Two Wrongs Don’t Make a Right When It Comes to the Lowe’s Advertising Controversy

December 18, 2011 By katherine 23 Comments

We’ve heard how Lowe’s, after receiving pressure from the (one-man-operation) Florida Family Association, decided to pull its ads from the new show All-American Muslim.  Not cool.

But now Ted Lieu, a California state senator, has threatened Lowe’s with the “encouragement of boycotts” and an examination of potential legislative remedies if Lowe’s does not apologize to Muslims and run its ads on the show. 

That’s not cool either.

It’s great that Lieu called out Lowe’s for being bigoted and ignorant, and that’s well within his rights as an elected official.  But threatening the store with possible legislative action crosses the line.

Eugene Volokh agrees and says that Lowe’s is well within its right to pull ads from the show:

“[T]he claim is that Lowe’s is refusing to advertise on a program that sends a positive message about Islam in America. And that decision not to support a particular ideological message — whether motivated by Lowe’s management’s disagreement with the message, or just a decision that this message is too controversial for Lowe’s to endorse — strikes me as part of Lowe’s First Amendment prerogatives. And of course the analysis would be the same if an [advertiser] wanted not to advertise on a pro-Scientology program, or on a pro-atheism program (think a militantly anti-religious and advertiser-supported version of Penn & Teller’s Bullshit), or on an evangelical Christian broadcasting network. Likewise, some jurisdictions ban discrimination in places of public accommodation, including stores, based on political affiliation; but advertisers have the right to refuse to advertise in pro-Republican or pro-Democrat or pro-Communist or pro-Nazi magazines.”

How do you think Lieu should have responded to this situation?

Filed Under: General, Politics, Pop Culture 23 Comments

From a Macy’s Dressing Room to the ‘Theater of the Absurd’

December 8, 2011 By katherine 108 Comments

… or so say the folks over at Liberty Counsel:

Mathew Staver, Founder and Chairman of Liberty Counsel, commented: “Macy’s policy which allows men to use the women’s dressing room is fraught with problems. This policy will cause significant problems and will alienate the majority of Macy’s customers. Macy’s has essentially opened women’s dressing rooms to every man. The LGBT agenda has become the theater of the absurd.”

 

 

Some background on Staver’s statement: A Macy’s employee in San Antonio, Texas was fired after she refused to abide by the store’s LGBT policy that allows transgendered people to use both male and female dressing rooms.  Natalie Johnson, the employee in question, saw someone whom she perceived to be a “cross-dressing young man” exit the women’s dressing room.  She told him that he could not reenter, saying that only women could use the women’s dressing room.  When informed that Macy’s is LGBT-friendly, Ms. Johnson responded that “Macy’s is also non-discriminatory toward religion, and that it would go against her religious beliefs to lie that he was a woman or compromise with homosexuality.”

“Compromise with homosexuality”?  What?!

Still, and it pains me to admit this, Ms. Johnson might have a point.  Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination of employees on the basis of religion.  In addition to prohibiting the hiring and firing of employees based on religion, Title VII requires that employers “reasonably accommodate” an employee’s “sincerely held religious beliefs,” so long as doing so would not cause the employer “undue hardship.”

No lawsuit has been filed in this case, so the facts are a little sparse, which means that it’s hard to tell what, if anything, Macy’s might have been able to do to accommodate Ms. Johnson, or whether doing so would have resulted in undue hardship to the store.  Perhaps Macy’s could have moved Ms. Johnson to another area of the store (one that did not require her to manage dressing rooms), or could have moved her to a desk job off of the sales floor.

This is a complicated and often emotional area of the law.  I suspect that the law was designed to require employers to accommodate yarmulke-wearing, prayer breaks, etc.  And that sounds totally reasonable to me.  But when I first learned of this story, I was reminded of pharmacists who refuse to fill birth control prescriptions, and of clerks who refuse to sign marriage licenses for same-sex couples.

With this case as no exception, I think that firing employees who outright refuse to do their jobs should be an acceptable practice.  But where is the line between refusal to do one’s job and merely requesting a religious accommodation?

Is the threat of religious discrimination in the workplace substantial enough that this element of Title VII makes sense?

Filed Under: General, Lawsuits 108 Comments

No More Religious Services in NYC Public Schools

December 7, 2011 By katherine 26 Comments

It’s official: Religious organizations can no longer use NYC public schools to hold worship services after hours.

The legalese: The Supreme Court recently declined to review a Second Circuit decision, Bronx Household of Faith v. Board of Education of the City of New York, which upheld New York City Standard Operating Procedure (SOP) § 5.9 (now SOP § 5.11), which prohibited the use of school property for religious services.

 

 

What’s really going on: In 1994, the Bronx Household of Faith (BHF) applied to use space in a public school for its Sunday morning church services.  Their application was denied because of something called SOP § 5.9.  The BHF brought suit in federal court… and their suit was dismissed.  This dismissal was later affirmed by the Second Circuit.

Then, however, the Supreme Court held in Good News Club v. Milford Central School (PDF) that it was unconstitutional for a public school district to exclude from its buildings a religious organization that planned to use the space to teach religious morals to school-aged children through the use of song, verse memorization, and lessons.  The Court held that such exclusion amounted to “viewpoint discrimination,” because the district otherwise permitted use of the space “for the teaching of morals and character,” and was excluding the plaintiffs solely on the basis of their religious affiliation.

After this decision, BHF reapplied for a permit, was again denied, and again brought suit in federal court.  This time, the district court issued a preliminary injunction against the Board forbidding them from denying the permit.  The Second Circuit affirmed that preliminary injunction.  When BHF petitioned for summary judgment (hoping for a permanent ruling in their favor, rather than a temporary injunction), the district court cited the decision in Good News Club and BHF succeeded: they were able to use school space for their services.

The Board then appealed to the Second Circuit.  (Seeing a pattern here?) The Second Circuit held that the Board was allowed to exclude BHF in spite of the Supreme Court’s decision in Good News Club. According to the Second Circuit, in cases like Good News Club, “the policy being enforced categorically excluded expressions of religious content. Here, by contrast, there is no restraint on the free expression of any point of view. Expression of all points of view is permitted. The exclusion applies only to the conduct of a certain type of activity — the conduct of worship services — and not to the free expression of religious views associated with it.”

Put differently, the Second Circuit accepted the SOP because it prohibited an activity (worship services) and not a viewpoint (Christianity, Christian morals, etc.).

To be blunt, I was shocked when I first read this case.  I’m still a little shocked because, to me, the distinction between the activity of worship and the expression of Christian viewpoints sounds incredibly thin (especially considering that the activities at issue in Good News Club included singing).  Where do you draw the line?  If your group is teaching religious morals, then you’re good to go.  But what if you’re teaching religious morals AND singing or praying?  Does the activity cross over into “worship” as soon as a more overt act, like singing, genuflecting, etc. takes place?

According to the Second Circuit, “A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church.”  That doesn’t really help too much with the line-drawing, but what comes next actually makes me pretty happy: The court expresses concern that allowing such services in public schools will “promote a perception of endorsement.” This is excellent news!  The court is concerned that allowing worship services in public schools will cause people to think that the government is pro-religion, or that religion is the right way to go.  And honestly, I usually assume that this is exactly what the government thinks. (I’m not entirely wrong here, either: the United States Department of Justice filed an amicus brief supporting BHF.)  Maybe I’m being overly optimistic, but it seems that we have here a court saying: Hey!  It is important for people to understand that the government isn’t tilting the scales in favor of religion!  It’s cool with us if you’re not religious, and we don’t want you feeling like we favor those who are.

This puts me in a good mood.  Now if only we could do something about those tax breaks…

Filed Under: Education, General, Lawsuits 26 Comments

A Primer on RLUIPA

December 6, 2011 By katherine 18 Comments

Gary Mortara, pastor at the Faith Fellowship Church in San Leandro, CA, wanted to move his congregation into a bigger building (PDF). The plans he submitted to the city, though, called for use of a building located in an area of town that was zoned for a job promotion initiative and did not permit religious assembly, so Mortara’s plans were rejected.

Gary Mortara's image, courtesy of his own church

Done deal, right? Not so fast.

This is where the Religious Land Use and Institutionalized Persons Act comes in. The act, otherwise known as RLUIPA (perhaps the least-helpful acronym ever), requires that, if the government imposes a substantial burden on a landowner’s sincerely-held religious beliefs, then the government must show that it is acting in furtherance of a compelling state interest, and that it has pursued that interest in the least restrictive way possible.

While this seems like a pretty big boon to house-of-worship owners everywhere, RLUIPA actually replaced an earlier statute that allowed local governments even less authority to enact laws that burdened religious activity (that earlier statute was declared unconstitutional).

RLUIPA poses, in my opinion, a handful of interesting questions, both legal and political (only two of which I’m mentioning here).

First: why was Congress so emphatic about getting this law on the books? The Supreme Court had already noted: “It is difficult to maintain that [laws that impact religion] are based on animus or hostility to the burdened religious practices or that they indicate some widespread pattern of religious discrimination in this country.” In other words: Religion doesn’t really have anything to worry about here.

The easy answer is that it’s all politics. This is a very religious country, and voting for laws that help religion helps one’s career. (To be honest, I think that in this case the easy answer is the right answer.)

But for the sake of argument, I wonder if that’s too simple, which leads me to…

Second: What is the proper balance between the Establishment Clause and the Free Exercise Clause? Most of us reading this website are somewhat partial to the Establishment Clause (I know I am), so it’s easy for me to say, “Balance? What balance? This isn’t the 18th century, so let’s just focus on keeping religion out of the government and call it a day.” But the freedom to worship is inextricably linked to the freedom NOT to worship. It is also deeply connected to freedom of speech. Not only can we say what we want, but we can believe what we want, too. So perhaps it’s important to ensure that local governments aren’t phasing out unpopular religious groups through questionable “zoning regulations.” All I know is that atheists are fighting an uphill battle, and it’s one we’ll never win without the First Amendment.

So how do we walk the line between using the Establishment Clause to our advantage, without forgetting that the Free Exercise Clause isn’t going anywhere?

And what will become of Pastor Mortara? The Supreme Court declined to hear his case, and the 9th Circuit has held that summary judgment in favor of the city was improper. This means that, unless a settlement is reached, Mr. Mortara’s case is going to trial. Stay tuned.

Filed Under: General, Lawsuits, Politics 18 Comments

Should You Be Able to Purchase Religious Foods with Food Stamps?

December 5, 2011 By katherine 48 Comments

As it turns out, stores that accept food stamps can be disqualified from participating in the food stamp program if they violate certain regulations, such as accepting food stamps as payment for ineligible goods like cigarettes. If this disqualification would cause “hardship” to the food stamp customers, however, store owners might be charged a fine rather than be disqualified.

In a recently-filed lawsuit, Mehrab #1 Corp. v. United States, a Chicago grocer who sold Zabiha-Halal meats was disqualified from the food stamp program for accepting food stamps for ineligible goods.  The store challenged this decision on the basis that “it is the oldest and most trusted Indian and Pakistani Grocery Store providing Authentic Zabiha-Halal Meat and the only store in the Greater Chicago Land Area who can prove to sell only Zabiha-Halal Meat, and also that Mehrab’s prices are on average … 10-15% cheaper than the competition.”  In other words, the hardship to Mehrab’s customers was the inability to find halal meat at an equivalent price in the general vicinity of the disqualified store.

The court in Mehrab found that the inability to find these foods might constitute a sufficient hardship, such that the case must go to trial and a money penalty may be imposed on the store rather than a disqualification.  Interestingly, the court held that the case must go to trial only to determine whether any “retailer in Mehrab’s vicinity offers an equivalent variety of Zabiha-Halal items at comparable prices.”  This holding necessarily implies that if there are no such retailers, Mehrab’s customers will experience a hardship sufficient to charge Mehrab a fine rather than disqualify it.

So is this a legitimate interpretation of the Food Stamp Act, or is the court catering to the religious?  The statute states that a money penalty is an option if “the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.”  The court’s decision in Mehrab #1 means that halal foods, kosher foods, etc. can be considered “staple food items.”

Legally, that is probably the correct interpretation.  If this food stamp policy prevented religious people from abiding by their dietary restrictions, then it would likely run up against the Free Exercise Clause, in that the government would be imposing a burden on religious people that was not similarly imposed on those without religious dietary requirements.

I wonder, though, if specialty religious foods are more expensive than “regular” foods. If so, it seems a shame that families who participate in the food stamp program would use their limited resources to pay extra for food that has been blessed, when they could just opt for the sinful food and get more of it.

Filed Under: General 48 Comments

Church Votes Against Interracial Couples Becoming Members

December 2, 2011 By katherine 61 Comments

I thought it was a typo when I read that a Pike County (Kentucky) church had “taken a stand” against interracial couples. What?! They mean the church is taking a stand for interracial couples, right?

Nope.

Prompted by the attendance of the couple above, Gulnare Freewill Baptist Church in Pike County, Kentucky has voted to deny church membership to interracial couples, forbidding them from taking part in certain “worship activities.”

It sounds to me like they’re doing those couples a favor.

In case you’re wondering, this rule is perfectly legal. In general, if there’s no state action, then there’s no right to equal treatment. (That’s a pretty big over-simplification of the issue, though. Businesses that serve the general population — like hotels — cannot violate the Civil Rights Act of 1964 by, say, discriminating against African Americans.) That said, the government can’t mandate that churches refrain from discriminating against interracial couples.

Is this what we mean by separation of church and state? Should it be?

When I read this story, my first thought (as mentioned above) was that the church was doing this couple a favor: they can now get the heck out of there and do some serious questioning of their beliefs and their community. But let’s say, hypothetically, that this was the only church in town, in a town that’s dominated by religious life, such that excluding the couple from the church amounted to excluding them from a large swath of social and political life.

Should the government get involved then? Again, legally, the answer is no. Personally, my answer would be no as well, but I can see how, for some people, the answer might be yes. What’s the answer for you?

Legal issues aside, I’ve always found this type of behavior to be incredibly bizarre. The church is doing this, presumably, because the Hebrew Bible has a problem with the Israelites getting it on with foreigners. But unless the church also recommends stoning your daughter if she has sex before marriage and avoiding shellfish, I don’t see why the passage in question here should be taken seriously by anyone.

Filed Under: General, Love 61 Comments
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