The Freedom From Religion Foundation filed a lawsuit Tuesday seeking to block an architect from engraving “In God We Trust” and the Pledge of Allegiance at the Capital Visitor Center in Washington D.C. The lawsuit claims the taxpayer-funded engraving would be an unconstitutional endorsement of religion.
(Note: This is a more thorough treatment of last week’s Legal Brief about Catholic League for Religious and Civil Rights v. City and County of San Francisco.)
In 2006 the City Council of San Francisco adopted a resolution that criticized the Catholic Church’s stance on homosexuality. Catholic Charities, like LDS Social Services, acts as an adoption agency. The Archdiocese of San Francisco had instructed the agency to not place children with gay couples, and the San Francisco City Council’s response called the policy an “insult to all San Franciscans” and “unacceptable to the citizenry of San Francisco, and also stated:
Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors
The Catholic League for Religious and Civil Rights filed a 42 U.S.C. § 1983 civil rights suit against the City for violations of the Establishment Clause. That action was quickly tossed out on a 12(b)(6) motion for failure to state a claim, and the Catholic League appealed to the Ninth Circuit Court of appeals. The Ninth Circuit issued its ruing on Wednesday, and once again rejected the Catholic League’s claims.
At its heart, this case is an application of the misnomered Lemon test. As the Ninth Circuit cites it, the Lemon test permits government action if it “(1) has a secular purpose; (2) has a principal or primary effect that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.” Failure to meet any of the three factors will cause the action to fail constitutional scrutiny.
In what I believe is a flawed analysis, the Ninth Circuit held that the City’s statement passed the Lemon test. As an initial matter, it is worth pointing out that the so-called Lemon test can be somewhat misleading, since the balancing process was really established in two previous Supreme Court cases. Under U.S. v. O’Brien and Clark v. Community for Creative Non-Violence, the courts are to balance the secular purposes of the government with the principal or primary effect of advances/prohibits religion. This is essentially the same framework the Supreme Court established to deal with accidental interferences with religion or free speech. Under the O’Brien/Clark doctrine, an interference with religion is unconstitutional if the interference is intentional. I think it is clear that the City of San Francisco’s pointed statement intentionally targeted a specific denomination and criticized its beliefs.
The Ninth Circuit found that the City’s purpose was primarily secular. I can see good arguments on both sides, since sexual orientation equality is a valid secular purpose under California law. I’m not sure I agree that the City’s purpose was to establish equality — more likely it was to criticize the Catholic Church — but reasonably minds could differ. What I find untenable is the Ninth Circuit’s finding that the primary effect of the City’s resolution did not disapprove of religion.
This is not a well-crafted opinion. The Ninth Circuit’s language on pages 11-12 of the preliminary copy of the opinion is ambiguous at best, and may even evince the judges’ predispositions. That portion of the decision refers to the City’s secular interest in promoting same-sex adoption; if the City indeed had such a goal to support same-sex adoptions over heterosexual adoptions it would be unconstitutional.
Another significant flaw in the decision was pointed out by Richard Thompson, who argued the case on behalf of the Catholic League:
“This dismissal was based on grounds that the pleadings failed to state a claim under the rules of civil procedure. Although the panel correctly posited the rule that they must accept all of Plaintiffs’ allegations as true and draw all reasonable inferences in favor of the Plaintiffs, the court totally ignored the rule in its opinion and drew all inferences in favor the San Francisco including their intent in enacting the resolution without allowing Plaintiffs to engage in any discovery.”
Even though the decision was unanimous, Judge Marsha Berzon filed a concurring opinion that signaled at least some discomfort with government criticism of religious views. Citing Judge John Noonan’s dissent in the similar case American Family Association v. City and County of San Francisco, Judge Berzon wrote:
“. . .I am acutely aware that ‘the Constitution assures religious believers that units of government will not take positions that amount to the establishment of a policy condemning their religious belief,’ . . . and that resolutions such as the ones in American Family and the one in this case are near – if not at – the line that separates establishment of such a policy.”
In my opinion, that line was crossed in both American Family and Catholic League.
The issue is probably not settled yet — the Thomas Moore Law Center, which conducted the appeal, plans on seeking rehearing en banc.
Photo credit: brothergrimm.
Last month we covered the debate in New Hampshire over Governor John Lynch’s proposed amendments to a same-sex marriage bill that would provide certain religious protections for clergy and religious organizations. The New Hampshire house refused to accept Governor Lynch’s proposed language and the bill had stalled. Today various media outlets are reporting that the bill has been signed into law, and that most of the religious protections survived committee review.
I think this is an encouraging first step in reconciling religious liberties and the seemingly inevitable expansion of same-sex marriage. As his signing statement indicated, Governor Lynch clearly recognized this tension and sought to address it in a way that had not been done in any other state so far. (This, by the way, is one of the reasons why such measures are best performed by the legislature rather than the judiciary.) Governor Lynch’s proposed language didn’t go far enough in my opinion because it fails to protect the religious liberties of individual that are not clergy or managed by a religious organization. But at least New Hampshire recognized those religious rights, which is more than can be said for Massachusetts or California.
Photo credit: marcn.
This morning I was in court and watched a guy ask the court to allow him to sell off part of a structured settlement. He had been in a bad car accident several years before, and as part of the settlement he received monthly payments and several significant lump-sum payments. It turns out that the guy had sold off parts of this settlement nearly a dozen times before, all to pay off debts or to start up new ill-conceived businesses ventures. Ever time he sold off part of the structured settlement, this guy got about 30-40% of the current value of the payments — a terrible deal by any definition.
I am somewhat familiar with the attorney for the company that buys up these settlements. And with the economy in the tank, I’ve seen him in court pretty frequently with people selling off lots of money in order to pay their bills. The attorney is fairly pleasant, but I don’t like him much because of what he does. To my mind, his entire legal practice revolves around taking advantage of ill-informed and short-sighted people. And lamentably, the laws governing these financial institutions in my state don’t provide much protection for the consumers.
I got to thinking about how conscience can conflict with clients. One of the dilemmas an attorney occasionally faces is whether to accept a client with a reputation, history, or interests that run counter to the attorney’s personal morality. This is often a morality based in religious beliefs, but non-religious attorneys also face moral dilemmas. As I watched the proceeding this morning, I realized that I wouldn’t want to represent a company like the structured settlement buyer. I don’t think my conscience would let me facilitate what I believe to be predatory transactions.
A friend of mine is very interested in First Amendment law, but after much thought he turned down a chance to work on an interesting Free Speech case because the client was a strip club. He believed that the operators of the club were entitled to the same Free Speech rights as you or I, but he ultimately decided he couldn’t work on the case. This sort of dilemma is experienced by many Christian or religious legal practitioners. There may even be a few Mormon-specific moral dilemmas. For example, given the LDS Church’s position on tobacco and alcohol, an LDS attorney might not feel capable of representing a cigarette or liquor company.
Similar moral dilemmas may arise in certain types of law. I’ve heard a lot of people say that their conscience wouldn’t let them work in criminal defense. It may be surprising, but I don’t think my conscience would prevent me from representing a criminal defendant. I’ve actually worked on criminal cases on both the prosecution and the defense side, and even guilty defendants deserve effective counsel. In a way, I would have a larger crisis of conscience doing structured settlement deals like the one I saw today than representing an accused child molester, because at least representing the accused molester serves the broader justice system.
I’m interested to hear from other people on this subject. Are there certain areas of law or clients that would conflict with your personal morality? Have you ever turned down a client or a transaction as a matter of conscience?
Last week the U.S. House of Representatives passed HR 1913 , the Local Law Enforcement Hate Crimes Prevention Act. This piece of legislation has been opposed by many conservative Christian groups that fear prosecution under the proposed law if a pastor spoke out against homosexuality. Howard Friedman at Religion Clause has been following the discussion of the bill , so if you’re unfamiliar with the proposal, you should check it out. Since it’s in the news, I thought I would put in my two cents about hate crime laws and the closely related hate speech laws and codes. I personally oppose them, for both legal and pragmatic reasons.
For starters, I think hate crime and hate speech laws are patently unconstitutional. There are definitely some Equal Protection problems when a crime against a member of one ethnic or racial group is treated differently than the same crime committed against a person of another group. But the primary problem with hate crimes and hate speech is that they punish thought. Even though it is deplorable, it is not illegal to hate a minority or to believe that your particular race is the superior, pure race. I think it is unconstitutional and indefensible to punish a person (or increase that person’s punishment) for believing something when those constitutionally protected beliefs are the motives for a crime. If the First Amendment protects an idea, it must protect that idea no matter how it is used.
My second reason for opposing hate crimes and hate speech is less of a legal reason and more of a pragmatic one. I noticed that the progressive think tank ThirdWay recently argued that the Hate Crimes Prevention Act is actually good for religious groups, since it would expand protection for religious groups. So it might seem that a religious person like myself should support the legislation. But from a common-sense standpoint, this is a bad idea. If we pass laws punishing constitutionally protected ideas, that opens the door for similar laws that can restrict our own ideas.
Where I went to law school the university had considered enacting a hate speech code on campus in the 1990’s, and had consulted with several law school professors and student groups in the process. One of the constitutional law professors told them it was a terrible idea and almost certainly unconstitutional, but the school was still determined to enact the hate speech code until the local Lamda fraternity weighed in. They said that they recognized the fact that the hate speech code would protect homosexual students, but they did not support the proposal. They knew that any rule or law advocating one ideology or punishing another can open the door to similar laws advocating different ideologies. Hate speech codes and hate crime laws essentially turn over to the democratic process the job of protecting the rights of minorities. But majorities can change in a relatively short period of time, and very purpose of the First Amendment is to ensure that the rights of minorities are not in the hands of the majority.
The Hate Crimes Prevention Act might afford my religious beliefs additional protections, but only how and when the current majority chooses. When the majority changes its mind, my protections go out the window. So from a pragmatic standpoint, I would oppose any sort of hate crime legislation, leaving standard penal codes to do the work they were intended to do.
Various tech blogs are reporting that Utah Governor Jon Huntsman has vetoed a bill that purported to impose harsh penalties on retailers that sold M-rated video games to underage buyers. Among other penalties, the bill would have provided for seller liability in a civil suit. However, as critics of the bill have pointed out all through the legislative process, the proposed provision had a gaping loophole that would have allowed retailers to opt out of the ratings system altogether. In addition to ineffective problems, the bill likely would not have passed constitutional muster because the language was so imprecise and was not content-neutral. That was the reason cited by Governor Huntsman when he vetoed the bill yesterday. In his accompanying letter (PDF), Huntsman specifically stated his opinion that the bill violated the Dormant Commerce Clause and/or the First Amendment.
The video game bill, HB353, had very broad support in both the Utah House and Senate, so there is still a chance of a legislative override. However, I hope that isn’t the case. Legislation like this is often popular in conservative jurisdictions like Utah, but there’s no point in passing an unconstitutional law that won’t accomplish anything. Additionally, this bill has a strange pedigree, as it was purportedly drafted by Jack Thompson, a controversial disbarred Florida lawyer who has campaigned in several states for laws against video games.
Over the weekend I ran across an article, awkwardly entitled “Mormons demand ICANN plugs net smut hole.” Curious, I clicked on the link, but I almost closed it again when I saw that the article was from The Register. Fortunately, I kept reading and found some interesting tidbits. The article talked about how ICANN, the non-profit organization that controls much of the structure of the Internet, has received a petition (PDF) from a group called CyberSafety Constituency. The organization hopes to be accepted as the newest constituency recognized by ICANN, with the purpose of representing the interests of “families, children, consumers, victims of cybercrime, religions, and cultures.” This is mostly a policy issue, but as is often the case, it is hard to separate law from policy. I realized that ICANN policies are not technically laws — they might even be illegal, since ICANN was not created to make policy decisions — but inasmuch as it controls the architecture of the Internet, ICANN’s word is law.
Kevin Murphy, the author of the article, doesn’t do a particularly good job explaining the situation. He apparently concludes that this is a Mormon initiative becuase the proposal is being led by Ralph Yarro III, a well known (and sometimes controversial) Internet and technology figure who is CEO of the Utah-based SCO Group, Inc. The proposal was authored by Cheryl Preston, attorney for CP80, a Utah-based group that proposes “zoning” online adult content to certain ports. Murphy further points out that many of the commenters in the public comment phase have cited their location as Utah. And as he points out, Utah is 58% Mormon. Boom! It must be a Mormon initiative. (Murphy also throws in a superfluous jab against the Mormon church, citing a recent study (PDF) that found that Utah led the nation in online adult content consumption.)
Kevin Murphy did not mention that Cheryl Preston, the CyberSafety Constituency petitioner, is also a BYU law professor. I think this is probably the strongest argument that this ICANN petition is Mormon-supported, although it still isn’t dispositive — individual Mormons are active in a broad array of organizations or causes. To my knowledge, the LDS Church has never taken a position on how the Internet should be governed, or what architecture mechanisms should be used. Even if the Mormon Church supported some sort of protocol that facilitated content filtering, it isn’t clear what level of filtering it would advocate. One the one hand, the Church generally opposes pornography, but it also has vested interest in maintaining strong First Amendment rights for its own free exercise of religion. I don’t believe there is an official Mormon position on how that balance should be maintained.
For my part, I am reluctant to alter current architecture in the way CP80 proposes. I can see the value in adopting mechanisms that would make it easier for parents to control the content or security threats exposed to their children. But all of these proposals run up against a definitional problem. Even if a functional filtering process is put into place, who decides what content belongs in what “channel”? It’s a problem reminiscent of Justice Potter Stewart’s famous concurrence in Jacobellis v. Ohio, calling it “trying to define what may be indefinable.” I also have some reservations about the proposed CyberSafety Constituency’s purpose and scope, because the purpose cited in the petition is colossally broad and potentially contradictory. But the bottom line is that this initiative is not supported by the Mormon Church. Not all Mormons would support it, and most Mormons have probably never heard of any of the proposed constituency or its supporting organizations.
The Supremes are back in town, and this session is already looking interesting. Yesterday’s unanimous decision in Pleasant Grove City, Utah v. Summum (slip opinion here) held that a government may accept certain permanent religious monuments in public parks without violating the Free Speech rights of other groups who were not permitted to place similar monuments in the park. The city of Pleasant Grove already had a donated Ten Commandments monument in its Pioneer Park but it had refused to place a similar monument from a small religious group named Summum. (More background here.) Justice Alito’s majority opinion overruled two separate 10th Circuit decisions by holding that such monuments are “a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.”As SCOTUSblog noted, there were several concurring opinions, so Justice Alito’s decision may not be concrete law, but this seems to be the direction in which the Court is moving.
Clearly, the nature of these two arenas made the difference in the outcomes. Whereas the posters and displays on the Ohio Capitol square were speech by other groups in a traditional public forum, the public park monuments were fundamentally different enough for the justices to declare them government speech. It is also important to note that this case was not decided on Establishment Clause grounds, although that may be where the case is headed.
The Ten Commandments monument here stands in Pioneer Park, which pays tribute to the city’s frontier heritage, one that is mostly Mormon. The two sides differ about how best to honor that heritage.
[Pleasant Grove Mayor Michael] Daniels said the monument broadly reflected local history. Mr. Barnard, the Summum lawyer, said the Ten Commandments did not play a central role in the Mormon faith. “If they wanted to quote from the Book of Mormon,” he said, “that would, at least, relate to the pioneers.”
“Mormons came to Utah because of religious persecution,” Mr. Barnard added. “The pioneer heritage in Utah has to be escape from persecution.”
I was amused by the idea that the Ten Commandments do not play a central role in the Mormon faith — I think the LDS Church and most of its members would refute that assertion. The reason commonly given for Ten Commandment monuments on government property is that those principles are central to the Judeo-Christian tradition out of which the Anglo-American legal system was formed. You probably couldn’t say the same about the Book of Mormon, even in Utah. I know there were court systems run by the Mormon Church in the early Deseret Territory days, but I don’t know of any legal legacy remaining in the Utah State courts.
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.
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.