Does Your Group Say "Amen?"

From the ReligionClause blog:

County Backs Off Controversial Zoning Citation Against Bible-Study Group Meetings

A land use citation issued by the San Diego County Department of Planning and Land Use has generated a swirl of protest. As reported last week by the Christian Examiner and the San Diego Union-Tribune, Paster David Jones and his wife hold weekly Bible study sessions at their home. Around 20 people attend. After complaints about parking congestion, the county told the Jones' that regulations required a permit to use premises for "religious assemblies." An international furor was generated when a report disseminated widely online said that when a county code enforcement officer visited the home on Good Friday, he asked-- apparently to determine if it was a "religious assembly"-- questions about whether the group prays or uses the words "amen" and "praise the Lord." The Western Center for Law & Policy sent a letter (full text) to the county arguing that the Bible study is not a "religious assembly" within the meaning of the zoning regulations, and that the administrative citation violates RLUIPA, the free exercise clause and the Jones' right to peaceably assemble. The county has now backed off, deciding that the meetings are not religious assemblies, which are defined in county regulations as: "religious services involving public assembly such as customarily occurs in synagogues, temples, and churches." It continues to investigate whether the questions asked by the investigating officer were proper.

US Dept of Justice On Colorado Christian University Case

From the DOJ Religious Freedom in Focus:

State May Not Discriminate Against Religious Universities in Scholarship Program, Appeals Court Rules

On July 23, the United States Court of Appeals for the Tenth Circuit ruled that Colorado’s exclusion of students attending a nondenominational Christian university from state scholarship and aid programs violated the U.S. Constitution. The court held that denying students scholarships because they choose to attend schools that the state deems to be “pervasively sectarian” violates the Constitution. The United States had filed a friend-of-the-court brief in support of the position adopted by the court in the case, Colorado Christian University v. Weaver.

Colorado provides various scholarships and other aid to students attending private colleges and universities, but does not permit any aid to students attending schools that are “pervasively sectarian,” regardless of whether the student majors in a religious subject or subjects such as physics, business or engineering. To determine whether a school is “pervasively sectarian,” state officials examine criteria such as whether students and faculty are of “one religious persuasion,” whether the governing board reflects a particular religion, and whether there are required courses in religion or theology “that tend to indoctrinate or proselytize.” Under this policy, students have been permitted to use Colorado scholarships at a Methodist university and a Jesuit Roman Catholic university, but were forbidden to use scholarships at a nondenominational evangelical Protestant university and a Buddhist university that the Colorado Commission on Higher Education found to be too religious.

Colorado Christian University, one of the two schools determined by the State to be “pervasively sectarian,” filed suit, contending that barring its students from scholarship aid constituted discriminated in violation of the First and Fourteenth Amendments. The district court disagreed and granted summary judgment in favor of the State.

On appeal to the Tenth Circuit, the United States filed a friend-of-the-court brief, arguing that Colorado was unconstitutionally discriminating against students who attended schools deemed too religious by the State. In its brief, the United States stressed that the Supreme Court in Mitchell v. Helms (2000), had rejected the “pervasively sectarian” doctrine, that is, the concept that certain institutions were so religious that any aid flowing to them, however indirectly or however secular in nature, automatically became constitutionally tainted. The United States brief argued, citing the plurality opinion in Mitchell, that “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of the Court bar it.”

The Court of Appeals agreed with the University and the United States and reversed the trial court. The court held that the “now-discarded doctrine that ‘pervasively sectarian’ institutions could not receive otherwise-available education funding” was an invalid basis for discrimination against certain religious schools. The court followed the Mitchell plurality’s view that “the application of the ‘pervasively sectarian’ factor collides with [Supreme Court] decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity.”

Additionally, the Court of Appeals held that the Colorado scholarship program’s policies violated the “well-established” principle that the government “should refrain from trolling through a person’s or institution’s religious beliefs.” In barring scholarships from being used at “pervasively sectarian” institutions, the court observed, the Colorado Commission on Higher Education engaged in intrusive and subjective inquiries such as reviewing syllabi in courses of Christian literature to determine if they proselytized or indoctrinated, deciding that faculty of multiple of Christian denominations represented a single religious persuasion rather than a multiplicity of religious persuasions, and other similarly searching inquiries of religious matters. This violated the Constitution, the court held. The court concluded that “if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices.”

Cutter v. Wilkinson: Fixed Link

I have fixed the link to the Cutter decision for Thursday's class. Here it is: link

RLUIPA

Here is a link to the full text of the Religious Land Use and Institutionalized Persons Act

Cutter: More Commentaries

1. Consider Prof. Garnett (link):

Cutter is also interesting for the many questions left tantalizingly unanswered. For example, even if the prison-related provisions of law do not “establish” religion, what about the land-use and zoning-related provisions? Or, even if the act does not run afoul of the First Amendment, does Congress have the power to enact the law in the first place? (Remember, the Rehnquist Court has several times reminded us that ours is a federal government of enumerated and limited powers, and that just because a policy is wise or humane does not mean Congress has the power to pursue it through regulations). And, the justices determined only that the law itself did not violate the First Amendment; they left open the possibility that particular applications of the law might nonetheless fall short of constitutional requirements. All these (and many other) questions are being litigated, and will almost certainly be confronted by the Court.

2. Prof. Hamilton (link):

As noted above, the Court upheld RLUIPA's prison provisions against Establishment Clause attack. That means the "strict scrutiny" standard, at least in name, still applies in the prison context.

But the Court also did something interesting: It held that this high standard should be interpreted by courts to encompass deference to prison officials' judgments.

Justice Ginsburg, writing for the Court, repeatedly emphasized this point - citing legislative history that instructed courts to apply RLUIPA with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources."

In a footnote, Justice Ginsburg re-emphasized this point, writing for the Court that "It bears repetition . . . that prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this arena." And she ended her opinion for the Court by noting that "Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility should be free to resist the imposition."

My Locke v. Davey Handout

The last handout for Thursday's class is available in the racks near the South Side faculty Suite.

Handouts

We had a problem copying Handout 6--the Lukumi decision. Only every other page was copied.

I will get the corrected handout to you in class Tuesday. We will not be discussing Lukumi until Wednesday, so this should not be a problem.

Also the reprint of my "Individualized Exemptions and Hogwarts" article is now available in the handout racks near the South Side faculty Suite.

Rick Duncan

The "Deep Wisdom" of Repugnance

It is common today in the law for scholars to assert that "mere" moral outrage is not a legitimate reason to oppose some asserted "liberty" interest. Prof. Leon Kass, a very distinguished philosopher, once took on this issue in connection with an article opposing human cloning. Here is a key excerpt:

Revulsion is not an argument; and some of yesterday’s repugnances are today calmly accepted — though, one must add, not always for the better. In crucial cases, however, repugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it. Can anyone really give an argument fully adequate to the horror which is father-daughter incest (even with consent), or having sex with animals, or mutilating a corpse, or eating human flesh, or even just (just!) raping or murdering another human being? Would anybody’s failure to give full rational justification for his or her revulsion at these practices make that revulsion ethically suspect? Not at all. On the contrary, we are suspicious of those who think that they can rationalize away our horror, say, by trying to explain the enormity of incest with arguments only about the genetic risks of inbreeding.

The repugnance at human cloning belongs in this category. We are repelled by the prospect of cloning human beings not because of the strangeness or novelty of the undertaking, but because we intuit and feel, immediately and without argument, the violation of things that we rightfully hold dear. Repugnance, here as elsewhere, revolts against the excesses of human willfulness, warning us not to transgress what is unspeakably profound. Indeed, in this age in which everything is held to be permissible so long as it is freely done, in which our given human nature no longer commands respect, in which our bodies are regarded as mere instruments of our autonomous rational wills, repugnance may be the only voice left that speaks up to defend the central core of our humanity. Shallow are the souls that have forgotten how to shudder.

This is not directly related to "Religion and the Constitution," but I think it is indirectly related.

What do you think about the "wisdom of repugnance?"

A Good Student Comment

There was an interesting student comment on the blog yesterday (keep those comments coming--it is great to hear from so many of you). I would like to discuss this one in class. Here is the comment:

kennedy isn't much of a swing vote in 10 commandment cases...he voted in mcreary and van orden to uphold the public displays as constitutional. breyer did provide the blueprint, as discussed in class, to make a compelling argument against such displays, but it comes down to the critical decision of "whose choice"? is it the local govt or the scotus? should it be up to an arbitrary group of 9? what do the 4.5 conservatives think about the changing views of religion in the country? how do they reconcile the fact that this generation has nearly doubled the number of agnostics as the last generation? (see gallup pollhttp://www.gallup.com/poll/1690/Religion.aspx and aris research..."According to ARIS, then, there could be as many as 40 million adult nonbelievers in the United States! Personal God Going the Way of the Dodo? Consider: If these numbers are correct, nonbelievers amount to more than the highest estimates of African Americans or gays. Secularists are one of America’s largest minorities. It is no longer possible to proclaim, as the Gallup Poll announced fifty years ago: “Nearly all Americans believe in God.” That is today’s most significant change".) does that erode the constitutional history basis they rely upon if the trend continues?

Here are a few questions.

1. Who should decide the content of public displays in Nebraska or Texas or Rhode Island? The 4.5 conservatives on the Supreme Court? The 4.5 liberals on the Supreme Court? Or the process of democratic self-government in Nebraska and Texas and Rhode Island?

2. Assuming that the Gallup Survey is correct, how should the changing demographics of America affect the written Constitution? Should the EC become more separationist as America becomes less religious? How can a written rule morph with the latest trends in opinion polls?

3. Or perhaps the EC should become less separationist as America becomes more agnostic? After all, an agnostic is someone who is skeptical about the existence or non-existence of God, and presumably would wish to see many points of view--both secular and religious--displayed in the public square. No? Why should we think that an agnostic--as opposed to an atheist--would want only one view of reality (the non-religious view) portrayed in public places?

4. How does increasing pluralism among our people affect the issue of public support for education in America? Should we continue with a one-size-fits-all government school system? Or should we recognize that different kinds of people have different educational needs? Is school choice with some kind of a tuition voucher necessary for justice and equality for children in a Nation that no longer agrees on first principles concerning what is true, what is good, and what is beautiful?

Keep Your Eye on Justice kennedy

As you have been noticing, many of these Establishment Clause cases come out 5-4, one way or the other. Until she left the Court a few years ago, Justice O'Connor was the swing vote, the median Justice, the one whose vote decided the case. But now that she has left, Justice Kennedy is the median Justice.

Here is how the Court looks right now:

I. The liberal, strict separationist block:

Stevens, Ginsburg, Souter, and (usually) Breyer

II. The conservative, non-separationist block:

Scalia, Thomas, Roberts and Alito

And that leaves Justice Kennedy who usually votes with the conservative, non-separationist block (see Allegheny), but occasionally (particularly on school prayer cases) votes with the separationists

Supreme Court Oral Arguments in Mojave Cross Memorial Case

The ReligionClause blog has the report:

Supreme Court Hears Arguments In War Memorial Cross Case [Revised]

The Washington Post and the Los Angeles Times report on today's oral arguments before the U.S. Supreme Court in Salazar v. Buono. At issue is the question of whether Congress' transfer to the VFW of the Sunrise Rock Cross, located in the Mojave Preserve war memorial in California, eliminated Establishment Clause problems that might otherwise exist with government display of a religious symbol. The arguments involved extensive questions from the Justices, and a number of the questions focused on the exact procedural posture of the case. There were also questions about the broader underlying Establishment Clause issue. In addition, the government had raised a standing issue, and there was some questioning about whether it was appropriate to still raise standing at this stage of the litigation. (See prior posting.) The Supreme Court has posted the full transcript of the oral arguments on its website. All the briefs filed in the case are also available online.

Objections to Passive Displays by Government

Imagine two cases:

Case One

John Doe brings an action against the City of Lincoln under the Establishment Clause claiming that a Nativity scene in Holmes Park is unconstitutional because it "conveys a message to nonadherents of Christianity that they are not full members of the political community, and a corresponding message to Christians that they are favored members of the community."

Case Two

John Pilgrim, a devout Southern Baptist, brings an action against the City of San Francisco under the Free Exercise Clause claiming that a "Gay Pride--Stop Homophobia" display in a city park conveys a message to religious believers such as Pilgrim that they are not full members of the politcal community and a corresponding message to supporters of the display that they are favored members of the community.

Under the existing law, Doe will win his case under County of Allegheny and Pilgrim will be laughed out of court because there is no right to enjoin governmental displays that merely offend one's religious beliefs. The remedy for Pilgrim is to avert his eye from government displays he finds offensive; a passive display does not substantially burden Pilgrim's free exercise liberty.

How should these cases come out under the First Amendment?" Should both claims succeed? Both fail? Or should one succeed (which one?) and the other fail? Explain.

"When Is a Cross a Cross?"

Here is an interesting article by Stanley Fish on the Mojave Cross case recently decided by the Supreme Court.

Casebook Available Soon

The casebook was ordered months ago, but the book store screwed up. They tell us it will be available next Wednesday.

My advice is to buy a used copy from another student. I have used this book many times in the recent past, and many copies should be floating about the law school community.

Sorry for the inconvenience.