Uproar in Connecticut

The Mirror of Justice blog reports that the last week’s controversial Connecticut legislation aimed at the Catholic Church has been tabled. According to Archbishop Henry Mansell of Hartford, the bill would “force a radical reorganization of the legal, financial, and administrative structure of [Catholic] parishes.” In case you think that wasn’t descriptive enough, PrawfsBlawg’s Rick Hills called the measure “The Connecticut Legislature’s preposterously unconstitutional attack on Catholicism.” Sensational enough for you now?

Professor Hills points out that, among other things, the proposed Connecticut measure is patently unconstitutional under Church of Lukumi Babalu Aye v. City of Hialeah. (For a brief but excellent analysis of all the issues, see the open letter written by several prominent law professors to the Connecticut legislature.) For all the ugliness directed towards Mormons after Proposition 8 in California, there hasn’t been such an overt legislative assault on the LDS Church in any jurisdiction.

I certainly don’t see this as a Catholic or Mormon issue. Even with in a divisive political climate, I am utterly surprised that any legislator in the nation would sign his or her name to such a bill. In a Q&A on the National Review Online, Katheryn Jean Lopez asked Brian Brown (executive director of the National Organization for Marriage) “Why should anyone who’s not Catholic in Connecticut or Mormon in California care?” He responded:

All Americans, whatever their political leanings, should care when politicians propose to take out a specific religious group because partisans in one party don’t like its moral stands on important public issues.

Brown goes on to call for “a response that makes these partisans regret it.” I don’t support Brown’s vindictive approach, but I certainly agree that all Americans should be concerned that such a provision was ever contemplated.

Photo credit: Brent Danley

George Q. Cannon’s review of Reynolds v. U.S.

I occasionally like to point out interesting law-related posts that I stumble across in the Bloggernacle (what a terrible name, that). William & Mary law prof Nate Oman of Times & Seasons has a brief post up about a publication George Q. Cannon wrote with the lengthy title of A Review of the Decision of the Supreme Court in the Case of Geo. Reynolds v. the United States. Cannon’s Review discusses the 1879 Supreme Court case that held that the practice of plural marriage was not protected by the Free Exercise Clause. I understand that this case is still carried in many constitutional law texts because it was the first Supreme Court decision to tackle the issue head-on, but I don’t remember reading it in law school. I’ve been perusing Cannon’s Review this afternoon and I think it’s fairly accessible and interesting for a legal text of that time period.

Oman notes that Cannon may have had help drafting the Review, but that “the pamphlet shows a surprising familiarity with American constitutional history, theoretical jurisprudence, and criminal law.” I don’t think the Review is still in publication anywhere, but thanks to the bounties of the public domain and Google’s Book Search project, you can read it online or download a PDF.

God in the courtroom

I recently was present for oral arguments where a pastor was representing himself pro se. The judge mentioned that a party associated with the case was absent due to family health reasons, and the pastor requested that the court observe a moment of silence for the family. Not knowing how to respond, the judge and the rest of the court awkwardly complied and bowed their heads until the pastor declared the moment over, while I looked on incredulously.

This episode with a pro se litigant was unusual, but Deity is regularly invoked in many courtrooms. Where I currently practice, it is common for a court to open with with an announcement such as “May God save the United States and this Honorable Court.” Many judges and members of the bar bow their heads as this invocation is proclaimed. In many jurisdictions the swearing of an oath ends in “so help me God,” a phrase that was recently challenged again with respect to the swearing-in of President Barack Obama. Religious references are also common in the legislative branch. Sessions of Congress and state legislatures are traditionally opened with a prayer.

The bizarre courtroom incident with the pastor made me consider my own position on religion in the courtoom and other government functions. Despite being a personally religious person, I have always felt somewhat uncomfortable with the institutionalization of religion. Perhaps this is due in part to having grown up in a region of the United States where Mormonism was a very small minority religion. I had a sense that whenever God was invoked in public, it was done in such a way and with language that was different from my own religious beliefs. I also identified at an early age that there was a certain amount of hostility or rejection associated with my denomination. I was a Mormon kid, and being Mormon was a little weird. I only encountered invocations or public religious observations occasionally, but whenever they occurred I was keenly aware that they represented a difference between everyone else and me.

But even though I’m not always comfortable with religious references in government, I don’t think that they should be done away with entirely. I think it’s important that the democratic process be a free marketplace of all ideas, religious or otherwise. Consequently, I generally think that the exclusion of all religious references in any branch of government is inappropriate, and contrary to the purpose and language of the First Amendment. My general rule of thumb is that personal statements of conviction should always be allowed.

Prayers before legislative sessions or “so help me God” oaths are usually called “de minimis” religious references by the Supreme Court, and the Court seems to take a fairly tolerant approach to these references, since they were common practices long before the United States was even formed. But this isn’t an opinion that is universally shared. In January, MichaelNewdow (the same litigant who challenged the phrase “under God” in the Pledge of Allegiance) sought to exclude a clergy invocation and benediction from the presidential inauguration and enjoin Chief Justice John Roberts from using the phrase “so help me God” in the presidential oath. Mr.Newdow had filed a similar lawsuit before at the second inauguration of President George W. Bush, and this most recent wasn’t likely to prevail because he made all the same arguments.

I noticed that U.C. Berkley Law professor Eugene Volokh had an interesting thought about the prayers at the inauguration. He suggested that “a President’s inviting a particular clergyman to say things at the President’s inauguration might well be treated as an extension of the President’s own right to express whatever views — including denominationally specific views — he wants to express as part of his own speech.” This seems like it touches on my rule of thumb regarding personal expression of speech, although it may not be applicable to courtroom oaths or legislative prayers because the courts and the legislatures are not embodied in one person.

As you likely know, Mr. Newdow’s lawsuit was again rejected and both the oath and the prayers went forward as planned. And thanks to a slip of the tongue by the Chief Justice and racial rhymes in the inaugural benediction, the references to Deity became the least controversial parts of the day.

Unpopular religions at home and abroad

John F. of the popular Mormon blog By Common Consent wrote earlier this week on the German government’s treatment of certain religious denominations as dangerous or extremist groups. The main target currently seems to be Scientologists, which corresponds with similar hostility in the U.S. and other countries. John F. quotes statements by German officials calling Scientology a “dangerous” and “antidemocratic organisation” that pursues “totalitarian goals.”

Like John F., I get a little nervous when groups like Scientology come under fire. It is all to easy to imagine the same rhetoric and tactics turned on other minority religions. (I realize there are good arguments that Scientology doesn’t constitute a religion, but for the purposes of the First Amendment it does.) Last year when the group “Anonymous” began its campaign against Scientologists worldwide, I couldn’t help cringing. Most of the criticisms aimed at Scientology could also apply to Jehova’s Witnesses, Seventh-Day Adventists, Mormons, and any other minority religion. And because Scientologists weren’t popular with the press or mainstream Christians, this campaign of intimidation, cyber-crime, and copyright infringement was tacitly condoned by most people.

Jeff F. points out that the only reason Mormons in Germany haven’t been subject to the same treatment as Scientolgists and Jehova’s Witnesses is because they are marginally less unpopular. I think the same could be said of campaigns like Anonymous — they haven’t targeted Mormons only because other groups are less popular. And in the wake of Proposition 8, I see the fortunes of the Church of Jesus Christ of Latter-day Saints growing worse rather than better in the near future.

I should note that the Anonymous campaign is significantly different from the actions of the German government, in that it is private action rather than state action. The First Amendment is designed to protect religious groups and their beliefs, even unpopular ones, from governmental interference. But religious groups are supposed to enjoy similar protections in Germany under the German Constitution and Article 10 of the European Charter of Fundamental Rights. Other countries such as Canada have also treated religious and political minorities unequally despite constitutional and governmental laws to the contrary. The protections afforded to religious groups in America have been on the decline ever since the 1990 Supreme Court Case Employment Division v. Smith . It isn’t hard to imagine the U.S. government engaging in similar discrimination under the guise of national security or equality.

Prop 8 Maps and NAACP v. Alabama

California Proposition 8 is the news event that keeps on giving. The latest bit of news that has caught my attention was a rather clever mash-up of Google Maps and the California political contribution disclosure information. Under the California Political Reform Act of 1974, all political contributions over $100 require public disclosure of the donor’s name, address, occupation, and other personal information. Prop 8 Maps is a website that plots all of that information on Google Maps, making it searchable by city name or zip code.

As you might imagine, this has made many donors nervous. One group of Proposition 8 supporters already filed suit in Indiana federal court seeking an injunction. The lawsuits alleges that Proposition 8 supporters have experienced “death threats, acts of domestic terrorism, physical violence, threats of physical violence, vandalism of personal property, harassing phone calls, harassing e-mails, blacklisting and boycotts,” and that an the donor information should not be disclosed.

Ironically, there are a couple Ninth Circuit cases that might have protected this disclosure if the supporters of Proposition 8 had been fewer. But because the referendum passed, those cases would not apply. Thus, there doesn’t appear to be any case law that would allow withholding donor information of a large political group, even in the face of a hypothetically strident or threatening minority. Eugene Volokh has more discussion here, including whether technological changes (like Prop 8 Maps) should alter the calculus.

I was interested in the case because it reminded me of the situation in NAACP v. Alabama, a civil rights-era case that challenged a somewhat similar law in Alabama that required all corporations to disclose their membership or shareholders. In 1956 the State of Alabama sought to obtain a list of all the members of the NAACP in the state, and the organization refused. The resulting lawsuit was appealed up to the Supreme Court, where the Court recognized a high likelihood of a substantial restraint on the NAACP members’ exercise of their right to freedom of association. Justice Harlan wrote:

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment.


The Alabama law was similar to laws in many states, and there was no evidence shown that it was recently passed or specifically tailored to apply to the NAACP. Any resulting infringement of free speech was, therefore, an accidental interference. Accidental interferences with free speech should be resolved by balancing the degree of interference with the state’s regulatory interest. In the case of the Alabama law the state had a valid interest in knowing the personal information of corporation members/shareholders, but it was vastly outweighed by the enormous interference with the free speech of organizations such as the NAACP. This was particularly important because there are few alternatives to organized political speech.

Now consider the California law that requires disclosure of political donors’ personal information if the donors contribute more than $100. At the outset, it is important to courts recognize a free speech insterest in engaging in anonymous speech, so the compelled disclosure of donor information does constitute a restriction on free speech. But almost all courts have upheld disclosure requirements on political contributions. Like the Alabama law, the California law doesn’t appear to have been enacted or amended to specifically apply to the supporters of Proposition 8, so any interference with free speech is probably accidental rather than intentional.

Once again the analysis requires a balancing of the free speech interests and government regulatory interests, but the outcome should be different in the current situation. The threats, vandalism, and harassment experienced by Proposition 8 supporters so far don’t come close to the widespread, institutional persecution and prejudice experience by civil rights supporters in Alabama in 1956. Additionally, the California law does not require disclosure of all members of groups favoring the passage of Proposition 8, or even all donors to the cause. The $100 donor threshold is admittedly quite low, but it still represents a lesser infringement on free speech interests than the Alabama law. The California law also presents stronger regulatory interests, since the disclosure of political contributors can help prevent fraud and illegal donations. These interests are designed to ensure the successful operation of the democratic system, and therefore serve some of the same goals as the First Amendment itself.

The bottom line is that the California disclosure law and any initiative using that data are almost certainly legal and permissible under the First Amendment. Projects like Prop 8 Maps are definitely creepy, and as many same-sex marriage supporters have observed, they are the “perfect tool for backlash.” I would consider it unconscionable to participate in a similar project. But this is part of the price we pay for maintaining free speech in America.

Church property and public use

Last month the New Jersey Division of Civil Rights found probable cause in a discrimination claim brought by a lesbian couple against a religious group that refused to rent its property to the couple to perform a civil union ceremony. The Ocean Grove Camp Meeting Association is non-profit group affiliated with the Methodist Church, and until recently it rented out its Boardwalk Pavilion to the public for receptions and other events. In addition to being rented for events, worship services were held there every week. The rest of the time the Pavilion was completely open to the public. However, the Association refused to rent the Pavilion to Harriet Bernstein and Luisa Paster for their civil union ceremony because such unions conflicted with the Association’s beliefs. United Methodist Church policy “recognizes marriage only in terms of a covenant relationship between one man and one woman,” and provides that civil union ceremonies “shall not be conducted by our ministers and shall not be conducted in our churches.”

In its Finding the NJ Division of Civil Rights held:

When it invites the public at large to use it, the [Ocean Grove Camp Meeting] Association is subject to the [New Jersey] Law Against Discrimination, and enforcement of that law in this context does not affect the Association’s constitutionally protected right to free exercise of religion.

The Association stopped renting the Pavilion for events after April 1, 2007. Another lesbian couple tried to rent the facility after that point and sued when they were rejected, but the NJ Division of Civil Rights rejected that case.

I’m not licensed in New Jersey but I have a few thoughts on this issue. The clear message from the New Jersey Division of Civil Rights is that churches should think twice before they make their property available to the public. For the most part, the Mormon Church is ahead of this trend, controlling most of its property in such a way that it could not be construed to be public use. However, the result of the Division’s ruling is lamentable, since it prevents certain religious organizations from providing a service to their communities.

Secondly, this case underscores the growing conflict between the gay rights movement and religious liberties. Presumably, a different religious organization that does not object to same-sex marriages or civil unions would still be free to operate a facility such as the Boardwalk Pavilion. This can have significant tax financial implications for religious organizations. In this case, the Association had received a tax exemption under the New Jersey Green Acres program, which provides tax benefits to organizations that make their land available for public use. The Boardwalk Pavilion property’s tax-exempt status was revoked by the New Jersey Department of Environmental Protection after the Association stopped renting the property to the public. This case reminds me to some extent of the famous Bob Jones University Supreme Court case.

The Religion Clause notes that an appeal related to this case is pending before the 3rd Circuit, so we haven’t heard the last of the Boardwalk Pavilion.

Photo credit: Asbury Park Press.

Why the Supreme Court got it wrong in Corp. of Presiding Bishop v. Amos

Over twenty years ago, the LDS Church played a small role in determining how the Establishment Clause meshed with Title VII of the Civil Rights Act of 1964. The case is Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, and it used to appear in a lot of constitutional law texts. I find the case interesting for a couple reasons: first, it’s amusing when sources such as Bruce R. McConkie’s Mormon Doctrine or the Book of Abraham are cited in a Supreme Court brief. Second, and more importantly, I think the outcome of the case was wrong and that the Mormon Church should have lost.

The facts are these: the Church of Jesus Christ of Latter-day Saints operated the nonprofit Deseret Gymnasium in Salt Lake City under its sub-organization, the Corporation of the Presiding Bishop (CPB). The CPB also had some management in Beehive Clothing, along with the Corporation of the President (COP), another entity within the Mormon Church. Several employees of Beehive Clothing and at least one employee of Deseret Gymnasium were terminated after failing or refusing to receive temple recommends. They brought suit against the CPB and the COP. Readers familiar with the organization of the Mormon Church will recognize that the CPB deals with many secular matters of church administration, such as property acquisition and the management of physical facilities (such as the Deseret Gymnasium). The gymnasium was open to the public and there was no evidence that the facility was used in religious services, or that physical exercise was part of the tenets of the Mormon faith. Beehive Clothing, in contrast, produces temple garments and temple clothing worn in LDS temple ceremonies.

Plaintiffs made several claims under federal and Utah State law, but the major issue was whether the plaintiffs’ terminations violated Title VII of the Civil Rights Act of 1964. The CPB raised the defense that §702 of the Act, which provided an exemption for religious entities from the equal employment requirements of Title VII.

This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The terminated employees argued that §702 violated the First Amendment’s non-establishment of religion clause because it favored religious employers over similarly situated non-religious employers.

The District Court applied what is known as the Lemon test, after the Supreme Court case Lemon v. Kurtzman (which really was derived from the prior Supreme Court cases of U.S. v. O’Brien and Clark v. Community for Creative Non-Violence). The Lemon test essentially requires that any statute affecting religion meet the following three requirements:

  • The statute must have a secular purpose.
  • If it has a secular purpose, the statute’s principle or primary effect must be one that neither inhibits nor promotes religion.
  • Lastly, the statute must not foster an “excessive government entanglement with religion.”

It seems clear that Title VII had a secular purpose (to prevent employment discrimination), and the statute didn’t entangle the government with religion. The real issue was whether the primary effect of §702 was to promote religion.

The Utah District Court declined to rule on whether §702 was constitutional as applied to the employees of Beehive Clothing due to a lack of evidence in the record. But the court did rule that §702 was unconstitutional as applied to Plaintiff Arthur Frank Mayson, the terminated building engineer at Deseret Gymnasium. Finidng that there was no clear relationship between the primary function which Deseret performs and the religious beliefs and tenets of the Mormon Church or church administration,” the Utah District Court granted summary judgment in favor of Plaintiff Mayson on his Title VII claim. The case was reopened to allow the federal government to intervene in support of Title VII, but the District Court again ruled in favor of Plaintiff Mayson. The CPB appealed.

By all accounts, the case we very well argued at the Supreme Court level, with Rex E. Lee representing the appellant Corporation of the Presiding Bishop. Lee had stepped down from his position as U.S. Solicitor General just two years earlier, so he was a well-known face at the Supreme Court. Numerous religious organizations submitted amicus briefs urging that the District Court ruling be overturned, while labor and employment groups did likewise in favor of affirmance.

In a unanimous ruling, the Supreme Court held that §702 of the Civil Rights Act of 1964 did not violate the First Amendment prohibition of the establishment of religion. The Court said:

A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.

As impertinent as it may seem, I think the Supreme Court was dead wrong in Amos. This may be a tribute to the persuasive powers of Rex Lee and amici, but more likely, the Court failed to correctly evaluate the potential infringement on religion. Under my analysis, there doesn’t seem to be a free exercise basis for this exemption to Title VII, as applied to Plaintiff Mayson, because employing a building engineer who doesn’t hold an LDS temple recommend would result in negligible interference with religion, if any. I can’t think of a rational reason why a physical fitness facility should be exempted. Even the most liberal reading of the Word of Wisdom or statements by LDS Church leaders on exercise wouldn’t support an assertion that the activities of a gymnasium were central to Mormon theology. The only reason for the Supreme Court’s ruling in Corp. of Presiding Bishop v. Amos seems to be that without the preferential treatment, Title VII would violate the Free Exercise Clause. But if employing a non-believing or non-temple-worthy building engineer for a secular-use building doesn’t inhibit the free exercise of religion, this ruling seems indefensible.

Obviously, I would agree with the Court if Plaintiff Mayson had managed the facilities of an LDS temple. I think it would be fair to say that requiring a temple recommend (and the accompanying lifestyle and beliefs) in order to gain entrance to an LDS temple is a core tenet of LDS theology, and that any interference with this practice would violate the Free Exercise Clause.

The case of the Beehive Clothing workers presents a somewhat closer case. The Utah District Court dodged the question for lack of evidence, but it opined that plaintiffs were entitled to discovery on the following issues:

(1) the manufacturing of garments prior to 1960 and any subsequent changes;
(2) the distribution of garments prior to 1960 and any subsequent changes;
(3) the tax exempt status of Beehive;
(4) the past and current employees who were or are non-members of the Mormon Church;
(5) Beehive’s contracts, both past and current, with private commercial enterprises for the production of garments; and
(6) current hiring practices of the defendants’ garment and temple clothing manufacturing plants in Mexico and England.

I think the District Court was honing in on the issue of whether the employees of Beehive Clothing were involved in a religious activity. The production of clothing itself is not an inherently religious activity, of course. What might make the activity religious is the purpose for which the clothing is made. Also interesting is the fact that the plaintiffs terminated from Beehive Clothing were involved in the production process “before the garments were marked with certain religiously significant symbols,” which could favor an interpretation that the activities were not religious. However, since the employees also produced clothing worn in Mormon temple ceremonies, there still is a decent argument that their activities were religious in nature.

The questions posed by the District Court would likely help settle the question of whether temple clothing and garment production is a religious activity. Today, LDS temple garments and clothing may only be purchased by temple recommend-holders, and I think the activities of Beehive Clothing should safely be considered as religious activities. But there once was a time (aluded to by the District Court) when Mormon garments were available to order from the Sears Roebuck catalog, and until relatively recently anyone could buy them from Mormon distribution centers. I would still probably favor a ruling that Beehive’s activities were religious, if only for the aspect of temple clothing production, but it’s a close call. We’ll never know how the Supreme Court would have ruled on the issue because only Plaintiff Mayson’s claims were granted and appealed, but given the Court’s (in my opinion) faulty logic in Amos, perhaps it was better left undecided.