Today's WSJ on The Little Sisters of the Poor

The New Year's Eve emergency injunction protecting the Little Sisters of the Poor from ObamaCare's birth-control mandate was unusual enough. The Supreme Court rarely grants such relief, and the order was issued by liberal Justice Sonia Sotomayor. But the permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still—and a rebuke to the Obama Administration's bullying conception of religious liberty.

The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.

The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.

The High Court's order bars the Administration from imposing fines on any nonprofit that declares a religious identity and objects to the mandate. It doesn't go to the merits or relate to the separate contraceptive mandate cases that the Court will hear in March. Yet the fact that such an extraordinary intervention was necessary speaks volumes about the Administration's ideological intolerance.

Strong words. I am not sure I would put it this way, but I am sure religious ministries such as the Little Sisters feel crushed by the power of Big Government in these contraceptive mandate cases.

RLUIPA Protects Religious Liberty in Prisons

Here are two recent posts from ReligionClause blog:

One

10th Circuit Rules For Native American Inmate In Cogent Review Of RLUIPA's Requirements

In a highly articulate 31-page opinion by Judge Gorsuch in Yellowbear v. Lampert, (10th Cir., Jan. 23, 2014), the U.S. 10th Circuit Court of Appeals yesterday reviewed each element of a RLUIPA prisoner's rights claim and reversed the trial court's summary judgment against a Native American inmate. Here is the court's description of the case:

Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs.... 

That takes us to the nub of our case. Mr. Yellowbear, an enrolled member of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison has refused. The prison’s sweat lodge is located in the general prison yard and Mr. Yellowbear is housed in a special protective unit (not because of any disciplinary infraction he has committed, but because of threats against him). Prison officials insist that the cost of providing the necessary security to take Mr. Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Mr. Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district court discerned no statutory violation and entered summary judgment against Mr. Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might proceed to trial.

At the end of the day, we find that’s exactly the relief we must provide.

AP reports on the decision. 

Two

Muslims Want Florida Prisons To Offer Halal Meals

Now that the Justice Department has won a preliminary injunction from a federal district court ordering Florida prisons to make kosher meals available by July 1 to all prisoners with a sincere religious basis for keeping kosher (see prior posting), Muslim groups are asking for Halal meals as well. In a press release yesterday, CAIR-Florida said:

We welcome the decision [on kosher food] as an important step in protecting religious rights of incarcerated individuals. It is only fair and equitable that if Jewish inmates receive kosher food, as they should, that Muslim inmates have access to halal meals. Muslim businesses in our state stand ready to offer the advice and services needed to provide halal meals to inmates.

According to the Huffington Post, Halal prison meals would cost only about one-third of the cost of kosher meals.

Three

Here is a little more on the cost of providing Kosher meals:

States Concerned Over Costs and Demand For Prison Kosher Food

Today's New York Times carries a front page story titled You Don’t Have to Be Jewish to Love a Kosher Prison Meal, focusing on the added cost to prison systems of serving kosher food ($7 per day vs. $1.54 in Florida) and the feigning of Jewish religious beliefs by some inmates in order to be placed on kosher diets:

Some states, like New York, do nothing to try to discern who is feigning Jewishness. In California, inmates talk with a rabbi who will gauge, very generally, a prisoner’s actual interest. 

But some Jewish groups in Florida are pushing for greater control, which may pose a difficult legal hurdle.

Leviathan State vs. Little Sisters of the Poor

Weekend advice from Charles Krauthammer: "when there's a suit between the leviathan state of Obama against the Little Sisters of the Poor, take the side of the Little Sisters of the Poor. You can't lose."

SCOTUS agrees, at least for now--from today's Washington Post:

The Supreme Court said Friday that a group of Colorado nuns does not have to comply with the Affordable Care Act’s requirement that employers offer insurance plans that cover contraceptives while the nuns pursue a legal challenge of that portion of the law. In a short and unsigned order, the court said the Little Sisters of the Poor must simply inform the Obama administration that they are a religious organization that should be exempt from the requirement.

Foot Baths

Let's start with a discussion of the NYC footbaths case.

How should the First Amendment apply there?

Does it violate the EC for government to try to accommodate religious liberty?

Heckler's Veto in the News

Lat's start today's class with a discussion of the "Wall of Separation" in the news:


From January 16, 2014, Washington Times:

The Wisconsin public university system removed all its copies of the Gideon Bible from the campus conference center after the Freedom From Religion Foundation complained of a constitutional violation.
Administrators with the University of Wisconsin-Extension said they received the complaint in November and after weeks of consideration and discussion, decided to remove from the Lowell Center all 137 copies of the bible — a normal fixture at guest rooms and in hotels around the nation.
“Permitting members of outside religious groups the privilege of placing their religious literature in public university guest rooms constitutes state endorsement and advancement of these Christian publications,” said FFRF attorney Patrick Elliot, in a letter of complaint, UPI reported. And on the group’s website, he wrote that “while private hotels may choose to put any type of literature they want in their guest rooms, state-run colleges have a constitutional obligation to remain neutral toward religion.”
In response, a UW-Extension spokesman said in a letter: “We reviewed the concern raised about the placement of Bibles in our guest rooms and decided to remove them. We want to make sure all guests are comfortable in our lodging.”

Read more: http://www.washingtontimes.com/news/2014/jan/16/wisconsin-university-system-bans-gideons-bibles-ca/#ixzz2quAfLDI2

These Bibles placed in University-owned hotel rooms were not hurting anyone or depriving anyone of any liberty interest. If you don't want to read the Gideon Bible, don't read it. Leave it in the nightstand drawer and read whatever you want to  read. But why demand a heckler's veto depriving other hotel guests of access to the Bibles?

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

From ReligionClause Blog:

 

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.

Con Law II Class Spring Semester--First Reading

Con Law II students Spring Semester 2014. 

 I would like you to read my recent article on the Establishment Clause and free speech interests. It should make for interesting reading over the long winter break.

We will discuss this in class on our first session.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's Wall of Separation Between Church and State. Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available (free download) at SSRN