After my last post, about Cordoba House, a commenter asked what I thought about St. Nicholas, a Greek Orthodox church that was destroyed in the September 11 attack and has struggled with the Port Authority ever since. But that looks like a fairly ordinary dispute over zoning and land use. The church had some land where their building was destroyed and they could rebuild there if they wanted to. And apparently the Port Authority is going to exercise eminent domain to take ownership of space beneath the church’s land so they can build an underground bomb-screening center. Last year the Port Authority was going to allow them to build a bigger facility on different land, but that deal fell through, so now the church still has its original parcel, a right to rebuild, and the prospect of what looks like a legal taking under eminent domain.
I’m sure it’s frustrating for the church, but I don’t see anything in the story that suggests St. Nicholas is being targeted because it is a Greek Orthodox church; they’re just wrapped up in the same kinds of land use laws that frustrate all urban property owners. Maybe they could gain more traction by invoking the Religious Land Use and Institutionalized Persons Act, but I kind of doubt it, since they could still rebuild their facility as it was before the September 11 attacks, and having a bomb-screening center underground would probably not “substantially burden” their practice.
Marci Hamilton writes today at FindLaw about another recent situation involving a religious group and land use laws:
In Austin, the residentially-zoned district limited buildings to places of residence, so when the Sikhs began by worshipping in a mobile home, there was less cause for concern or for litigation. However, knowing full well the zoning requirements, the group then built a sizable pre-fab house of worship on the same residential lot.
Neighbors complained, because their quiet residential neighborhood was no longer residential in character and they feared their property values would fall. This week, a Texas appellate court held in favor of the neighbors, and ordered that the Sikh temple be removed. The court also remarked, however, that worshippers could continue to pray together in the trailer, because that is consistent with the law.
As has routinely happened in recent cases when a religious group plows straight into neutral, generally-applicable land use laws, the group responded to the decision with charges of “discrimination.” Now, they are taking the position in the media that no court should be able to order them to remove their house of worship once that it has been built. This is a case, though, where there is no evidence of religious discrimination. Rather, in this case, the facts point to a straightforward application of land-use laws that fairly govern every landowner in the neighborhood. Thus, the Constitution simply does not seem to be at issue here.
Cordoba House would not violate land use laws, but is decried on the Right (mostly by Christians and Jews) because of it would be an Islamic facility; the Greek Orthodox Christians at St. Nicholas are frustrated because land use laws prevent them from doing what they want to do, which appears to be more than they did before their church was destroyed; the Sikhs in Austin now claim that their violation of land use laws should be excused because they are a religious group. The common theme is simply that we have “neutral, generally-applicable land use laws” and that religious groups think they should not have to abide by those laws. (In the case of Cordoba House, the people who think they should not have to abide by the laws are not the Muslims, but their largely Judeo-Christian opponents.)
“which appears to be more than they did before their church was destroyed”
I agree. It seems they want some expansion built into the agreement.
Paterson now is shifting gears a bit with a new proposal:
http://www.cnn.com/2010/POLITICS/08/18/new.york.paterson.mosque/index.html?hpt=T2 It seems everyone now is on the “please don’t even though you can” wagon.
The opponents of the center clearly lack legal authority in their quest to prevent the construction.
As a Christian, I don’t think I would aspire to build a temple/church in the center of Baghdad just because I could.
Perhaps in the NY tradition of local politics, they will bury the construction under years of inspections, red tags and teamster requirements
Hey it’s legal and it’s done all the time.
If New York tried to bury Cordoba House in red tape, then I suspect that the facility’s proponents would have a pretty good chance of succeeding under RLUIPA, given the clear intentions of the opponents: “We don’t want you here because you are Muslims.” If they could prove that in court, they could probably show a substantial burden on their practice.
And unless New York officials want to set off an even bigger firestorm, by prompting a federal judge to rule against them, it would not be a good idea to mess around with Cordoba House. When the headlines say “Federal Judge Says Ground Zero Mosque Goes Forward,” the Right is going to erupt with sheer madness, given how much they already despise judges in general and federal judges in particular.
Actually, that probably isn’t accurate. The headline above is what you’d see on NPR. On Fox News, it would be “Federal Judge Says New York Can’t Stop Muslims from Building Mosque at Ground Zero.”
I add some balance to your Fox/NPR
NPR: “Federal Judge employs constitutional religious liberty thereby empowering the construction of an Islamic cultural center at ground zero.”
I’ve always found it interesting that 1st amendment rights of expression and religion are treated differently by the courts. Miller v. California (1971) created a “local” standard for obscenity. Essentially saying that porn establishments can be zoned based on local determination.
So Fresno could decide that a “house of porn” at River Park was inappropriate, but could not with a “house of prayer.”
First, the Miller definition of obscenity does incorporate a “community standards” element, but that is really not the same thing as a local zoning decision. Zoning is almost by definition a matter of local standards for land use, while the Miller test was an artificial compromise by the Supreme Court under pressure to establish some standard that would make obscenity cases more predictable for lower courts.
But, anyway, the reason why speech and religion issues get treated differently is because they present different kinds of problems, which has resulted in the development of different kinds of standards (legal scholars call them “doctrines”) for how to approach those problems.
One major characteristic of constitutional religion issues is that we have two religion clauses in the First Amendment: the free exercise clause and the establishment clause. They both do different things, but they relate to the same subject matter, which has been a source of frustration for judges, lawyers, and litigants for decades.
The hardest nut to crack with free exercise is when “neutral laws of general applicability” are alleged to burden someone’s free exercise. Should anyone should be exempted from having to comply with a particular law on the grounds that it conflicts with his or her religion?
With the prohibition on establishment, the most vexing problem, at least for laypeople, seems to be distinguishing between when a person is acting on his or her own and when a person becomes a state actor. For example, a lot of people don’t seem to perceive any difference between a few people getting together for a voluntary prayer meeting during lunch at work and the same people going up on a dais and opening, say, their city council meeting with a prayer.
Another important difference between speech and religion is that most judges (and most people, I think) seem to have a much easier time figuring out what counts as “speech” than what counts as “religion.” There are certainly some “religious” activities that are clearly “speech” (like preaching), but other activities that are not clearly speech, like smoking hallucinogenic drugs for ceremonies. But for bare “speech” to become “religious exercise,” doesn’t there have to be some kind of intent or state of mind accompanying the speech to make it into “religion”? Court’s don’t examine the validity of beliefs, but they do look to sincerity. With pure speech issues, like the infamous “Fuck the Draft” case (Cohen v. California), nobody really cares if the guy had any particular state of mind about the draft: the questions are just, “Is that speech? Is it constitutionally protected speech? Does the government have a sufficient reason under the applicable level of judicial scrutiny to limit that speech?”
There are some conduct-as-speech cases, like the infamous flag burning case, but even there it’s not a sincerity analysis. The court just asks whether there is intent to communicate a particularized message and whether there was a likelihood that others could have perceived that message. But in that case, I read the Court as blending those two elements and really just looking to “objective”—i.e., observable by second party—factors; we can’t get in people’s heads.
But there is a real problem in determining when speech or conduct is “religious.” For example, maybe I want to hear a hat all the time because, I say, my hair is thinning and I want to disguise that. But another lawyer wants to wear a hat all the time because, he says, his religious beliefs require him to cover his head in public. We both show up in court to argue a case and the bailiff tells us to take our hats off. There’s no way I’m going to succeed in a constitutional challenge to the hat-wearing prohibition. But the other lawyer probably has a fighting chance of winning the same challenge under the free exercise clause.
Would that be fair or just? Why should we treat his state of mind as something so important that contradicting it causes him some legally redressable “harm,” while my state of mind can be disregarded?
And there’s almost a mirror-image hypothetical on the Establishment Clause side. Let’s say there are two school boards in neighboring towns. One of them mandates the teaching of “intelligent design” or “creation science” in its science classes, while the other prohibits the same subjects in science classes. Let’s even say they pass motions or resolutions or whatever they call them with identical wording, except that wherever the one says something like “mandate” or “require,” the other says something like “prohibit” or “disallow.” Which one is violating the Establishment Clause?
Take both cases to court and the mandating district is going to lose under the Establishment Clause, even if it claims that its action is in no way connected with a religious intent (see the famous Pennsylvania case), while the prohibiting district is going to win, even if its action is motivated by animus against religion because there is a legitimate “secular purpose” to ensure that children are educated with accurate knowledge about the current state of scientific research. The religious proponent of “intelligent design” or “creation science” asks, “How is that fair or just? Why is their action treated so much more favorably than ours?”
Some of us think the apparent contradiction is fairly easily resolved: stop granting free exercise exemptions for generally applicable rules. If we’re going to apply a pragmatic external standard to Establishment Clause issues (the “secular purpose”), then why not do the same thing with Free Exercise issues? And that, in many ways, is basically what the Supreme Court did in Employment Division v. Smith. But that pissed off a lot of people, who think Smith was wrongly decided, that it leads to all kinds of terrible problems, and so on.
On the other hand, there are good reasons for expecting the different results in the two hypotheticals I suggested above. In my hat case, how does it harm anyone to grant the reasonable accommodation of allowing one person to wear a hat where others are not? When we’re talking about individuals, a broad, consensus-based, pragmatic external standard doesn’t necessarily make the most sense. But Establishment Clause issues, by their very nature, arise in contexts where many people are affected—even in cases that get played up by some as just being about a couple atheists offended by a creche in a public building: the issue there is not individuals’ offense, although they are the specific plaintiffs, but the public image projected by the government. So when we’re dealing with how the public square ought to function, why wouldn’t we apply that external standard and say, “Okay, intelligent-design-mandating school board: The evidence shows that ‘intelligent design’ does not fit the established criteria for science, so you can’t pretend otherwise and teach children that it does if you want to receive tax dollars”?
And on that particular issue of “intelligent design” or “creation science,” I and many others who are opposed to teaching those subjects in the science curriculum have long thought that it would be perfectly appropriate, even desirable, to include a class on religion in public schools—so long as it teaches about the diversity of religious views. But we should probably not be too surprised that the proponents of “intelligent design” or “creation science” are not too keen on that idea.
Would “expression” law and “speech” law be similar to the distinctions between exercise and establishment law?
You referenced the Church of Peyote as example. Didn’t the court determine that the use of peyote was “expression” rather than “speech” and did not have the same limitations as “dangerous speech.” I’m not sure here–but I get what you are referring to.
For the most part, I do see the difference between kids praying at lunch in the parking lot, and a teacher leading a prayer before a spelling test. And I do agree with the distinction. But I still think the “expression” test that Miller provided is similar to the “neutrality” test on establishment. Regardless of the pressure the court succumbed to, they granted a power over local “expression” (in this case porn) to communities. Whereas, a local community would not have the power to offer a “neutral” blockage of churches through and establishment authority.
I remember the ruckus about the NEA (arts) and R. Maplethorp (sp). The most compelling argument I heard against his funding was that it violated the establishment clause. While Maplethorp did not support a specific religion, his art targeted one (cross/urine for example), thus violating the establishment clause by negation (I guess).
“. . . accurate knowledge about the current state of scientific research.” Agreed. At some point the ID community is going to have to go back to school (for the most part) and reframe their position. The status quo in ANY discipline should be the rubric. Questioning the current state of affairs should also be part of the process, sadly, it’s not (on either side).
On the hat: has there been resolution to the case in Florida about the islamic woman who wanted to wear her hijab in her DL photo? I wonder if that would fit your example.
We often discuss evolution and ID in my classes. Every so often I have students on one side or the other that actually have some knowledge. What’s interesting is that the Darwinian kids are normally bio-types while the ID kids are math/physics types.
I think England has a cool religion/education model in their high schools. I was invited to lecture in a religious studies class and the dialogue was great. All opinions were welcome and they had critical frameworks built into the curriculum. Sadly, I don’t think it would fly here–because of the reasons you have supplied.
Question: Do you think a higher-ed class is a “captive audience?” I’ve had many debates with colleagues on this (a few of them are attorneys).
Great topic.
First, some responses on the law:
“Expression” and “speech” are the same thing if you’re talking about the general right under the First Amendment, but within the right we distinguish between “expressive conduct” and “speech,” if only to determine that “expressive conduct” is speech.
Employment Division v. Smith, which I think is what you mean by the “Church of Peyote,” was a free exercise case, not a speech case, which means we’re potentially dealing with a broader range of behaviors than just “speech” or “expressive conduct.” The confusion arises, I think, from one of the odder features of First Amendment jurisprudence arising from Smith: you can only get a religious exemption from a neutral law of general applicability if you are asserting what we have come to call a hybrid right—e.g., a right to free exercise and some other right. The idea there is that religious beliefs alone are not sufficient to exempt someone from having to follow the law. In that case, the religious peyote users asserted that “requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires)” is an abridgment of free exercise. But Justice Scalia (and a majority of the Supreme Court) disagreed: “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.” Which is to say that “Laws . . . are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
That isn’t really “speech” versus “conduct,” in the sense of pitting the “right to free speech” against the “right of expressive conduct,” but a particularization that is unique to the context of religious beliefs: the mental state of the believer, versus the conduct that is allegedly compelled by that mental state.
Part of the confusion may also arise from the litigation strategy that arose during the last couple decades that was first used by Jay Sekulow in Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc.. Sekulow decided that he wanted to argue the case under “free speech” instead of under “free exercise,” which, given the holding in Smith a few years later, makes the whole field a conceptual nightmare. Is there something between the mental state of the believer and the conduct allegedly compelled by that mental state, which could be classified as “free speech”? Can the believer engage in “expressive conduct” that is nevertheless not “free exercise,” because not compelled by that mental state? This is part of why so many legal scholars complain that our First Amendment jurisprudence under the religion clauses is a nearly useless morass. Given that weird and subtle landscape of potential claims, almost every case under the religion clauses will be argued meticulously at the factual level, which substantially increases the likelihood that the ultimate holding will be “restricted to its facts”—lawyerspeak for “not really a good precedent for anything.”
That sort of thing bugs lawyers, both the ones in practice and the ones wearing the black robes in the trial courts. In practice, when clients come into our office, we want to be able to say, “Yes, you have a good case,” or “No, you don’t,” or otherwise give them some guidance from the law for how to order their affairs to obtain the most predictable results—to do the most basic part of our job, in other words. And judges, when these cases come before them, want a clear statement of law that will help them resolve disputes, instead of leaving them to their own devices, to claw through decades of often inconsistent case law to figure out which should be dispositive.
Finally, while I understand your desire to tie the Miller test to the Lemon test, that’s really the kind of thing that law school beats out of you. First, they teach you how to find patterns in precedents. Then you end up looking for patterns that aren’t really there—and that’s what you have with Miller and Lemon. They are almost totally unrelated, both on their facts and their law. It might make an interesting scholarly paper, but in terms of practice and the application of the law in actual cases, you’re on a wild goose chase.
On some of your other remarks:
I’m not sure about the hijab case. That’s what I had in mind on my hypothetical, but I wanted something that was going to put a person with my views in the position of the non-exempt, which the hijab case would not do. I think the current status of the hijab case is that Muslim women can wear them in their driver’s license pictures, but their faces must still be exposed for identification purposes. But I could be wrong. That’s not a case I’ve followed closely. (Since I’m not a professor, I don’t have lots of time to follow minor cases that never make it past the trial courts, so I generally just pay attention to Supreme Court cases. But professors who teach this stuff are always on the lookout for low-level stuff. I’m on a mailing list for religion and law, which is populated by lots of profs, and I know the hijab case has come up, but I just haven’t really had time to follow it.)
I don’t have the time to find it right now, but I know I’ve seen an article somewhere that through a poll or survey or some other sociological research determined that “intelligent design” types do tend predominantly to be math or physics types. In my own (mostly) uninformed opinion on that point, I would guess that is another instance of over-zealous pattern-seeking behavior: the math and physics types are used to putting everything into this imaginary “language of reality” called mathematics, so they get philosophically confused and start to believe that because we can organize things according to math, that the math was discovered rather than created, so they start to think that life was “designed” rather than “evolved.” But that’s just my highly unscientific and anecdotal perspective.
Finally, I think whether a higher education class is a “captive audience” presents a spectrum of possibilities, and really depends on the type of class and the circumstances of each student. If you have a 20-year-old at city college because his parents said he has to go to school, get a job, or move out, and he’s taking a basic math or English class as a non-elective, then that kid is probably in a “captive audience.” Or, similarly, if you have an athlete that has been told, “You go to class or you don’t play,” you’re looking at someone who is probably in a “captive audience.” But if you’re talking about elective courses, or you have a grad student attending a seminar on some weird new research topic, then there’s no way that student is in a “captive audience.” In other words, I guess if I had to conceptualize it into a pattern (see, there it is again), I’d say that in higher education, you can’t determine “captive audience” without looking to external factors affecting the students in the audience: you have to look outside the classroom to make that determination.
Or, to be more specific, the students in a higher education class are an “audience” by virtue of their being present, while a “captivity” determination will generally require considering factors from outside the classroom, particularized to each student.