Wednesday Writs for 7/10
L1: In the 19th century, the Yoruba people of Western Africa were captured and taken to Cuba as slaves. The Yoruba had their own religious rituals and practices, but heavy exposure to Catholicism led them to incorporate certain of elements into their practice, such as saints. Their new melded religion was called Santeria, or “the way of the saints”. The adoption of the trappings of Catholicism allowed them to practice their religion covertly, and the two religions are still symbiotic today; many Santerians also attend Catholic Mass. Santeria, which is often associated with the mystical and animal sacrifice, is still practiced by tens of thousands of people in the United States, Cuba, Panama, Puerto Rico, Columbia, and Venezuela. Because of its proximity to those locations, Florida has likely the largest number of Santeria practitioners in the country.
In 1987, the Church of Lukumi Babalu Aye announced they would build a worship center in Hialeah, Florida, along with a school, museum, and cultural center. Their goal was to bring awareness of their religion out into the open. The residents of Hialeah began to express alarm at the Church’s intended presence, including its admitted intention to conduct its ritual animal sacrifices. At an emergency meeting, the City Council passed two resolutions in response to the Church’s planned presence. The first declared the city’s “commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety”. The second incorporated Florida’s state law which criminalized the unnecessary or cruel killing of animals. Soon after, the council enacted a resolution declaring the city’s opposition to ritual animal sacrifice and announcing its intention to prosecute anyone who partook.
Next, the city passed a rather absurd ordinance which not only prohibited the slaughter of animals for religious purposes, but also prohibited owning an animal for the purpose of killing and eating it, exempting businesses licensed to raise animals for slaughter. Following that, just to be as overt as possible that their resolutions were targeting a particular establishment of religion, the city passed two additional ordinances. One of these flatly prohibited animal sacrifice in Hialeah, and the other prohibited the slaughter of animals for food, except in areas zoned for slaughterhouses- with an exemption for “small numbers of hogs and/or cattle per week…” All ordinances passed unanimously, and provided for a $500 fine or 60 days in jail for violation.
Ernesto Pachardo
The Church, led by its high priest Ernesto Pachardo, filed suit against the city in federal court alleging violation of free exercise of religion in The Church of Lukumi Babalu Aye, Inc, v. City of Hialeah, our case of the week. The District Court held a nine day bench trial, at the conclusion of which it ruled in the city’s favor. The Court acknowledged that the ordinances were not religiously neutral, and that they were passed because of the Church. But the Court reasoned that the City’s intent was not to push the church out of town but to stop the ritual sacrifice of animals for any purpose. The Court also held that a regulation affecting a religion is not unconstitutional, if the conduct is a threat to “public health and welfare.” Finally, the Court did not think the inability to perform ritual sacrifice was a significant impediment to their practices.
The Court went on to weigh the city’s interests against the Church’s religious freedom, and found four “compelling” interests on behalf of the city: sanitation; prevention of animal cruelty; protecting the children from emotional trauma of witnessing sacrifices; and the interest of the city in keeping animal slaughter confined to areas zoned for it.
The 11th Circuit Court of Appeals affirmed the District Court in a single paragraph, dispensing with all reasoning set forth by the lower court and simply holding that the statutes did not violate the Constitution, without expounding.
When the case reached the Supreme Court of the United States, a much different result was reached. By a unanimous decision 1 via a scathing Kennedy-authored opinion, the Supreme Court reversed the lower courts and ruled the ordinances were unconstitutional violations of free exercise of religion. Citing Thomas v. Review Bd. of Indiana Employment Security Div., a 1981 decision, the Court stated that “[A]lthough the practice of animal sacrifice may seem abhorrent to some, ‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’” The Court found the stated reasons of the City, as adopted by the District Court, were without sufficient merit to defeat the “strict scrutiny” standard of religious freedom challenges; that is, the ordinances were not “narrowly tailored” to a “compelling state interest.”
The Court recognized that a law which impacts a religious order is not unconstitutional where the law is applied neutrally and has general application. The City contended that the ordinances were neutral and general, citing the words “whoever… unnecessarily… kills an animal”. But the Court wasn’t buying it:
“Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary. . There is no indication in the record that respondent has concluded that hunting or fishing for sport is unnecessary. Indeed, one of the few reported Florida cases decided under § 828.12 concludes that the use of live rabbits to train greyhounds is not unnecessary.”
The Court proceeded to dispense with each of the City’s pretextual justifications for their ordinances, which the justices recognized were aimed solely at prohibiting the practices of the Church.
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.
The Church is still in operation today in Hialeah.
L2: The biggest criminal law news of the week: the arrest of alleged pedophile/abuser of teen girls Jeffrey Epstein. Prosecutors opposed his release on bail with this thoroughly horrific letter to the court.
L3: Attorney General William Barr is recusing himself from the Epstein case, because he used to work for a law firm that once represented Epstein.
L3: In other creepy famous guy news, the case against Kevin Spacey may be losing traction, due to his accuser’s rumored refusal to cooperate with prosecutors.
L4: The DOJ regroups to continue its fight for President Trump’s census citizenship question, and tried to make some staffing changes to the legal team. Unfortunately, the judge was not impressed with their motion to substitute counsel.
L5: From across the pond, the story of the longest trial in British history: a libel suit by McDonald’s against two private citizens.
L6: Some developments in the case against Amber Guyger, who shot Botham Jean as he sat minding his own business in his own apartment, which she claims she thought was her own.
L7: Following a serious injury caused by a faulty dog collar sold on Amazon, a court in Pennsylvania ruled the online retail giant can be held liable for damages caused by unsafe products purchased through its website– a departure from most other decision.
L8: Montana is the most recent state to stop suspending driver’s licenses over unpaid court fines an costs. Maybe they should try a real deterrent — like hunting and fishing licenses, like they do here in West Virginia.
- Despite being a unanimous decision, the case produced one of the most fragmented unanimous opinions in SCOTUS history. From the headnote: “KENNEDY, J., delivered the opinion of the Court with respect to Parts I, III, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, SOUTER, and THOMAS, JJ., joined, the opinion of the Court with respect to Part II-B, in which REHNQUIST, C. J., and WHITE, STEVENS, SCALIA, and THOMAS, JJ., joined, the opinion of the Court with respect to Parts II-A-l and II-A-3, in which REHNQUIST, C. J., and STEVENS, SCALIA, and THOMAS, JJ., joined, and an opinion with respect to Part II-A-2, in which STEVENS, J., joined. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C. J., joined, post, p. 557. SOUTER, J., filed an opinion concurring in part and concurring in the judgment, post, p. 559. BLACKMUN, J., filed an opinion concurring in the judgment, in which O’CONNOR, J., joined, post, p. 577.
As much as I grouse about how the federal government, or states, violate the constitution, it still remains that the lowest levels of government are the ones most likely to do it, and L1 notwithstanding, the most likely to get away with it through a lack of challenge.Report
Yep. And before you even get to the level of constitutional violation, there’s just sheer ridiculousness. Case in point: My house sits on a corner lot. The city double-charges me for trash pickup based on the frontage for both streets. Wtf?? It’s not like we generate twice the trash.
Another example: A resident here wanted to build a wheelchair ramp fir their front entrance. The city denied the permit based on an ordinance requiring IIRC 15′ of clearance between a structure and the street edge, while there was at least 20′ of actual clearance. The city’s response was that according to their maps the street was in the wrong place. Sorry, no ramp.Report
That too. Both examples probably could be successful if taken to court, but is it worth it to bother?Report
The ramp thing was resolved apparently but it was an unnecessary hassle. I’m mystified as to how the trash thing has survived. It’s not like I’m the only homeowner affected; there’s four on every block, amirite? In slight fairness the second pickup on the cross street is kinda handy if/when you miss the first one.Report
If it were me, I would be willing to take a shot at it pro se. But while IANAL, I am the closest thing to it, and therefore not typical.
For that matter, I would be surprised if a phone call didn’t fix either of these in my town, but it is small enough that the staff is generally pretty responsive to ordinary citizens, as well as being small enough that I could probably go the political route, bitching at city council members. I would definitely try this being going the litigation route.Report
Yeah. I think people underestimate how much griping from a citizen can accomplish at the municipal level.Report
I think it depends on the municipality. The smaller, the more likely they are to be responsive. And, of course, there is the white middle class male privilege at play here.Report
Our old place was a corner lot. When the city rebuilt the street infrastructure in the neighbourhood, they funded the asphalt road surface out of general revenue as a general city-wide good, but imposed an additional property tax, on the basis of street frontage, for the sidewalks. The logic apparently being that walking infrastructure is a local good in a way that driving infrastructure is not (I think that this logic, at least as applied to our neighbourhood, is exactly backward but whatever).
Anyway, they charged us extra because of the corner lot. Like having a corner lot with extra sidewalk was some kind of personal benefit to us, rather than just meaning we had about triple the amount of snow to shovel in winter – a burden we were responsible for, for the benefit of everyone else passing through the neighbourhood.Report
Barr’s connection to Epstein is more than merely working at a law firm that did some work for Epstein. Barr’s father was the headmaster of a New York private school called Dalton. Dalton is among the most prestigious private schools in NYC. Barr’s father hired Epstein to teach calculus even though he was a 20-something college drop out. This led him to meet an executive at Bear Sterns and get an offer to be an options trader despite being a college dropout.* In the early 80s, Epstein departed from Bear Sterns and started his own money management company under mysterious circumstances.**
*To be slightly fair, this was in the 1970s when it was still possible (but very hard) to work your way up from the mailroom and become a trader without a college education. Plus Epstein is allegedly something of a math whiz.
**The big unknown is how much money Epstein has and how he earned it. His money management firm was always “billionaires only.” The big problem is that there were not that many billionaires in the early 1980s. Only 13 to 15 people were billionaires in 1982. Going by the Forbes world billionaire list, that number is 2,153 people. A lot more but they don’t all invest in Epstein. This leads to several theories about Epstein’s money, all of them criminal:
http://nymag.com/intelligencer/2019/07/how-did-jeffrey-epstein-make-his-fortune.html
Of course everyone is going to focus on blackmail.Report
It’s even closer than that.Report
This being a legal post, this is relevant.
I recall previous discussions where folks were OK-ish with universities having lax due process, because they weren’t law enforcement. Looks like the courts are not OK with that at all.Report
We had a few discussions about this sort of thing wrt to date rape some while back. It’s one thing to demonstrate that sex happened; it’s an entirely different thing to prove it was non-consensual given that there’s generally no witnesses or corroboration. I have absolutely no idea what an equitable legal process would look like that can actually hold a reasonable number of assailants to account.Report
It’s called *gasp* the criminal justice system. You may not have known but there are whole buildings with people dedicated to resolving things like this. There’s one in virtually every city and county seat.Report
Note Road Scholar’s stipulation that the process should “actually hold a reasonable number of assailants to account”.Report
Begs the question. How do you know who is an assailant if you haven’t proven it?Report
In any particular incident you very often can’t. Which is precisely the problem. If we assume (rightly IMO) that the vast majority of accusations are legit that still doesn’t tell us anything, beyond perhaps an assignment of probability, about the veracity of any particular claim.
The OJ Simpson – Nicole Brown case may be instructive here. For various reasons the official verdict, wrt to the standard of “beyond a reasonable doubt” was not guilty. But the subsequent civil case to the lesser standard of “preponderance of evidence” prevailed.
Failure to prove “beyond reasonable doubt” really isn’t the same as “didn’t happen”. The nature and circumstances of many, perhaps most, sexual assaults is such that, as opposed to most crimes, the alleged perp is easy to identify while the actual existence of a crime is very difficult to establish beyond the testimony of the accuser.
I don’t have a solution to this. I’m not arguing for the relaxation of the standards for criminal conviction or the presumption of innocence. I’m just saying that our current system and paradigm is ill-equipped for this problem.Report
You don’t need to know who specifically is an assailant to have a good estimate of how many assaults go punished vs unpunished.
We have fairly extensive studies suggesting ballpark figures for how many people have experienced sexual assaults at some point in their lives and/or in a given year.
In Canada the ratio of convictions to crimes for sexual assault is about 0.003. Is that low enough to say “that’s not reasonable”?
The question of how many individual assailants there are is less obvious, because we don’t know how many different people each assailant victimizes over their lifetime (and, if someone is eventually convicted of one crime after years of serial criminality, does that count as “holding them to account” for the lot?)Report
Just to piggy back, a class action has been filed against Michigan State for these kinds of things:
https://www.freep.com/story/news/education/2019/07/06/msu-class-action-lawsuit-student-sex-assault/1659615001/Report
I don’t recall the previous discussion, but the relationship between college and student is primarily contractual, and the college can expel or suspend the student without it being considered punishment. The linked piece seems to brush aside an important category error, and blame the Obama administration for a letter, the portion of which is linked merely describes colleges as having duties to respond to sex discrimination allegations with respect to the student body under the same legal principles as in the workplace. I’m not surprised that schools would have a duty to respond, and in some case they may handle it poorly.
The 7th Circuit case mentioned in the piece seems to be more about a public universities’ responsibility not to defame the student. To use the workplace analogy, at-will employees are generally fireable at will for no reason whatsoever, but if the employer tells other people a reason, he might have liability for that communication. The college making an official finding that he was guilty of sexual misconduct, which deprived him of the liberty to pursue a career through the ROTC program. I’m not sure how narrow this case should be read — it probably doesn’t apply to private schools since its a 14th amendment case; it may be limited to the specific, foreseeable consequence for his ROTC enrollment; and it may not apply to summary suspensions that are not draped in the false impression of a formal adjudication.Report
That’s probably a better read. It’s one thing to summarily expel a student for violating whatever policy the school has in place, it’s something else to publicly declare the student guilty of rape without due process.Report
L1: The establishment clause has always been read, popularly if not legally, to only apply to “respectable” religions. What qualifies varies over time and place. When we see people denying that Islam is really a religion, this is a nearly explicit attempt to move it outside the constitutional umbrella.Report
I agree, popularly but not legally, as you say. Clearly SCOTUS felt differently in 1993. The opinion here barely touched on the issue of whether Santeria was actually a religion. They spent about two sentences dispensing with that by stating summarily that it was, and would be considered as such if that had been in dispute, which it wasn’t.
Hopefully, our modern court would rule similarly if the question of Islam’s legitimacy as a religtion was before them.Report
Depends. There’s a legitimate argument to be made that Islam represents a social system beyond what the West would traditionally call a religion, and that argument can be made without any 1A hidden agenda.Report
Islam can represent a social system beyond what we in the US, at least, would customarily call a religion, especially for First Amendment purposes, but that is true of some approaches to Christianity, among other faiths.
I mean is it exactly the same as what the Founders were trying to avoid with the approach they devised to freedom of religion?
No.
Is it tremendously different from what inspired them?
Also no.
I think we benefit because we lack both even a vestigial state church and any serious tradition of anti-clericalism.Report
And it’s worth noting that the current position of religion and secularism in American law is the result of ferocious battles over the past couple centuries, and is still raging at this moment.Report
If we look at some of the more Puritan sects back at the founding…Report
Islam can represent a social system beyond what we in the US, at least, would customarily call a religion,
Wouldn’t more traditionally orthodox Jewish sects practices too, be a social system just like Islam? How could we conceptually differentiate one from the other? Both establish religious requirements that expand to all kind of daily activities beyond worshipReport
What pillsy said. Look at the innumerable religious colonies spread across 19th century America. Many of them were communistic–just like the Bible describes the earliest Christians. Most long since collapsed in ruin, of course, but the Hutterites are a successful example of Christianity as a social system. And more broadly, lots of Christians argue for Christianity as a social system in a looser sense. What if not this was the argument about gay marriage?Report
Many Protestant Americans believed that the First Amendment protects your right to be a Protestant. Its why they couldn’t really understand why Catholics and Jews would get upset about non-denomination prayer and non-denominational Bible reading from the King James Version.Report
L3: I watched The Usual Suspects recently. It’s still a nearly-perfect movie, but I couldn’t get past Spacey. That means I lost Se7en, Beyond the Sea, 21, and the second half of the first season of Wiseguy.Report
Yeah. The Usual Suspects is something of a double whammy because it was also directed by Bryan Singer.
I also rue the loss of The Ref.Report
I don’t think unsavory knowledge about a director would take me out of a movie, the lone exception being Jeepers Creepers. It’s hard to get past a movie about a monster that stalks high school kids when the writer/director is a monster that stalks high school kids.Report
Yeah, of all the celebrities revealed to be scumbags, Spacey was the most disappointing for me. Cosby second.Report
I’ve considered a service where, when a celebrity is revealed to be Tainted By Sin, we have some jabroni actor re-do all their best stuff so we can enjoy it without reservation. Some no-count white dude or girl-factory chick, someone nice and soft and safe and totally unknown, and we pay them to stay unknown after they’re done so they don’t go around doing anything unsavory and wrecking it all over again.
I mean, shit, people don’t know who Alfred E. Neumann is, you think they’re gonna know that Cosby did that “Noah” bit if someone else covers it?
Perfect name for the thing, too, we’ll call it “whitewashing”…Report
Some guy is going to have to take a lot of stunt falls for the Naked Gun movies.Report
L6 – I find it interesting that the article asserts as fact the statement Guyger shot and killed the Saint Lucia native in his own apartment in September 2018 after mistakenly thinking he was an intruder in her apartment.
Isn’t that, like, the whole thing the trial is about, that is alleged by the defence to be true and by the prosecution to be false?Report
Which brings another issue to mind – It doesn’t matter if Botham was, at the time he was killed, building a bomb or praying for world peace. Guyger has never argued that she entered into what she knew was not her apartment with the intention of interrupting Botham’s ongoing criminal activities. She claims she always believed she was in her apartment, and that Botham was an intruder. So his criminal or sexual history, good or bad, should be completely irrelevantReport
Are they going to go for Qualified Immunity anyways?Report
Here’s an interesting story. I’ll give the headline: “Jeffrey Epstein’s deal with Alexander Acosta wasn’t out of line with what I have seen”
I bring this up not to defend Acosta (HANG HIM HIGH!) but to point out that if the lede ain’t buried here (and, as far as I can tell, it ain’t), then we’ve got a lot more of this sort of thing going on than we thought and there are trials we’ll need to hold after we hold the Epstein one.Report
Her logic is…unpersuasive.
She tells stories of how prosecutors repeatedly made willful choices not to prosecute, and judges made willful choices to hand down lenient sentences, then concludes :
“…legislators must invest the time and resources needed to combat sex trafficking in a more meaningful way, first by analyzing and addressing the barriers to successful prosecution. ”
Yes such barriers as Acosta, who had plenty of choices and power to pursue them, but willfully chose not to.Report
Ken White was less understanding. He did admit that prosecutors are not used to having defendants go after them and their staff personally, and it’s something that can get one a bit flustered, but it’s not unheard of and should not have caused Acosta to offer or sign off on the deal.
He suspects the deal was initiated higher up the food chain, and Acosta chose to fold like a damp rag rather than oppose it.Report
If *THAT* is true, I want to follow the food chain.Report
One of the crazy people I follow on twitter linked to this story on The Daily Beast.
Here’s the interesting paragraph:
That *SOUNDS* too good to be true?
But I want to wait and see the list of names on the DVDs before I conclude that it’s obvious wish-fulfillment bullshit.Report
Oooooh, a CIA save!
Wait, WAIT! Let me go pop a big bowl of conspiracy theory popcorn. This is gonna be good.Report
Here’s what another crazy person said:
Which is an interesting take.Report
Come on, is it likely that the Trump vetting crew is dumb enough to fall for Acosta just blaming it on some vague “intell people told me to back off.” They would have to be complete idio…………Wait….nevermmind.Report
From later on in the same article:
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Umm, so. My first guess is Acosta is throwing out some weak ass excuse for the sweet deal that low info voters/presidents will buy without thinking. Now it is possible someone did say that to him back in the day. If so i’d want to hear from other people on the Acosta team to verify that. Then i’ll start to believe there was a real “spook who said to back off.” Until then it seems like part of his BS cannon to get out from under pressure. Even then lets see some sort of verification from someone in the intell community or in Gov at the time this actually occurred. Because there are allready obvious reasons why Acosta gave him a sweet deal: he was rich and powerful with rich and powerful friends. We don’t need “intelligence” to see why it happened. Rich and powerful is the simplest explanation so far until there is more evidence.Report
My first guess is Acosta is throwing out some weak ass excuse for the sweet deal that low info voters/presidents will buy without thinking.
It’s one of those things that requires low info voters to not think.
Thinking will get you to “wait, intelligence *KNEW*?!? AND WANTED IT TO KEEP GOING?!?”Report
A bit more banal of an explanation for Epstein. But more likely than a lot of the “crazy” stuff.
https://qz.com/1661999/jeffrey-epsteins-ex-mentor-accuses-him-of-fraud/Report
Explanation for what?
How he was able to tapdance through investigations?
Because the article you linked to doesn’t explain that.
It merely explains his millions.Report
It explains how he got billions and the billions explains pretty much everything else. How he got his money is the big question about him since that is where he got his power from and nobody has really understood that.
Just to be more long winded/clear. Until i see plenty of evidence i doubt he was running some giant international prostitution/ child sex ring. That is juicy and salacious and like most of those kind of stories wrongish. I’m sure he threw wild parties with plenty of young women where the gross old men could find willing partners. International sex rings: let me see some evidence. It’s not like having powerful friends and giant bags of money can’t explain everything about him. That has always been good enough to get special treatment from the law.
I’m also assuming he was good with a line of bull shit and had some charisma which is usually enough to fool plenty of people especially those who want to be fooled.Report
Well, if the Daily Beast article (which was written by the person who wrote the 2002 Vanity Fair piece) doesn’t qualify as evidence, I have no evidence to offer.
I do hope that more information becomes public, though.Report
Acosta was asked about the “intelligence” thing at a presser.
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Curiouser and curiouser.
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