Hastings and Non-Discrimination Survive

          Despite her husband's death yesterday, Justice Ruth Bader Ginsburg was at the Supreme Court today to announce the decision in Christian Legal Society v. Martinez, the Hastings Law School case in which a Christian student group sought official recognition while denying membership to gay students. Hastings, however, had an all-comers policy that required official student groups to accept all students who wanted to be members. Consistent with her long career defending civil rights and equality, Ginsburg ruled for the law school.   

          Ginsburg posed the legal question narrowly--May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?--and answered it yes. In First Amendment terminology, Hastings' policy was a reasonable, viewpoint-neutral condition on access to the student-organization forum.  In common-sense language, the Constitution does not require the law school to fund student groups that discriminate against gays in the name of religious freedom. Ginsburg was direct in identifying what the case is really about: CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. 

          CLS remains free, as it always was, to define its membership by excluding gays, non-Christians, and advocates of homosexuality as a student group without official recognition. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities, reminded Justice John Paul Stevens' concurrence. 

          A factual issue awaits possible future resolution in the district court. Although CLS stipulated to Hastings' all-comers policy before the litigation, on appeal it argued--contrary to its own stipulations--that in practice the policy discriminated against religious groups only. Fortunately Justice Ginsburg reject[ed] CLS's unseemly attempt to escape from the stipulation. The dissenters did not, and wrote an opinion contrary to the stipulations. 

          CLS remains free to argue in the district court that the all-comers policy was pretextual. They lost by a 5-4 vote. Will someone ask former Harvard Law School Dean Elena Kagan if she would have voted for the school or the students? 

Smith in Danger from Kagan

          On the eve of the confirmation hearings, Religion Clause has posted numerous stories concerning Elena Kagan's record on religion. Melissa Rogers of Brookings argues that Elena Kagan's appointment to the Supreme Court could mark the first time a critic of the 1990 Smith decision and its weak reading of the Free Exercise Clause replaces a supporter of that decision. This is good news for Rogers, who wants additional protection for religion, but bad news for defenders of the rule of law. Smith requires churches to follow the laws applicable to everyone else. Religious opponents of Smith pretend that Justice Antonin Scalia, the author of  Smith, and Justice Stevens, who joined the opinion, undermined the Free Exercise Clause with their ruling that religious groups must obey the law. What is really happening is that the religious opponents of Smith want special rules for religions--exemptions from the antidiscrimination laws, e.g., or special status in local zonings laws. 

          According to Rogers, although President Obama admires Justice Stevens, given President Obama’s religious freedom commitments, this is one area where he would be likely to see a break with Stevens as a welcome change. This is the danger posed by Rogers, Obama and now Kagan: they start with their commitment to religion and push that commitment so far that they value religion more than the rule of law. They pretend that this is a defense of religious liberty, but it is really religious tyranny to exempt the country's religious citizens from the law. The Secular Coalition of America has listed all the reasons to be worried about Kagan's nomination. If the Senate were really committed to its constitutional duty, it would ask Kagan if she is ready to defend the Constitution instead of religion.

Ministerial Exception

          The courts have handed religious employers a dangerous exemption from the law. The exemption, known as the ministerial exception, is dangerous because it allows religious employers to avoid their obligations to obey the law and frees them to mistreat their employees. A recent case from Washington State demonstrates the problem. Cesar Rosas and Jesus Alcazar were two Mexican seminarians studying for the priesthood in the Roman Catholic Church. Their church superiors sent them to Washington State to continue their studies for the priesthood. When they got to Seattle, they were hired to do maintenance work at the church. Rosas later sued under Washington's minimum wage act alleging that he worked overtime hours without pay. 

          If a jury heard the seminarians' case, it could focus on one central question: did the seminarians perform maintenance work without pay? Maintenance work and wages are easy concepts for any  jury to understand. The Ninth Circuit Court of Appeals, however, did not allow the case to go to a jury. The court ruled that the church's freedom in choosing its ministers cannot be intruded upon by the courts. 

          The court's reasoning was too protective of the church. Rosas argued that the district court should not have dismissed the case absent a determination that requiring the Catholic Church to pay Rosas overtime wages would actually burden the Church's beliefs. In other words, if the church believed that paying workers fair wages violated its religious freedom, then there might be a First Amendment problem in holding the church liable. The church, however, has long proclaimed its belief in a just wage for every worker. Rosas also argued that paying the minimum wage is not a religious practice that deserves First Amendment protection.

          The court, however, rejected all these arguments on the grounds that courts are not allowed to intrude upon the churches' ministerial decisions. Churches thus remain free to mistreat their employees without legal sanction. In other ministerial exception cases, organists, secretaries and math and language teachers have been held to be ministers who cannot sue their religious employers. The rule has kept disabled employees who are fired for their disabilities, older employes who suffer age discrimination, women who suffer sex discrimination, and African-Americans who face race discrimination from getting their cases before a jury.

          A perceived lesson of the sex abuse scandal was that prosecutors and courts had for too many years protected the churches instead of their victims. The courts have not learned the lesson. They continue to protect the freedom of the churches to mistreat their employees and violate the law in the name of the First Amendment. 

Jon Stewart Mocks Obama's Prayer

Watch through to the end!


Mr. President, YOUR hands are supposed to be guiding us.

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Nomad

          Ayaan Hirsi Ali's new book presents a powerful portrayal of how women's equality suffers under Muslim rule and rules. Hirsi Ali travels with personal bodyguards because her life is under constant threat due to her criticism of Islam. Explaining how little Muslim girls are "rendered voiceless"by Islam, she loudly calls for a new alliance of feminists and Christians to combat Islam's opposition to equality. 

Among Hirsi Ali's interesting arguments are the following:

          It happens here. Honor killings of Muslim girls for perceived sexual misconduct happens in the United States and not only in Muslim countries. So does cutting girls' sexual organs so that their virginity can be assured: Muslim families "will cut off the clitoris and cut the lips of the vagina so that it scars shut, to create a built-in chastity belt."

          American Liberals "appear to be more uncomfortable with my condemning the ill treatment of women under Islam than most conservatives are." A wrongheaded multiculturalism has kept American liberals from speaking out against abuses of power by men of color. According to the author, "when well-meaning Westerners, eager to promote respect for minority religions and cultures, ignore practices like forced marriage and confinement in order to 'stop society from stigmatizing Muslims,' they deny countless Muslim girls their right to wrest their freedom from their parents' culture. They fail to live up to the ideals and values of our democratic society, and they harm the very same vulnerable minority whom they seek to protect."

          American Feminists receive especially strong criticism for failing to defend the universal value of women's equality. The author says feminists must abandon their "dreary cultural relativism" and recognize that cultures that defend women's rights are superior to those that do not.  Hirsi Ali even charges that some American feminists are more concerned about racism than sexism, again emphasizing that men's oppression of women must be criticized in all cultures.

          Individual v. Group Rights. The Constitution should protect individual rights, and not be used to give special protection to groups so they can mistreat individuals. "All human beings are equal, but all cultures and religions are not." It is the worst kind of condescension to think immigrant groups deserve lesser legal protection than other groups.

          Vive le pope. In a surprise finish the atheist author urges Westerners to join forces with the pope and other Christian leaders to reclaim Western civilization. This "strategic alliance" is necessary to confront the antiegalitarian forces of Islam. Christianity is more "open to criticism" than Islam and should be an ally for enlightenment principles. She concludes: "So long as we atheists and classical liberals have no effective programs of our own to defeat the spread of radical Islam, we should work with enlightened Christians who are willing to devise some. We should bury the hatchet, rearrange our priorities, and fight together against a much more dangerous common enemy.

          It is hard for me to believe that Pope Benedict will be much help in defending women's rights. But there is a shrewd point in thinking that it is better to put Christianity at feminism's service than to let Christians and Muslims join to defeat women's rights. 

        

Elena Kagan's RFRA Memo

          Elena Kagan criticized a California Supreme Court decision in a memo she wrote as a White House lawyer during the Clinton administration. The case involved a landlord who refused to rent her rental units in two duplexes to unmarried couples because she was religiously opposed to extramarital sex. The owner, Evelyn Smith, did not live on the property. The units were operated exclusively for business and commercial purposes, with income generated from the rentals reported as business income. The California Supreme Court ruled that Evelyn Smith was required to abide by the fair housing laws, which prohibit discrimination against unmarried couples.

          The court first held that the First Amendment did not require a religious exemption for Smith from the fair housing laws. Relying on a famous U.S. Supreme Court opinion also named Smith, the California court ruled that Evelyn Smith was obligated to comply with valid and neutral laws of general applicability such as the housing discrimination laws. 

          The court also dismissed Smith's claim under RFRA, the Religious Freedom Restoration Act, which Congress passed to protest the U.S. Supreme Court's Smith decision. RFRA encourages religious exemptions to general laws. RFRA may require an exemption from the law when religion is substantially burdened. The California Supreme Court ruled that the housing law did not substantially burden Smith's religion because: Smith's religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital. Thus, she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood. 

          Kagan was offended by the court's reasoning and disappointed that the Solicitor General's office was not filing a brief on behalf of Evelyn Smith to overturn the California ruling. The court's reasoning seems to me quite outrageous, she wrote, almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning. 

          Taken seriously, Kagan's memo sends the disturbing message that she favors religion over the antidiscrimination laws. As federal Smith explained, a nation of laws needs religious believers to follow the laws as other citizens do. Equality cannot hold if religious citizens are free to discriminate in housing or hiring. Will Justice Kagan rule that religious organizations may receive federal funding even if they discriminate in hiring, an issue that will eventually get to the Supreme Court? 

          Kagan also missed the real legal issue involved with RFRA; the Supreme Court later declared RFRA unconstitutional as applied to state governments like California. Unfortunately she was too focused on religion to pay attention to the law. 

Worse Courts Now

          An organization called Better Courts Now is seeking to unseat four San Diego judges and replace them with a religious slate of Christian judges. They view the current judges as ungodly and unbiblical. The group includes some of the same people who backed Proposition 8, the California initiative that took away the right of marriage from gay couples. According to one spokesman, "if we can take our judiciary, we can take our legislature and our executive branch."
          Vote no on judges, legislators and executives who base their official decisions on their religion.

No Establishment Clause Violation in Summum

           The Utah district court ruled that there was no Establishment Clause violation in Pleasant Grove City's decision denying the Summum Religion's request to display its Seven Aphorisms monument alongside the Ten Commandments. Summum had already lost its free speech case in the U.S. Supreme Court on the grounds that the commandments were government speech. Under free speech law, the government was free to control its message and did not have to accept alternative monuments. Because the Supreme Court did not address whether it violates the Establishment Clause for the government to promote the Ten Commandments over the Seven Aphorisms, however, the district court had the opportunity to address the issue.

          The district court order's does not withstand critical scrutiny. The court claimed that Summum never explained its religious views when it asked that its monument be displayed alongside the Ten Commandments. The court also decided to believe the city officials who testified that they were completely ignorant of Summum’s religious tenets, teachings, beliefs or practices when they refused the display, and to credit the mayor's testimony that the Ten Commandments monument was installed to remind citizens of their pioneer heritage in the founding of the state. In other words, the court concluded, the Ten Commandments are displayed for historical and not religious reasons. The court also ruled that the City complied with its own policy in rejecting Summum's display--even though that policy was written in response to Summum's request, as a way of keeping the Seven Aphorisms from being displayed. 

          So, according to the court, no one in Utah knew that Summum was a religion, Utah was founded on the Ten Commandments (instead of, e.g., the Book of Mormon), and the Ten Commandments are not religious. 

          Really? 

          

Snyder v Phelps

The case of Snyder v. Phelps offers an array of legal issues in search of clearer legal standards. The original lawsuit by plaintiff Albert Snyder, father of the deceased soldier Matthew Snyder, against defendants Fred W. Phelps, his Westboro Baptist Church, and other church members for their picketing of Matthew’s funeral and their website’s “epic” account of Matthew’s life, pleaded five tort causes of actions under Maryland law for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. The district court dismissed the defamation and publicity claims. The jury found the defendants liable on the other three theories and awarded plaintiff $2.9 million in compensatory damages and $8 million in punitive damages. The district court remitted the punitive damages award to $2.1 million. 

On appeal, the Fourth Circuit reversed, ruling that the First Amendment required a judgment for the defendants as a matter of law “[b]ecause the judgment [incorrectly] attaches tort liability to constitutionally protected speech.” Preaching the doctrine of constitutional avoidance, however, a concurrence by Judge Shedd concluded that there was insufficient evidence to establish tort liability under Maryland law. There was no intrusion upon seclusion because the defendants never disrupted the funeral service, confronted the plaintiff, called the websites to his attention or intruded upon Snyder’s privacy in any way. Moreover, Phelps’ conduct was not sufficiently “outrageous” to meet the requirements of the tort of intentional infliction of emotional distress. In Maryland, intentional infliction of emotional distress requires the element of extreme and outrageous conduct. Despite the jury’s finding for Snyder on this tort, Judge Shedd concluded that Phelps’ conduct in protesting the funeral “simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law.” Because the defendants had not raised the sufficiency of the evidence claims in their appeal, however, the other judges rejected Shedd’s reasoning, held the appellants had waived the evidence argument, and decided the case on First Amendment grounds. 

Snyder’s petition for a writ of certiorari presented three questions for the Supreme Court to decide:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and peaceful assembly?

3. Does an individual attending a family member's funeral constitute a captive audience who is entitled to state protection from unwanted communication?

The three questions presented and the underlying opinions suggest that the case is about religion, tort law and free speech. Snyder v. Phelps concerns tort law and free speech, and offers the Court an opportunity to clarify the constitutional law of defamation and privacy lawsuits involving speech. But it should not be a case about religion.

Question 2 forces us to consider what role religion played in the case and to conclude that religion should be irrelevant to the outcome of Snyder v. Phelps. The district judge rejected defendants’ argument that their conduct could not be subjected to tort liability because the Free Exercise Clause of the First Amendment protects their religion from the jury’s review. The court relied upon the traditional First Amendment doctrine that although the freedom to believe is absolute, the government may regulate religious conduct. Because “this case involves balancing [religious freedom] rights with the rights of other private citizens to avoid being verbally assaulted by outrageous speech and comment during a time of bereavement,” the court rejected a Free Exercise defense.

 The defendants reasserted their religious freedom argument in their appeal to the Fourth Circuit, arguing that [t]his case punished defendants' religious belief that they are prophets and God’s elect; their        belief in God's hate; and their belief in the doctrines of reprobation, election and predestination. The jury should not have had the opportunity to put the official governmental stamp of disapproval on defendants' religious beliefs. The Fourth Circuit, however, did not address the religious freedom argument, dismissing the case instead under the First Amendment’s Free Speech Clause.

In rejecting defendants’ free exercise defense, the district court quoted Justice Antonin Scalia’s opinion in the leading Free Exercise decision, Employment Division of Oregon v. Smith: We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

The district court’s conclusion is unassailable. The case is a reminder of the importance of Smith. The Westboro Baptist Church should be treated like all other picketers. Matthew Snyder’s funeral at a Catholic Church should be treated like all other funerals. Tort law should not be skewed for or against religious plaintiffs and defendants. “Laws . . . are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can [Snyder or Phelps] excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Snyder v. Phelps involves tort law and free speech. Unfortunately, the district court repeatedly referred to defendants’ “religious opinion” in deciding the free speech issues. The word “religious” should be deleted and ignored. The outcome depends purely upon how constitutional free speech rights affect state tort law.

            Within the next two weeks Cardozo Law Review will publish essays by me and other First Amendment scholars about how the speech issues in the case should be resolved. For now it is important to insist that the case should not involve any special rights for religions.