zoophilia and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.
The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of [...]
To me, today’s decision of the United States District Court for the District of Utah in Brown v. Buhman is much clearer and carefully-reasoned that Orin finds it to be. There may be plenty of blogging on the case, and Eugene’s analysis next week, after he’s had a chance to analyze it, will provide the perspective of the guy who actually did write the textbook on the First Amendment. I have merely taught the First Amendment, using his textbook (and taught the 14th Amendment using Randy’s textbook).
I’m no fan of the collected works of Edward Said, but I thought the Court’s use of Said entirely defensible. As the Court details, 19th-century hostility to polygamy was based, in part, on polygamy’s association with non-white races. As the U.S. Supreme Court wrote in Reynolds v. United States, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” 98 U.S. 145, 164 (1879). Thus, Said’s theories of “Orientalism” and the “other” are useful tools for explaining the situation. The historical analysis is necessary to the case, because part of the Opinion requires an analysis of the 1894 “Irrevocable Ordinance” in the Utah Constitution outlawing polygamy. That constitutional provision was part of the price that Utah paid for admission to the Union.
Utah’s anti-bigamy ordinance has a normal provision, and an unusual provision: “A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.” Utah Code Ann. § 76-7-101(1) (2013).
Judge Waddoups upholds the first part, about marrying a second person, as a straightforward application of Reynolds. [...]
I thought I’d pass this along, since many of our readers are interested in the case. Naturally, I’m also open to posting something from one of the lawyers or academics on the opposite side of the issue.
First, I want to thank Prof. Volokh for his fine series of posts on the cases involving the mandate of early abortion causing birth control in health plans. As one of the attorneys for multiple clients challenging the mandate, including the Hahn family of Conestoga Wood Specialties whose case is being reviewed at the U.S. Supreme Court, I was pleased to read Prof. Volokh’s clear and wide-ranging analysis. While I largely agree with his conclusions, there were bound to be some differences in such a broad discussion. Prof. Volokh has graciously allowed me the opportunity to respond to two of those points of departure.
In his post, RFRA Strict Scrutiny: The Interest in Protecting Health, Prof. Volokh wrote:
It seems to me that a compelling interest in protecting health is indeed implicated here. Preventing unwanted pregnancy helps prevent a wide variety of possible health problems. Protecting physical health seems likely to be seen as a compelling interest. And making these contraceptives available to people with no out-of-pocket cost to them will make it more likely that they will be used, and the health problems will be avoided. Moreover, particular contraceptives are particularly effective in dealing with particular conditions. Plan B is particularly effective at preventing pregnancy post-intercourse. IUDs are particularly effective for women who have bad reactions to oral contraceptives. So I expect that the Court will indeed say that the government’s attempt to make these particular contraceptives available to employees of Hobby Lobby and similar employers furthers a compelling interest in protecting health.
I think this assumes a compelling interest far
Whew. That was a lot of writing on Hobby Lobby last week, and a lot of reading. I hope it was helpful, interesting, or both. Now, fortunately, I’m finishing up, but I wanted to close with one broader thought, going beyond the purely legal RFRA question. (I should also note that this thought is even more tentative than some of the ones in the earlier posts, precisely because it’s about pragmatic and moral matters on which I’m not expert, rather than on legal matters.)
One common argument in favor of religious exemptions is that, if possible, people should be able to live full lives as Americans without having to violate their religious beliefs — even if that means that our legal system will change in some measure to accommodate those beliefs. In large measure, the American legal system has provided such accommodations. Indeed, at least throughout much of America’s history, it provided them far more than nearly all other countries.
This willingness, I think, has been a source of American strength. It has brought people of all religions to our shores, at a time when such immigration was vital to our prosperity. (I think immigration remains vital to our prosperity even today, but let’s set that debate aside for now.) It has helped America harness the energy of all its residents, minimizing the sense of alienation that religious minorities have felt.
And it has helped America largely avoid the religious conflicts of Europe, conflicts that the Framers were keenly aware could lead even to civil wars. The beneficiaries of such accommodations have been many and varied: Quakers, Catholics, Jews, and many more. I myself am not religious, but I think this tradition of accommodation is worth preserving (recognizing, of course, that not all practices should be accommodated, for the [...]
Yesterday the Department of Interior finalized a rule that allows wind farms to get 30-year permits allowing them to kill federally-protected eagles. Eagles are frequent accidental victims of power plants and wind turbines, and the government has long taken the position that it is a federal crime to kill an eagle even unintentionally. To get the permit, the farms have to take various conservation measures.
Apropos of Eugene’s blogging this week, there is also a RFRA connection. In 2008, the Tenth Circuit decided a case called United States v. Winslow Friday, in which Mr. Friday was prosecuted for killing a bald eagle to use in his tribe’s religious ritual. One of Mr. Friday’s arguments on appeal was that RFRA requires the federal government to treat tribal killings and power-company killings of eagles with parity. The Court did not disagree with this premise, but concluded, at the time, that “with respect to both religious and secular threats to the eagle, the government appears to take a similar approach.” [...]
[Please note the UPDATE below.] (For an introduction to this series of posts, see here.)
Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on an interest that is little talked about in the briefing of the various employer mandate exemption cases, but that I think strikes a chord with many people who have expressed concern about the exemption requests. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting employee private rights, since it would provide employees with the same benefits as they would get under the unmodified employer mandate.)
1. Let me start by approaching the question indirectly. Say that someone feels religiously motivated to make a pilgrimage to a particular place — for instance, a supposed visitation of the Virgin Mary. And say that this place happens to be on an unimproved parcel of land you own somewhere. That would normally be a trespass, but the pilgrim sues for an exemption from trespass law under RFRA.
I take it that courts wouldn’t, and shouldn’t, create such an exemption. Indeed, the compelling interest test provides a means for courts to avoid creating such an exemption — the compelling interest would be in preventing intrusion on your property rights. And it doesn’t matter that the intrusion would actually cause only modest harm to you, or that allowing the intrusion would cause only modest harm to the social [...]
(For an introduction to this series of posts, see here.)
Today, I’m blogging about what I think should be the heart of the Hobby Lobby case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” This post focuses on the interest in sex equality. (The post also assumes that an objector compensatory assessment, of the sort described in the previous post, isn’t available; if it is available as a less restrictive means of protecting health, then it would also be available as a less restrictive means in protecting sex equality, since it would provide women employees with the same benefits as they would get under the unmodified employer mandate.)
1. One version of this interest is in preventing intentional sex discrimination. When an employer refuses to cover contraceptives that can only be used by women, the argument would go, it is engaged in sex discrimination, just as if it paid women less — even only a bit less — than men. The Court would likely find the interest in preventing such sex discrimination in employment to be compelling. See Bob Jones Univ. v. United States (1983); Roberts v. U.S. Jaycees (1983).
The problem with this argument is that the Court has never treated regulations of abortion as tantamount to sex discrimination, even though only women can get abortions. (I don’t want to focus here on whether that’s right or wrong; I’m just speaking of what the majority view on the Court has been, and is likely to be.) Indeed, the Court rejected such an argument in Bray v. Alexandria Women’s Health Center (1993). It rejected an Equal Protection Clause challenge to the exclusion of abortion from federal funding in Maher v. [...]
(For an introduction to this series of posts, see here.)
We can now get to what I think should be the heart of the case: whether denying Hobby Lobby an exemption from the requirement of providing potentially implantation-preventing contraceptives is the “least restrictive means” of serving a particular “compelling governmental interest.” I don’t know what the answer to that is, because this test is so undefined; my thinking here is also quite tentative, and I’m certainly open to being persuaded. But I thought I’d post today about three possible interests — protecting health, providing for sex equality, and protecting newly created private rights — and say a few words about them.
1. This post focuses on the interest in protecting health. Under RFRA, it’s not enough for the government to point to how the Affordable Care Act writ large supposedly protects health. Nor is it enough for the government to point to how the coverage for contraceptives generally would protect health. Rather, the question is whether denying the limited religious exemption that is being sought here — the exemption for the particular potentially implantation-preventing contraceptives to which the claimants object — would undermine a compelling interest in protecting health, so that denying the exemption would be the “least restrictive means” of protecting health. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.”
Moreover, the “least restrictive means” requirement shows that the existence of a compelling interest isn’t enough. Under RFRA, the government must consider creative ways of serving its compelling interests while at the same time accommodating, to the extent feasible, religious objections.
2. It seems to me that a compelling interest in [...]
(For an introduction to this series of posts, see here.)
On then to another general argument — the argument that, regardless of the specific interests the government asserts in support of the employer mandate, those interests don’t count because the law has secular exceptions. One version of the argument is that such exceptions make the law “underinclusive,” and thus prove that the government interest can’t be compelling. A related version is that, under RFRA, religious exemption claims are entitled to be treated as well as the most favored other claims for exemption. Here is how the Tenth Circuit en banc majority opinion in Hobby Lobby put it:
The government asserts two interests here: “the interests in  public health and  gender equality.” We recognize the importance of these interests. But they nonetheless in this context do not satisfy the Supreme Court’s compelling interest standards….
[T]he interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than fifty employees [who don’t have to provide any health insurance -EV], and, under a proposed rule, for colleges and universities run by religious institutions. As the Supreme Court has said, “a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited.” Lukumi; see also O Centro (citing Lukumi as instructive in determining whether exemptions undermine a compelling government interest for purposes of RFRA). The exemptions at issue here would yield precisely this result: they would leave unprotected all women who work for exempted business entities.
Now it’s not clear to me that all the exceptions “leave appreciable damage to [both] [...]
I’ve argued below that, if someone believes that it’s religiously wrong for him to be complicit in certain behavior, requiring him to act in such a way is a “substantial burden” on his religious practice under RFRA. This is true even if you and I might define complicity differently, and might view the particular actions involved in the case as too indirect to constitute complicity. Some readers have asked: What then does the qualifier “substantial” do?
Here’s a general summary of how the Court has defined “substantial burden”:
1. Requiring people to do something that “is forbidden by [their] faith” qualifies as a substantial burden on religious practice. See, e.g., United States v. Lee (1982); Hernandez v. Commissioner (1989). So does requiring people not to do something that is required by their faith. Indeed, even requirements that people do something forbidden by their faith in order to get important benefits (such as unemployment compensation) are generally a substantial burden. Thomas v. Review Bd. (1981). Requirements that people do something forbidden by their faith to avoid punishment, including fines, are at least as clearly substantial burdens.
2. “While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.” Thomas. And that is so even where the relevant “conduct proscribed by a religious faith” is indirect complicity in other conduct, and the complicity line that the religious claimant draws appears inconsistent or unsound to the reviewing court. Id.. “It is not for [secular courts] to say that the line [the claimant] drew was an unreasonable one.” Id.
3. What, then, is not a substantial burden? To give one example, “to the extent that imposition of a generally applicable tax merely decreases the amount of money appellant has to spend on its religious activities, any such burden is [...]
(For an introduction to this series of posts, see here.)
So far, I’ve argued that Hobby Lobby likely has a good case as to the claim that the employer mandate substantially burdens religious exercise, because the mandate requires Hobby Lobby to do something — fund potentially implantation-preventing contraceptives — that Hobby Lobby’s owners believe is religiously forbidden. But of course not all substantial burdens on religious exercise require an exemption under RFRA. RFRA provides that “[g]overnment may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … is the least restrictive means of furthering [a] compelling governmental interest.” And this “compelling interest test” (also known as “strict scrutiny”) seems to refer to the test “set forth in prior Federal court rulings” decided under the Free Exercise Clause during the Sherbert/Yoder era.
This, I think, is the most unpredictable part of the Hobby Lobby case, because prior rulings are largely unclear on what constitutes a “compelling governmental interest,” and what the “least restrictive means” requirement means. Moreover, while the strict scrutiny test in race and free speech cases has generally been seen as “strict in theory, fatal in fact” (Gerry Gunther’s phrase), almost always invalidating the government law, this hasn’t been so in religious exemption cases.
Larry Sager and Chris Eisgruber labeled the religious exemption strict scrutiny test “strict in theory, feeble in fact,” and while the Court’s one RFRA case — Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) — seemed to use strict scrutiny in a moderately muscular way, the most we can say is that religious objectors will sometimes win under the test and sometimes lose. In the coming posts, I’ll try to mine the religious exemption precedents for what insight they can [...]