"Universities Install Footbaths to Benefit Muslims, and Not Everyone Is Pleased "

Here is a link to the above article from NYT. Here is an excerpt:



"When pools of water began accumulating on the floor in some restrooms at the University of Michigan-Dearborn, and the sinks pulling away from the walls, the problem was easy to pinpoint. On this campus, more than 10 percent of the students are Muslims, and as part of ritual ablutions required before their five-times-a-day prayers, some were washing their feet in the sinks.

The solution seemed straightforward. After discussions with the Muslim Students’ Association, the university announced that it would install $25,000 foot-washing stations in several restrooms.

But as a legal and political matter, that solution has not been quite so simple. When word of the plan got out this spring, it created instant controversy, with bloggers going on about the Islamification of the university, students divided on the use of their building-maintenance fees, and tricky legal questions about whether the plan is a legitimate accommodation of students’ right to practice their religion — or unconstitutional government support for that religion."


This should be an easy case under the EC--this is a permissible accommodation designed to serve a secular purpose and to advance--not religion but--religious liberty. No?

Equal Access in Russia

From the Religion Clause blog:

"Last week, in Case of Barankevich v. Russia, (ECHR, July 26, 2007), the European Court of Human Rights found that Russian government officials violated the European Convention on Human Rights when they refused to permit the pastor of the Christ's Grace Church of Evangelical Christians to hold a worship service in a park in the town of Chekov. The Chekov Town Council had taken the position that services should be held only on the Church's own premises. The European Court rejected the town's argument that because the religion was practiced by only a minority of the town's residents, a public service might provoke a violent counter-demonstration. The Court found that the town's refusal violated Article 11 of the European Convention on Human Rights (right to peaceably assemble), interpreted in light of Article 9 (freedom of religion). The Court awarded damages of 6000 Euros to compensate the pastor, Petr Ivanovich Barankevich, for the violation. Forum 18 today carries a long report on the decision."

What Issues Would You All Like to Discuss?

One of the advantages of a focused course like Religion and the Constitution is that we tend to get a seminar-sized class of students who are quite interested in the subject matter of the course.

Are there some issues that some of you are particularly interested in?

If so, let's talk about it and see if we can spend some time looking at those issues.

Feel free to discuss this either with me directly, among yourselves, or even right here in the comments section.

Interesting Free Exercise Issue:"dispute between divorced parents over whether their 12-year old son could receive a religious circumcision"

Religion Clause blog. Here is an excerpt:



"An important issue remained undecided after the Oregon Supreme Court on Friday sent back to the trial court for further findings the dispute between divorced parents over whether their 12-year old son could receive a religious circumcision. As previously reported, in Boldt v. Boldt, the Oregon Supreme Court remanded the case for further findings on whether or not the boy wanted the procedure. The court's decision only tangentially addressed a critical issue-- to what extent do minor children have free exercise rights when their religious views conflict with those their parents wish them to hold?"

FYI--Some Links Concerning this Term's Second Amendment Case

From How Appealing:



"'Misfire at Justice': The Wall Street Journal today contains an editorial that begins, 'The Second Amendment's right to bear arms has rarely been considered by the Supreme Court, but this year the Court is hearing a case that could become a Constitutional landmark. So it is nothing short of astonishing, and dispiriting, that the Bush Justice Department has now weighed in with an amicus brief that is far too clever by half.'


You can view the amicus brief at this link."



This is just a heads up for those of you who are interested in the Second Amendment case. It is not part of Con Law II.

"6th Circuit OK's Ban On Student Using Religious Product In Class Project"

From the Religion Clause blog:

"In Curry v. Hensiner, (6th Cir., Jan. 16, 2008), the U.S. 6th Circuit Court of Appeals upheld an elementary school principal's decision to prevent a 5th grade student from selling religious-themed material as part of a Classroom City project in which students using faux school currency sold goods they had produced specifically for the event. Joel Curry, a student at the Handley School in Saginaw, Michigan, wanted to make Christmas tree ornaments in the shape of candy canes with an attached card explaining how candy canes can be seen as a symbol of Christianity. The school's principal said that Classroom City was considered instructional time and therefore use of cards with religious content was impermissible. Curry still received an "A" for the project and was given the opportunity to sell the candy canes in the school parking lot after school. The court concluded that because the principal's decision was driven by legitimate pedagogical concerns, Curry's constitutional rights were not abridged. The district court below had concluded that the principal had abridged Curry's freedom of speech, but enjoyed qualified immunity from liability because the precise contours of that right were not clearly established."

Politics and Religious Liberty

Here is an interesting article from the Washington Post.

Here is an interesting excerpt:

"Their model stresses the importance of freedom, not only in economics per se, but in religion itself. Religion most often has positive effects when it is free. This model is reinforced by the results of our recently concluded survey of international religious freedom. The countries with the worst religious freedom records, including Burma, Eritrea, Iran, Iraq, North Korea, Saudi Arabia, Sudan, Turkmenistan and Uzbekistan, have, unless they have oil, terrible economic records. Similar relations hold for those in the middle and for those with high levels of freedom: The highest 30 countries in rankings of economic freedom all scored highly on religious freedom.

Barro and McCleary's work suggests that this is more than a mere correlation: There is good reason to think that religious freedom leads to good economic outcomes. The current evidence indicates that closed religious systems hamper economic development. Hence, if we want economic growth and development, we need to permit religious groups and people to follow their beliefs. In this case, economists should join political scientists in examining religion more seriously."

"Choose Life" License Plates Not Religious Speech

From the Religion Clause blog:

"Children First Foundation v. Martinez, 2007 U.S. Dist. LEXIS 94944 (ND NY, Dec. 27, 2007) is a challenge to New York state's refusal to approve special picture license plates that include the slogan "Choose Life". In this phase of the litigation, a New York federal district court refused to permit the Deputy Commissioner of the Department of Motor Vehicles to amend her answer to raise an Establishment Clause defense, finding that religious speech was not involved. The court reasoned:

'It may very well be true that those who participate in the abortion debate on the pro-life side are members of religious organizations whose religious beliefs form the basis for their views. However, that does not transform the pro-life stance into one that is religious in nature, nor does it transform the phrase, "Choose Life" into religious speech. Nothing in constitutional jurisprudence supports the conclusion that political speech which is derived from one's ethical or religious beliefs or background transforms it into religious speech. Many religious persons and organizations may be opposed to capital punishment, or perhaps in favor of gun control. Those political issues are not therefore automatically transformed into religious issues simply by virtue of the religious beliefs of their supporters. The same is true for the abortion debate.'"

This decision is obviously correct, but many people still persist in believing that pro-life speech is religious speech just because many religious people are pro-life. Indeed, some people even make the absurd argument that all laws regulating abortion constitute religious establishments in violation of the Establishment Clause.

Of course, many great political movements--abolition of slavery, civil rights, environmental laws, and welfare for the poor to name just a few--are closely related with the religious beliefs of people who support these causes. It is silly to argue that civil rights laws or welfare laws or environmental laws violate the Establishment Clause merely because many supporters of these laws do so based upon religious beliefs or religious notions of morality. The same is obviously true of pro-life laws and pro-family laws. No?

"CLS At University of Montana Sues Over School's Refusal To Grant Recognition"

From the Religion Clause blog:

"The Christian Legal Society chapter at the University of Montana law school has filed suit in federal district court challenging the Student Bar Association's refusal to recognize the organization and provide it with funds for its activities. The complaint (full text) in Christian Legal Society v. Eck, (D MT, Dec. 14, 2007), alleges that the SBA Executive Board originally recognized the CLS group, but revoked that recognition after a student body vote rejected an SBA budget that included funding for CLS. The law school's dean upheld the SBA decision. In derecognizing the CLS chapter, the SBA Executive Board said that the Chapter's requirement that voting members and officers agree with its Statement of Faith, including sexual abstinence outside of heterosexual marriage, violates the SBA's non-discrimination rule. The suit alleges that CLS's First Amendment rights of expressive association, free speech and free exercise of religion have been infringed."

This is the kind of issue we will study in Con Law II Spring Semester. The lawsuit raises three different types of issues under the First Amendment.

Exam Info

• As I said in class, the exam will consist of both objective questions and a number of short (approximately 200- 350 word) essay questions. The essay questions must be typed on your computer (or on a lab computer). Since the exam is closed book, you must have the current version of Exam 4 loaded on your computer. If you need to use a lab computer, make sure you make the appropriate arrangements with the Dean's Office.
• During our normal class time this Wednesday (December 5), we will have a question and answer session. I will stay as long as you have questions for me.
  

"Justice Stevens and the tipping point"

You might be interested in this recent LA Times article which focuses on the following issue: "How the Supreme Court would look if its strongest liberal voice, now 87, were to exit may well depend on the presidential election."

Here is a link.

Grutter Overruled By the People: "Michigan Prefers Equality"

Abigail Thernstrom had an essay last year in the WSJ on the recent vote in Michigan to prohibit racial preferences by government. Here is a key excerpt:

"Ward Connerly has done it again: A striking 58% of Michigan voters gave the Michigan Civil Rights Initiative a thumbs up; only three counties voted against it.

The language of the MCRI closely tracks California's 1996 Proposition 209, also led by Mr. Connerly. It amends the Michigan Constitution to "ban public institutions from using affirmative-action programs that give preferential treatment to groups or individuals based on their race, gender, color, ethnicity or national origin for public employment, education or contracting purposes." The political and business establishments, pressure groups like the AARP, labor-union leaders, religious spokesmen, the professoriat, the major Detroit newspapers--all were opposed to MCRI. But a substantial majority of ordinary voters were thinking for themselves.

Patty Alspach was perhaps a typical supporter. A Democrat, she signed the petition putting the proposition on the ballot. Meanwhile, opponents loudly claimed that the measure was misleading, that voters were being duped, that it should be tossed off the ballot. "I read it," replied Ms. Alpach. "I understood it. I signed it. Now let me vote on it."

....

The modern-day survival of racial preferences depends on sympathetic judges willing to spin dubious arguments and ignore widely available data on the pernicious impact of such preferences. But, this time, the University of Michigan may find itself without judicial recourse. The Supreme Court has never said that universities are constitutionally obligated to institute "diversity" policies. Public universities are funded by taxpayers. And those taxpayers have spoken."

• By the way, the very same Civil Rights Initiative is being proposed in Nebraska and will probably be on the ballot in November of 2008.

"Taking Science on Faith"

Here is a very interesting editorial in, of all places, today's NYT. Here is a representative excerpt:

Clearly, then, both religion and science are founded on faith — namely, on
belief in the existence of something outside the universe, like an unexplained
God or an unexplained set of physical laws, maybe even a huge ensemble of unseen
universes, too. For that reason, both monotheistic religion and orthodox science
fail to provide a complete account of physical existence.

This shared failing is no surprise, because the very notion of physical law is a theological one in the first place, a fact that makes many scientists squirm. Isaac Newton first got the idea of absolute, universal, perfect, immutable laws from the
Christian doctrine that God created the world and ordered it in a rational way.
Christians envisage God as upholding the natural order from beyond the universe,
while physicists think of their laws as inhabiting an abstract transcendent
realm of perfect mathematical relationships.

And just as Christians claim that the world depends utterly on God for
its existence, while the converse is not the case, so physicists declare a
similar asymmetry: the universe is governed by eternal laws (or meta-laws), but
the laws are completely impervious to what happens in the universe.

It seems to me there is no hope of ever explaining why the physical
universe is as it is so long as we are fixated on immutable laws or meta-laws
that exist reasonlessly or are imposed by divine providence. The alternative is
to regard the laws of physics and the universe they govern as part and parcel of
a unitary system, and to be incorporated together within a common explanatory
scheme.

In other words, the laws should have an explanation from within the
universe and not involve appealing to an external agency. The specifics of that
explanation are a matter for future research. But until science comes up with a
testable theory of the laws of the universe, its claim to be free of faith is
manifestly bogus.

"Commentary: The government and gun rights"

Interesting commentary over at SCOTUSBLOG.

And here is another post--Court agrees to rule on gun case

And here is Linda Greenhouse's take from the NYT--Justices to Decide on Right to Keep Handgun

As the late great Warren Zevon would say--"Send lawyers, guns and money, the s--- has hit the fan."

2007 Assignments

Assignments: Fall 2007

1 Casebook p. 1-37; Handout No. 1
2 Handout No.2
3 Casebook p. 37-56
4 Casebook p. 56-74
5 Casebook p. 74-92; 2007 Supplement p.1-3
6 Casebook p. 92-123
7 Casebook p. 162-193; 2007 Supplement P. 5-20
8 Casebook p. 221-256
9 Casebook p. 256-269; Supplement P. 21; Bruning(Nebraska marriage case)(See link on blog)
10 Casebook p. 465-489; p. 1035-1045
11 Casebook p. 489-512;Linder on incorporation (link); Duncan Article ("Justice Thomas and Partial Incorporation" copies will be distributed in class)
12 Casebook p. 513-536; 2007 Supplement p. 26 sect.A
13 Casebook p. 582-597
14 Casebook p. 597-621
15 Casebook p. 621-633; Handout No. 3; Ely, The Wages of Crying Wolf, 82 Yale L.J. 920 (on reserve in Library); Olsen, Unraveling Compromise, 103 Harv. L.Rev. 105 (on reserve in Library)
16 Casebook p. 633-659; 2007 Supplement p. 37-53
17 Casebook p. 664-689
18 Casebook p. 690-730; 2007 Supplement p. 54-55
19 Casebook p. 754-800
20 Casebook p. 800-812; 825-835
21 Casebook p. 835-875
22 Casebook p. 876-901; 2007 Supplement p. 56-92
23 Casebook p. 901-936; re-read Bruning (Nebraska marriage case) (See link on blog)

Here is a link to the text of the Constitution of the United States

Why Allow Physician's to Help People Kill Themselves?

When there are professionals who can do it cheaper and more efficiently?

Interesting Standing Decision

I haven't read the opinion yet, but here is a newspaper account from the Indianapolis Star:

"All prayers, including those to Jesus, once again can be given from the podium of the Indiana House.

The 7th U.S. Circuit Court of Appeals in Chicago ruled today to overturn the decision of a U.S. district court judge who ruled that sectarian prayers could not be offered from the floor of the Indiana House.

The initial decision, rendered by U.S. District Judge David Hamilton in November 2005, ruled that opening prayers in the House could not mention Jesus nor endorse a particular religion. Then House Speaker Brian Bosma, R-Indianapolis, appealed that decision and current Speaker B. Patrick Bauer, D-South Bend, decided to continue it.

The lawsuit challenging the House prayers was filed by the American Civil Liberties Union of Indiana on behalf of four citizens.

In a 2-1 ruling today, the appeals court said those plaintiffs did not have the standing to sue because public tax dollars could not be linked to the practice of prayer.

Bauer applauded the decision this afternoon.

"While we do need more time with the Indiana Attorney General and the House staff counsel to examine all the ramifications of today's decision, I am delighted that the court has left alone a tradition that has been a part of House proceedings for nearly 190 years," Bauer said."

"For polyamorists, three's not a crowd; it's just the start"

From the Seattle Times.

After Lawrence, are these consenting adults exercising a constitutionally protected liberty?

Law Review Citations

Here are citations for the law review articles assigned for Friday's discussion of Roe v. Wade:

1. John Hart Ely, The Wages of Crying Wolf, 82 Yale L.J. 920 (1973) (Hein online)

2. Frances Olsen, Unraveling Compromise, 103 Harv. L.Rev 105 (1989)(Hein online)

Class Schedule: Wednesday Oct.17 & Oct.24

UPDATE: I did figure out what holiday we are celebrating by canceling class next Wednesday, Oct.24: Red Sox in the World Series (again) Day!

Another one of our required class cancellations is coming up next week.

The law college's annual alumni lunch is scheduled for noon, October 17, at the Cornhusker Hotel. I have been asked by the Dean to attend, and so there will be no class on Wednesday Oct.17.

We still need to cancel 4 more classes. I will use 2 of these for the last week of class (Wed-Thurs) and the last Friday of class will be an optional review session for me to field your questions. I will probably cancel class on Wed. October 24 as well. I will save one required cancellation for a possible snow day or emergency.