Eugene Volokh's Blog, page 2661
December 2, 2011
The Hard (and Hypothetical) Police Officer / Establishment Clause Question
I have no sympathy for police officers who simply disapprove of Islam and therefore don't want to go to Law Enforcement Appreciation Day events at mosques. Here, though, is the hard question: Say that law enforcement wants to send an agent to infiltrate a religious group — assume there is ample reason to justify such an undercover surveillance assignment — and that this infiltration would necessarily require the agent to participate in prayers and other religious events.
If the agent objects, would requiring him to go despite his objections that violate the Establishment Clause, because it would involve coercion of religious practice (something that both the liberal and conservative Justices think the Clause prohibits)? Or is the Establishment Clause no-coercion principle less binding on the government as employer than on the government as sovereign, just as some other constitutional rules (such as the Free Speech Clause and the Fourth Amendment) but not all other constitutional rules (consider the Equal Protection Clause) are less binding?
I suspect the issue would rarely come up, because if an agent mentions his religious objections to his superiors, they will usually conclude that the operation would go better if they send someone who has no such compunctions; and since the operation likely requires only a few participating undercover officers, they would probably have a long list of possible targets. But it still strikes me as an interesting question.
Fed Soc Lawyers' Convention Panel on CFPB
The video of the Federalist Society Lawyers' Convention Panel on CFPB, "Will Consumers and the Economy Benefit from the Consumer Financial Protection Bureau?" is now available. The participants on the panel were David Berenbaum, Chief Program Office of the National Community Reinvestment Coalition; Leonard Kennedy, General Counsel of the CFPB; Alex Pollock of AEI; and myself. Judge Tymkovich of the Tenth Circuit served as the moderator.
Police Captain Who Refused Order to Go to a Mosque for a "Law Enforcement Appreciation Day"
From Fields v. City of Tulsa (N.D. Okla. Nov. 29, 2011):
This suit arises out of a dispute between Officer Fields and the Tulsa Police Department. Fields was instructed to have officers under his command attend a "Law Enforcement Appreciation Day" being hosted by the Islamic Society of Tulsa at a local mosque. Officer Fields refused to attend the event, and refused to require his subordinates to attend. Officer Fields was subject to discipline as a result....
Under the Oklahoma Religious Freedom Act ("ORFA"), "no governmental entity shall substantially burden a person's free exercise of religion" unless that burden passes strict scrutiny. 51 Okla. Stat. § 253. The ORFA defines "substantially burden" as "to inhibit or curtail religiously motivated practice." 51 Okla. Stat. § 252.4 The Oklahoma Court of Civil Appeals addressed a claim brought under the ORFA in Steele v. Guilfoyle, 76 P.3d 99 (Okla. Civ. App. 2003).5 The court found no substantial burden when an incarcerated Muslim plaintiff was forced to share a cell with a non-Muslim. The Muslim plaintiff "complained his cellmate eats pork and has photographs of beings with souls hanging in their cell. This, Plaintiff contended, defiles his cell and prevents angels from entering" Id. at 100. Despite the plaintiff's objections to spending time in a cell with someone whose religious beliefs he did not share, the court found "Defendant's actions in no way prohibit Plaintiff from practicing his religion, [and] praying or meeting with fellow Muslims." Id. at 100–01.
Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing "to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion)." (Dkt. #22, p.10). However, nothing in Fields' proposed Second Amended Complaint suggests that Defendants' actions in any way inhibited or curtailed Fields from practicing his religion.
First, the order directing Fields to attend the event did not inhibit or curtail Fields' religiously motivated practice. Exhibit 1 to Fields' Proposed Second Amended Complaint is a flyer inviting "All Tulsa Law Enforcement to LAW ENFORCEMENT APPRECIATION DAY." It invites law enforcement to a "Casual Come & Go Atmosphere" from 11:00am-5:30pm to "[c]ome enjoy a Buffet of American & Ethnic Foods," to take a Mosque Tour "15 minutes or an hour– it's up to you!", to "[w]atch the 2–2:45pm weekly congregational prayer service," and "[m]eet Local Muslims & Leadership." It also contains the following statement: "Presentations upon request: beliefs, human rights, women[.] All questions welcome!" Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs.
Second, the adverse employment actions alleged in the Proposed Second Amended Complaint cannot be said to have violated Fields' rights under the ORFA. The ORFA protects Oklahomans from government action inhibiting or curtailing religiously motivated practice. It does not provide a police officer a claim against his employing city for requiring him to attend a Law Enforcement Appreciation Day hosted by a faith other than his own or for disciplining him for his refusal to do so.
This sounds right to me: Religious exemption regimes (see here for more on such regimes) generally require the government to make a strong showing of need before substantially burdening a person's religious practices — but the plaintiff has to state that the government action actually barred him from doing something that he felt religious compelled or at least motivated to do, or required him to do something he felt religiously prohibited from doing. Simple disapproval of a proposed action that touches religion would not qualify.
And given these facts, I have no sympathy for Fields. Part of his job as a police officer, and especially as a police captain, is to strengthen the police department's relationship with the community, and with its various subcommunities. The police department, of course, wants citizens to comply with the law and with the lawful orders of the police, which is easier if the citizens perceive that the police respect them and their subcommunity. But the police department also want citizens to go beyond what is legally required to affirmatively help the police, for instance by providing information about crimes that the police are investigating, or about crimes that the police don't even know about. That's much more likely when the police are seen as respectful and welcoming to the subcommunity, and when the police and community members are personally acquainted.
Don't like some group, for religious or ideological reasons? Put on a good face and pretend; certainly don't spurn their amicable invitations. And if you think the community harbors some dangerous terrorists (which seems to be part of the claim in Fields' Complaint), then that's all the more reason for you to have a relationship with the community that might get you more tips about such terrorists.
To be sure, the court's legal analysis leaves open the question of what would have happened if Fields had sincerely claimed that his religious forbade his going inside. (Some Jews, for instance, apparently believe that they generally may not go into a church.) If that were so, a substantial burden on religious practice would indeed be present. The question then would be whether the government has to show that requiring the police officer to go to the event is necessary to serve a compelling government interest, as the religious exemption statute seems to be mandate for all sorts of government action, or whether the statute should be read as implicitly incorporating the lower Title VII standard when the government acts as employer. (Under that Title VII standard, the government may prevail simply by showing that exempting the police officer from the policy would impose an "undue hardship" on it, which has been read as meaning a more than de minimis hardship.) For more on this question, see this section of my Intermediate Questions of Religious Exemptions — A Research Agenda with Test Suites (1999).
If in such a hypothetical situation of a police officer feeling religiously forbidden to enter another faith's house of worship — again, not the situation here — the Title VII standard would be used, either under the state religious exemption statute or because the plaintiff sued under Title VII itself, I suspect the government would easily win. As I mentioned, maintaining good relations between the police and various parts of community is very important. A publicly known refusal of a welcoming gesture from community leaders would substantially undermine the police department's mission. And even a quiet refusal by a police captain might have the same effect, because the captain would lose the opportunity to build potentially helpful public confidence and public-police connections; so would a refusal to order subordinates to go to the event, because even though higher police officers could instead issue such an order themselves, the refusal would send a message to police officers that may discourage them from enthusiastically participating in the event. (Whether a rank officer would be entitled under Title VII to quietly decline to go such an event for religious reasons, for instance in a context where lots of other officers weren't going there for other reasons, and the reason of his absence wouldn't be known to others except his superiors, is a different matter; see this discussion for references to some related cases.) If in such a hypothetical situation the "necessary to a compelling government interest" standard would be used, the matter would be less clear.
Note that Fields' Free Exercise Clause and Establishment Clause claims remain in the case; the question at this point was simply whether the court should let Fields amend his initial Complaint to also add the Oklahoma Religious Freedom Act claim. (Courts have the power to refuse such amendments if the courts conclude that the new claims would be clear legal losers.) But I've looked at the Complaint and it's hard for me to see how those claims can prevail. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
December 1, 2011
Now That's Some Anglo-Norman for You
OK, actually Law French, but you'll see why I said Anglo-Norman. From Sir James Fitzjames Stephen's A General View of the Criminal Law of England (1890), a seemingly highly reputable work:
Another remarkable matter in connection with the law of nuisances is the nature and extent of the limitations upon it. To a considerable extent the law upon the subject is made up of compromises. It is said in an old case in regard to candle-making in a town, "Le utility del chose excusera le noisomeness del stink."
The Law French Wikipedia entry quotes another famous example (search for "extraordinarily debased").
Two Governors Seek Reclassification of Marijuana
The NYT reports that two governors, Washington's Christine Gregoire and Rhode Island's Lincoln Chafee, have petitioned the federal government to have marijuana reclassified as a Schedule II substance under the Federal Drug Control Act. The reclassification would mean recognizing that marijuana has acceptable medical uses, and would be a step toward protecting medical marijuana use in the 16 states that currently permit it.
Will Gary Johnson Run as a Libertarian?
Politico reports the former New Mexico Governor Gary Johnson may abandon his bid for the GOP nomination and seek to run as a Libertarian — only there is some question whether the Libertarian Party will have him.
IJ's Victory in the Bone Marrow Case
I was going to write a post about the Institute for Justice's important recent victory in the bone marrow case. However, I see that co-blogger Eugene Volokh has beaten me to the punch, and said most of what I would have wanted to say.
I would add only that the sale of organs and medically necessary body parts (including bone marrow) can save many lives. I answered some of the standard objections to organ markets here and here.
In some ways, bone marrow markets are even more defensible than organ markets. Unlike transplanted organs, transplanted bone marrow grows back, and the donor avoids even the very modest long-term health risks that kidney donors undertake.
CONFLICT OF INTEREST WATCH: I have had the privilege of working with IJ on a number of other cases, but had no involvement in this one.
Single-Sex Dorms Don't Violate Federal or D.C. Law
So holds the D.C. Office of Human Rights in Banzhaf v. Garvey (Nov. 29, 2011). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer; his post offers a slightly longer summary.
"The Result Is a Stew of Confusion and Hypocrisy Unworthy of Such a Proud Agency as the SEC"
That's from Judge Rakoff's opinion in SEC v. Vitesse Semiconductor Corp., 771 F. Supp. 2d 304 (S.D.N.Y. 2011), which was decided in March but which I just ran across. First the background:
Long before 1972, the S.E.C. had already begun entering into consent decrees in which the defendants neither admitted nor denied the allegations. This was strongly desired by the defendants because it meant that their agreement to the S.E.C.'s settlements would not have collateral estoppel consequences for parallel private civil actions, in which the defendants frequently faced potential monetary judgments far greater than anything the S.E.C. was likely to impose. But there were benefits for the S.E.C. as well. First, the practice made it much easier for the S.E.C. to obtain settlements. And second, at a time (prior to 1972) when the S.E.C.'s enforcement powers were largely limited to obtaining injunctive relief, the S.E.C.'s focus was somewhat more centered on helping to curb future misconduct by obtaining access to the Court's contempt powers than on obtaining admissions to prior misconduct.
But, by 1972, it had become obvious that as soon as courts had signed off on such settlements, the defendants would start public campaigns denying that they had ever done what the S.E.C. had accused them of doing and claiming, instead, that they had simply entered into the settlements to avoid protracted litigation with a powerful administrative agency. Thus, the real change effected by the S.E.C. in 1972 was the requirement that a defendant who agreed to a consent judgment "without admitting or denying the allegations of the Complaint" nevertheless agree that the defendant would not thereafter publicly deny the allegations. To this end, each of the proposed Consent Judgments now presented to this Court is accompanied by a formal written "Consent" of the defendant agreeing, pursuant to 17 C.F.R § 205.5, "not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis."
Now, Judge Rakoff's view of the matter:
The result is a stew of confusion and hypocrisy unworthy of such a proud agency as the S.E.C. The defendant is free to proclaim that he has never remotely admitted the terrible wrongs alleged by the S.E.C.; but, by gosh, he had better be careful not to deny them either (though, as one would expect, his supporters feel no such compunction). Only one thing is left certain: the public will never know whether the S.E.C.'s charges are true, at least not in a way that they can take as established by these proceedings.
This might be defensible if all that were involved was a private dispute between private parties. But here an agency of the United States is saying, in effect, "Although we claim that these defendants have done terrible things, they refuse to admit it and we do not propose to prove it, but will simply resort to gagging their right to deny it."
The disservice to the public inherent in such a practice is palpable. Confronted with the same choice, the United States Department of Justice has long since rejected allowing defendants, except in the very most unusual circumstances, to enter into pleas of nolo contendere, by which a defendant accepts a guilty plea to a criminal charge without admitting or denying the allegations....
Moreover, as a practical matter, it appears that defendants who enter into consent judgments where they formally state, with the S.E.C.'s full consent, that they neither admit nor deny the allegations of the complaint, thereafter have no difficulty getting the word out that they are still denying the allegations, notwithstanding their agreement not to "make any public statement" denying the allegations....
In a more recent case, SEC v. Citigroup Global Markets Inc. (S.D.N.Y. Nov. 28), Judge Rakoff reaffirmed that the practice might violate the First Amendment rights of the companies as well as undermining the interests of the government:
On its face, the SEC's no-denial policy raises a potential First Amendment problem. See Vitesse, 771 F.Supp.2d at 309 ("[H]ere an agency of the United States is saying, in effect, 'Although we claim that these defendants have done terrible things, they refuse to admit it and we do not propose to prove it, but will simply resort to gagging their right to deny it' "); see also Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir.1963) (reversing a consent settlement between two parties because the "injunction, enforceable through the contempt power, constitute[d] a prior restraint by the United States against the publication of facts which the community has a right to know").
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