"Law without (what I call) religion degenerates into a mechanical legalism. Religion without (what I call) law loses its social effectiveness... it is a dialectical synthesis, a synthesis of opposites." - Harold J. Berman, The Interaction of Law and Religion

Saturday, March 17, 2012

Counter-Radicalization: Excessive Government Entanglement?

Note:  This is the second part of a series on counter-radicalization and the establishment clause.  (See part one.)  We begin our analysis with the Lemon test.

The Lemon Test

 The four counter-radicalization policies we review are:
  1. U.S. military produced a “directory” for prisoners that juxtaposes “moderate” and “radical” Koranic passages “in order to refute detainees when they use certain passages to support a radical interpretation of Islam.”
  2. U.S. State Department sponsored overseas trips for moderate American imams to meet with imams from conservative Muslim countries.
  3. Members of President Obama’s staff have expressed their opinion that jihad refers to inward purification rather than bloody conflict.
  4. Ohio’s state-sponsored imam council.
The Court in Lemon v. Kurtzman isolated three categories of activities that violate the establishment clause. If a challenged law avoids these categories, then the Court will likely uphold it. Lemon v. Kurtzman, 403 U.S. 602 (1971).

The Court will likely uphold the law if (1) it has a secular legislative purpose; (2) its principal or primary effect is one that neither advances nor inhibits religion; and (3) the law does not foster an excessive entanglement with religion. Lemon at 612-13.

Thus in Lemon, the Court struck down a state policy that reimbursed religious schools for some of the costs of teaching secular subjects that the state prescribed. Salary reimbursements were allowed only for clearly specified secular subjects and were limited to 15 percent of the costs.  Id.

Such a scheme, reasoned the Court, inevitably implicated the third prong of the establishment clause - excessive entanglement between church and state. State officials would have to constantly monitor reimbursed teachers to make sure they only taught secular subjects, not religious subjects. This level of engagement between church and state is precisely the kind of excessive entanglement that the establishment clause outlaws, the Court said. Id. at 627

Entanglement Prong

We first test counter-radicalization under the third prong of the Lemon test – excessive entanglement. We picked entanglement to review first because it presents the hardest challenge to some of the counter-radicalization policies. We will address the secular purpose and advancement of religion prongs in future posts.

The Court has found entanglement in several forms, three of which are particularly relevant in our context: (1) When state authorities cooperate closely with religious authorities in promoting religious education; (2) when governments perform distinctly religious activities; and (3) when governments delegate decision-making power to individuals apparently chosen according to religious criteria. We will consider each in turn as it relates to counter-radicalization.

      (a) Close Cooperation

Three of the four counter-radicalization polices probably employ unconstitutionally close cooperation between state and religious authorities. Close cooperation between state and religious authorities in promoting religious education is often unconstitutional. People of State of Ill. ex rel. McCollum v. Bd. of Ed. of Sch. Dist. No. 71, Champaign County, Ill., 333 U.S. 203, 209 (1948).

In McCollum, a local school board offered a program for students to attend religious studies classes. The classes were held on school grounds and taught by qualified Jewish, Protestant, and Catholic teachers. Those religious teachers were not paid by the school, but they were approved by its superintendent. A parent of one student challenged the program as a violation of the establishment clause. Id. at 209-211.

The Court agreed. Writing for the majority, Justice Black declared that this was a quintisenntial establishment clause violation - in part because the program entailed close state-religious cooperation;  the state's compulsory public school attendance laws in effect drew in students for religious instruction.  Id.

Three of the four counter-radicalization policies implicate such state-religious cooperation.
  • Prisoner Directory. The U.S. military likely collaborated closely with Islamic scholars to compile its Koran directory for prisoners. If the cooperation is ongoing, this may entail cooperation on religious education as extensive as in McCollum.
  • State Department Imam Tour. The U.S. State Department likely collaborated with American imams about what they would say to their overseas audience. Same point as above – may employ close cooperation between state and religious authorities on religious education.
  • Jihad Lecture. President Obama’s counterterrorism advisor John Brennan may have consulted with imams to develop his stump speech about the true meaning of jihad. (Admittedly, the third point is a bit of a stretch – Brennan, a CIA veteran and fluent Arabic speaker, knows enough to have arrived at his own conclusions on jihad.) Again, same point as above.
Thus, the above counter-radicalization policies may have crossed the line with respect to excessive entanglement. Much would turn on facts that we don’t yet know.

         (b) No Business of Government’s to Perform Distinctly Religious Functions.

Two of the four counter-radicalization policies involve the U.S. government performing distinctly religious functions, which necessarily oversteps the excessive entanglement prong of the Lemon test, thereby making them unconstitutional. A government violates the excessive entanglement prong of the Lemon test by engaging in distinctly religious activity. Engel v. Vitale, 370 U.S. 421, 425 (1962).

In Engel v. Vitale, the State Board of Regents of New York had adopted a nondenominational prayer to be recited in schools. The Court held that the prayer’s use violated the establishment clause.

Part of the explanation why is that “it is no part of the business of government to compose official prayers ...to be recited as part of a religious program. Id. Having a government perform distinctly religious functions involves excessive entanglement with religion, thereby violating the establishment clause.

Two of the four counter-radicalization policies implicate such government activity:
  • Prisoner Directory. The U.S. military has no business compiling a directory of moderate Koranic verses for prisoners’ use – just as it cannot write prayers for schoolchildren.
  • Jihad Lecture. U.S. officials have no business opining on the true meaning on jihad. It is an inherently religious function – like composing prayers.
(c) Delegating Decision-Making Power to Individuals Apparently Chosen According to Religious Criteria.

Ohio may have delegated decision-making power to its newly-formed imam council, violating the establishment clause.  A government may not delegate its decision-making power to individuals apparently chosen according to religious criteria. Larkin v. Grendel's Den, Inc., 459 U.S. 116, 127 (1982). Larkin involved a statute that effectively granted veto power to local churches over the issuance of a liquor license to a business within five hundred feet of their property.  Id.

The Court struck down the statute. By delegating the decision-making authority to religious organizations, the state legislature had thus “enmeshe[d] churches in the processes of government.” Larkin at 126.  The Court pointedly adds, “few entanglements could be more offensive to the spirit of the Constitution.”  Larkin at 127.

One of the counter-radicalization policies potentially trips this factor – Ohio’s imam council. The Ohio Homeland Security’s community engagement office established an imam council to invite dialogue between state officials and the Muslim community. The imam council would not involve excessive entanglement found in Larkin if it performs purely an advisory role. It would violate Larkin, however, if the imam council had some sort of decision-making authority.

  • The prisoner directory probably involves excessive entanglement.
  • The overseas trip and the jihad lecture could involve excessive entanglement. We would need more facts about the extent to which U.S. officials conferred with imams in each case.
  • The imam council probably does not involve excessive entanglement.

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