Monday, March 30, 2015

Why Is Indiana's RFRA So Controversial? This Blogger's Analysis.

Since Indiana's passage of its Religious Freedom Restoration Act earlier this week (see prior posting), there has been a flood of commentary on what the Act really means and its true impact.  The commentary, some from those with a political agenda and some from those without one, ranges from the assertion that IRFRA does little to change current law to the assertion that it creates a license to discriminate against the LGBT community.  So here is my attempt to suggest some perspective on the statute.

(1)  The heart of the statute-- the substantial burden/ compelling interest/ least restrictive means requirement-- is similar to that in the federal RFRA and those of numerous other states.  What makes these tests stand out is the U.S. Supreme Court's recent decisions that give the tests new salience.  With Hobby Lobby and Holt v. Hobbs, the Supreme Court has transformed the substantial burden and least restrictive means tests into geometrically more powerful tools to use to challenge refusals to provide religious exemptions.

(2)  Traditionally it was assumed that the federal RFRA would be used by minority religions to fend off broad regulations that might be enacted without a careful weighing of idiosyncratic religious practices that are important to often discrete and insular groups with comparatively small numbers of adherents.  Since Hobby Lobby and the explosion of same-sex marriage cases, it is largely the Christian majority (or a segment of it) that asserts it is the victim of the majoritarian process, seeking exemptions that have a negative impact on minority groups that have broadly been the victims of past governmental discrimination.

(3)  Since Hobby Lobby. the power of RFRA exemptions has been magnified because they can be asserted by fairly large economic enterprises whose owners have religious reservations about a regulatory requirement.  Indiana's RFRA may have expanded the reach of RFRA exemptions beyond those contemplated by Hobby Lobby.  In defining the persons protected by the law, it enumerates all sorts of business entities, including "a corporation."  It does not limit this to a "closely-held corporation" as the Supreme Court did in Hobby Lobby.  It may be that a separate clause in the Indiana law has that effect, but that is unclear.  Under Sec. 7, a business entity is covered if it
exercises practices that are compelled or limited by a system of religious belief held by ... the individuals who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.
It can be argued that only a closely held corporation would be controlled and substantially owned by the same individuals.  But this depends on whether "substantial ownership" means a substantial percentage of the business or merely that the person has a substantial amount of money invested in the company.  CEO's of publicly held corporations often own millions of dollars of the company's stock, but still own only a small percentage of the company.

(4)  Enacted as the Supreme Court is about to hear oral arguments in same-sex marriage cases (including one from Indiana), and in the wake of numerous high-profile cases on religious refusals by businesses to furnish goods and services to same-sex couples, the law has become a symbol of the clash between conservative Christian views on sexuality and the movement of expanded LGBT rights.  Some have pointed out, accurately, that Indiana's statewide public accommodation law does not include a ban on sexual orientation discrimination.  So business that wish to discriminate on that basis do not need an exemption.

However, Indiana's statute also applies to local governmental entities in the state.  According to the Indiana ACLU, four localities have ordinances that provide enforceable protections against discrimination on the basis of sexual orientation and gender identity-- Indianapolis, Lafayette, New Albany and Tippecanoe County.  The new IRFRA will be able to be invoked as a defense in proceedings charging discrimination under these local laws.  This aspect of the law creates particular political and economic problems for the city of Indianapolis that hosts numerous national conventions and sporting events.

(5)  Indiana's new law makes it clear that IRFRA defenses can be asserted in lawsuits between private parties; not just in suits in which the government is a party.  Thus a same-sex couple suing for breach of contract when goods are initially promised and then refused might be met by a religious freedom defense. The sale of goods provisions of the Uniform Commercial Code arguably imposes a substantial burden on religious exercise of the business that discovers it has agreed to violate its own religious principles by facilitating a same-sex wedding.  (This argument is more difficult when services rather than goods are the subject of the contract, and the plaintiff relies on the common law of contracts for enforceability.  Although the statute covers not just statutes, but also "customs" and "usages" of any governmental entity.)

Affirmative relief (damages or an injunction) is only available however against a governmental entity.  And the statute specifically provides that it does not create a cause of action against a private employer by any applicant, employee or former employee.

For other commentaries on IRFRA, see Josh Blackman's Blog and the postings to which he links. And the Washington Post reports today that Indiana lawmakers now say they will act to amend IRFRA to make it clear that it does not permit discrimination against gays.

Recent Articles of Interest

From SSRN:
From SSRN (Marriage and Family issues):
From SmartCILP:

Sunday, March 29, 2015

Ramapo Villages Officials Cleared of Discrimination Claims Growing Out of Zoning Fight

In Bernstein v. Village of Wesley Hills, (SD NY, March 27, 2015), a New York federal district court rejected religious discrimination claims growing out of a chapter in the long battle between Hasidic residents and others in parts of Rockland County, New York. As recounted by the court:
Plaintiffs are religious corporations and individuals affiliated with the Chofetz Chaim sect of Orthodox Judaism, and they allege an interest in the operation of Kiryas Radin, a religious educational institution and center for religious activity and prayer, located on 4.7 acres of unincorporated land in the Town of Ramapo....
The heart of Plaintiffs’ case is their allegation that Defendants [village officials] colluded to file the Chestnut Ridge Action—which claimed, in relevant part, that Ramapo’s environmental review of Kiryas Radin prior to its approval was insufficient under state law—for discriminatory reasons. Plaintiffs allege that Defendants, “[h]iding behind a false fa├žade as protectors of the environment . . . utilized municipal government authority to advance their campaign against the spread of Orthodox Jewery in the Town of Ramapo.” ...
By Plaintiffs’ own admission, their claims at this stage of the litigation are dependent on their allegation that Defendants did not bring legal challenges against development projects that were, other than not being run by members of the Hasidic community, similar to Kiryas Radin in all material respects.
The court however concluded that the non-Hasidic development projects which were not challenged were not similar to Kiryas Radin. It also concluded that plaintiffs had not shown discriminatory intent on the part of the defendants:
Having lived and worked with residents and officials from the Villages during these many years, Plaintiffs firmly believe that they have been targeted because of their religious beliefs, even if they cannot point to discriminatory statements by Defendants. The Court is sympathetic: who would know better than the Parties in this case whether the current dispute is a product of the decades-long tension between the Hasidic community and the Villages of Ramapo? However ... [b]ecause Plaintiffs have offered almost no evidence in support of their claims, and certainly not enough to raise a contested issue of material fact, the Court must grant summary judgment in favor of Defendants.

Recent Prisoner Free Exercise Cases

In Stavenjord v. Schmimdt, (AK Sup. Ct., March 20, 2015), the Alaska Supreme Court held that a trial court was incorrect in dismissing a RLUIPA claim by a Buddhist prisoner who wanted to receive a kosher diet and to purchase a prayer shawl.

In Lewis v. Godinez, 2015 U.S. Dist. LEXIS 34839 (ND IL, March 20, 2015), an Illinois federal district court allowed a Rastafarian inmate to proceed with his complaints that he was forced to cut his dreadlocks, denied access to religious literature, and that the prison refused to hire a Rastafarian religious leader or provide Rastafarian services.

In Lagar v. Tegels, 2015 U.S. Dist. LEXIS 34842 (WD WI, March 20, 2015), a Wisconsin federal district court dismissed an inmate's claim that his religious freedom was infringed when he was denied the right to wear a Rosicrucian emblem.

In Campbell v. Greeley, 2015 U.S. Dist. LEXIS 34967 (WD AR, March 20, 2015), an Arkansas federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 34980, Feb. 27, 2015) and dismissed an inmate's complaint that the detention center in which he was housed did not provide religious services.

In Browning v. Seifert, 2015 U.S. Dist. LEXIS 35079 (ND WV, March 20, 2015), a West Virginia federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 35075, Feb. 11, 2015) and allowed an Orthodox Jewish inmate to move ahead with his suit seeking various accommodations for kosher food, wearing of religious clothing, celebration of various holidays and permission to refrain from shaving and cutting his hair.  Numerous other claims were dismissed.

In Hughes v. Heimgartner, 2015 U.S. Dist. LEXIS 35642 (D KS, March 23, 2015), a Kansas federal district court refused to grant summary judgment to defendants on complaints by a Muslim inmate that he was denied access to an Eid ul Fitr meal because he was in disciplinary segregation.

In Banks v. NYPD, 2015 U.S. Dist. LEXIS 35129 (WD PA, March 20, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 35770, Feb. 26, 2015) and dismissed an inmate's claim that Defendants conspired to keep him confined in a halfway house and to require him to apply for funds through two Christian organizations because of his status as a Wiccan, Warlock and Witch.

In McDonald v. West Contra Costa Narcotics Enforcement Team, 2015 U.S. Dist. LEXIS 36125 (ND CA, March 20, 2015), a California federal district court permitted an inmate to proceed with his complaint that his request for vegetarian meals was denied. Plaintiff was an adherent of "Evenism," a "religious and spiritual worldview" that "eating the flesh of land-based animals is no different than eating human flesh."

In Bell v. Scott, 2015 U.S. Dist. LEXIS 36262 (CD IL, March 24, 2015), an Illinois federal district court permitted a Seventh Day Adventist civil detainee to proceed with his complaint that authorities have refused to allow religious leaders to bring in a portable pool to baptize him.

In Jones v. Federal Bureau of Prisons, 2015 U.S. Dist. LEXIS 37080 (WD TN, March 24, 2015), a Tennessee federal district court permitted an inmate to proceed with his claim that he was denied equal protection when he was terminated from his prison job because of his religion.

Saturday, March 28, 2015

Injunction, Civil Penalty Imposed On Florist That Refused To Sell For Same-Sex Wedding

As previously reported, last month a Washington state trial court held that a florist shop and its owner violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. Now in State of Washington v. Arlene's Flowers Inc., (WA Super. Ct., March 27, 2015), the trial court entered an injunction against defendants prohibiting them from discriminating against anyone on the basis of sexual orientation in the furnishing of goods, merchandise and services.  In addition, the court imposed a civil penalty of $1000 and a nominal $1 for costs and attorneys' fees. Washington's Attorney General issued a press release announcing the decision. [Thanks to Tom Rutledge for the lead.]

Alaska Free Exercise Clause Defense To Illegal Salmon Fishing Is Rejected

In Phillip v. State of Alaska, (AK Ct. App., March 27, 2015), an Alaska court of appeals refused to dismiss criminal charges against 13 Yup'ik Eskimo fishermen charged with violating the Alaska Department of Fish and Game’s emergency orders restricting king salmon fishing on the Kuskokwim River.  The Yup'ik claimed that their conduct is protected by the free exercise clause of the Alaska Constitution. The Alaska Supreme Court has held that the test under the state Constitution for whether an individual is entitled to a religious exemption from a facially neutral law requires assessing the validity of the individual's religious interest and then determining whether the State can prove a compelling interest that would justify curtailing the religiously-based practice.  Applying that test here, the appeals court said:
[I]t would seriously hamper the Department’s ability to manage the fishery for sustained yield if courts required the State to show that each emergency action it took was the least restrictive alternative available. ... Instead, we agree with the district court that the question ... is whether the State can meet its burden of proving that its compelling interest in maintaining a healthy and sustainable king salmon population would be harmed if the court granted the religious exemption sought by the defendants.... [T]he State met that burden here.
AP reports on the decision.

Friday, March 27, 2015

Preliminary Injunction Bars Extension of FMLA To Same-Sex Couples

In State of Texas v. United States, (ND TX, March 26, 2015), a Texas federal district court granted a preliminary injunction ordering the Department of Labor to stay application of a rule amendment that extends the Family and Medical Leave Act to same-sex married couples even in states that do not recognize sane-sex marriage. The court asserted that Congress does not have unlimited power to impose its definition of marriage on the states and that Congress did not authorize the Department of Labor to regulate spousal benefits to do so. Houston Chronicle reports on the decision.

California AG Asks Court To Allow Her To Reject Virulently Anti-Gay Initiative Measure

Religion News Service reports that California Attorney General Kamala Harris this week asked a state court to allow her to refuse to process a virulently anti-gay (and likely unconstitutional) initiative petition filed in proper form last month with the Attorney General's office.  Harris asked for an order so that she will not be required to issue a title and ballot summary for the proposal which could get on the ballot only if the sponsors were able to collect over 365,000 valid signatures. The initiative measure (full text) is titled the "Sodomy Suppression Act."  It begins by describing sodomy as "a monstrous evil that Almighty God ...commands us to suppress...." Not only would the Act outlaw "sodomistic propaganda" and bar "sodomites" from public office and public employment, but it also calls for "death by bullets to the head or by any other convenient method" for anyone who "willingly touches another person of the same gender for purposes of sexual gratification." The punishment for distributing sodomistic propaganda would be a $1 million fine, 10 years in prison, and/ or expulsion from the state of California.

British Parliament Passes Bill Authorizing Invocations At City Council Meetings

Law & Religion UK reports that on Wednesday in Britain the House of Lords gave final Parliamentary approval to the Local Government (Religious etc. Observances) Bill (full text). The bill, which now will be presented for Royal Assent, authorizes local governmental bodies to include in their meetings time for prayers or other religious observance or for observances connected with a religious or philosophical belief. It also provides that local authorities may support, facilitate or make arrangements to be represented at religious events or events connected with a religious or philosophical belief.  Apparently the bill is a reaction to a court ruling that town councils can open with an invocation, but only if it is not part of the formal meeting. (Background) (See prior related posting).  During the debate in the House of Lords (full text), Baroness Turner of Camden said:
A number of us who are secularists feel that our views have been somewhat bypassed. It is one thing to have prayers, but it is quite another thing to have prayers as part of an actual meeting.

Ministerial Exception Prevents Court From Deciding Complaint Over Pastoral Letter Requirement

On Monday, the Ventura County California Superior Court dismissed the complaint in Serrano v. Family Life Faith, a lawsuit by two teachers who were fired for failing to provide a letter from a pastor confirming their membership in a church.  Little Oaks, a for-profit private Christian school which imposed the requirement, is affiliated with the non-profit Calvary Chapel. (See prior posting.)  The court held that the "ministerial exception" doctrine precludes it from adjudicating issues regarding the hiring or firing of ministerial type employees of religious schools, such as these teachers who were introducing students to Christianity. Christian Post reports on the decision.

Groups Challenge Residency Limits In Courthouse Open Forum Law

As previously reported, last December the Freedom From Religion Foundation (FFRF) sued Franklin County, Indiana, challenging a Nativity Scene placed on the Courthouse lawn.  The suit was dropped after the county enacted a law making the county courthouse a public forum for all types of expressive activities. (See prior posting.)  However this week, FFRF and the Satanic Temple have filed a new lawsuit against the county charging that the open forum law still violates their free expression rights.  The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 3/24/2015), contends that the provision in the open forum law limiting it to Franklin County residents is not narrowly tailored to further a substantial governmental interest.  Both plaintiffs were denied permits for displays. FFRF had applied to place a display of several cut-out figures on the Courthouse lawn from Nov. 29, 2015 to Jan. 6, 2016 to celebrate the December 15th "nativity" of the Bill of Rights. Satanic Temple wanted to erect a three-dimensional sculpture during the same time period.  FFRF issued a press release announcing the filing of the lawsuit.

Mississippi Supreme Court: Courts May Not Rule On Dispute Over Removal of Pastor

In Greater Fairview Missionary Baptist Church v. Hollins, (MS Sup. Ct., March 26, 2015), the Mississippi Supreme Court, relying largely on the U.S. Supreme Court's Hosanna-Tabor decision, held that a trial court lacked jurisdiction to impose procedures for a congregation to use in a vote to remove its pastor.  The pastor had initially been placed on administrative leave after being accused of inappropriate sexual conduct with a minor.  When church members decided to vote on whether to completely remove him, the pastor sued.  In reversing the trial court, the Supreme Court said in part:
In sum, we find that the chancery judge erred when he treated this ecclesiastical controversy as a secular one—a pastor who is unhappy about being terminated by a church simply does not present a secular controversy.

Thursday, March 26, 2015

Afghan President To US Congress: Moderate Muslims Must Speak Out

Afghanistan's new President, Ashraf Ghani, in a visit to the United States this week (New York Times), addressed a joint session of Congress yesterday.  In his speech (full text and video), Ghani called for changes within Islam, saying in part:
We are willing to speak truth about terror.  Military fighting may stem the advance of extremism, but it will not put an end to the anger and hatred being promulgated across majority countries from these groups. That hate must be challenged and overcome from within the religion of Islam.  Who is entitled to speak for Islam?  Leaders, intellectuals and those many millions of Muslims who believe that Islam is a religion of tolerance and virtue must find their voice.  Silence is not acceptable.  But silence is not what the world will hear from us.  Afghanistan is joining a new consensus that's emerging in the Muslim world.  A consensus that rejects intolerance, extremism and war...
The Islamic world must understand its own gloriously tolerant and inquisitive past.  It must re-engage with the world openly and without paranoia.  We, the unity government of Afghanistan, know that Islam is a religion of peace.... The Declaration of Human Rights is firmly embedded in our Constitution....

NJ Governor Signs Law Keeping Religious Cemeteries Out of Headstone and Funeral Business

Earlier this week, New Jersey Governor Chris Christie signed A-3840 (full text), a law that bars religious groups that operate cemeteries from also selling headstones or offering various other kinds of funeral services. Religion News Service reports that the immediate effect of the law will be to require  the Catholic Archdiocese of Newark to give up its profitable business of selling headstones and private crypts. According to RNS:
The archdiocese became the first religious group in the state to enter the headstone business two years ago, alarming dozens of small, independent companies that produce monuments and crypts.
The dealers’ trade association, the Monument Builders of New Jersey, waged an 18-month legal fight and lobbying campaign against the move, contending the practice would spread to other dioceses and then to the owners of other religious cemeteries.
The archdiocese returned fire with a lobbying effort of its own, along with a personal appeal from Archbishop John J. Myers, who exhorted Catholics to fight the law.

Satanic Temple Urges "Discrimination Transparency" Amendment To Michigan's Proposed RFRA

Fox News reported earlier this month that in a creative response to Michigan's proposed Religious Freedom Restoration Act, the Detroit Chapter of the Satanic Temple is urging that a "Discrimination Transparency" amendment be added to the bill.  The proposed amendment would legally require businesses that serve the public to post any discrimination policy in effect in a conspicuous location visible to patrons and employees.  The Satanic Temple even furnishes on its website a downloadable sign that could be used by businesses.  It reads: "Due To Sincerely Held Religious Beliefs, Service Is Denied To _______".

Wednesday, March 25, 2015

Court Says Muslim Surveillance Documents May Not Be Withheld Under FOIA "Law Enforcement" Exemption

In ACLU of North California v. FBI, (ND CA, March 23, 2015), in a Freedom of Information Act suit, a California federal district court held that the FBI cannot use the exemption for records compiled for law enforcement purposes to withhold documents relating to the investigation and surveillance of Muslim communities, and collection of ethnic and racial data, in Northern California. The court said:
In short, the FBI employs many various techniques to combat unlawful activity, some of which, if publicly disclosed, would undermine their effectiveness. 
That this may well be true does not, without more, permit the FBI to apply Exemption 7 [the "law enforcement" exemption] to withhold or redact information about such tactics, however. Neither the Hardy declarations nor the FBI’s pleadings tether the activities the withheld documents concern to the enforcement of any particular law....  Exemption 7 is not the appropriate umbrella under which to shield these documents from public view.
The ACLU's blog has more information on the decision.

Puerto Rico Concedes On Same-Sex Marriage Laws

Last October, a Puerto Rico federal district court gave a rare victory to opponents of same-sex marriage. (See prior posting.)  Plaintiffs appealed the decision to the U.S. 1st Circuit Court of Appeals.  Last week, Puerto Rican officials filed a brief with the 1st Circuit (full text) stating that Puerto Rico would no longer defend the constitutionality of its marriage laws.  Appellanats' brief states in part:
To the extent that Commonwealth law does not afford homosexual couples the same rights and entitlements that heterosexual couples enjoy, the Commonwealth recognizes that equal protection and substantive due process guarantees mandate application of heightened scrutiny in this case. Under said heightened standard, the Commonwealth cannot responsibly advance before this Court any interest sufficiently important or compelling to justify the differentiated treatment afforded so far to Plaintiffs.
Freedom to Marry website has more on the decision.

Bible Quotes In University VP's Presentation To Employees Not Protected By First Amendment

Faulkner v. University of Cincinnati, (SD OH, March 23, 2015), involves a challenge by an Associate Vice President in the University's Department of Internet Technology to disciplinary action taken against him for his use of Biblical quotations in a departmental presentation designed to improve leadership skills of participants. An Ohio federal district court dismissed the major part of plaintiff's claim, but permitted him to move ahead on one portion of his complaint.  The court explained:
The Court concludes that Faulkner was not speaking as a private citizen on a matter of public concern when he gave his presentation to the IT Leadership Academy. Therefore, that speech was not protected by the First Amendment, and he cannot challenge the "discipline" that resulted - his attendance at a "sensitivity" seminar. But this conclusion does not require the dismissal of the entirety of his First Amendment claims. Faulkner is also challenging the University's prohibition on making any biblical quotations in "future lectures or in work related interactions." This broadly worded ban could apply to consensual conversations with colleagues, to religious symbolic speech, and to "interactions" of all sorts that might occur outside of the classroom or officially sanctioned University-sponsored groups.

Indiana Passes RFRA Law

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes "a corporation", without limiting this to closely-held companies.  The bill's protections may be invoked when a person's exercise of religion is "likely" to be substantially burdened by government action, not just when it has been burdened.  The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

In a statement (full text) after the bill passed yesterday, Governor Mike Pence said he strongly supports the bill and will sign it. Meanwhile, Gen Con, a major gaming convention held each year in Indianapolis, wrote the governor (full text) asking him to reconsider, saying that legislation that could lead to discrimination against its attendees will factor into its decision on whether to hold the convention in Indiana in future years.

Tuesday, March 24, 2015

Ted Cruz Announces Candidacy With Focus On Agenda of Religious Conservatives

Texas Republican Senator Ted Cruz yesterday became the first to officially announce his candidacy for President of the United States in 2016.  In a speech at Liberty University (full text) directed particularly at Christian Conservatives, Cruz enumerated the Conservative agenda and said in part:
Today, roughly half of born again Christians aren’t voting. They’re staying home. Imagine instead millions of people of faith all across America coming out to the polls and voting our values.
CBS News described his speech as "an impassioned appeal to the religious right."

In another move that focuses on concerns of the religious right, Cruz announced last week that he has introduced two joint resolutions in Congress to overturn recently enacted legislation by the D.C. City Council. (S.J. Res. 10;  S.J. Res. 11). As described by Cruz's press release:
In January, the District enacted the Reproductive Health Non-Discrimination Amendment Act of 2014, which could require employers to provide health plans that cover abortion services, and the Human Rights Amendment Act of 2014, which could force religious schools to support activities that violate the tenets of their faith.
Congress has until April 17 to act to prevent the D.C. laws from taking effect. (See prior related posting.)

In Italy, Lawsuit Raises Challenge To Prayer In Schools

New York Times reported yesterday that the continuing controversy over church-state relations in Italy is reflected in a recent lawsuit challenging the decision of a school board in Bologna to allow priests to offer an Easter blessing at three elementary schools.  Previously, a local court had held that an Easter prayer in a classroom during school hours was unconstitutional.  But the current plan is for voluntary prayer on school grounds shortly after the closing bell.  An Italian constitutional law expert commented:
In Italy, it is different. We do not have religion in the state, but we have tradition and relationships that link the Italian Republic with the Catholic Church.
A hearing on the challenge is not scheduled until later this week, and the blessing has already been recited at two of the schools. Prayer scheduled at one school for next Saturday has been canceled.

Trial Judge's Opening With Pledge of Allegiance Does Not Violate Establishment Clause or Due Process

In State of Ohio v. Daniels, (OH App., March 16, 2015), an Ohio appeals court affirmed the drug possession and drug trafficking conviction of Michael Daniels, Jr., who, among other things, argued that the trial court erred when it required the parties and the jury at his trial to recite the Pledge of Allegiance that invokes a Supreme Being in violation of the Establishment Clause. He also urged that the Pledge amounts to a required loyalty oath that violates the due process clause.  The court held that, first, Daniels waived any challenge by failing to object to the Pledge when the court announced that it would be recited. It continued:
[E]ven if the waiver doctrine did not apply herein, appellant provides no definitive case law holding that the use of “under God” in the Pledge of Allegiance, particularly when made part of a customary courtroom recitation, constitutes an impermissible State endorsement of monotheistic religion ..., and he further fails to articulate how an appellate reversal of his conviction would be the proper remedy for such an alleged constitutional violation.
Responding to Daniels' due process argument, the court quoted from a 2004 federal 10th Circuit Court of Appeals opinion:
 "We recognize that trial judges, among their many other responsibilities, should take care not to create the impression that it is appropriate for the judge or the jury to favor the prosecution simply because the court and the prosecution are both institutions of the United States. However, we do not think it reasonable to suppose that the jurors inferred from the Pledge of Allegiance a patriotic obligation to serve as a rubber stamp for the prosecution...."

Supreme Court Hears Oral Arguments On Specialty Plates and Free Speech

The U.S. Supreme Court yesterday heard oral arguments in Walker v. Texas Division, Sons of Confederate Veterans, Inc. (Full transcript of oral arguments).  In the case, the 5th Circuit Court of Appeals held in a 2-1 decision that messages on state specialty license plates are private speech, not government speech.  The 5th Circuit majority also concluded that Texas engaged in unconstitutional viewpoint discrimination when it rejected, as offensive, a specialty plate design that included the Confederate battle flag. (See prior related posting.)  SCOTUSblog reports on the oral arguments, saying in part:
From the moment that a state lawyer stood up in the Supreme Court to argue that messages on license plates are government speech, it seemed that the Justices went forward for the rest of the hour assuming that it was not — at least not always.  A strange hearing thus unfolded on when the First Amendment puts curbs on government regulation of expression, and how tight those curbs can be.
New York Times also reports on the arguments.