The Volokh Conspiracy

Al Arabiya reports:

An Egyptian Copt arrested on suspicion of posting online an anti-Islam film that ignited Muslim protests around the world was sentenced on Wednesday to three years in prison, a court source said

Computer science graduate Alber Saber, 27, was arrested at his Cairo home on Sept. 13 after neighbours accused him of uploading sections of the film “Innocence of Muslims” and making another movie mocking all religions....

Prosecutors accused Saber of running Facebook pages calling for atheism, insulting Islam and Christianity and questioning religious beliefs....

Thanks to Charles Chapman for the pointer.

Also from the General Social Survey, though this time with a question that was only asked in 2008 and 2010, yielding a total of 2500 respondents:

“Now consider a Muslim clergyman who preaches hatred of the United States. If such a person wanted to make a speech in your community preaching hatred of the United States, should he be allowed to speak, or not?”

• Liberal — 52% yes, 48% no.
• Moderate — 38% yes, 62% no.
• Conservative — 39% yes, 61% no.

Here, the difference is considerably greater than as to anti-religious speech and speech claiming blacks are genetically inferior — discussed here — though it’s still in the same direction of liberals being more in favor of speech protection.

UPDATE: I originally accidentally typed “52% yes, 38% no” for liberals; I meant to say, “52% yes, 48% no.”

Fortunately it’s unpublished, and the defendant likely deserved to lose on this claim, but I was still surprised by the court’s analysis. The case is State v. Merrick (Ariz. Ct. App. Oct. 30, 2012), and the relevant portion reads:

Defendant also contends that the court abused its discretion by granting the State’s motion in limine which precluded him from presenting a freedom of religion defense pursuant to A.R.S. § 41-1493.01 (West 2012).

Section 41-1493.01 is part of Title 41, article 9, entitled “free exercise of religion protected.” Section 41-1493.01 provides that one has a fundamental right to free exercise of religion, and applies while a person is employed by the state or other governmental entity.

Although the statutory free exercise of religion provision protects employees of state government, it is not a defense to criminal conduct. The legislature did not make the free exercise of religion a defense in Title 13 of the Arizona Revised Statutes. And, Defendant has not cited to any case where § 41-1493.01 has been presented as a defense in a criminal case, and we have not discovered one. Consequently, the trial court did not err by granting the State’s motion in limine.

But, as I read § 41-1493.01,

1. It never mentions “employees of state government.”
2. It provides that it can be raised as a “defense in a judicial proceeding,” and applies to “all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise, and whether adopted before or after the effective date of this article,” with no exceptions for criminal laws.
3. It has indeed been presented as a defense in a criminal case, and discussed extensively by the Arizona Supreme Court in such a case, State v. Hardesty (Ariz. 2009). The Arizona Supreme Court ultimately rejected the defendant’s argument in that case, but only because it concluded that the application of the particular criminal law in that case to that defendant was “In furtherance of a compelling governmental interest” and “The least restrictive means of furthering that compelling governmental interest,” as required by § 41-1493.01.
4. Indeed, Hardesty specifically discusses the fact that § 41-1493.01 is potentially applicable in criminal cases, and notes that criminal defendants might sometimes prevail under this section: “Because Hardesty is asserting a FERA defense to criminal charges, the issue is whether a less restrictive statute or regulation would have excused the conduct for which he was convicted. For example, apart from the specific statutory exemption under A.R.S. § 13-3402(B), a member of the Native American Church charged with possession of peyote might be able to assert that a less restrictive governmental regulation than a total ban would serve the government’s interest. The analysis would be different, however, if the charged criminal use occurred while the defendant was driving a school bus.”
5. § 41-1493.01 is essentially a state Religious Freedom Restoration Act, created to apply to state laws the religious exemption test pioneered by Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972). That religious exemption test has long been understood as potentially applicable in criminal cases (though it won’t always cause a criminal defendant to prevail). Indeed, Yoder was a criminal case.

As I mentioned, the defendant in this case likely deserved to lose in any case, since it seems from the opinion that he likely didn’t have any sincere religious objection to the law, and, even if he did, the application to him of the relevant criminal laws (the laws banning conspiracy to tamper with witnesses, conspiracy to commit perjury, and obstructing an investigation or prosecution) would pass the strict scrutiny required by § 41-1493.01. But while the result is right, the reasoning does not seem sound. Or am I missing something here?

Or in soybean-based ink.  George Will’s column today discusses the Elane Photography case that Eugene has been blogging (and participating in as amicus curiae). The case involves a First Amendment Free Exercise Clause/New Mexico Religious Freedom Restoration Act defense to penalties the New Mexico Human Rights Commission assessed against Christian photographers who refused for religious reasons to photograph a same-sex commitment ceremony. Will writes:

Eugene Volokh of the UCLA School of Law thinks that [photographer Elaine] Huguenin can also make a “compelled speech argument”: She cannot be coerced into creating expressive works, such as photographs, that express something she is uncomfortable expressing. Courts have repeatedly held that freedom of speech and the freedom not to speak are “complementary components of the broader concept of ‘individual freedom of mind.’ ”

Now here’s my favorite part, for purely selfish reasons. Will continues “New Mexico’s Supreme Court is going to sort all this out, which has been thoroughly reported and discused on the invaluable blog the Volokh Conspiracy . . . .”

In the 1980s, First Lady Nancy Reagan famously urged kids to “just say no” to drugs. Although I’m no fan of the War on Drugs, she was certainly correct to point out that saying “no” is a good way of avoiding the dangers of drug use. Co-blogger Eugene Volokh makes a similar argument with respect to violence intended to pressure Western nations into suppressing “blasphemous” speech. Giving in to the terrorists incentivizes further terrorism, while refusing to do so reduces the risk of future violence. This principle applies to terrorism more broadly: An excellent way to reduce the risk of attacks is to refuse to give in to the terrorists’ demands. Over time, a government that develops a reputation for saying no to terrorists is likely to suffer fewer attacks in the first place.

I. Why Terrorists Rarely Target Dictatorships.

Most terrorist attacks are undertaken in the hopes of extracting some sort of political concession from the targeted nation. The terrorists strike because they think they have at least a reasonable chance of achieving the desired result. Governments that refuse to give in suffer fewer attacks. The most striking evidence supporting this conjecture is that terrorists rarely target dictatorships. That certainly isn’t because dictatorships are so nice that few people have grievances against them. To the contrary, they usually generate far more grievances than democracies do.

For example, it is striking that there is relatively little Muslim terrorism directed at Chinese targets, despite the Chinese governments’ brutal repression of its Muslim minority. In the days of the Soviet Union, Muslim terrorism directed against that government was very rare, despite the invasion of Afghanistan and the USSR’s harsh treatment of its own large Muslim population. Even Osama Bin Laden didn’t engage in terrorist attacks against civilians when he fought the Soviets in the 1980s. The contrast with his tactics against the US is instructive. As Russia became more democratic in the 1990s, the growing conflict in Chechnya began to generate more terrorist attacks, which in turn declined again over the last few years, as Vladimir Putin has consolidated a more authoritarian regime in Russia.

The main reason why dictatorships rarely suffer terrorist attacks is that they rarely given in to terrorists. Potential terrorists know that terrorism directed at dictatorships is unlikely to pay. Obviously, dictatorships also have harsher security policies than democracies do. But that doesn’t explain why terrorist attacks rarely target even those dictatorships that have relatively weak security services, or aim at targets associated with authoritarian governments beyond their borders (where their ability to adopt repressive security policies is much weaker than at home). Western democracies’ embassies and citizens traveling abroad get targeted far more often than those of authoritarian states, even though the latter are comparably vulnerable to attack. Muslim terrorists and rioters rarely if ever targeted Soviet embassies in the 1980s or Chinese ones today, despite the many Muslim grievances against those two governments.

II. The “Just Say No” Approach to Preventing Terrorism.

Saying no has many advantages over alternative antiterrorism policies. Unlike defensive security measures, it doesn’t require much in the way of extra government spending or violations of civil liberties. It is also less costly than offensive military action against the terrorists and creates fewer collateral risks. One can argue that avoiding actions that anger terrorists in the first place is even cheaper. But as the current round of riots at US embassies and many other incidents show, all sorts of things can anger potential terrorists. And it is impossible for a free society to even come close to avoiding all of them. Moreover, if potential terrorists realize that we are preemptively trying to avoid doing anything that might give them offense, that in itself is likely to generate additional demands backed by threats of terrorist attacks if the demands are not met.

Obviously, saying no is far from a complete substitute for these other strategies. But it can incrementally reduce the need to resort to them. In the long run, that reduction can be quite large, since saying no can greatly reduce the incentive of terrorists to target the state in the first place.

Unfortunately, democracies – including the US and Israel – often do make concessions to terrorists. Changing this pattern is not easy. The reason why democracies are more likely to give in than dictatorships is, of course, that they place a higher value on civilian life, and public opinion sometimes pressures them into making concessions in order to secure the release of hostages.

In addition, saying “no” may create genuine moral dilemmas in cases where the terrorists have at least a partially just cause. For example, Chechen terrorists have some legitimate grievances against Russia; but they have also committed horrendous atrocities against civilians. In such cases, saying “no” requires continuation of unjust policies that should never have been adopted in the first place. That creates a potentially difficult tradeoff.

That said, most terrorists are not fighting for just causes, and the genuine dilemma posed by those who are should not be allowed to obscure the virtues of saying “no” to the many who are not. And while it may be difficult for democracies to commit to a consistent policy of saying no, the beginning of wisdom is to recognize the problem and the ways in which committing to no can help solve it. The idea that giving in to terrorists breeds more terrorism is not a hard one to grasp, and even rationally ignorant voters can come to understand it over time. Hopefully, both the general public and political elites will begin to learn the lesson.

NOTE: In this post, I use “terrorism” in the commonly accepted sense of attacks deliberately targeting civilians. Thus, the fact that insurgent groups often target the military and security forces of dictatorships doesn’t count against my thesis. Defeating an authoritarian state’s military can indeed force them to give in, while harming its civilians rarely will.

UPDATE: I should perhaps add that there is a difference between a policy of saying no to terrorism and a policy of never doing anything that any terrorist might possibly want us to do. There is a difference between doing X in order to convince terrorists to stop attacking us, and doing X for unrelated reasons of our own. In some cases, unfortunately, terrorists might mistake the latter for the former. That’s one reason why cases where terrorists have a just cause create a difficult dilemma. A government that takes actions that happen to coincide with the demands of terrorists, but does so for reasons other than a desire to appease them, needs to find a way to credibly convey the reasons for its actions. How best to do that is a difficult issue that I cannot address in a post that is already too long.

UPDATE #2: I recognize, as some commenters note, that the paper I cite for evidence that dictatorships suffer fewer terrorist attacks than democracies mostly attempts to explain variation in attacks between different dictatorships. But the first part of the paper summarizes extensive previous literature showing that dictatorships experience fewer terrorist attacks than democracies. The latter part does not contest this, but merely shows that some dictatorships experience fewer attacks than others and tries to explain why. I intended to rely only on the first part of the paper, the one that summarizes the previous literature.

UPDATE #3: I suppose I should note more explicitly that there have been cases of Muslim terorism in China. However, they are far less common than attacks directed at Western democracies. More generally, the point is not that dictatorships avoid terrorist attacks entirely, but that their incidence is much lower than that of attacks directed at democracies, even though the former create far more grievances among potential terrorists. A consistent policy of saying no can’t eliminate terrorism entirely. But it can substantially reduce its incidence.

Ever since the Arab Spring began, I have been concerned that it could ultimately result in the establishment of Islamist regimes as bad or worse than the more secular dictatorships they replaced. One of the reasons for that fear is that public opinion in many Arab nations is highly illiberal and intolerant. As a result, free elections could result in victories for authoritarian and repressive radical Islamists, as has indeed happened in Egypt. The new Islamist Egyptian President has already imposed media censorship and harrassment that activists consider to be worse than Mubarak’s was.

Unfortunately, the recent outbreak of violent riots in many Middle Eastern nations in response to an insignificant anti-Muslim Youtube video is a further indication of the problem. With the important exception of Libya, most Arab and Muslim governments have issued vitriolic condemnations of the video while either ignoring or only mildly criticizing the violent response to it.

In the absence of systematic polling data, it is too early to say what percentage of the population in these countries agrees that violent rioting is a justified response to “blasphemous” speech. But the tepid reaction of Arab governments to the violence suggests that such support is at least relatively common, even if not the view of a majority. And in Egypt, site of some of the worst violence, previous survey data shows that violent religious intolerance does enjoy majority support. For example, a 2010 Pew survey found that 84% of Egyptians believe that Muslims who convert to another religion should be executed.

It would be a mistake to say that such intolerance and illiberalism are an inevitable attribute of Islam. Like Christianity and Judaism, Islam is a centuries-old religion with many different variants, some of them more liberal and tolerant than others. I don’t believe that the radical Islamism is the “true” version of Islam, while liberal variants are somehow “fake.” There is no single true Islam, any more than there is one true version of Christianity. But it is clear that the versions of Islam that enjoy widespread support in much of the Muslim world are authoritarian and oppressive. And, in many countries, the purveyors of such intolerance have been empowered by the Arab Spring to a much greater extent than liberals.

None of this bodes well for the future of the Arab Spring nations. Obviously, public opinion is not the only factor that will determine the outcome. Political elites matter too, as do a variety of other factors. Unfortunately, however, in much of the Arab world, radical Islamists are far better organized than their more liberal opponents, which might enable them to seize and hold power even when majority opinion is not on their side.

I’m pleased to say that the New Mexico Supreme Court will hear the Willock v. Elane Photography case, which I’ve blogged about extensively. The court will now decide whether

(1) holding a wedding photographer liable for refusing to photograph a same-sex commitment ceremony violates New Mexico’s statutory ban on sexual orientation discrimination, and

(2) even if it does violate the statute, whether the photographer is nonetheless immune from punishment because

(a) requiring her to create photographs that she doesn’t want to create is a speech compulsion, in violation of the Free Speech Clause,

(b) she is entitled to an exemption under the federal or state Free Exercise Clauses, and

(c) she is entitled to an exemption under New Mexico’s Religious Freedom Restoration Act.

For more on all these theories, see this thread.

There’s been some recent buzz about this court decision, In the Matter of C (Romford County Ct. May 11, 2012); see, for instance, here, here, and here. I tend to think the court decision is correct, and here’s why.

The parents were nonobservant Jews for most of their marriage, but at the very end of the marriage, the father converted to Christianity (Anglicanism, specifically). The parents seem to have what in America would be treated as joint physical and legal custody, with the daughter spending roughly equal time with each, and with each having equal authority over the daughter’s upbringing. The daughter, who is apparently a quite intelligent 10½-year-old, decided she wanted to get baptised, which in the Anglican church involves taking baptism classes as well as going through the baptism ritual. The father had encouraged the daughter’s interest in Christianity, but the court concluded that the daughter genuinely did want to go through the baptism, and had been seeking to do so for about ten months; nor did the court note anything that it saw as undue pressure by the father that would bring this about (though of course it’s very hard to figure out what counts as undue pressure in such a situation).

It seems to me that there are four key facts here:

(1) The court had to decide whether to forbid father from taking the daughter to baptism classes and letting her go through the baptism ritual. The question wasn’t whether the mother could, during her parenting time, continue to expose the daughter to Jewish rituals (which she had started doing in some measure following the breakup, though only by “lighting a candle in the home on Friday nights and explaining its significance to the children,” and which she seemed to want to do to a greater degree in the future); for my views on that, in the American legal system, see Parent-Child Speech and Child Custody Speech Restrictions. The father was not seeking to stop the mother from engaging in such rituals with the child.

(2) The court had to decide what to do when the custodial parents disagreed. This did not involve parents who agreed with each other but disagreed with the daughter’s choice, or a contest between a parent who had primary legal custody and the child plus the other parent who had only visitation rights.

(3) The daughter seemed to genuinely want to be baptised, and wanted this over the span of several months.

(4) The daughter seemed to the court to be relatively intelligent and mature, even slightly more than a normal 10½-year-old would be.

Given this, what is the court to do? The usual rule in intact families, which is that the parents have the legal authority to control their children’s actions (to the point of getting the police to bring the children back if they go off without authorization, and to using the law against those adults who help the children go off without authorization), doesn’t apply here. Nor does the usual rule with divorced or never-married parents when one parent has legal custody, which is to say the legal power to make decisions about the child’s education, the child’s religious practice, the child’s medical treatment, and the like. How then is the court to decide?

Continue reading ‘English Court Lets 10-Year-Old Girl Choose to Be Baptised, Over Jewish Mother’s Objections (but with Christian Father’s Permission)’ »

Today’s GeorgiaCarry.org v. Georgia (11th Cir. July 20, 2012) upholds the ban against a challenge under the Free Exercise Clause and the Second Amendment. An excerpt (some paragraph breaks added):

[A.] In 2010, the Georgia legislature, apparently concerned that the carrying of [knives and handguns] and long guns would likely present an unreasonable risk of harm to people who assemble in eight specific locations [including "place[s] of worship”], enacted a statute barring the unrestricted carrying of weapons or long guns in those locations. This statutory bar does not apply, however, to a [concealed carry] license holder if, on arriving at one of the eight locations, such person “approaches security or management personnel upon arrival ... and notifies such security or management personnel of the presence of the weapon or long gun and explicitly follows the security or management personnel’s direction for removing, securing, storing, or temporarily surrendering such weapon or long gun.” The refusal to approach security or management personnel or to comply with management’s direction is a misdemeanor....

[B.] We conclude that the Amended Complaint fails to state a Free Exercise Clause challenge because Plaintiffs omit any factual matter showing how the Carry Law burdens a sincerely held religious belief. Plaintiffs argue that such an allegation is unnecessary if a law is subject to strict scrutiny because it is not neutral or generally applicable. The problem with that argument is that it misconstrues clear, well-established First Amendment precedent from both the Supreme Court and this court....

At various points, Plaintiffs allege that they would like to carry a handgun in a place of worship for the protection either of themselves, their family, their flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the Carry Law interferes with their free exercise of religion by prohibiting them from engaging in activities in a place of worship when those activities are generally permitted throughout the State. That Plaintiffs “would like” to carry a firearm in order to be able to act in “self-defense” is a personal preference, motivated by a secular purpose....

[C.] We view the Second Amendment challenge as essentially raising only a facial challenge. As we stated with respect to Plaintiffs’ Free Exercise claim, Plaintiffs must show that the Carry Law is unconstitutional in all applications to prevail in their facial challenge. See United States v. Salerno, 481 U.S. 739 (1987).

One common application of the Carry Law would be when a license holder wants to carry a firearm in a place of worship where management of the place of worship prohibits carrying. To state a facial challenge, therefore, Plaintiffs must take the position that the Second Amendment protects a right to bring a firearm on the private property of another against the wishes of the owner.... In short, we read Plaintiffs’ claim to assume the following: management of a place of worship is likely to bar license holders from carrying an unsecured firearm on the premises; the license holders are unlikely to comply with management’s instructions; management is likely to report such conduct to law enforcement; the license holders are likely to be arrested by for their refusal to comply with management’s instructions; and the arrest establishes a Second Amendment violation....

[P]roperty law, tort law, and criminal law provide the canvas on which our Founding Fathers drafted the Second Amendment. A clear grasp of this background illustrates that the pre-existing right codified in the Second Amendment does not include protection for a right to carry a firearm in a place of worship against the owner’s wishes. Quite simply, there is no constitutional infirmity when a private property owner exercises his, her, or its — in the case of a place of worship — right to control who may enter, and whether that invited guest can be armed and the State vindicates that right. This situation, being a likely application of the Carry Law, illustrates that Plaintiffs cannot show that all or most applications of the Carry Law are unconstitutional. See United States v. Salerno.

This strikes me as correct. I can imagine an Establishment Clause argument that the law is unconstitutional because it singles out “place[s] of worship” for a special rule that doesn’t apply to comparable secular institutions. Given the Court’s unclear rule related to religion-specific laws, it’s not clear how such an argument would fare, but my sense is that it would probably lose, on the theory that the government has an interest in protecting religious worship — whether or not one agrees that such laws ultimately do end up protecting religious worship — that justifies enacting such special rules. (A similar theory has been used by lower courts to uphold special laws and sentencing enhancements for attacks on places of worship.) In any event, though, this does not seem to be the argument challengers made.

The mosque had aroused a great deal of public opposition; the county planning authorities nonetheless granted the necessary building permits; but a state court ruled that the county hadn’t given sufficient notice to the public about its meetings, given the heightened public interest in the mosque. The court therefore blocked the issuance of an occupancy permit, partly on the theory that, in such cases of especially great public interest, a heightened level of notice was required.

But a federal district court has just temporarily stayed that state court order, and thus let the mosque start functioning. The district court’s key point, I think, was that the state court’s heightened notice standard treated the building projects of controversial religions worse than those of religions that don’t arouse public hostility, and thus violated the requirement that religious institutions be treated equally:

Compliance with the State Court’s Orders imposes a heightened notice requirement regarding the mosque which substantially burdens the Islamic Center’s free exercise of religion without a compelling governmental interest.

I’m inclined to think that the district court’s analysis was correct: Just as the law may not impose greater permit fees for controversial parades (see Forsyth County v. Nationalist Movement (1992)) — even when those parades do require greater security expenses — so the law may not impose greater procedural hurdles (including public notice requirements for planning board hearings) for controversial churches, even when those churches do arouse greater public interest in the hearings.

For more on the case, see the Becket Fund press release and legal argument. The Becket Fund sued on behalf of the mosque, but the federal government also sued as well.

The petition is here; for more on the case, and why I think the New Mexico Court of Appeals decision is wrong, see here. See also this post by Hans Bader (CEI’s OpenMarket.org)

The AP reports:

The Louisiana House gave final legislative passage Monday to a $3.4 billion elementary and secondary school spending plan ....

The Jindal administration urged passage of the spending plans. They will fund the governor’s newly created statewide voucher program that funnels tax dollars toward private and parochial school tuition for students who otherwise would attend low-performing public schools....

Rep. Kenneth Havard, R-Jackson, objected to including the Islamic School of Greater New Orleans in a list of schools approved by the education department to accept as many as 38 voucher students. Havard said he wouldn’t support any spending plan that “will fund Islamic teaching.”

“I won’t go back home and explain to my people that I supported this,” he said.

“It’ll be the Church of Scientology next year,” said Rep. Sam Jones, D-Franklin.

Carter, R-Baton Rouge, said the Islamic school withdrew its request to participate in the voucher program.

“They’re not interested. The system works,” he said....

I don’t know why the Islamic School withdrew its request to participate in the program, and of course it has no obligation to participate. But if the state chooses to provide a generally available scholarship program that includes religious schools, it has to include those schools without regard to religion; that’s a basic command of the First Amendment (see, e.g., Larson v. Valente (1982)).

Indeed, soldiers can take advantage of GI Bill funds at religious colleges and universities, which would include ones that teach Islam as well as ones that teach Christianity or Judaism. (I don’t know whether there are any such universities in the U.S. today, but GI Bill funds would be usable there if such universities existed.) The government provides property tax exemptions to various nonprofit institutions, which includes mosques as well as churches and synagogues (and secular nonprofits, such as private schools and charities). The government lets people deduct from their income taxes contributions to various nonprofits, which likewise includes mosques as well as churches, synagogues, and secular nonprofits. That is economically equivalent to a matching grant program, but it’s quite permissible, so long as the government doesn’t discriminate based on religion. Historically, the postal service offered reduced rates as a very important subsidy for newspapers, magazines, and books; I believe such a subsidy still exists (under the rubric of “media mail”), though my sense is that it’s less important. That subsidy was just as available for mailings of Korans as of Bibles or of secular literature.

Some people are troubled by the fact that under these programs taxpayers have to effectively subsidize views they disagree with. I’m not that troubled by that, especially since taxpayers have to routinely subsidize views that the government expresses, even when they disagree with those views. If we’re worried about the burden on dissenting taxpayers, I’d think that this burden is less problematic when taxpayer money subsidizes a diversity of views that is provided by a wide range of schools than when taxpayer money subsidizes just the government’s own chosen views as presented by the government-run schools. And indeed the Court has held that there is no constitutional problem when taxpayer money indirectly flows to support private views that the taxpayers may disagree with, even when religious institutions are included alongside other institutions in evenhanded private-choice funding programs, such as the GI Bill, school choice, or the charitable tax deduction.

But in any event, whether the government chooses to have such subsidies, or chooses to avoid such subsidies in order to protect potentially objecting taxpayers (a misguided decision, I think, but a permissible one), it can’t selectively try to exclude a particular religion. Some content-based mandates of speech (e.g., if you want this money, you must teach so much math and English) or content-based limits on speech (e.g., you may not use this money to teach sex education) are permissible. It’s conceivable even that some viewpoint-based limits on speech using the money are permissible, though the matter is complicated. But it’s clear that discrimination in such funding programs against some religions, regardless of what secular material the school teaches, and in favor of other religions is unconstitutional.

Thanks to commenter Zuch for the pointer.

I blogged earlier today about the New Mexico Court of Appeals decision in Willock v. Elane Photography, which held that a wedding photographer could be held liable for refusing to photograph a same-sex commitment ceremony. I argued that the decision violated the photographer’s First Amendment rights not to create expressive works (such as photographs) that she doesn’t want to create.

But the photographer (Elane Huguenin) also argued that, even setting aside the compelled speech argument, she was entitled to a religious exemption from the state ban on sexual orientation discrimination in places of public accommodation. First, she argued that this was so under the federal Free Exercise Clause and the New Mexico Constitution’s similar provision, but the court responded that those provisions do not generally require religious exemptions. I think that’s a correct conclusion under the Free Exercise Clause, given the Employment Division v. Smith precedent, and a plausible one under the New Mexico Constitution.

But New Mexico also has a Religious Freedom Restoration Act, which provides, in relevant part,

[§ 28-22-1.] Sections 1 through 5 of this act may be cited as the “New Mexico Religious Freedom Restoration Act”.

[§ 28-22-2.] ... A. “free exercise of religion” means an act or a refusal to act that is substantially motivated by religious belief; and
B. “government agency” means the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities....

[§ 28-22-3.] A government agency shall not restrict a person’s free exercise of religion unless:
A. the restriction is in the form of a rule of general applicability and does not directly discriminate against religion or among religions; and
B. the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

[§ 28-22-4.] A. A person whose free exercise of religion has been restricted by a violation of the New Mexico Religious Freedom Restoration Act may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government agency, including:
(1) injunctive or declaratory relief against a government agency that violates or proposes to violate the provisions of the New Mexico Religious Freedom Restoration Act; and
(2) damages pursuant to the Tort Claims Act, reasonable attorney fees and costs.
B. Immunity from liability of the government agency and its employees is waived for an action brought pursuant to this section.

[§ 28-22-5.] Nothing in the New Mexico Religious Freedom Restoration Act authorizes a government agency to burden a person’s free exercise of religion. The protection of the free exercise of religion granted in that act is in addition to the protections granted by federal law and the state and federal constitutions. The New Mexico Religious Freedom Restoration Act does not affect the grant of benefits or tax exemptions to religious organizations nor does it impair any other exemptions granted by law.

So if Huguenin can show that applying the antidiscrimination law to her would “restrict[]” her “refusal to act that is substantially motivated by religious belief,” then she should be entitled to raise that “as a ... defense in a judicial proceeding,” unless “the application of the restriction to the person is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” And, as I argued in this post, Huguenin should have a strong claim here, especially if there are many other photographers in the area who would gladly photograph a same-sex commitment ceremony — and especially given that the state’s claim that it has a compelling interest in eliminating every instance of sexual orientation discrimination rings hollow given that the state itself discriminates against same-sex commitment ceremonies in its own marriage laws.

But the New Mexico Court of Appeals concluded that the New Mexico RFRA doesn’t even apply here, because “this statute was not meant to apply in suits between private litigants”:

The text of the NMRFRA is clear in limiting its scope to cases in which a “government agency” has restricted a person’s free exercise of religion. Elane Photography claims that the language of the statute authorizing a litigant to “assert [a NMRFRA] violation as a claim or defense in a judicial proceeding” allows cases between private parties. Elane Photography takes this language out of context. In context, parties may raise NMRFRA violations as a claim or defense to “obtain appropriate relief against a government agency[.]” Willock is not included in the definition of a “government agency” under the NMRFRA, and this statute was not meant to apply in suits between private litigants.

But I think that can’t be right. The text of the statute covers all “the state or any of its political subdivisions, institutions, departments, agencies, commissions, committees, boards, councils, bureaus or authorities.” That includes the New Mexico Human Rights Commission, which initially found Elane Photography liable, and ordered it to pay over $6600 in attorney fees, and it includes the New Mexico courts — which are surely “institutions” of “the state” of New Mexico.

Indeed, the proceedings were initiated by a private person, Vanessa Willock. But Willock asked “the state” to order Elane Photography to pay money, and that’s what the state did. Under the text of the New Mexico RFRA, Elane Photography has the right to argue that imposing liability on it violates RFRA, and to “assert that violation as a ... defense in a judicial proceeding and obtain appropriate relief against a government agency,” which would include a judicial determination that the “government agency” (the Commission or a court) may not hold Elane Photography liable.

Nor does the history of the statute somehow limit this express text. Briefly, from 1963 to 1990, the Supreme Court held that the Free Exercise Clause secured people a presumptive right to an exemption from generally applicable laws. The Free Speech Clause throughout that era was seen by the Supreme Court as applying to civil lawsuits between private parties (including even purely common-law claims, and certainly to claims brought under statutes), the Free Exercise Clause was often used in lower courts as a defense in such lawsuits (chiefly claims recognizing a “ministerial exception” to antidiscrimination laws), and the First Amendment was used by the Supreme Court as a limitation on civil lawsuits involving church property disputes. Then in 1990 the Court held, in Employment Division v. Smith, that the Free Exercise Clause generally did not secure such a right, as against generally applicable laws; and in response to that, various jurisdictions — including New Mexico — sought to “restore” the 1963-to-1990 regime, a regime that applied to civil lawsuits between private parties and not just to criminal prosecutions or claims brought by the government.

There is thus no reason to think that the New Mexico legislature specifically intended to exclude civil lawsuits among private parties from coverage by the New Mexico RFRA. And, as I said, nothing in the text of the statute excludes such lawsuits. So Elane Huguenin’s claim does indeed seem to be covered by the New Mexico RFRA. Again, I hope that she and her lawyers at the Alliance Defense Fund ask the New Mexico Supreme Court to review this question (though note that the New Mexico Supreme Court will be the end of the line for this issue, since that court is the ultimate interpreter of state statutes; the U.S. Supreme Court could review the First Amendment compelled speech issue in this case, but not the state RFRA issue).

I should note that, as the court points out, some federal opinions have interpreted the federal RFRA as excluding civil lawsuits between private parties, using a similar argument. (The court notes two opinions that have so held, and one that has held the contrary.) But those opinions aren’t binding on the New Mexico courts, and I think they are mistaken, for the reasons mentioned above.

Several Catholic dioceses and universities filed suit today against the so-called contraception mandate, the Washington Post reports here and here. In all twelve lawsuits were filed in twelve separate federal district courts. There are 43 separate plaintiffs in these suits, including the Archdioceses of Washington, D.C. and New York, Catholic University, and the University of Notre Dame, where President Obama delivered the commencement address in 2009.

In somewhat related news, Exorcist author William Peter Blatty is suing Georgetown University in Catholic court alleging the school has abandoned its Catholic faith and violating church teaching. According to this report, the “last straw” was Georgetown’s invitation to HHS Secretary Kathleen Sebelius to address graduating students.

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments

The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:

B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.

C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.

And “exercise of religion” is defined (in § 41-1493.01) very broadly:

“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:

Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s ... [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological beliefs and certainly on their past actions. People who discriminate based on race or religion or sexual orientation in their companies – whether such discrimination is civilly actionable or not – might not be selected for membership on a human rights commission. Notorious advocates of the use of faith healing instead of traditional medicine might not be selected for a medical regulatory board.

Lawyers who have violated bar rules (for instance, by breaching client confidences, even for powerful moral reasons) might not be selected for membership on bar disciplinary committees. People who live in households that are essentially polygamous (but don’t try to engage in a formal polygamous marriage) might not be appointed as family court judges. [UPDATE: Likewise, people who have publicly stated that they oppose the death penalty under all circumstances might not be appointed to the Board of Executive Clemency.] The list could go on.

Yet, if taken seriously, this law would bar all such selection decisions, if the person’s discriminatory conduct, public support for faith healing, breach of client confidences, [UPDATE: public opposition to the death penalty], or polygamy were religiously motivated. Even if the appointing official is not at all motivated by the prospective appointee’s religiosity, but is focused solely on the appointee’s past conduct, the law bars discrimination even based on that conduct, so long as the appointee engaged in that conduct for religious reasons.

This seems to me to be wrong. There are good arguments for having laws that authorize presumptive exemptions for people who have religious objections (or, I think, secular conscientious objections) to generally applicable laws. But (1) those arguments are much weaker, I think, when we’re not talking about the government acting as sovereign, restricting what we do, but are talking about the government acting as employer of high-level decisionmakers. (Note that “public office” in Arizona refers not to all public employment, but to certain kinds of relatively high-level decisionmaking appointments.) And (2) they make sense only to the extent that they call for a presumptive exemption that can be overcome by a showing of sufficient government need, not a categorical exemption.

Thus, for instance, federal religious accommodation law requires employers (private and governmental) to accommodate employees’ religiously motivated behavior when such accommodation doesn’t impose “undue hardship” on the employer. State Religious Freedom Restoration Acts (including such an act that has been the law in Arizona for some years) could be read as imposing similar protection, or as providing higher protection that can only be overcome by a showing that the government has a “compelling interest” in restricting its employees’ religiously motivated behavior.

But this law imposes a total bar on the consideration of religiously motivated behavior (or at least non-criminal religiously motivated behavior) by applicants for office. And it does so for the relatively high-level offices for which consideration of conduct and even speech and political belief seems most legitimate. Either the law will be enforced as written, in which case the appointing officials will be unable to exclude prospective candidates whose past conduct suggests they really should be excluded. Or the officials will find a way to indeed exclude such candidates, even when the past conduct is religiously motivated — but only by flouting the law.