Sunday, March 06, 2011


You can sanction litigants for making frivolous legal claims. I wonder: Assuming Tennessee passes its patently unconstitutional proposed ban on Shariah law, would that extend to any state defense of the law in court?

I mean, talk about your slam-dunks under the First Amendment. This baby not only is sect-discriminatory (a major constitutional no-no), but it directly criminalizes religious belief. You couldn't come up with an easier case if you tried. Indeed, you couldn't have a Free Exercise clause that didn't strike down this law.


troll_dc2 said...

1. "... passes it's patently ..." Why are so many educated people misusing "it's" and "its"?

2. To the extent that the proposed legislation forbids conduct that is already illegal under the criminal laws, I suppose it is merely superfluous. I agree that anything more would be unconstitutional.

3. However, has there been a case in which Rule 11 has applied to a state that is seeking to uphold a duly enacted statute? I am not sure whether that is really what the rule against frivolity is all about.

N. Friedman said...

There is some manner of precedent relating to behavior of specific religions, most particularly the Mormon faith. The legal theory by which such cases were decided, such as in the criminal case Reynolds v. United States (which deals with prosecuting for the practice of polygamy and was, if I recall correctly, worded as a neutral statute), would likely not be employed today but, if we go by what that case indicates, religious practices contrary to the needs of democracy may be banned - perhaps, using Warren court era rhetoric, we might say there is a compelling state interest. That, of course, is different than outlawing the practice per se of the Mormon church. Of course, that church was, at one point, effectively banned and lost the equivalent of certification as a religious institution.

I would also think that the outcome of a court challenge depends on what is meant by outlawing Sharia law. If, what is meant, that Muslims would be forbidden from the ceremonial and dietary aspects required by that law, that would clearly be unconstitutional. On the other hand, if what is meant concerns portions of the Sharia law that pertain to non-Muslims or that privilege Muslims over non-Muslims, such would probably not be unconstitutional. I suppose that the legislature could, under the auspices of preventing the establishment of a specific religion, outlaw any religious practices which impose such an establishment.

David Schraub said...

NF: You're suppositions are simply wrong as a matter of contemporary law.

1) Reynolds, as you allude to, was a facially neutral regulation of non-religious conduct (that happened to capture a religious exercise). The law here, by contrast, is explicitly sect-discriminatory (as it has to be -- Tennessee obviously doesn't want to bar Christians from abiding by traditional Christian biblical norms).

2) Even if the law could be rewritten to be couched in facially neutral (and secular) terms, to the extent Reynolds permits such laws when the object is specifically to target a particular religious sect, it's no longer good law. Church of the Lukumi Babalu Aye v. City of Hialeah.

3) This law also borders on targeting religious belief (rather than conduct), and those are per se unconstitutional anyway (Torcaso v. Watkins).

4) We cannot, in fact, bar the promulgation of ideologies that are privilege one group of people over another, or are hostile and discriminatory to outsiders. One doesn't even need to get to the religion clause for that: see Boy Scouts of America v. Dale; Brandenburg v. Ohio. Abstract advocacy even of violent overthrow of the government is constitutionally protected free speech.

5) The Establishment Clause forbids state practice, endorsement, or promotion of religion, but it obviously doesn't inhibit private religious expression. Tennessee of course can take steps to block the Establishment of a state religion (though it has to be sect-neutral -- the problem is state establishment of religion, not Islam), but that doesn't provide any warrant for intrusion in to private religious belief.

N. Friedman said...


I did distinguish between belief and practice. However, Reynolds is a bit more complicated than you seem to realize.

An important finding of fact - a key point in understanding how cases are decided - in the Reynolds case was based on evidence related to the harm caused by polygamy. The evidence came from supposed experts, who asserted that polygamy is a grave danger to democracy, one requiring the practice to be outlawed if democracy is to survive. The Court accepted this finding.

Notwithstanding your confidence in the outcome, that confidence is based not on the law but on the assumption that the evidence in Reynolds would be ignored by a modern court. If, in fact, polygamy is, as the evidence in that case was found to be, a grave danger to democracy, then, in fact, there could certainly be a compelling state interest to regulate the practice. Or, do you think that the Constitution is a suicide pact?

The issue with Sharia is that it is not merely about belief; it is primarily about practice, just like Kosher laws. Sharia is a set of laws of practice, laws that regulate all aspects of life and politics, from sexual activity, to women's rights, to eating, to war and peace, to conduct in war, to slavery, to the relations between Muslims and non-Muslims, etc., etc. No doubt it would be unconstitutional to preclude anyone from advocating for Sharia, just like it would be unconstitutional to preclude people from advocating for polygamy or for killing of the first born.

If the statute is directed at precluding Muslims from advocating for Sharia, I think it is clearly unconstitutional. However, if a law against a religious practice is written so as to preclude certain practices, e.g. outlawing snake charmers in the US South (which, at the time I did my law review research some 35 years ago about the very issue we are discussing, had been found to be constitutional, notwithstanding the fact that such laws are, as all involved knew - although written in a neutral fashion -, directed at a specific religion's practices), it is not necessarily unconstitutional.

As troll_dc2 noted, to the extent that elements of the law would be found constitutional, such elements would likely be redundant. I agree with that point, more or less - and probably more.

The Establishment Clause, notwithstanding your comment, is actually directed against Congress but, as with many other parts of the Constitution, has been, via the 14th Amendment, found to be directed also against states. Of course, that was not always so and there were, in fact, blasphemy laws on the books in at least Massachusetts for decades after the Constitution was ratified.

By the way, the Tennessee Constitution, at least as worded, is in some ways more restrictive about establishment than is the Federal constitution because it outlaws preachers from serving in office. My recollection is that the Supreme Court found that restriction a tab too restrictive.

David Schraub said...

The issue isn't whether we "ignore" Reynolds or not. Reynolds is irrelevant -- the controlling cases in Free Exercise doctrine are Employment Div. of Oregon v. Smith and Hialeah, and Reynolds is only good law insofar as it comports with the doctrine as laid out in those cases. The former largely precludes free exercise challenges to neutral laws of general applicability, and the latter observes that the state can't get around Smith via a neutrally-worded statute designed to target a particular religious doctrine. "Neutrality", if nothing else, means non-sect discriminatory, and this law is explicitly sect-discriminatory on its face. That's an easy case under Smith. Trying to rely on Reynolds is like relying on Sherbert v. Verner (also still good law, but only to the extent it doesn't conflict with Smith).

Obviously, to the extent that private practices mandated by Shariah law conflict with the general laws of Tennessee, the state can enforce those laws no problem (that's Smith). But (a) applied to those cases, this law is redundant; further, the state can't impose additional punishment (15 years in prison!) b/c the violator violated state law because of his religious belief, (b) the state certainly can't do that in a sect-discriminatory way (punishing folks who violate the law b/c of their Islamic beliefs more harshly than those who do so b/c of their Christian beliefs) and (c) the law by its terms sweeps far more broadly, encompasses practice of Shariah even where it otherwise is in perfect harmony with Tennessee law, targeting religion qua religion.

This is a slam dunk under Smith and Hialeah. Outside of criminalizing the status of being Muslim, I couldn't write an easier free exercise case than this.

N. Friedman said...


You are not reading what I wrote. Your comment regards only the law, given certain facts. I was not relying on Reynolds for the law. The issue I raised concerned factual findings in Reynolds that, were they to be accepted today, would compel a Court to hold differently than you think the Court would hold.

Again, were a religion to have a practice which is inimical and dangerous to the survival of democracy and were the Court to rule that such facts are established, one would have to believe that the Constitution is a suicide pact to think that a Court today would automatically find a law outlawing such a practice is unconstitutional. It would depend.

You are certainly correct about the state of the law. But, again, if the facts in the case, as accepted by the Court, are that this or that practice constitutes a grave danger, one which cannot exist with democracy, you can be that the Court would find the law Constitutional.

I am inclined to think that you fail to appreciate the importance of factual findings. To note: they help govern the limit of what a Court normally can find. It is, of course, true that a Court can look at a statute on its face. However, if there is a legislative finding that the practice which is sought to be outlawed is a grave danger, then the issue is never simple for a Court.

Your view is, by contrast, to turn the Court into a rubber stamp over its legal findings. However, since the Court expects not to be laughed at and if, based on how the public views facts, it has evidence before it that suggests the Court ought to look at the matter carefully, you can expect the Court to do so, at least some of the time.

Again, I agree with the view that it would be unlikely for a Court to hold that it is Constitutional to have a law that, in the abstract forbids instituting Sharia. However, were there actual evidence in the record by which there were a finding by a Court that Sharia is a grave danger to democracy, I am not sure the result would be as clear-cut as you believe. I think the Court would wrestle for a long time how to treat the matter.

Again, though, I am assuming that there are factual findings.

David Schraub said...

All you're doing is replicating the situation in Hialeah (which also had these "factual findings" that purported to demonstrate the incompabitility of Santaria practices with modern American norms). It doesn't make this case any harder. Even granting some ridiculous facts about Islam -- basically, even if I was to accord legal significance to the paranoid delusions of a Pam Geller -- it still would be an exceptionally easy case.

Imagine a religion called NFism. NFism has five core tenets, known as the Code of NF.

(1) Belief in the almighty God, Lord NF

(2) Belief that the ideal governmental system is a theocracy led by the absolute authority of the High Priest of NF

(3) All adherents of NFism must wear a special red hat to mark them off as acolytes of NF

(4) NFites should try to refrain from contact with non-NFites whenever possible


(5) When necessary, NFites can steal from non-NFites to fund their religious activities.

Tennessee proposes a statute that bans anyone from practicing the Code of NF. It does so on the grounds that NFites seek to establish a religious theocracy (tenet #2) that is fundamentally incompatible with American democratic, liberal norms. Unlike with the case of Islam, we'll accept that all NFites believe these tenets literally, in the exact same way, and agree that their faith is incompatible with American democracy. Constitutional?

Obviously not. Tenet #1 is pure belief and can't be forbidden in any way, shape, or form (Torcaso). Tenet #2 is mere advocacy (Brandenburg) -- we could punish any actual conspiracy, but not merely the belief. Tenet #3 could be barred as part of a neutral, generally-applicable ordinance not targeted at NFism, but that's not what's going on (it isn't a generally prohibition on the wearing of hats, or even red hats, but one specifically targeted at NFism -- Smith). And Tenet #4 is distasteful, but part of everyone's associational rights (Dale).

That leaves tenet #5. The state obviously can punish robbery. But it can't punish religiously-motivated robbery differently than all other robberies. Smith requires that the state punish conduct it finds offensive generally and neutrally; it can't pick out specific religions for special regulations.

Practices which truly threaten America's democratic order tend to be ones which can be expressed in general terms. We don't need laws forbidding conspiring to overthrow the government to replace it with a caliphate, or Jewish theocracy, or Christian biblical state. We have laws forbidding conspiracy to overthrow the government, period -- neutral, generally applicable laws that comport with the First Amendment and the constitutional tradition.

So even if Tennessee redrew its statute to only focus on tenets #2 and #5 -- proscribing "anyone who actively conspires to overthrow the American government and replace it with an NFite theocracy, or anyone who robs, or conspires to rob, a resident of this state in order to fund the church of NF, is guilty of a felony", it'd still be unconstitutional as sect discrimination. What Tennessee can do is forbid "conspiring to overthrow the American government [and/or] robbery". It can't make it specially criminal for particular religions to do it, but not others (or treat others more leniently)

N. Friedman said...

I gather you have not been able to find my vaporized posts. I shall do my best to respond along the lines previously posted.

1. With respect to your comments about Islam and Ms. Geller... I do I know in detail what Ms. Geller says about any topic. I also do not care.

Regarding Islam, the topic was Sharia. Sharia is a body of law. It is rather similar in many, but not all, ways to Halakha.

While you do not seem to care about the religion, I think Islam has many very attractive attributes, including, most particularly, those elements of Sharia which, historically speaking, were great advances over the other monotheistic religions. However, much of Sharia is an anachronistic and thus, what may have been progressive is now retrograde.

2. Sharia, being a body of law, your items, other than #5, suggest you know essentially nothing about Sharia. I shall respond anyway.

First, I do not disagree with your assessment of the state of the law. However, having practiced law for 30 years and understanding that judges use and ignore precedent as much as they are guided by it, I can only say that you have told me what a lower court, following precedent, is likely to do.

However, if a court is invested in examining the difference between a rival body of law - not belief, as you mistakenly think -, the issue is much different. My example, which related to the practice of polygamy by Mormon was a case decided on a factual finding that polygamy and democracy cannot co-exist.

Were, in fact, there real evidence that any activity is really a grave danger to the country, I do not care what the precedent holds. The Supreme Court (or, quite likely, a lower court), if it believes such to be the case, would find a way to rid the country of what it perceives as that grave danger. We both know that the Court has done exactly that in the past when grave danger was perceived. That, not evolving senses of the law or morality, is also precedence, given that the Constitution is not a suicide pact.

As I noted, I tend to agree with troll_dc2's comment that we are dealing with something generally superfluous.

PG said...

"Sharia" is not a single monolith, but a body of legal thought that may be applied in certain respects and not others. For example, Tennessee might require that all divorces occur within the state's legal system and without inequality between the spouses, because sex inequality is contrary to TN's public policy. This could make a "sharia divorce" difficult.

However, these anti-sharia laws go far beyond that into barring Islamic finance. Is it really TN's public policy that financing can only take the form of an interest-bearing loan? How would this affect Christian sects who also hew to the old view that interest is "detestable to God and man, damned by the sacred canons and contrary to Christian charity"?

N. Friedman said...


You write that '"Sharia" is not a single monolith ...'

You are correct. However, that does not mean that it cannot be spoken of in corporeal manner.

With any human endeavor involving large numbers of people, there are factions, schools, etc., involved. Communism was not a monolith, yet, every single country it came to power in suffered from common traits and, in a great many, large numbers of people were needlessly slaughtered.

There are, as all who have studied the matter know, four major schools of Sunni jurisprudence and at least one major Shi'a school. While there are differences at the margins or in the details, on nearly all matters, there was more agreement than disagreement.

I do not favor outlawing any religion's body of law. At the same time, no one ought to advocate - although, of course, all of us have a Constitutional right to do so advocate (just like the loonie preacher in Florida had the right to burn the Koran, distasteful as that may be to Muslims and anyone else who respects the rights of others to their religious beliefs and texts) - that their body of law be the law of the land. It is a fact that the Brotherhood and many, if not most, of the fellow travelers that employ similar rhetoric, advocate making Sharia the law of the land.

More than likely, since the Court system has not, thus far considered (and, perhaps, never will consider), Islam the threat that majorities in some portions of the country see it as. So, more than likely, any such laws in question will be struck down, exactly as David says.

My view is that such laws should be struck down. However, my point stands, which is that the Court, if it were to see the matter differently or, if in fact, the matter comes to represent a larger threat than it now seems to be within the US, the Court will do what it thinks necessary to protect the public, ignoring or overruling precedent that it finds inconvenient.

Lastly, I do, however, believe that Islamism is, in its way, as great a threat as Nazism and Communism. And, while I do not favoring banning either Nazism or Communism despite the horrors such have brought or banning Islamism despite the horrors it has brought and still promises to bring, I take that threat as being serious and believe that, while we are not at a stage where banning things makes any sense, I can imagine circumstances where such might occur.