This story on NPR is why I teach Law and Theology (occasionally). Our ideas and beliefs, whether implicit or explicit, about the nature of God's judgement and grace impact our ideas about human behavior and markets, and therefore about law.

I am working on three major research projects: one short-term, and two others longer term.

The short-term project I wish to complete this year involves the current controversies over freedom of religion. Specifically, I intend to analyze several claims of conservative American religious organizations that their religious liberty is being violated. A number of religious organizations have challenged the constitutionality of laws that protect against discrimination or intimidation on the basis of sexual orientation; laws extending health insurance coverage for birth control; and laws that prohibit tax-exempt charitable organizations from endorsing political candidates. In connection with this project I intend to compare and contrast the Barmen Declaration of 1934 with the Manhattan Declaration of 2009.

I chose Freedom of Religion as my next focus because in the past I have published in nearly every other principal area that is covered in an introductory course to Constitutional Law. I have proposed original theories for analyzing the State Action doctrine and Freedom of Expression problems; analyzed affirmative action and gay rights under Equal Protection and Substantive Due Process; published a book about the power of Congress to enact the Affordable Care Act under the Commerce Clause, the Tax and Spending Clause, and the Necessary and Proper Clause; and written about eavesdropping on international communications, the torture of prisoners in the War on Terror, and the enactment of economic legislation in light of the principle of Separation of Powers. Research and writing in an area strengthens my knowledge and understanding and makes me a better teacher. Particularly in light of all of the social and political disputes now arising under Freedom of Religion, it seems appropriate to now turn my attention to the topic.

The longer-term projects I wish to undertake include books about Abraham Lincoln and legal reasoning. The Lincoln project will describe how he changed our understanding of what it means to be an American and how he continues to influence the interpretation of the Constitution. I have published two law substantive review articles and several essays on Lincoln and the Constitution, and I have made dozens of presentations to professional, academic, and community audiences on the literary, philosophical, religious, and legal aspects of his work.

The legal reasoning book will complement my earlier work The Five Types of Legal Argument. Five Types is an intensely practical work; it presents a checklist of the different kinds of arguments that lawyers and judges construct and it describes how to attack and evaluate the strength of each types of argument. The new book will be more theoretical; it proposes that in analyzing hard cases lawyers and judges proceed through three distinct stages of reasoning: formalism, analogical reasoning, and realism. The stages of legal reasoning correlate to the stages of cognitive and moral development that psychological researchers have observed in individuals.

I have only a few more years until retirement. We'll see how much I get done before then.

Wilson Huhn has been teaching Constitutional Law at the University of Akron School of Law since 1984. Since that time he has driven around the world seventeen times – all on I-271 and Rt.8.

In this case, described generally in yesterday's post, a teacher, Cheryl Perich, who suffers from narcolepsy, is suing her former employer, the Hosannah-Tabor Evangelical Lutheran Church and School, on the ground that she was fired because she threatened to file a lawsuit under the Americans with Disabilities Act.  The parochial school that is the defendant in this case claims that it is constitutionally immune from the application of laws prohibiting employment discrimination in general and the Americans with Disabilities Act in particular because of the "ministerial exception," a judge-created rule.  This post describes the brief filed by the Hosannah-Tabor Church and School in the United States Supreme Court.

In its brief the school attempts to build an argument that Ms. Perich violated church doctrine when she fought for her job.  In describing the events leading to her dismissal, the school's brief states: 

On February 13, the school board told Perich that “since there was no opening for her to return to, she could not return to work on February 22.”  But on February 22, with no notice save a late-night email on February 21, Perich showed up at the school and refused to leave until Hoeft gave her a letter acknowledging that she had reported to work. Later that day, Perich told Hoeft that if she were not reinstated, she would sue the Church.  Hoeft immediately asked Perich if that were what she really meant, because a lawsuit would clearly violate the Church’s conflict resolution policy applicable to called employees.  Perich repeated the threat.  Scott Salo, who chaired the school board, wrote Perich that night. He said that her actions had demonstrated an intent “not to return to work, but rather to create upheaval at our school.”  In the board’s opinion, Perich had evinced “a total lack of concern for the ministry of Hosanna-Tabor Lutheran School.”  On March 19, after consulting with the Michigan District Office (a component of the Synod), Salo wrote Perich that the school board had decided to recommend that the congregation rescind Perich’s call.  He said this decision was based on her “insubordination and disruptive behavior” on February 22, and because she had “damaged, beyond repair, the working relationship [she] had with the Administration and School Board by threatening to take legal action.”  At its next meeting, after hearing from Church leaders and from Perich, the congregation voted 40 to 11 to rescind Perich’s call.  

My understanding of the foregoing is that it amounts to a virtual admission of the fact that Perich was fired because she threatened to sue the school under the Americans with Disabilities Act.  In the case of any other employer – a private non-religious school, for example – this would be indefensible, an open and shut case of unlawful retaliation.  Nor does the school fall within the statutorily-created exemption for the enforcement of employment practices that are religiously-motivated.  Like other employment non-discrimination laws, the Americans with Disabilities Act provides:

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

The statutory exemption does not authorize a religious employer like Hosannah-Tabor to fire an employee simply because that person threatened to bring suit under the Americans with Disabilities Act.  There is no colorable claim that Ms. Perich acted in a manner that is incompatible with Lutheran religious thought.  Narcolepsy is not a sin.  Neither is missing work due to disability.  Nor should religious organizations be permitted to bootstrap themselves into the statutory exemption by claiming that it is a tenet of their religion that any and all employment disputes must be settled internally. 

There is another, judge-made exemption from the employment discrimination laws that applies to religious organizations like Hosannah-Tabor: the "ministerial exemption."  Under this doctrine ministers and other members of the clergy simply may not bring suit under the employment nondiscrimination laws for any reason.  A number of lower federal courts have recognized the ministerial exemption, but the Supreme Court has never ruled on the validity or application of the doctrine. 

The Hosannah-Tabor school contends that the ministerial exception to the employment discrimination laws is required by three separate provisions of the Constitution: the Free Exercise Clause, the Establishment Clause, and the right to Freedom of Association.  In its brief the school states:

The Free Exercise Clause protects the right of churches to select and control the employees who perform important religious functions. These  employees speak for the church and are essential to its religious mission. 

The Establishment Clause prevents government from appointing ministers. And it therefore prevents courts from reinstating ministers.

The Establishment Clause also prevents courts from deciding the religious questions that are inevitably involved in employment disputes over ministers.  Employment discrimination suits turn on whether the employer acted for legitimate or prohibited reasons. When an employee performs important religious functions, the proffered legitimate reasons are nearly always religious, and courts cannot evaluate those reasons without deciding religious questions.

Freedom of association protects the right of religious associations to control their membership, their leadership, and those authorized to speak for the association, to the end that these associations can control their religious message.

These are important rights.  Churches and religious schools certainly have a constitutional right to exercise exclusive and unfettered control over their religious messages, and the right to engage in employment policies that are necessary to the promulgation of such messages.  The problem that the school faces in this case is that there simply isn't any plausible claim that Ms. Perich was either conducting herself or even expressing herself in a manner that was inconsistent with the teachings of the Lutheran synod.  Perich missed several months of work, causing inconvenience to her employer and disruption to the educational mission of the school.  In addition, it has not been determined whether Perich is now capable of performing her duties at the school.  But at this point in the  litigation the case does not turn upon those issues.  Instead the school contends that it is categorically exempt from the operation of the civil rights laws in its dealings with Ms. Perich.

The constitutional analysis proffered by the school simply doesn't fit the facts.  It is true that the role that Ms. Perich played at the school was important to the religious and educational mission of the school, but she never acted in a manner that contradicted that mission – she just became ill.  Contrary to what the school alleges in its brief, religious issues are not "inevitably involved" in every employment dispute between a religious institution and its employees – instead, most employment disputes probably center around issues of individual competency or the furtherance of institutional goals, not religious doctrine.  In any event, the present case is a clear instance of retaliation, not a dispute over church doctrine.  Finally, while religious organizations, like all expressive organizations, have a constitutional right to employ leaders who exemplify the mission of the organization, there is no credible allegation that the employment of Cheryl Perich is for some reason incompatible with the mission of the Lutheran Synod, and that the school was therefore justified in firing her for religious reasons.  Ms. Perich's lawsuit and the intervention of the EEOC simply doesn't interfere with the Free Exercise rights or Freedom of Expression rights of the Hosannah-Tabor school.

Specifically, the Free Exercise Clause availeth not.  In Employment Division v. Smith the Supreme Court ruled that under the Free Exercise Clause laws that are "generally applicable" – that is, laws that apply to religious groups and non-religious groups equally and that do not single out religious practices for special treatment – are presumptively constitutional and will be struck down only if they do not serve any legitimate purpose.  Employment non-discrimination laws like the Americans with Disabilities Act are neutral with respect to religion and serve important governmental purposes.  Under Smith it is perfectly constitutional for the government to subject religious organizations to non-discrimination requirements.  The only exception to this rule is that the government could not prohibit religious organizations from discriminating on the basis of religion.  Religious non-discrimination laws, as applied to religious organizations, are specifically directed against a form of religious practice and are accordingly presumptively unconstitutional. 

Moreover, the right to Freedom of Expression is not being violated in this case.  The leading case on this subject is Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Boy Scouts had a constitutional right to terminate the employment of a scoutmaster who was gay on the ground that his employment was inconsistent with the anti-gay stance of the Scouts.  To require the Scouts to employ Dale would have detracted from their efforts to persuade boys to lead hetersexual lives.  That case is easily distinguished from the present one in that Perich is not violating any tenets of the Lutheran church, and therefore her employment does not interfere with the church's expressive rights.

There is, in my opinion, one and only one constitutional argument that plausibly supports the position of the Hosannah-Tabor school, and that is the "no excessive entanglement" prong of Establishment Clause analysis.  The Supreme Court has ruled that just as religious institutions are barred from exercising governmental authority, the government is prohibited from exercising supervisory powers over religious bodies.  The single possible justification for the "ministerial exception" – the sole reason that might make it necessary for the Court to recognize the doctrine – is if it finds that for the government to examine and pass judgment upon the employment practices of religious organizations constitutes "excessive entanglement" of government and religion.  The Hosannah-Tabor school discusses this claim on pages 29-32 of its brief.

I will continue with an analysis of the briefs in this case in the next post.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

This case involves a parochial school teacher who was fired because of a disability.  Her employer claimed that it was exempt from the Americans with Disabilities Act because of the "ministerial exception," a judge-created doctrine that exempts religious organizations from the operation of civil rights laws in cases involving "ministerial employees." 

On November 21, 2010, I posted Does a Parochial School Have a Constitutional Right to Fire a Teacher in Violation of the Americans with Disabilities Act?  That case, now entitled Menorah-Tabor Church and School v. EEOC, will be argued before the Supreme Court on October 5.

I described the principal issue – the proper application of the "ministerial exception" to the civil rights laws –  in the previous post.  In discussing the judge-made "ministerial exception" and its application to this case, I stated:

This rule essentially provides  that "ministerial employees" are not covered by employment discrimination laws – that religious organizations may discriminate against employees who are essentially acting as members of the clergy for any reason, including the employee's race, gender, national origin, sexual orientation, or disability.  The reason for the "ministerial exception" is to prevent the government from interfering with the governance of religious institutions as well as the beliefs (however discriminatory) those institutions may hold.  The "ministerial exception" is based not only upon the Free Exercise of Religion, but also upon Freedom of Speech, Freedom of Association, and the Separation of Church and State.

On March 9, 2010 the Sixth Circuit Court of Appeals issued its decision in this case in a decision entitled EEOC v. Perich.  The court found that the statutory exemption contained in § 12113(d) did not apply because Perich was not fired for violating any of the tenets of the church.  It also found that the "ministerial exception" did not apply because Perich was not a "ministerial employee."  The court said:

the overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.

…

By contrast, when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.

The court found that, under this standard, Perich was not "primarily" teaching religion or otherwise acting as a "ministerial employee."  The court found the following facts with respect to Perich's duties at the school:

The district court's factual determinations concerning Perich's primary duties throughout her work day were not clearly erroneous. The record supports the finding that Perich's employment duties were identical when she was a contract teacher and a called teacher and that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks.  Furthermore, the record indicates that Perich taught a religion class four days per week for thirty minutes and that she attended a chapel service with her class once a week for thirty minutes. Perich also led each class in prayer three times a day for a total of approximately five or six minutes. The record also indicates that Perich seldom introduced religion during secular discussions.  Approximately twice a year, Perich led the chapel service in rotation with other teachers.  However, teachers leading chapel or teaching religion were not required to be called or even Lutheran, and, in fact, at least one teacher was not.  In all, the record supports the district court's finding that activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.

In tomorrow's post I will discuss the briefs that have been filed before the Supreme Court in this case.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

 

 

 

 

The Abu Dhabi Gallup Center has released a survey Muslim-Americans: Faith, Freedom, and the Future.  Like other studies of Muslims in America, it will be closely examined in the Muslim world.  It reminds us that America is still a land of promise.

The Gallup study compares the views of Muslim Americans to those of American Catholics, Protestants, Jews, and Atheists.  The most important conclusion in the report is that despite the fact that nearly half of Muslim Americans report having personally experienced discrimination during the past year, Muslim Americans are more optimistic about the future than all other religious groups.  Kyle Leighton of Talking Points Memo explores this aspect of the report in Gallup Report: Muslim Americans See Hope In Their Economic Future.

Another striking finding revealed by the study is that American Muslims are more opposed to acts of civilian violence than other religious groups.  Gallup asked:

Some people think that for an individual person or a small group of persons to target and kill civilians is sometimes justified, while others think that kind of violence is never justified. Which is your opinion?

Eight-nine percent of American Muslims reject this idea – far more than any other religious group in America.

Another significant finding of the survey is that Muslim Americans who attend mosque regularly report feeling less stress and less anger than those who attend sporadically.  This is important in light of the popular belief that mosques are havens for extremism, causing opposition to the construction of mosques in some American communities.

The study does find that American Muslims are less likely than members of other religious groups to strongly identify with the United States; on the other hand, a majority feel integrated into their communities and are actually less likely than any other religious group to identify with other members of the same religion worldwide.

Finally, in an interesting joint perspective on the sorest point of contention, Muslims and Jews are the two American religious groups most likely to favor a "two-state" solution for Isreal and Palestine.

A sampling of Gallup's findings include the following:

Muslim Americans Rate “Life in Five Years” More Highly Than Do Other Religious Groups

Muslim Americans as Likely as Other Faith Groups to Be Thriving

Muslim Americans least likely to be able to make major purchases

Muslim Americans Are More Positive About National Economic Conditions

Muslim Americans Among the Least Satisfied With Their Community but Most Optimistic About Its Improvement

Muslim Americans Are Most Likely to Have Confidence in Honesty of Elections

America has welcomed immigrants from every corner of the globe – every race, every ethnicity, and every religion.  At first each group encountered fear and intolerance from those who came before.  From the east, the Scots-Irish, Germans, Irish, Italians, Jews, and Eastern Europeans came in waves to our "sea-washed, sunset shores"; from the west the Chinese, Japanese, and Koreans flocked here as well; more recently, Cubans, Mexicans, and Central Americans arrived from the south.  Blacks were brought here in chains before any of these other groups.  All added their unique culture and characteristics to our society, making us stronger and wiser.  Now it is the Muslims' turn.

Four centuries ago in his famous sermon A Model of Christian Charity John Winthrop admonished the Puritan colonists on board the Arabella that

we must consider that we shall be as a city upon a hill. The eyes of all people are upon us.

He told the settlers:

Now the only way to avoid this shipwreck, and to provide for our posterity, is to follow the counsel of Micah, to do justly, to love mercy, to walk humbly with our God. For this end, we must be knit together, in this work, as one man. We must entertain each other in brotherly affection. We must be willing to abridge ourselves of our superfluities, for the supply of others’ necessities. We must uphold a familiar commerce together in all meekness, gentleness, patience and liberality. We must delight in each other; make others’ conditions our own; rejoice together, mourn together, labor and suffer together, always having before our eyes our commission and community in the work, as members of the same body.

Will Muslims become "members of the same body"?  Will they, as Lincoln said of immigrants in his speech in Chicago on July 10, 1858, become "flesh of the flesh, and blood of the blood" with all other Americans?

We have besides these men – descended by blood from our ancestors – among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe – German, Irish, French and Scandinavian – men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are.

The Muslim world wonders, will America welcome people of their religion?  Another Gallup study, Religious Perceptions in America, reveals that forty-three percent of Americans admit to having some prejudice against Muslims.  But even here there is strong reason for hope.  Americans who know someone who is Muslim are far less likely to express feelings of prejudice.  And the single factor that correlates most strongly with anti-Muslim animus in America is whether the individual is also prejudiced against Jews: 

[R]espondents who report “a great deal” of prejudice toward Jews are about 32 times as likely to report the same level of prejudice toward Muslims.

Just as anti-semitism has become unacceptable and has waned in America, anti-Muslim feeling will diminish in time.

American Muslims, more than any other single demographic group in this country, could change the course of world events.  As every other religious group that has emigrated to the United States has discovered, their religious institutions will flourish in a climate of religious freedom.  But there will be changes as well.  In this country every individual is free to choose his or her own religion.  Islam will be a freely chosen path, not a compelled one; one religion among many, not an established one.  While retaining and strengthening the core of their religion, American Muslims will integrate their faith with the democratic traditions and religious tolerance of America and will show the rest of the world that our constitutional principles of liberty and equality are not only consistent with Islam, but emblematic of its highest and most worthy aspirations.

Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790.

After meeting with Muslim leaders at the All Dulles Area Muslim Society (ADAMS) Center in Sterling, Virginia, Herman Cain issued a brief apology for previous statements he had made.

Having criticized Herman Cain for remarks he made stating that he would be hesitant to hire Muslims in his administration and that local communities have the right to block the construction of mosques, it is appropriate to acknowledge that Cain has met with Muslim leaders and apologized.

Evan McMorris-Santoro of Talking Points Memo reports in Herman Cain Apologizes To Muslims that Cain issued the following statements to reporters:

"While I stand by my opposition to the interference of sharia law into the American legal system, I remain humble and contrite for any statements I have made that might have caused offense to Muslim Americans and their friends," he said in the statement. "I am truly sorry for any comments that may have betrayed my commitment to the U.S. Constitution and the freedom of religion guaranteed by it."

***

"As I expected, we discovered we have much more in common in our values and virtues," Cain said. "In my own life as a black youth growing up in the segregated South, I understand their frustration with stereotypes. Those in attendance, like most Muslim Americans, are peaceful Muslims and patriotic Americans whose good will is often drowned out by the reprehensible actions of jihadists."

Juana Summers of Politico, in Herman Cain hosts meeting with Muslim leaders, reports on the reaction of Robert Marro, board member of ADAMS: 

“I would be flabbergasted if he ever repeated those statements and said that communities should be allowed to ban mosques,” He said. “I think that the meeting today has changed his mind 100 percent. From the tenor of the conversation, I can’t see him repeating such things.”

***

Marro said Cain’s statement was “as close to a heartfelt and sincere apology that I’ve seen from any politician anywhere.”

Summers correctly points out that Cain "didn't renounce his earlier comments."  However, his apology is a courageous act, and Cain is to be applauded for meeting with Muslims with an open mind and offering them an open hand.

Last night New York State Governor Cuomo announced the passage of the Marriage Equality Act and signed it into law.  This post discusses the religious exemptions contained in the new law.

The new statute clearly exempts clergy from having to perform same-sex marriages and religious institutions from having to host same-sex wedding ceremonies.  The new law states, in relevant part:

A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action OR RESULT IN ANY STATE OR LOCAL GOVERNMENT ACTION TO PENALIZE, WITHHOLD BENEFITS OR DISCRIMINATE AGAINST SUCH CLERGYMAN OR MINISTER.

…

A RELIGIOUS ENTITY … SHALL NOT BE REQUIRED TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.

The Marriage Equality Act also contains another broader exemption from state nondiscrimination law.  This section of the law states:

NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGANIZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPERATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH A RELIGIOUS ORGANIZATION, TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO OR GIVE PREFERENCE TO PERSONS OF THE SAME RELIGION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTABLISHED OR MAINTAINED.

This language is difficult to parse, so I have arranged its clauses and highlighted certain terms to visually illustrate its meaning:

NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN THIS ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, OF ANY RELIGIOUS OR DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGANIZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS OPERATED, SUPERVISED OR CONTROLLED BY OR IN CONNECTION WITH [of] A RELIGIOUS ORGANIZATION,

TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO

OR GIVE PREFERENCE TO PERSONS OF THE SAME RELIGION OR DENOMINATION

OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH ORGANIZATION TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTABLISHED OR MAINTAINED.

There should be no difficulty with the provisions of this law that give religious organizations the right to limit employment, sales or rental of housing accommodations, or admission to gay persons or couples.  There should also be no difficulty with the provision that recognizes the right of religious organizations to give preference to persons of the same religion or denomination.  These provisions all concern the private activity of religious organizations; as private action, these matters are not subject to the requirements of the United States Constitution, and are optional for the states to permit or forbid.  As I noted in yesterday's post, under the Free Exercise Clause religious organizations may have a constitutional right to engage in certain private acts of discrimination.

The final clause of the religious exemption is quite broad, however.  The Marriage Equality Act states that religious organizations have the right to take "such action as is calculated by such organization to promote the religious principles for which it is established or maintained."  Does this mean that this law grants a religious organization the right to deny services to gay or lesbian individuals or couples even when it is performing a governmental function – which possibly includes placing children for adoption or foster care? 

It is possible that the language of the statute does not extend that far.  The statute merely states that nothing in the Marriage Equality Act is intended to "LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW" to discriminate in the foregoing ways.  Section 296 of the Executive Law is the operative section of the New York Human Rights Law, and Subdivision 11 of Section 296 is the religious exemption from the operation of that law.  In short, the religious exemption contained in the Marriage Equality Act merely states that nothing has changed in the application of the religious exemption of the state's Human Rights Law.  The Marriage Equality Act does not affirmatively grant religious organizations the right to discriminate in the matter of adoptions or anything else; the new law merely does not expand the operation of the state's Human Rights Law.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

A new law takes effect in France today prohibiting women from wearing face veils in public.

Camille Rusticci of AP in France bans face-covering Islamic veil reports about the national law prohibiting the wearing of full-face veils in public that went into effect in France today.  She  also describes a demonstration that was conducted in front of Notre Dame Cathedral protesting the ban.  She states:

About a dozen people, including three women wearing niqab veils with just a slit for the eyes, staged a protest in front of Notre Dame on Monday, saying the ban is an affront to their freedom of expression and religion.

Much larger crowds of police, journalists and tourists filled the square.

One of the veiled women was seen taken away in a police van. A police officer on the site told The Associated Press that she was detained because the protest was not authorized and the woman refused to disperse when police asked her to.

The Open Society Foundation, funded by George Soros, issued a report today entitled Unveiling the Truth: Why 32 Women Wear the Full-Face Veil in France.  It paints a  sympathetic portrait of these women – they are nearly all French citizens, they freely choose this manner of dress, and they report that they increasingly encounter criticism and rude comments when they go out in public.

Stephanie Le Bars of Le Monde responds to the Open Society report in an article published today entitled Des femmes vivant avec le voile intégral témoignent ("Women living with the full-face veil speak out").  She states:

Marquée par une approche anglo-saxonne et une incompréhension face aux débats récurrents sur l'islam en France, cette plongée inédite précise le profil, le quotidien et les motivations de ces femmes.

Readers, please correct me if I am wrong, but I believe this translates to:

Marked by an Anglo-Saxon approach and a complete misunderstanding of the recurrent debates over Islam in France, this unpublished study describes the characteristics, daily life, and motivations of these women.

Take that, you Open-Society Anglo-Saxons!

Whatever our understanding of the situation in France, Le Bars is correct that such a law would not stand in this country.  Although there may be circumstances where a person would have to remove a full-face veil – to be photographed for a passport or a driver's licence, entering or leaving the country at the border, going through airport security, or upon arrest – it is inconceivable that a law prohibiting women from voluntarily wearing veils in public would be upheld as constitutional in the United States – no more than a law banning the wearing of headscarves in the public schools (adopted in France in 2004) would be upheld.

The assassination of Shahbaz Bhatti is indeed an act of blasphemy – a betrayal of the fundamental principles of freedom and equality that Pakistan was founded upon.

The Islamic Republic of Pakistan makes it a crime to utter any word, make any sound, make any gesture, or place any object in the sight of another person "with the deliberate intention of wounding the religious feelings of any person."  Although the law as written applies to insults against any religion, as a practical matter this law is only applied when Islam is the subject of the insulting word, sound, gesture, or object.  While the government has never executed anyone for blasphemy, dozens of people have been killed by vigilantes for this offense.

On March 2nd, The Telegraph reported Pakistan's only Christian minister assassinated over blasphemy row.  Shahbaz Bhatti, Pakistan's  Minister for Minority Affairs, was murdered because he opposed Pakistan's blasphemy law.  Bhatti had defended Asia Bibi, a Christian mother of five who faces execution for insulting the Prophet Mohammed.  This follows the murder earlier this year of Salman Taseer, Governor of Punjab, who was killed by his bodyguard for the same reason. 

In her Time Magazine article In Pakistan, Justifying Murder for Those Who Blaspheme, Aryn Baker reports that these murders have met with widespread approval from the people of Pakistan, even among the lawyers who helped to lead a "liberal" uprising against the government in 2008, who garlanded Bhatti's assassin with roses.

To show that this is not what Pakistan stands for, Baker quotes Mohammed Ali Jinnah, the "Father of Pakistan," from his speech of August 11, 1947, where Jinnah expressed his vision of the future of his country.  The passage quoted by Baker is highlighted below:

There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous, we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that everyone of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges, and obligations, there will be no end to the progress you will make. I cannot emphasize it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities, the Hindu community and the Muslim community, because even as regards Muslims you have Pathans, Punjabis, Shias, Sunnis and so on, and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on, will vanish. Indeed if you ask me, this has been the biggest hindrance in the way of India to attain the freedom and independence and but for this we would have been free people long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time, but for this. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State. As you know, history shows that in England, conditions, some time ago, were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State. The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the government of their country and they went through that fire step by step. Today, you might say with justice that Roman Catholics and Protestants do not exist; what exists now is that every man is a citizen, an equal citizen of Great Britain and they are all members of the Nation. Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.

     Ezra Klein, a columnist for Newsweek and the Washington Post, put his foot in it on national television two days ago when he said that the Constitution was "written more than 100 years ago" and "confusing," implying that it is irrelevant to today's society.  Breaking news, Ezra: the Constitution is the foundation for all of American law, and its meaning extends far beyond the words in the document.

     Klein made these remarks in an interview with Norah O'Donnell:

O'Donnell:  You heard all the different politicians talking about the Constitution; well, this is what's going to happen.  When Republicans take over next week, they are going to do something that apparently has never been done in the 221 year history of the House of Representatives.  They are going to read the Constitution aloud.  Is this a gimmick?

Klein:  Yes, it's a gimmick.  I mean, you can say two things about it.  One, that it has no binding power on anything.  And two, the issue with the Constitution is not that people don't read the text and think they're following it.  The issue with the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done, so I wouldn't expect too much coming out of this.

     Klein subsequently clarified his position on the Constitution in these two posts.  In What the Tea Party wants from the Constitution, Klein wrote,

My friends on the right don't like to hear this, but the Constitution is not a clear document. Written more than 200 years ago, when America had 13 states and very different problems, it rarely speaks directly to the questions we ask it. The Second Amendment, for instance, says nothing about keeping a gun in the home if you've not signed up with a "well-regulated militia," but interpreting the Second Amendment broadly has been important to those who want to bear arms. And so they've done it.

     Upon realizing that his initial remarks about the Constitution were being mocked, (see here and here and here) Klein also wrote to say that he did not mean to say that the Constitution is not binding, but rather that reading the Constitution aloud or including a reference to Constitutional authority in each piece of legislation is not binding.  In Yes, the Constitution is binding, Klein wrote,

This morning, I gave a quick interview to MSNBC where I made, I thought, some fairly banal points on the GOP's plan to honor the Constitution by having it read aloud on the House floor. Asked if it was a gimmick, I replied that it was, because, well, it is. It's our founding document, not a spell that makes the traitors among us glow green. It's also, I noted, a completely nonbinding act: It doesn't impose a particular interpretation of the Constitution on legislators, and will have no practical impact on how they legislate.

The rather toxic implication of this proposal is that one side respects the Constitution and the other doesn't. That's bunk, of course: It’s arguments over how the Constitution should be understood, not arguments over whether it should be followed, that cleave American politics. The Constitution was written more than 223 years ago, and despite the confidence various people have in their interpretation of the text, smart scholars of good faith continue to disagree about it. And they tend to disagree about it in ways that support their political ideology. I rarely meet a gun-lover who laments the Second Amendment's clear limits on bearing firearms, or someone who believes in universal health care but thinks the proper interpretation of the Commerce Clause doesn't leave room for such a policy.

     Klein makes some valid points.  Including a reference to the constitutional basis for legislation in the legislation itself is a good idea but it is not binding on the courts.  The courts are bound to interpret the Constitution anyway, and a congressional statement that a law is constitutional is of no legal effect whatsoever.  Furthermore, if a law is constitutional, the courts may not strike it down simply because it does not contain a statement to that effect.  The judicial branch, not the legislative branch, is invested with the power of judicial review.

     Second, Klein is correct that the Constitution is not always clear.  But in making this point he should not have used disparaging language (old and "confusing").  He might just as well have referred to the American flag as "a piece of colored cloth."  The Constitution is infused with meaning.  The Constitution stands for the fundamental American social, legal, and political principles: popular sovereignty, separation of powers, limited government, separation of church and state, and individual rights.  Few people would disagree with this general description of the meaning of the Constitution.  

     Klein also has a valid point that people differ as to how these principles should be applied in particular cases.  He identifies conservatives' broad interpretation of the Second Amendment as an example of misconstruction of the text of the Constitution, and I agree – neither the text of the Second Amendment nor the legislative history of that enactment lend any support for the Court's interpretation of that provision in District of Columbia v. Heller (2008).    Similarly, Klein is correct in noting that a person's interpretation of Congress' power under the Commerce Clause or the Tax and Spending Clause is influenced by the particular piece of legislation under consideration.  Conservatives tend to believe that the Patient Protection and Affordable Care Act is beyond Congress' power to enact, but have no similar doubts about the Defense of Marriage Act.

     It is here, though, that Klein makes his mistake.  He stumbles over the same impediment as those Tea Partiers and members of Congress he criticizes.  The Constitution is not confined to its text.  To consider the written Constitution in and of itself without taking into account two centuries of experience under it is to ignore all that our ancestors have learned.  The First Amendment is not simply the words "Congress shall make no law abridging the freedom of speech."  It includes all that we learned from the battles over the Alien and Sedition Acts, the southern states' silencing of the antislavery movement, Lincoln's closing of opposition newspapers, the federal government's response to opposition to World War I, and the government's attempts to crush the labor movement, the anti-war movement, and above all, the Civil Rights Movement.  Similarly, the power of the President has been shaped by our experience with Jefferson's naval expedition to the Mediterranean and the Louisiana Purchase, Lincoln's Emancipation Proclamation, FDR's dealings with Britain and the Soviet Union, Carter's recognition of Red China, Nixon's impoundment of appropriations and the Watergate scandal, Clinton and the Line Item Veto Act, and Bush's decision to torture prisoners.  These issues have sometimes been decided by the courts, sometimes by elections, and sometimes simply in the public arena.

     The Constitution contains some very specific provisions, but its most meaningful passages are very broad: "due process," "liberty," "equal protection."  By analogy, Christian fundamentalists often cite the Ten Commandments as the source and inspiration of all law, but they tend to ignore Jesus' parables.  Why don't religious conservatives strive to adorn courthouses with images of The Stoning of the Adulteress or statehouses with depictions of The Good Samaritan?  Why do they focus on the Ten Commandments instead of the Golden Rule?  The problem is not that the Constitution is "old and confusing."  It is rather that it inspires us to standards of behavior that cannot be captured by simple rules.  The Constitution calls us to responsibility, just as the Bible does.  The Constitution not only requires the President to be 35 years old, it also requires us to be tolerant, to be fair, and to treat people equally.  The right to have a handgun in the home for personal self-defense is not contained in the text of the Constitution.  It arises from the same source of authority as the right to marry, the right to have children, and other facets of the jewel that is the right to privacy.  The right to defend oneself is no less fundamental to our society than rights involving intimate relationships and control over one's body.

     I would be more impressed with congressional Republicans' newfound devotion to the Constitution if they had thought to read it when the C.I.A. was putting prisoners in dark boxes, chaining them upright and keeping them awake for days, stripping them naked and spraying them with cold water, and drowning them slowly.  Even more recently, they might have read it when Congress was considering whether to repeal Don't Ask, Don't Tell and admit gays and lesbians to the military on an equal basis with others.  And where in the Constitution does it permit a filibuster or a "hold" on legislation or confirmations? 

     The Constitution is the foundation of all American law.  Every statute, every ordinance, every regulation, every official act that is in conflict with the Constitution is void and of no legal effect.  But its meaning extends far beyond the words in the document.  President Abraham Lincoln said that this country was "conceived in liberty and dedicated to the proposition that all men are created equal,"  and when government lawyers appeared before the Supreme Court defending a certain procedure as traditional or justified by statute, Chief Justice Earl Warren would frequently ask, "Yes, but is it fair?"   These principles, too, are part of our Constitution – they are at the heart of the Constitution - and I fear that Ezra Klein and the Republicans in Congress have overlooked this.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

     In yesterday's post I described the Manhattan Declaration, a position paper on abortion and same-sex marriage issued by conservative Christians .  In today's post I compare the Manhattan Declaration to the Barmen Declaration.

     The Barmen Declaration was authored in 1934 in Germany by Swiss theologian Karl Barth and other leaders of the Confessing Church such as the religious and ethical philosopher Dietrich Bonhoeffer.   The Confessing Church opposed the efforts of the Nazi regime to take over the German churches; the authors of the Barmen Declaration announced the independence of the church from the state.  Following persecution in Germany Barth returned to his native Switzerland, and after World War II he led efforts to admit German guilt for the war.  Later, Barth opposed both Communism and anti-Communism.  Bonhoeffer, an ethical philospher, theologian, and pastor, joined the conspiracy to assassinate Hitler, was discovered, and executed.  

     The Manhattan Declaration was authored in 2009 by Robert George, Timothy George, and Chuck Colson.   Robert George is a noted law professor, Timothy George a leading theologian, and Colson is the founder of Prison Fellowship.  Colson also had the distinction of serving as Special Counsel to President Richard Nixon, and served time in prison after he pled guilty to obstruction of justice.   The Manhattan Declaration was initially signed by Christian leaders such as Dr. James Dobson, founder of Focus on the Family.  

      The principal focus of the Barmen Declaration was opposition to government (Nazi) control of the German churches.   The principal focus of the Manhattan Declaration is opposition to abortion and same-sex marriage.  The Confessing Church stood for the Separation of Church and State.  Religious conservatives in the United States oppose the Separation of Church and State.  The Barmen Declaration wanted the government to relinquish control of church hierarchy and church doctrine.  The Manhattan Declaration calls for the government to enact church doctrine into law. 

     Religious conservatives in American sincerely and honestly believe that abortion and homosexuality are sinful.  In this they are perfectly within their rights.  But they also wish to enact their beliefs into law.  Religious conservatives want to make it illegal for a woman to terminate a pregnancy even at the earliest stages of pregnancy; they consider fetuses, embryos, and even fertilized eggs to have rights that trump the rights of a woman to decide whether to carry her pregnancy forward.  Religious conservatives are also opposed to admitting  same-sex couples to the institution of marriage; they have gone so far as to support the enactment of a federal law that refuses to recognize same-sex marriages that have been lawfully entered into in states such as California and Massachusetts, and state constitutional amendments that prohibit state legislatures from approving same-sex marriage or even civil unions.

     The Manhattan Declaration's blurring of the distinction between freedom of worship and the imposition of religious law is evident in the following passage:

It is ironic that those who today assert a right to kill the unborn, aged and disabled and also a right to engage in immoral sexual practices, and even a right to have relationships integrated around these practices be recognized and blessed by law—such persons claiming these "rights" are very often in the vanguard of those who would trample upon the freedom of others to express their religious and moral commitments to the sanctity of life and to the dignity of marriage as the conjugal union of husband and wife.

     It is rather this passage that is ironic, if not hypocritical.  If the day ever comes when the government makes it illegal for religious conservatives to "express their religious and moral commitments to the sanctity of life and the dignity of marriage" then they can count on liberals to spring to their defense.  The First Amendment protects both freedom of speech and freedom of religion.  But the authors of the Manhattan Declaration are not content to simply "express" their religious beliefs – instead they demand that their beliefs should be enacted into law and imposed upon all citizens.  It offends George, George, and Colson when women terminate pregnancies or gay and lesbian couples enter into matrimony.  Fine.  They are free not to have abortions or enter into same-sex unions, and they are also free to express their opinions to their hearts' content.  But precisely how do they justify imposing their religiously-based code of conduct upon others who do not share their religious convictions?  Even more egregiously, how do they justify the demands of religious conservatives for taxpayer-funding of religious education (Zelman v. Simmons-Harris) or official subsidization of religious organizations (Christian Legal Society v. Martinez)?

     In summary, the difference between the Barmen Declaration and the Manhattan Declaration is that the courageous religious dissenters of World War II-era Germany wanted to conduct their own religious affairs free of Nazi government control; American religious conservatives want to control the government so that they can regulate the conduct of others.

     The Manhattan Declaration is a 2009 position paper in support of conservative social issues.  It seeks to unite Catholic, Orthodox, and Evangelical Christians in their oppostion to abortion and same-sex marriage.  It is a remarkable document in that it seeks to overcome longstanding religious barriers among social conservatives.  The document admirably accomplishes its purpose of articulating common ground among political conservatives on these two issues.  It is disappointing in that it utterly fails to address religiously-grounded issues important to political liberals, and in its mis-characterization of opposing positions.

     Kathleen Gilbert of LifeSiteNews described the origin of the Manhattan Declaration in an article entitled “Manhattan Declaration” Embodies U.S. Christian Pushback against Abortion, Same-Sex “Marriage”.  The article was posted when the Declaration was released on November 20, 2009.  Gilbert stated:

A group of prominent Christian leaders and scholars unveiled a manifesto Friday declaring firm opposition to current and future laws infringing upon the sanctity of life, marriage, faith, and liberty.

The 4,700-word "Manhattan Declaration: A Call of Christian Conscience" was drafted by Dr. Robert George, Dr. Timothy George and Chuck Colson and signed by more than 125 Orthodox, Catholic and evangelical Christian leaders, including Focus on the Family Dr. James Dobson and National Association of Evangelicals president Leith Anderson. 15 Roman Catholic bishops, including Archbishop Timothy Dolan of New York and Archbishop Donald Wuerl of Washington, D.C., were among the signatories.

     The Declaration commences with these words:

We, as Orthodox, Catholic, and Evangelical Christians, have gathered, beginning in New York on September 28, 2009, to make the following declaration, which we sign as individuals, not on behalf of our organizations, but speaking to and from our communities.

     The Declaration cites historical examples of Christians engaging in religiously-motivated social activism: saving abandoned children in ancient Rome, caring for victims of the plague in medieval times, and opposing slavery in Europe and the United States.  The Declaration does not discuss those events in history when Christian belief or Christian power was wielded in oppressive ways resulting in millions of deaths: the Inquisition, the witch trials, the holy wars, the pogroms.  Specifically with respect to slavery, the Manhattan Declaration fails to grapple with the fact that religious institutions in the southern United States exalted the institution.  "Christian Slavery" was the ideal that led to the creation of the Southern Methodist and Southern Baptist churches in the 1840s.  Similarly, while the Declaration cites the Rev. Dr. Martin Luther King, Jr.'s Letter from a Birmingham Jail as a model of christian activism, it neglects to mention that King addressed his letter to the religious leaders of the south who did not support his call for an end to segregation and discrimination.  King said:

My fellow clergymen,

***  I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a non-segregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find. something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained-glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

     It is less than truthful – it is downright dishonorable – for southern white religious conservatives to wrap themselves in the moral mantle of Martin Luther King, Jr., or to align themselves with the opponents of slavery.  Those who fought them every step of the way for equal rights know how deeply dishonest this is.

     This is the central flaw of the Manhattan Declaration.  The document is utterly devoid of any self-understanding.  While it acknowledges in passing that the church has made mistakes, it does not stop to ponder what led to those mistakes – what led many churches to embrace racism, sexism, anti-semitism, and prejudice of all kinds.

     This dishonesty is apparent as well in the Declaration's description of opposing positions.  In the first section of the Declaration on "Life," the authors inaccurately state:

Many in the present administration want to make abortions legal at any stage of fetal development ….

     That charge is simply false.  I have never met a single person who believes that a woman should have the freedom to terminate a pregnancy at any stage of fetal development.  Abortions may be permitted at any stage to save a woman's life … but if the Declaration is opposed to that, it should say so, and not assert that pro-choice forces are seeking to change the timetable established by Roe v. Wade finding that a woman has a constitutional right to terminate a pregnancy in its early stages prior to fetal viability.

     Furthermore, in its section on Life the Declaration makes absolutely no mention of religiously-motivated opposition to capital punishment.  That omission is proof that the purpose of the Declaration is to make a idelologically-slanted political statement rather than to thoroughly and honestly examine religious viewpoints about "Life."

     The second portion of the Declaration is entitled "Marriage," and it is almost entirely devoted to a discussion of same-sex marriage.  Unfortunately, the document does not confront the questions that are at the center of this controversy.  Many people believe that gay and lesbian couples are just as capable of sustaining a loving, faithful relationship and just as capable of raising children as opposite-sex couples, and many researchers in the fields of psychology and sociology are coming to the same conclusion.  Instead of confronting this issue in a straighforward manner and marshalling evidence to rebut these findings, the Declaration satisfies itself with rhetoric.  For example, at every opportunity the Declaration implies that its opponents support polygamy as well as same-sex marriage:

The impulse to redefine marriage in order to recognize same-sex and multiple partner relationships …

We acknowledge that there are those who are disposed towards homosexual and polyamorous conduct and relationships, just as there are those who are disposed towards other forms of immoral conduct. We have compassion for those so disposed …

Some who enter into same-sex and polyamorous relationships no doubt regard their unions as truly marital.

     It is much easier to attack another person's position if one utterly mischaracterizes it as the Declaration does.  Those who favor same-sex marriage are, in fact, on the same side as those who support traditional marriage, in that we emphasize the importance of fidelity and commitment to one person.  We believe that the recognition of same-sex marriage will profoundly strengthen families and the institution of marriage.  As Professor Andrew Koppelman said recently in the Drake Law Review in remarks directed to Maggie Gallagher, an opponent of same-sex marriage: 

But, if you are concerned about the wellbeing of children, then denying the benefit of marriage to families, who are in fact raising children, is simply a counterproductive strategy.  In the last census, a third of lesbian couples, and a quarter of gay couples were raising children.  I am sure the numbers are higher now because it has been ten years since the last census and society is changing fast. Maggie is fighting for a good cause, but she is firing on her own troops.

     The Declaration is indeed firing on its own troops when it opposes the movement to bring gay and lesbian families into the institution of marriage; this change would encourage fidelity, support responsible child-rearing, and strengthen families.

     The third element of the Declaration is to promote "Religious Liberty," but do not suppose that the document is concerned with the rights of minority religions to exercise their beliefs, nor is there any concern for the individual religious dissenter.  Instead, the Declaration supports the right of religious institutions to operate in a discriminatory manner even when those institutions conduct governmental functions or receive governmental funds. 

     No-one disputes the proposition that churches have a right to discriminate when they are conducting religious functions.  Everyone agrees that under the First Amendment, a church may discriminate on the basis of race, gender, sexual orientation, or any factor it deems appropriate in admitting members or hiring clergy.  It is understood, for example, that no church can be compelled to host or perform a same-sex wedding. 

     But the authors of the Manhattan Declaration wants these exemptions from civil rights laws to apply even when a religious institution applies for government funding or seeks to perform a governmental function such as placing children for adoption.  The Declaration confounds these two radically different situations.  When a religious organization operates wholly in the private sphere, the Free Exercise Clause and the Establishment Clause prohibit the government from interfering in its internal operations, but when a religious organization seeks to partner with the government, then it must agree to abide by the abiding principles of equality mandated by the Constitution and civil rights laws.

     The third section of the Manhattan Declaration affirming the right of religious organizations to discriminate epitomizes the central flaw of the authors' reasoning.  The authors are blind to the fact that many religious traditions are unjust and oppressive.  For example, they are oblivious to the fact that because religious institutions are exempt from the operation of our non-discrimination laws, American churches are far more racially segregated than our workplaces.  No American workplace could bar the employment of women or gay people – but many of our churches discriminate against women and gays from being employed as ministers or priests, and they justify this discrimination as being in accordance with the will of God.  It is one thing for religious institutions to have an immunity from prosecution for acts of discrimination; that much is required by the Constitution.  It is quite another for religious institutions to clamor for public funding so that they may render services in a discriminatory manner based upon a person's gender, religion, or sexual orientation; that is prohibited by the Constitition. 

     The Manhattan Declaration denies women the fundamental right to control their own reproductive destiny; denies gays and lesbians the equal right to create families; and promotes discrimination as a positive good that should be subsidized by the government.  All in the name of the Christian religion.

     In 2005 the Hosannah-Tabor Evangelical Lutheran Church and School fired Cheryl Perich, a teacher, because she had narcolepsy.  Does the school have a constitutional right to do this even if the school's action violates the Americans with Disabilities Act?

     The First Amendment to the Constitution provides that

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ….

     The Americans with Disabilities Act prohibits employers from discriminating against employees on the basis of disability.  42 U.S.C. § 12112(a).  

     Cheryl Perich was a teacher at the Hosannah-Tabor Evangelical Lutheran Church and School in .  In 2004 Perich developed narolepsy and was on disability leave for the first five months of the 2004-2005 school year.  When she attempted to return to duty in February, 2005, the school terminated her employment.   She sued the school for violation of the Americans with Disabilities Act.  The school claims that the Free Exercise Clause of the Constitution grants it a constitutional right to discriminate on the basis of disability.

     The Americans with Disabilities Act, like other civil rights laws, expressly provides that religious institutions are permitted to discriminate against their employees on the basis of religion.  That exemption is contained in 42 U.S.C. § 12113(d), which provides:

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

The foregoing statutory exemption is necessary to protect the organization in its right to the Free Exercise of Religion. 

     The courts have also recognized another exemption for religious organizations as well, an unwritten rule called the "ministerial exception."  This rule essentially provides  that "ministerial employees" are not covered by employment discrimination laws – that religious organizations may discriminate against employees who are essentially acting as members of the clergy for any reason, including the employee's race, gender, national origin, sexual orientation, or disability.  The reason for the "ministerial exception" is to prevent the government from interfering with the governance of religious institutions as well as the beliefs (however discriminatory) those institutions may hold.  The "ministerial exception" is based not only upon the Free Exercise of Religion, but also upon Freedom of Speech, Freedom of Association, and the Separation of Church and State.

   On March 9, 2010 the Sixth Circuit Court of Appeals issued its decision in this case in a decision entitled EEOC v. Perich.  The court found that the statutory exemption contained in § 12113(d) did not apply because Perich was not fired for violating any of the tenets of the church.  It also found that the "ministerial exception" did not apply because Perich was not a "ministerial employee."  The court said:

the overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.

…

By contrast, when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.

    The court found that, under this standard, Perich was not "primarily" teaching religion or otherwise acting as a "ministerial employee."  The court found the following facts with respect to Perich's duties at the school:

The district court's factual determinations concerning Perich's primary duties throughout her work day were not clearly erroneous. The record supports the finding that Perich's employment duties were identical when she was a contract teacher and a called teacher and that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks. Furthermore, the record indicates that Perich taught a religion class four days per week for thirty minutes and that she attended a chapel service with her class once a week for thirty minutes. Perich also led each class in prayer three times a day for a total of approximately five or six minutes. The record also indicates that Perich seldom introduced religion during secular discussions. Approximately twice a year, Perich led the chapel service in rotation with other teachers. However, teachers leading chapel or teaching religion were not required to be called or even Lutheran, and, in fact, at least one teacher was not. In all, the record supports the district court's finding that activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.

     The Court remanded this case to the District Court so that Perich's lawsuit could go forward.  On October 22, the school filed a motion requesting the United States Supreme Court to review this case.

     In a post entitled Supreme Court Needs to Review Religious Employment Case Roberta Combs of Christian Coalition of America contends that the decision of the Sixth Circuit should be overturned by the Supreme Court.  She concludes:

This is a clear-cut constitutional case regarding First Amendment rights for religious institutions. The attack on people of faith in America needs to end ….

     In her post Combs does not mention that Perich was fired, not for reasons based upon religion, but because of her disability.  It seems to me that the decision of the Sixth Circuit in the Perich case is not an "attack on people of faith" but rather a defense of people with disabilities.

     Ryan Bonina of Roetzel & Andress published a thoughtful post about this case entitled Religious School Teacher Does Not Qualify for “Ministerial Exception” Under the ADA at the Labor and Employment Blog on March 11, 2010.  She advised employers:

This decision serves as a reminder to employers to thoughtfully and carefully analyze any decision to rely upon exceptions to statutes such as the ADA.  As demonstrated by this court’s decision, these exceptions are often narrowly construed to protect employees.

     That seems like good advice for all employers, including both secular and religious organizations.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

    Individuals and groups who have an interest in a question of law that is before the Supreme Court may file a "friend of the court" brief with the permission of the Court and the parties.  These amicus briefs are often very illuminating and have influenced the Court's decision in many cases.  They may also be narrowly focused on a particular point of view or just plain silly.  Several amicus briefs have been filed in Snyder v. Phelps, the military funeral protester case.  In this post I identify the shining stars and the burnt out husks among the amici.

     The "Blue Ribbon" awards go to the brief filed by 48 States and the District of Columbia on behalf of the Snyder family, and the A.C.L.U. brief on behalf of the Phelps family.  (The Phelps family comprise most of the members of the protesting group, the Westboro Baptist Church of Topeka, Kansas).  These two briefs admirably address the principal arguments on both sides; they are clear, concise, and persuasive.  They are, in my opinion, more informative and more focused on the relevant constitutional issues than the briefs filed by the parties themselves.  (Here are the petitioner's brief, the respondent's brief, and the petitioner's reply brief.)  Kind of makes you wonder about the utility of the standing doctrine, doesn't it?

     The "Mugwump" award goes to the Anti-Defamation League for its "Brief in Support of Neither Party."  Like I and many other Americans, the ADL can't make up its mind whether it loves the First Amendment more than it hates Hate Speech.  The ADL suggests that the Court should dismiss the appeal and send the case back to the lower courts because the facts of this case don't clearly present the constitutional issues that were raised in the petitioner's brief.  The problem with that advice is that we are stuck with the facts that are present in this case, and these two families and the country deserve an answer to the important First Amendment issues that this admittedly hard case presents.   In a similar vein, I recently disagreed with the ADL's lukewarm suggestion that Park51 (the "Ground Zero Mosque") should be built elsewhere, but kudos to Barry Morrison of the ADL for his defense of Muslim-Americans in his inspiring op-ed "When Hate Takes Over, the Results Never Turn Out Well."

     The "Blowhard" award goes, unsurprisingly, to the brief filed by forty United States Senators on behalf of the Snyder family.  This group, led by Majority Leader Harry Reid and Minority Leader Mitch McConnell, spend a significant portion of  their brief talking about all they have done for military families rather than about the case at hand.  The Senators also win the "Friendly Fire" award because one of the arguments they do make cuts the other way.  The Senators make much of the fact that they enacted two laws regulating protests at military funerals requiring protesters to stand at least 300 feet away from a cemetery, church, or funeral home.  The Phelps family was 1000 feet away from the church where Lance Corporal Snyder was honored.  Nice going, Senators!  I have to admit, though, that the Senators are dead right in criticizing the Court of Appeals for applying a "defamation" standard and ruling against the Snyder family because the statements made by the Phelps' family constituted "hyperbole" and "exaggeration," not misstatements of fact.  By the time this case reached the Court of Appeals the Snyders' claim for defamation had been abandoned; the Snyders' remaining claims were actually for invasion of privacy and intentional infliction of emotional distress.  For that reason I hereby also confer upon the Senators the coveted "Blind Squirrel" award.

     The "Bright Shining Star" award goes to the brief filed by the John Marshall Law School Veterans Legal Clinic and the Chicago School of Professional Psychology.  Their brief argues that "The Circumstances Surrounding a Servicemember’s Deployment and Combat Related Death are Unique" and "The Grieving Process Related to the Death of a Servicemember is Distinct from Other Deaths," and it presents evidence in support of both propositions. 

     The "Don't Throw the Baby Out" award goes to The Reporters Committee for Freedom of the Press and Twenty-One News Organizations for the brief they filed on behalf of the Phelps family … and, of course, themselves.  They argue:

     Reporters, editorial boards, commentators, authors, and others in the press discuss both public and nonpublic figures in the course other their work.  …  Whether it consists of caustic and emotional debates, a scathing editorial cartoon, or an expose revealing disturbing facts about an individual, the press often must go "beyond the bounds of good taste and conventional manners" in order to perform its constitutionally protected function. 

The runner-up in this category is the brief filed by the Foundation for Individual Rights in Education and five law professors, arguing that if the Snyder family wins this case it will threaten free speech on campus.

     The "Wait a Minute" award goes to the brief filed by the Thomas Jefferson Center for the Protection of Free Expression, the Marion B. Brecher First Amendment Project, the National Coalition Against Censorship, and the Pennsylvania Center for the First Amendment.  They contend that the Snyder family should lose under Maryland law – that what the Phelps family did does not amount to either invasion of seclusion or intentional infliction of emotional distress under state law.  The obvious problem with this argument is that the Supreme Court of the United States has no authority whatsoever to determine what the law of Maryland is.  The amici are actually arguing, however, that under the doctrine of "constitutional avoidance" the Court should remand this case to the lower courts for a determination as to whether there are non-constitutional grounds for dismissing the case.

     Briefs earning "Honorable Mention" include the Liberty League's exhaustive analysis of the "captive audience" doctrine, and a brief in which the American Center for Law and Justice argues that the Snyder family should not prevail unless they can prove that the Phelps family did not merely cause a "disturbance," but that they acted with "maliciousness."  

     You may check out the remaining amicus briefs in Snyder v. Phelps at ABA Preview, a convenient and user-friendly source for links to briefs in pending and past Supreme Court cases. 

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

     The Supreme Court has agreed to decide five individual rights cases in the coming term: two freedom of speech cases, an informational privacy case, an Establishment Clause case, and an Equal Protection case.

     Here are brief summaries of each of the individual rights cases that the Court has placed on its docket.  In later posts I will examine these cases in more detail.

A. Freedom of Speech

1. Snyder v. Phelps, Docket No. 09-751. In this case the Court will decide whether a private figure may sue religious and political demonstrators for invasion of privacy or intentional infliction of emotional distress because of the defendant’s protest at the military funeral of a family member and an internet posting broadly criticizing the family for allowing their son to join the military.  I previously posted essays about this case on April 1, Snyder v. Phelps – The Military Funeral Protestor Case, and on June 4, A Response to Your Comments on Snyder v. Phelps.  Now that briefs have been filed and oral argument has been scheduled, I will return to this difficult case.

2. Schwarzenegger, Gov. of California v. Entertainment Merchants, Assn., Docket No. 08-1448. A California statute prohibits the sale of certain violent video games to persons under the age of 18. The law applies where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, that it is patently offensive to prevailing community standards as to what is suitable for minors, and that it causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors. The challengers contend that this law is unconstitutional on its face under the First Amendment, and the lower courts ruled in their favor, enjoining enforcement of the law.  In two previous cases the Supreme Court struck down statutes attempting to restrict depictions of violence: American Booksellers Association v. Hudnut (7th Cir. 1985) (a decision of the Seventh Circuit striking down an anti-pornography law on the ground that the law was viewpoint-based, summarily affirmed by the Supreme Court in 1986) and United States v. Stevens (2010) (invalidating a law prohibiting depictions of animal cruelty on the ground that the law was facially overbroad).  I wrote about the Hudnut case on May 12 in the posting Elena Kagan on Pornography and Hate Speech.  On January 19 I previewed Stevens in this post and described oral argument in this one, and on September 18 I briefly summarized the significance of the Court's decision in Three Giant Steps Backward for the First Amendment.  The California law is different from the laws that were considered in Hudnut and Stevens because the law is designed to shield minors, not adults, from depictions of violence.  In a future post I will report on the arguments being raised by the challengers and the State of California.

B. Informational Privacy

3. NASA v. Nelson, Docket No. 09-530. The National Aeronautics and Space Administration instituted a comprehensive background investigation into the employees of the Jet Propulsion Laboratory in Pasadena. The Ninth Circuit issued an injunction prohibiting the government from asking two specific questions: (1) Although employees could be required to state whether they had engaged in any illegal drug use, the Court enjoined the government from asking whether they had received counseling or treatment for drug use; and (2) the Court enjoined the government from being permitted to ask references for “any adverse information” about the employee.  The Ninth Circuit based its decision on a constitutional right to informational privacy. The respondents rely on language in the Court's opinions in Whalen v. Roe (1977) and Nixon v. Administrator of General Services (1977) for the proposition that there is a constitutional right to informational privacy. But in Whalen the Supreme Court upheld a New York law requiring the creation of a database about the prescription of narcotic drugs, and in Nixon it upheld the federal law that required review of Nixon’s documents before they would be returned to him.

C. Establishment Clause

4. Arizona Christian School Tutition Org., v. Winn, Docket No. 09-987, and Garriott, Director, Arizona Dept of Revenue v. Winn, Docket No. 09-991. The Arizona Tuition Tax Credit permits parents to earn a full tax credit by donating money to school tuition organizations (STOs) that award scholarships to students who attend private schools. Most of the STOs require that, to qualify for scholarships, students must attend religious schools. The tuition tax credit program was challenged by Arizona taxpayers under the Establishment Clause. The Ninth Circuit Court of Appeals held that the taxpayers had standing and that the program had both the purpose and effect of promoting religion in violation of the Establishment Clause. There are two issues before the Court. First, do the taxpayers have standing to challenge the program in light of the fact that donations are made by private individuals to private organizations? Second, is the Tuition Tax Credit program constitutional under the Establishment Clause in light of Zelman v. Simmons-Harris (2002) (upholding state voucher program for children attending private and parochial schools, where parents were given the choice of sending their children to either secular or religious schools)?

D. Equal Protection

5. Flores-Villar v. United States, Docket No. 09-5801. In this case the petitioner contends that he was denied the status of United States citizenship as a result of a discriminatory federal law. Although he was born in Tijuana, Mexico, his father was a 16-year-old American citizen. Under federal law, his father could not lawfully legitimate him because his father had not been a resident of the United States for five years after the age of 14 – a physical impossibility, since his father was 16 at the time of his birth. Under the law the mother’s age at time of birth does not prevent transmission of citizenship to her non-marital child. The question that the petitioner presents to the Court is “Whether the court’s decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis?”

     It looks like we will have a lot to think about and argue about in the coming months.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

In my Law and Theology seminar, the students (and I) are authoring a course blog. My latest entry is about a recent decision in the 7th Circuit on the funding of student worship and proselytizing activities by the University of Wisconsin. Check it out here.

     Here are links to competing views about the Park51 Islamic Cultural Center.  I also offer my opinion on the subject.

The Park51 website, which includes this vision statement:

Park51 will be dedicated to pluralism, service, arts and culture, education and empowerment, appreciation for our city and a deep respect for our planet. Park51 will join New York to the world, offering a welcoming community center with multiple points of entry.

With world-class facilities, a global scope and strong local roots, Park 51 will offer a friendly and accessible platform for conversations across our identities.

August 23, 2010 story from CBS News, "Ron Paul Backs 'Ground Zero Mosque, Splitting with Son Rand."

August 21, 2010 article by Tom Rogan of the Guardian contending that there is considerable dispute within each major American political party over the building of the community center, citing on the one hand statements from Republicans Sarah Palin and Newt Gingrich opposing the community center and responses from other Republicans such as Ted Olson, Pat Buchanan, Chris Christie, and Grover Norquist against what they perceive as overreaction to the project.  He also cites conflicting views among Democrats.

August 17, 2010, post by Valerie Elverton Dixon in the Washington Post, entitled "The Park 51 Islamic Cultural Center and American Values."

August 14, 2010 article by Pauline Jelinek of AP describing President Obama's statements on the subject and reaction from other major political figures.

July 28, 2010 Statement of the Anti-Defamation League taking the position that people have a constitutional right to build the center, but that they should choose another location.  The ADL states:

the proponents of the Islamic Center may have every right to build at this site, and may even have chosen the site to send a positive message about Islam. The bigotry some have expressed in attacking them is unfair, and wrong. But ultimately this is not a question of rights, but a question of what is right. In our judgment, building an Islamic Center in the shadow of the World Trade Center will cause some victims more pain – unnecessarily – and that is not right.

     The ADL also has a page with links to stories in the media about the project.

     Although I acknowledge the truth of the ADL's statement that the proposed location of this building near Ground Zero will cause some victims more pain, ultimately I believe that permitting the construction of the Islamic Cultural Center in this place demonstrates faith in fundamental American values of tolerance and freedom of religion.  In some Islamic countries Christians and Jews face brutal discrimination - no churches or synagogues are permitted in Saudi Arabia, and evangelism is punishable by death.  The construction of an Islamic cultural center in a place that is sacred to all Americans will serve as a beacon for freedom and the American way of life, and a repudiation of the prejudice and hatred that the terrorists stand for.  Our Constitution protects the Free Exercise of Religion.

     Governor David Patterson generously offered state land in an alternative location for the project.  Although this proposal was made with the best of intentions, in my opinion its implementation would have been unconstitutional because it violates the other constitutional provision protecting freedom of religion – the Establishment Clause.  Just as many Islamic countries do a poor job of protecting the Free Exercise of religion, many also do not observe the Separation of Church and State.  The government should not be offering land to any religious body.

     It is no coincidence that some of the loudest voices expressing outrage over the building of what is popularly called the "Ground Zero Mosque" belong to the people who are most vociferous in promoting Christian symbols and doctrine in the public sphere – the teaching of creationism and prayer in the public schools, government aid for parochial schools, and the prominent display of the Ten Commandments in courthouses and on statehouse land.  These people fail to recognize that what's sauce for the goose is sauce for the gander.  If it is constitutional to have Christian symbols and ideology in schools, courthouses, and public squares, then Islamic symbols and ideology also belong there. 

     Freedom of religion means that the government must remain neutral as to religion – neither favoring nor opposing it.  Under the Constitution religion is a private matter.  It is up to individuals and private groups what their religious beliefs shall be, and where to erect their religious institutions.  Americans don't dictate to people where they can build their churches, synagogues, and mosques.

     Former Supreme Court Justice David Souter delivered the commencement address at Harvard University last week.  In this speech Souter explains the shortcomings of a purely textual approach to constitutional interpretation.

     E.J. Dionne of the Washington Post calls our attention to David Souter's commencement address in his recent column "David Souter v. the Antonin Scalias."  The full text of Souter's speech is published in the Harvard Gazette.

     Souter observes that a common criticism that is leveled at Supreme Court justices is that they are "activists" – that they fail to confline themselves to the text of the Constitution, and instead are "making up the law."  These critics insist that justices should interpret the Constitution simply by means of a "fair reading" of its text.

     Souter responds to this criticism on several levels.  First, he makes the commonplace observation that the Constitution contains much "open-ended language" that cannot be simply applied to every situation:

The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

    Second, Souter notes, the Constitution contains many parts – some parts confer powers on the government, while other parts acknowledge rights in individuals.  If we were to confine ourselves to a "fair reading" of the Constitution, how should we decide a case such as New York Times v. United States (1971), the "Pentagon Papers" case?    In that case the Supreme Court had to decide whether to allow the Times and the Washington Post to publish the Pentagon Papers, Robert McNamara's secret history of the Vietnam War.  The First Amendment would seem to allow the newspapers to publish the study, even though it was classified "top secret."  Other parts of the Constitution, however, give Congress and the President the power to protect the country.  That case pitted freedom of speech against national security.  Nearly everyone would agree that a newspaper could have been prevented from publishing plans for the invasion of Europe before D-Day or the codes for launching nuclear weapons.  The question before the Court in that case could not be resolved by simply by reference to the text of the Constitution; instead, it was necessary to balance the public's right to learn the truth against the threat to national security that the disclosure of these facts would present.

     Souter's third argument is the most far-reaching; he suggests that there is no single "objective" value-free understanding of the facts of a case.  He offers the case of Brown v. Board of Education (1954) as one where textual analysis fails because the facts cannot be viewed except through the prism of historical context.  The plain meaning of the words "equal protection of the laws" in the Constitution is broad enough to encompass the principle of "separate but equal."  Even today, it is lawful to maintain separate educational institutions for men and women.  (The hard part, of course, is to keep them "equal.")   Whether segregation is permissible or integration is required depends in part upon what it is being compad to.  In 1868 when the 14th Amendment was adopted and in 1896 when Plessy v. Ferguson was decided many people considered it to be reasonable and fair to have separate facilities for blacks and whites.  Souter explains what changed between 1896 and 1954 that led to a different result in Brown:

[T]he members of the Court in Plessy remembered the day when human slavery was the law in much of the land. To that generation, the formal equality of an identical railroad car meant progress. But the generation in power in 1954 looked at enforced separation without the revolting background of slavery to make it look unexceptional by contrast. As a consequence, the judges of 1954 found a meaning in segregating the races by law that the majority of their predecessors in 1896 did not see. That meaning is not captured by descriptions of physically identical schools or physically identical railroad cars. The meaning of facts arises elsewhere, and its judicial perception turns on the experience of the judges, and on their ability to think from a point of view different from their own. Meaning comes from the capacity to see what is not in some simple, objective sense there on the printed page. And when the judges in 1954 read the record of enforced segregation it carried only one possible meaning: It expressed a judgment of inherent inferiority on the part of the minority race. The judges who understood the meaning that was apparent in 1954 would have violated their oaths to uphold the Constitution if they had not held the segregation mandate unconstitutional.

   Dionne believes that with his attack on "fair reading" (what is commonly known as "plain meaning" approach to constitutional interpretation) Souter is challenging Antonin Scalia, and I agree, but that is not the entire source of their disagreement.  Although Justice Scalia considers himself to be a textualist, in fact he primarily relies upon a different mode of analyis – tradition.  In case after case, Justice Scalia invokes "tradition" to justify the results he reaches.  Why should the government be permitted to erect symbols of the Christian religion on public land?  Tradition!  Why aren't women permitted to attend Virginia Military Institute?  Tradition!  Why are the states allowed to imprison gays and lesbians?  Tradition!   Of course, the result in Brown v. Board of Education is utterly inconsistent with tradition.  The text of the Constitution is inadequate to explain the result in Brown, and tradition is incompatible with that result.  And yet Justice Scalia has tied his own hands in this matter; he recognizes no means of interpreting the Constitution other than text and tradition.  He said, in the case of Michael H. v. Gerald D. (1989):

[A] rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

     If text and tradition are not sufficient to fully and properly interpret the Constitution, then how does Justice Souter suggest we proceed?  He advises us to be realistic.  The Constitution is not a detailed set of regulations like the tax code or a building code from which we can rather easily derive specific rules; it is instead a "pantheon of values:"

The fair reading model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments. Judges have to choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.

     Simplistic approaches to Constitutional interpretation, says Souter, threaten to ignore or overlook those values:

[T]he tensions that are the stuff of judging in so many hard constitutional cases are, after all, the creatures of our aspirations: to value liberty, as well as order, and fairness and equality, as well as liberty. And the very opportunity for conflict between one high value and another reflects our confidence that a way may be found to resolve it when a conflict arises. That is why the simplistic view of the Constitution devalues our aspirations, and attacks that our confidence, and diminishes us. It is a view of judging that means to discourage our tenacity (our sometimes reluctant tenacity) to keep the constitutional promises the nation has made.

     It is very easy to come to a result in cases such as New York Times v. United States or Brown v. Board of Education by simply pretending that some portion of the text of the Constitution determines the result.  It is even easier to decide hard cases such as these if one assumes that the Constitution is by definition congruent with tradition.   David Souter demolishes these easy shortcuts to constitutional interpretation and abjures us to acknowledge that the Constitution asks us hard questions: what constitutes equal treatment, and who is equal; when is expression so harmful that it may be suppressed; how far may the government go in acknowledging or accommodating religion; how fair, how tolerant, how just are we required to be?

     In this final installment on this pending case I discuss whether or not a religious organization like CLS has a constitutional right to discriminate that is superior to the rights that other advocacy groups might have.

     In five previous posts I have introduced the pending Supreme Court case of Christian Legal Society v. Martinez, laid out the breadth of constitutional issues that are implicated, and discussed CLS's First Amendent claims under the doctrines of equal access to a public forum, expressive association, and the free exercise of religion.  In this sixth post I suggest that CLS may try to argue that, as a religious organization, the discrimination that it practices against gays, lesbians, and people of other faiths is on a higher plane and should receive more constitutional protection than discrimination by other, non-religious organizations.

    The problem that CLS faces is that Hastings Law School has a legitimate and compelling reason not to recognize student organizations that discriminate on the basis of race, religion, gender, national origin, disability, and sexual orientation.  The law school is attempting to instill in its students principles of inclusiveness and tolerance – and the law school has that right under the First Amendment.  For example, no court would ever require the law school to confer official recognition a group that wished to call itself the "Hastings Law School Chapter of the KKK," for example, nor would the law school be required to give such a group access to student activity fee funding for a cross-burning.

     The obvious strategy would be for CLS to persuade the Court that the kind of discrimination that is practiced by religious organizations can be distinguished from the kind of discrimination that hate groups like the KKK or the Nazi Party engage in.  And at first blush that would seem easy to do.  We certainly do not regard our churches or religious societies in the same moral light as hate groups. 

     In support of this distinction the CLS can point to the fact that the law routinely exempts religious organizations from the operation of the civil rights laws.  If this were not the case, it would be unlawful for religious institutions to engage in gender discrimination, and churches, synagogues, and mosques could be compelled to employ women as clergy.  This exemption exists for very good reason – the civil rights laws are in some instances in conflict with religious doctrine, and to enforce these laws against religious institutions would infringe upon those institutions' right to the free exercise of religion.  Moreover, in the process of enforcing laws against employment discrimination the government would almost certainly become "excessively entangled" in the affairs of the religious body, thus violating the principle of separation of church and state that the Establishment Clause stands for.

     On closer inspection, however, there are difficulties with this argument.  While it is true that religious institutions enjoy immunity from civil rights laws that prohibit discrimination, so, too, do social, fraternal, and advocacy groups, insofar as those laws would interfere with the organization's rights to expressive association.  The law may not require the Lutheran church to employ a Methodist pastor any more than it may require the Democratic Party to allow Republicans to vote in its primary elections (California Democratic Party v. Jones (2000)), or require the Boy Scouts to employ a gay man as a Scoutmaster (Boy Scouts of America v. Dale (2000)).  Even the KKK has the right, under teh First Amendment, to exclude people of color from becoming members.  Religious institutions exercising the right to freedom of religion in their discriminatory practices are treated no differently than secular organizations asserting their right to freedom of speech.

     Furthermore, there are organizations that function both as religions and as hate groups.  Christian Identity, for example, is a church instituted upon principles of racism and anti-semitism that according to the Anti-Defamation League has penetrated many right-wing extremist movements in America.  Terrorist organizations such as al-Qaeda obviously draw inspiration from religious fanaticism.  And, until 1978, the Mormon church discriminated on the basis of race.  In my opinion there is no principled basis for distinguishing religiously-based acts of discrimination from those that arise from secular motives.

     If CLS raises this line of argument, and if the Court chooses to discuss it, it will be fascinating to witness.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     We have seen in the two previous posts that CLS faces an uphill battle against Hastings Law School in its First Amendment claims based on "expressive association" and "equal access to a public forum."  Under existing doctrine, it will be equally difficult for CLS to win with yet another First Amendment claim under the Free Exercise Clause, for reasons discussed below.  That is why CLS may get creative and try to establish new doctrine – that discrimination by a religious body is different from and more protected than discrimination by non-religious advocacy organizations.

     In order to become a member of CLS, a Hastings Law Student must make the following "statement of faith":

Trusting in Jesus Christ as my Savior, I believe in:

• One God, eternally existent in three persons, Father, Son and Holy Spirit.

• God the Father Almighty, Maker of heaven and earth.

• The Deity of our Lord, Jesus Christ, God’s only Son conceived of the Holy

Spirit, born of the virgin Mary; His vicarious death for our sins through

which we receive eternal life; His bodily resurrection and personal return.

• The presence and power of the Holy Spirit in the work of regeneration.

• The Bible as the inspired Word of God.

     Furthermore, the district court found:

CLS will not permit students who do not sign the Statement of Faith to become members or officers. CLS also bars individuals who engage in “unrepentant homosexual conduct” or are members of religions that have tenets which differ from those set forth in the Statement of Faith from becoming members or officers.

     Hastings Law School allows CLS the use of its classrooms for meetings as well as access to bulletin boards and audio-visual equipment.  But because CLS refuses to admit members on a non-discriminatory basis, Hastings does not recognize CLS as an official student organization, it does not allow CLS to use the name or logo of the law school, and it does not give CLS any funding.  

     CLS contends that Hasting's actions infringe upon the student organization's right to freedom of religion under the Free Exercise Clause of the First Amendment.  It will be difficult for CLS to establish this claim for a number of reasons.

     First, under the case of Sherbert v. Verner (1963), to make out a claim under the Free Exercise Clause an individual or a group must prove that the government has imposed a "substantial burden" upon the practice of religion.  That basic element may be missing in this case.  Hastings Law School has done nothing to make CLS's religious exercises illegal, difficult, or expensive.  It has simply declined to endorse CLS on account of the fact that the club is not open to gays, lesbians, and persons of other religions. 

     Second, under the same case, even if Hastings' non-discrimination policy constitutes a "substantial burden" on the exercise of religion, that policy is constitutional if it serves a compelling governmental interest."  Hastings will argue that it has a compelling governmental interest in preventing discrimination on the basis of religion and sexual orientation by student organizations that it indorses, and in light of the fact that Hastings also has First Amendment rights to define its educational mission, this, too, is a powerful argument.

     As if Sherbert v. Verner were not a high enough hill to climb, the Supreme Court threw some more roadblocks in the way of Free Exercise claims in the case of Employment Division v. Smith, a 1988 decision written by Justice Antonin Scalia.  In that case the Supreme Court ruled that the plaintiff must also prove either that the law or official policy is not a rule of "general application," that the law or policy was "directed at religious practice," or that the law or policy affects both religious exercise and some other constitutional right.  If any of those three elements are present, then Sherbert v. Verner applies.  If not, then the governing standard is the low-level rational basis test, and the law or policy will be upheld if it has any tendency to serve a legitimate governmental interest.

     Hastings' non-discrimination policy is a rule of general application – it applies to all student organizations that desire official recognition.  It is not directed at religion – prior to 2004, when it allowed Hastings students of any religion or sexual orientation to join, CLS was a recognized student organization.  Finally, as we saw in the previous posts, the law school's policy may not violate the student organization's right to freedom of expression.  The Supreme Court may well find that CLS's Free Exercise claim is barred by the Smith case, and may not even consider whether the policy amounts to a "substantial burden" on the exercise of religion under Sherbert.

     Under existing law, CLS will have a hard time proving that Hastings' non-discrimination policy violates the First Amendment.  CLS will have to get creative.  Its best chance lies in persuading the Supreme Court that discrimination by a religious organization is different from discrimination by other types of organizations.  I will discuss that idea in tomorow's post.

Visit Professor Huhn's website on Constitutional Law for information and links to sources – both timely and historical – on constitutional law.

     The difficulty of this case stems from the number of constitutional doctrines and principles which are intertwined, a tangled skein of general rules and fundamental values.

     Yesterday's post introduces the case.  The Christian Legal Society is a student organization at Hastings Law School that in 2004 adopted rules requiring that in order to become members of the organization students must take an oath expressing their adherence to specific religious beliefs.  As construed by the CLS, the oath and the duty to conform to it would exclude sexually active gay and lesbian students.  The law school refuses to recognize student organizations that discriminate on the basis of religion or sexual orientation, and accordingly the law school withdrew recognition of CLS, thus depriving the organization of the right to use the name and logo of the institution, access to certain facilities at the law school, access to e-mail lists of students, and funding.

     This case implicates a virtual blizzard of constitutional principles.  For CLS, three primary constitutional rights are involved:

1.  Freedom of Speech and the Right of Expressive Association

     The Christian Legal Society has the right to express its views, not only through advocacy, but by means of its membership policies.  This right – called the right of "expressive association" – makes it unconstitutional for the government to enforce civil rights laws against such organizations, at least in settings where the organizations is acting in a wholly private capacity and not performing some governmental function, such as conducting a primary election for elective office.

     The principal case protecting the rights of CLS in this case is Boy Scouts of America v. Dale, in which the State of New Jersey had charged the Boy Scouts with violating the state's nondiscrimination law because it had fired a scoutmaster because he was gay.  The Supreme Court ruled that enforcement of the law violated the Boy Scouts' First Amendment right to stand in opposition to homosexuality – and that this right would be infringed if the BSA was required to employ gays or lesbians as scoutmasters.

2.  The Free Exercise of Religion

    The CLS's right to discriminate on the basis of sexual orientation is also based upon its rights under the Free Exercise Clause of the First Amendment.  Religious bodies may not be forced to admit members or hire clergy who are not of the same faith, or who are not obedient to the organization's code of conduct. 

3.  Equal Access

     When government institutions such as schools and colleges open up their facilities to the community, they must provide access in a "viewpoint neutral" manner – that is, the government must not attempt to elevate one point of view over another.  The Supreme Court has specifically held that religious groups are entitled to the same access to public facilities as secular organizations. 

     However, this case is complicated by the fact that CLS is not simply seeking access to Hastings Law School – it is seeking official recognition and funding.  A university – even a public university – also has the rights and responsibilities under the Constitution. 

1.  Government speech

     Government institutions, no less than private parties, enjoy freedom of speech.  By prohibiting recognized student organizations from discriminating Hastings Law School is attempting to inculcate tolerance and civic responsibility among its students.  The law school's First Amendment rights are enhanced by the fact that its recognition of a student organization confers upon the organization the right to use the name and logo of the law school, giving the impression that the organization is speaking for the law school – and the law school does not wish to endorse discriminatory views.

2.  Government subsidization of private speech

      Not only may government institutions speak, they may also elect to subsidize the views of private parties with whom they agree.  Just as the National Endowment for the Arts may decide to fund one form or art or music over another – or "decent" kinds of performances instead of "indecent" ones – universities may choose to subsidize some forms of expression and not others.  Essentially, this line of cases (like the abortion funding cases) stands for the principle that while citizens may have a constitutional right to freedom of speech, they do not have a constitutional right to the assistance of the government in expressing themselves.

3.  Establishment Clause

     Under the First Amendment's that the government shall make no law "respecting an establishment of religion," the Supreme Court has ordered that the government must act in a neutral fashion towards religion.  The government may neither advance religion or hinder it.  The problem, of course, lies in defining what constitutes the "neutral" position.

4.  The power to regulate the conduct of students

     Public educational institutions have the authority to regulate student conduct to a far greater degree than they may regulate student expression.  One of the difficult questions in this case is whether through its nondiscrimination requirement for recognized student organizations the law school is attempting to prohibit discriminatory conduct, or whether it is attempting to regulate the beliefs and expressions of students.

     I will continue the analysis in tomorrow's post.

Visit Professor Huhn's website  for information and links to sources – both timely and historical – on Constitutional Law.