Category Archives: Religion

Free Speech or Treason: Finding the Correct Standard for Material Support

Free Speech or Treason: Finding the Correct Standard for Material Support

Abigail Castleberry

            On February 13, 2004, Dr. Tarek Mehanna returned to his home in Boston after a ten-day trip to Abu Dhabi and Yemen. Prosecutors pointed to this trip in arguing that Mehanna provided himself as personnel to Al-Qaeda, though no proof of actual contact was presented to the jury. Later in 2005. Mehanna, at the request of an acquaintance, provided English translations of Arabic-language materials for a website. Mehanna also disseminated certain Arabic texts raising points of Islamic doctrine and opposition to the United States’ actions in Iraq. No evidence was presented at trial showing that any of this material was solicited by Al-Qaeda, and most of the evidence pointed to Mehanna’s actions being an expression of his own personal views. Mehanna was arrested in November of 2008, right before departing to Saudi Arabia for a clinical pharmacy position. After Mehanna refused to serve as an informant, the government filed terrorism charges. Mehanna was convicted of providing “material support” to a terrorist organization, the charge most often used in federal terrorism cases. [1] The statute forbids four types of material support: training, expert advice or assistance, service, and personnel. [2] Prosecutors argued that Mehanna’s translations and postings provided a service to Al-Qaeda. Mehanna was convicted and sentenced to seventeen years, and he appealed to the First Circuit  Court of Appeals which affirmed the conviction. [3] Mehanna has applied for certiorari from the United States Supreme Court.

The foundation of the case is the meaning of Holder v. Humanitarian Law Project.[4] In Humanitarian Law Project, the Court held that the material support statute could constitutionally prohibit “coordinated” speech such as the direct, interactive teaching. [5] Furthermore, the court defined “service” to “cover advocacy performed in coordination with, or at least at the direction of, a foreign terrorist organization.” [6] However, the Court made it clear that individual advocacy could not be covered by the statute.[7] Humanitarian Law Project did leave open the exact definition of “coordination,” noting that the “’gradation of fact or charge would made a difference as to criminal liability,’ and so adjudication of the reach and constitutionality of the statute must await a concrete situation.”[8] Mehanna claims his case is the ideal for testing the contours of the “material support” statute.

The essential question in this case is how broadly or narrowly the Court will define “coordination.” According to the government’s argument, speech is unprotected when the purpose is in support of the enemy. Therefore, moral support is essentially “coordination” according the government. Such a broad definition likely violates Mehanna’s First Amendment rights. However, there are multiple standards in defining “coordination,” and depending upon the standard that is applied, the outcome of Mehanna’s case could potentially have drastic variations. The standard asserted by the government is likely too broad and difficult to apply. Determining whether speech is in support of the enemy would be an extensively subjective analysis. Under this standard, even a mild condoning of the enemy’s action could be construed as aiding the enemy. Therefore, under this standard, Mehanna’s conviction would likely stand. Though Mehanna had no direct connections with Al Qaeda, his translations likely were read by members and potential trainees. Therefore, the postings and translations would meet the government’s standard for coordination.

The best standard, and the one that likely adheres to the wording of the material support statute, would require actual contact and dealing with the enemy. This standard is supported by the Humanitarian Law Project in which the Court stated that individual advocacy could not be construed as falling under the material support statute. Unlike the government’s standard, requiring contact and dealing with terrorist groups is beneficial on two fronts. First, the standard respects the First Amendment. Those who voice an opinion in support of a terrorist group’s actions will be protected. However, the standard also follows treason jurisprudence by supporting the proposition “trafficking with the enemy, in whatever form, is wholly outside the shelter of the First Amendment. Congress may make criminal any type of dealing with the enemy which in its judgment may have the potentiality of harm to our national interest.”[9] Furthermore, the narrower application of the material support statute would focus law enforcement resources in pursuing individual who pose an actual threat.

The Court is waiting on arguments from the government before deciding to grant certiorari. Even if the Court refuses to grant certiorari, the issues surrounding this case pose a fundamental question on what our nation sees as treason. At a time when America faces new and unpredictable threats, the Court needs clear precedent in guiding law enforcement about the rights of citizens in this new environment.

[1] 18 U.S.C. § 2339B (2012).

[2] Id.

[3] United  States v. Mehanna, 735 F.3d 32 (1st Cir. 2013).

[4] 560 U.S. 1 (2010).

[5] Id. at 2709.

[6] Id. at 2709-10.

[7] Id. at 2709.

[8] Id. at 2722.

[9] Chandler v. United States, 171 F.2d 921, 939 (1st Cir. 1948).

Expansion of Religious Freedoms or Justification for Discrimination?

Expansion of Religious Freedoms or Justification for Discrimination?

Katherine Reeves

For the past few weeks, the United States’ media has yet again focused on laws presented by the Arizona Legislature.  Senate Bill 1062[1] has created uproar across the nation, and many cite to this media coverage as the reasoning behind Governor Jan Brewer’s veto of the bill.[2]  Supporters say the bill is solely about religious liberty while those in opposition contend the bill is directly “anti-gay” legislation although there is no mention of sexuality in the text.[3]

As the wave of “gay rights” sweeps our nation, the question of the extent of religious freedom has again come to the forefront as a hot political issue in our society. It is important that we take time to look back at the history of both religious freedom and same-sex couples’ rights in American laws.  Additionally, other areas of civil liberty have offered to limit the scope of religious freedom. The Supreme Court has acted as a referee in many of these cases and offers some guidance as to the stance of the Federal Government on the balance between civil and religious liberty.

The proponents of Senate bill focus on the importance of legal protection for religious beliefs in the United States. The concept of religious freedom dates back to the colonial times of the future United States and was so credited as one of the reasons for the break from the English government.[4]  Although the country was primarily Christian, the framers of the United States Constitution formed the “free exercise” clause under the First Amendment broadly to include all religion.[5]  The Supreme Court has interpreted the free exercise clause on many occasions beginning with deeming it a strict scrutiny Constitutional issue. In Sherbert v. Verner.[6] In 1990, however, the Court denied religious exemptions from “neutral laws of general applicability.”[7] Many states reacted to this decision by enacting laws offering expanded protections for freedom of religion.[8]  Additionally, Congress took action by passing the Religious Freedom Restoration Act of 1993[9] but this legislation was short lived as the Supreme Court ruled it unconstitutional under the Fourteenth Amendment.[10] The limited protection offered by the Federal Government makes state protections more important.[11]

Turning to the opposition’s view of the bill, we must look to the history of laws relating to homosexuals.  The “gay rights movement”[12] has gained significant attention on the topic of marriage equality, but how did we get to this point? Although there have never been explicit laws against being gay, related laws caused legal recourse for being homosexual.[13] Stoumen v. Reilly, in 1951 spurred the beginning of restricting state discrimination of homosexuals where the Court said that a liquor license could not be withheld simply because the business served homosexuals.[14] Fast forward nearly half of a century (during which our system evolved dramatically), the Supreme Court ruled a Colorado constitutional amendment banning any anti-discrimination laws protecting homosexuals as unconstitutional.[15] That decision paved the way for subsequent Supreme Court cases which invalidated many sodomy laws and struck down Section 3 of the Defense of Marriage Act.[16]

The gay rights at odds with religious freedoms covered in the recent Arizona bill are more closely related to the topic of discrimination in private business.  Religious freedom in business ownership and operation has recently been in the spotlight due to contraceptive coverage in mandated health coverage for full time employees. Currently pending before the Supreme Court, is a case challenging this portion of health coverage based on the religious beliefs and practices of the Hobby Lobby Corporation.[17] The question presented under this case is whether the federal government’s mandate of contraceptive coverage violated the Religious Freedom Restoration Act of 1993 (RFRA)[18] that states that the government “shall not substantially burden a person’s exercise of religion.”[19] There is a distinct separation between the recent Arizona bill and this case: the Hobby Lobby case is regarding federal legislation effecting religious freedom. This case may offer guidance, however, in evaluating the fallen bill because the supporters of the vetoed Arizona bill claim that the broad wording of the bill was aimed at preventing issues of the state forcing businesses to participate in practices that may infringe on their religious beliefs.

In 1999 Arizona became one of the many states to take the protection of religious liberties into their own hands and enacted the Free Exercise of Religion Act (FERA).[20] Senate Bill 1062 is cited as an extension of the FERA by expanding the original definitions of “exercise of religion,” “person,” and “state action.”[21] The bill intended to expand the protections for religious individuals from state action that may burden religious beliefs. Additionally, the bill provided for injunctive and declarative relief in the incident of “claim or defense in a judicial proceeding” on the basis of burden on their religious beliefs.[22] In short, this provision allows individuals to file suit when they believe any state or local laws are violating religious rights, including any anti-discrimination laws.[23]

Although Arizona does not currently have a statewide law banning discrimination on the basis of sexual orientation, several local governments have passed such laws.[24] It is due to these anti-discrimination laws, that the Arizona legislature presented Senate Bill 1062. Their actions were directly in anticipation of legal issues due to the difficult relationship “between the freedom of religion and the right not to be discriminated against on the grounds of sexual orientation.”[25] Governor Brewer indicated her opinion of the bill, in her statement after her announced veto, by saying that the bill had “the potential to create more problems than it purports to solve.”[26] Brewer was referring to the lack of conflict with the anti-discrimination laws in Arizona; however such conflict has recently occurred in other states. In August 2013, the Supreme Court of New Mexico affirmed that a photography company violated anti-discrimination laws by refusing to photograph a customer’s same-sex wedding.[27] Although the issue has not arisen in Arizona, it is important to recognize the intent of the legislature to avoid such conflict of religion and discrimination laws in the courts.

This is not an issue that the United States is unfamiliar with, as feminism presented many of the same issues.[28] It is evident that the issue of women’s rights was more socially challenged than religiously challenged; therefore, anti-discrimination laws on the basis of gender did not face freedom of religion adversity this severely. Additionally, the United States legal system has faced many issues on the topic of anti-discrimination laws on the basis of race. Although it is commonly known that discrimination based on race and gender is still common, hindsight shows us the necessity of such laws.

The issue before us is about the expansion of religious freedom’s effect on discrimination against homosexuals. The extent of power of individuals and businesses to make decisions based on their religion is not only a question in Arizona, but throughout our country.  So what do we value more as Americas: the freedom of religion or the freedom to not be discriminated against? Although there is no easy answer, Senate Bill 1062’s veto indicates the latter.

[1] SB. 1062, 51st Leg., 2nd Reg. Sess. (Az. 2014).

[2] See, Warren Richey, Was vetoed Arizona bill misrepresented? What constitutional scholars say., The Christian Science Moniter, Feb. 27, 2014,; Timothy Egan, Arizona did us all a favor, New York Times, March 1, 2014,; See also, Tammy Bruce, Why the veto of Arizona’s religious freedom bill is alarming,, Feb. 28, 2014,

[3] See, Richey, supra note 2.

[4] See generally, Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1, 3 (2008)

[5] U.S. Const. amend I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise.”)

[6] 374 U.S. 398 (1963).

[7] Employment Division v. Smith, 494 U.S. 872 (1990).

[8] David H.E. Becker, Free Exercise of Religion Under the New York Constitution, 84 Cornell L. Rev. 1088, 1093 (1999)

[9] Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. §§ 2000bb to bb-4 (1994)), declared unconstitutional by City of Boerne v. Flores, 521 U.S. 507 (1997).

[10] Becker, supra note 8, Becker.

[11] Id.

[12] See generally, Patricia A. Cain, Litigating for Lesbian and Gay Rights: A Legal History, 79 Va. L. Rev. 1551, 1553 (1993)

[13] Id at 1564-1565

[14] 234 P.2d 969 (Cal. 1951).

[15] Romer v. Evans, 517 U.S. 620 (1996).

[16] Lawrence v. Texas, 539 U.S. 558 (2008); U.S. v. Windsor, No. 12-307 (U.S. June 26,2013).

[17] Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013) cert. granted, 134 S. Ct. 678 (2013) (No. 13-356, 2013 Term; renumbered No. 13-354, 2013 term)

[18] Religious Freedom Restoration Act of 1993, PL 103–141, November 16, 1993, 107 Stat 1488

[19] Id.

[20] Ariz. Rev. Stat. Ann. § 41-1493.01 (West)

[21] SB. 1062, 51st Leg., 2nd Reg. Sess. (Az. 2014).

[22] Id.

[23] Richey, supra note 2.

[24] Id.

[25] Megan Pearson, Religious Claims vs. Non-Discrimination Rights: Another Plea for Difficulty, 15 Rutgers J. L. & Religion 47 (2013)

[26] Richey, supra note 2.

[27] Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013)

[28] See generally, Pearson, supra note 25.

Who Should Pay? American Birth Control and The First Amendment

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

“I almost threw up,” was a remark by current presidential candidate Rick Santorum given in response to a speech by John Fitzgerald Kennedy, the 35th President of the United States. On September 12, 1960, Kennedy’s speech outlined his opinion on the distinct roles that the church and state should play in America. Kennedy’s speech came in response to skepticism and disdain projected at him because of his Catholic faith. Public counter arguments undermining previous President’s views by presidential hopefuls and political ideologists are not uncommon. It is common for these opposing statements to be made for political gain, political distancing, or simply because of honest disagreements. This is especially true when a political stand has been taken or when a new piece of legislation is proposed. A debate has been ignited and statements such as Santorum’s have been prevalent due to President Obama’s recent birth control policy.

The new policy, which was adopted earlier this month as part of Obama’s health reform law, the Patient Protection and Affordable Care Act of 2010, requires most employers to provide health insurance coverage for women’s contraceptives free of charge. This birth control aspect of the law caused an immediate and swift backlash, especially from a great deal of Catholics. A large percentage of Catholics do not believe in women’s contraception at all and feel the law unjustifiably and unconstitutionally forces their hand.  Many Catholics, especially company owners and others in positions of power, find a problem with the law in that it essentially forces them to insure employees with respect to something they do not personally believe in. Even Vice President Biden, a Catholic, was vocal about the controversy and said the presidential administration needed to reassess this component of the reform law “to make sure that we do not force the Catholic Church to do something that they fundamentally think is inconsistent with their religious beliefs (sic).”

Obama made a “compromise” after national pressure from the Catholic Church and a subsequent reassessment of the reform law. In specific situations the compromise requires the insurance companies to cover the cost of birth control coverage for employees, hence eliminating the employer’s obligation.  The compromise is applicable to religiously affiliated institutions, including “Catholic-run hospitals and universities that oppose artificial contraception.”  The compromise made it so the law does not apply to places of worship, including, churches, synagogues and mosques. The compromise did a service to Obama’s administration by appeasing a faction of the Catholic community and allowed the administration to make strides toward weathering the controversy.

However, the contrasting sides of the argument are stark and the debate with respect to the legality of this birth control policy continues. Naturally, litigation is expected to occur when religious beliefs, new legislation and the rights of a constituency are at stake. Subsequently seven states, two private citizens, two religious nonprofit organizations, and a Catholic school have all joined in on a lawsuit against Obama’s policy. The lawsuit asks a federal judge to rule the law unconstitutional and enjoin the government from enforcing the requirement.

Nevertheless, many Catholic leaders, evangelical groups, Republicans, social conservatives and even a minority of Democrats have rejected this compromise. They argue that this law still “violates religious freedom under the U.S. Constitution and would cause economic hardship for self-insured institutions.” Archbishop Thomas Wenski, who heads the Catholic archdiocese of Miami, says this was a unilateral decision made by Obama administration and the compromise was no more than a “smoke screen” to calm down the controversy. He argues that his problem with the birth control policy is that it forces employees of Catholic charities, hospitals and universities to receive birth control coverage, hence affecting one’s “religious freedom.” When pressed about the idea of shifting the burden to the insurance companies, Wenski acknowledges it, but does not feel it solves the religious liberty problems or is a compromise at all. He points out that self-insured dioceses and charities having to cover their employees would be violating their religious principles. Essentially, Wenski questions the policy considerations when an insurance company is not the insurer.

The question then becomes who is responsible. Wenski and other Catholic Church leaders with similar views believe the employers will eventually be held responsible to cover this gray area in the birth control policy. Additionally, some states and religious groups that are not covered under the religious compromise are suing because they say the policy violates their freedom of conscience and the Religious Freedom Restoration Act (RFRA) of 1993. John Witte, Jonas Robitscher Professor of Law at Emory University, says RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest. He also says “those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim.” Many members of Congress seem to agree.

Senate Republicans recently proposed legislation that would allow employers and insurance companies to opt out of portions of the reform law in which they found morally objectionable. Members of Congress argued the birth control requirement under the reform law violates the First Amendment’s guarantee of religious freedom by “forcing insurers and employers to pay for contraception for workers even if the employers’ faith forbids its use.” The measure was narrowly defeated by Senate Democrats.

Senator Barbara Boxer (D-California) was vocal in her opposition to this Republican-led legislation. Her rationale? The proposal gave insurance companies too much discretion in their dealings with employees and this insurance company opt-out clause could potentially be dangerous. She said Congress has “never had a conscience clause for insurance companies” because the majority of them do not “have any consciences.” She went on to say that this would give insurance companies yet another method to deny coverage for medical treatment, virtually undermining the objectives of the reform law.

It is not uncommon for a policy such as this one to cause disagreements about its constitutionality, however, other factors from a public relations standpoint has contributed to heightening the debate.

Aside from the substantive law, many in the public, church and in governmental capacities do not agree with how the decision to move forward with the policy was handled. Wenski pinpoints the lack of collaboration on the act as one of his biggest contentions. He states, “The White House didn’t consult the bishops.” The U.S. Conference of Catholic Bishops President, Timothy Dolan of New York, expressed his view on the necessity of an open dialogue between the Obama administration and his faction of the Catholic Church, calling the proposed birth control compromise unacceptable. Dolan feels that an acceptable solution can be made if everyone has a seat at the table.

However, the public feelings towards the law are telling a different story despite church leaders’ calls for increased collaboration and the unfavorable characterization it has received from a legal and ethical standpoint. Polling has indicated that the majority of the public favor requiring birth control coverage for employees of religiously affiliated employers. Joint polling by CBS News and The New York Times from February 8th-13th found that 61% support Obama’s birth control policy, while 31% oppose it. Additionally, Thomson-Reuters News has reported that polling of 1,500 adults found that 63% of Americans overall supported the policy, according to the data. It also has to be encouraging to the Obama administration that polling has found that Catholics support the requirement at a similar rate as all Americans. Even the initial compromise of allowing religious institutions to opt out of the birth control policy was met with praise from a faction of Catholics.

The compromise instantly garnered praise and excitement towards the Obama administration from the Catholic Health Association, a substantial association that oversees some 600 Catholic hospitals. The head of this association, Carol Keehan, said that the administration “listened to us and they heard the things that we were most concerned about, and we’re pleased.” She explains that women get the health care they want, the church does not have to pay for or endorse birth control, and everyone wins. This is a feeling attested to by Rev. Thomas Reese, a Jesuit priest at Georgetown University’s Woodstock Theological Center. Reese believes that the religious liberty issue went away when the birth control compromise ensured that religious groups do not have to pay for or recommend birth control coverage. He further rationalizes that “most Catholic women want, and use, birth control.”

The Obama administration hears the debate and is actively defending their decision. When responding questions about the possible legal ramifications of the policy, Secretary of Health and Human Services Kathleen Sebelius stated the administration had their legal department “look at a whole host of legal issues.” To minimize litigation and compromise further with the opposing side, the administration has said they are currently crafting a plan to present to self-insured employers that have religious objections to the policy. Having the majority of America’s support in addition to working towards compromising with self-insured employers has put Obama in a strong political position. If polling is accurate, he is on the winning side of the debate regarding contraception.  This is great news for his political standing, however, the birth control policy has to withstand a barrage of scrutiny to remain effective.

This topic is going to be heavily litigated and both sides have compelling arguments.  However, the Obama compromise is a substantial step in the right direction. It is hard to make an argument that your religious freedom is being violated when you (the employer) are taken out of the equation. What argument can be made if an employer does not have to or is not expected to even discuss birth control with their employees is not readily known. It is hard to see where a violation of rights of potential employers comes from if the burden of insuring is now placed in the hands of the insurance companies.

Furthermore, the argument that Wenski makes that the policy is unconstitutional because “it forces employees of Catholic charities, hospitals and universities to receive birth control coverage” is unlikely to stand up. Simply because the employees have access to this right does not mean they have to use this right. President Obama is not forcing anyone to use the birth control; he is just making it accessible to the individuals that choose to use it. It would most likely be hard to convince the public or a court that a piece of legislation is unconstitutional because it provides employees additional coverage and the decision whether to use is left to their discretion. Nevertheless, there is a valid objection that can be made about self-insured employers. The administration has not rectified the situation and this could be problematic. A religious freedom argument could be made if self-insured religious organizations are asked to pay for something they do not believe in. The President must know this and judging by the initial compromise, it is easy to believe he will come up with a fair solution to please all interested, objective parties.


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