Tag: Religion and the Law

It’s a pretty obvious way to think about it, but I thought it might be the sort of obvious that was still worth making explicit:

Imagine a right-wing advocacy group is very upset about a mosque, because it thinks one of the imams is a supporter of anti-American Islamic extremism.

They go to the mosque in the middle of services, and start shouting “the time for Judgment had come,” blowing whistles, chanting “Muslim Extremists Out!,” “Remember 9/11!,” and the like. They approach the imam and congregants in a way that some perceive as menacing, and loudly berate the imam with questions about jihadism and Muslims wanting to implement Sharia.

They chant, “This ain’t God’s house. This is the house of the devil.” They approach a female congregant, who is there with two young children, and demand to know in an allegedly hostile manner why she doesn’t support the protesters. They call people “Nazis,” and ask children, “Do you know your parents are Nazis? They’re going to burn in hell.”

They block the stairs leading to the mosque’s childcare area and make it difficult and allegedly hazardous for parents to retrieve their children. After causing most of the congregants to flee, some of them chant, “Who shut this down? We shut this down!”

There’s a person accompanying them to livestream the events to his large audience. He’s generally politically aligned with their message, so there’s reason to think he shares their goals. He understands the whole point of what the other defendants were doing is to make things “traumatic and uncomfortable” for the congregants: He tells his viewers that “the whole point of [the operation] is to disrupt.”

While the intrusion is happening, he asks one of the disrupters, “Who is the person that we should talk to? Is there an imam or something?” He joins the others in approaching the imam and largely surrounding him, standing close to him and peppering him with questions. He doesn’t leave when the imam asks him to leave. He stands at the main door of the mosque, where he confronts some congregants and allegedly physically obstructs them as they try to exit the mosque to challenge them with what he says are “facts” about extremist Islam.

Before the incident, he had met all the other defendants for a pre-op briefing, during which the organizers advised the other defendants and him that their operation would target the mosque, and provide instruction on how the operation would be conducted. He is careful to maintain operational secrecy by reminding his driver not to disclose the target of the operation, and he steps away briefly during the planning session so his microphone wouldn’t accidentally divulge certain portions of what the planners are saying. He assures the other defendants that he won’t prematurely disclose the target of the operation.

Would you be inclined to think that the livestreamer is guilty of conspiring with others to physically obstruct the worship services? Or would you say that there isn’t enough evidence of conspiracy, which is to say (to oversimplify) an express or implied agreement to act in concert in order to accomplish the disruption?

As you might gather, the hypothetical facts above are closely drawn from the allegations (which of course at this point are just allegations) in the Don Lemon indictment (see here and here), but changed to reflect the hypothetical right-wing disruption of the mosque rather than a left-wing disruption of a church.

Colorado Court of Appeals decisions were for a long time not available on Westlaw, and even access to them on the court’s own site was limited. They have recently been put online, in batches, and some have come up in my searches; here’s In re Weinraub & Carpenter, decided in 2019 by Colorado Supreme Court Justice Monica Márquez (sitting by designation on the Court of Appeals), joined by Judges Stephanie Dunn and James Casebolt:

In 2007, the parties married. During their marriage, father worked as an imam and administrator at a mosque in Denver. For her part, mother worked as a homemaker managing the household affairs and caring for the parties’ five children.

In April 2016, following an incident of alleged domestic violence, which resulted in a criminal protection order, mother petitioned for dissolution of marriage…. Both parties are devout Muslims ….

The court upheld certain restrictions on the father’s parenting time:

[Colorado law] authorized the district court to restrict father’s parenting time so long as there was an allegation that the children were in imminent physical or emotional danger…. [In her petition for such a restriction, m]other included … [an] email exchange in which father wrote the following to mother:

• “You are, therefore, complicate [sic] in this crime of benefitting from a bullying court system that unfairly works in your favor. In accepting what you know is fraudulent, you follow the footsteps of shaitan and earn the anger of Allah.” {“[S]haitan” is defined as “the Devil, Satan, or an evil spirit.”}
• “When you soon return to Allah and try to act as though you are innocent of this fraud[.] He will not be fooled. Maybe you and the courts will or already have found a devious way of getting me put away forever. Then you can proceed with erasing me from the children’s minds as though this offense never happened. Allah does not forget, however. This is how people earn their final place in the [h]ereafter.”
• “I pray that whatever happens, my children live and die on Islam.”
• “You WILL be questioned as to how you obtained your wealth in the grave. If it is something acquired and used against the [o]rders of Allah then the time in the grave will be very hard and much longer than your time in this world.”
• “I am not able therefore to comply with an illegal order that is unclear and does not permit me the capacity to perform my and the children’s demonstrative prayer nor spend quality time with my children.”

… [M]other’s allegations centered around father’s instability, including threats on her life and the lives of the children and his disdain in complying with the court’s parenting time orders. We conclude, as the district court did, that mother’s allegations, if true, presented an imminent physical or emotional danger to the children and the kind of compelling emergency that was sufficient to require a hearing under [Colorado law] ….

Father contends that [a later] parenting time restriction order violated his First Amendment right to religious freedom. He asserts, as we understand it, that the court’s finding that his email communications … were threats and not statements “about his belief in the [h]ereafter” precludes him from making any such references in the future without the court making a finding of endangerment. We perceive no error.

A parent has the [constitutional] right to exercise freely his or her religion …. “The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires.”

The district court was not convinced by father’s testimony that his email communications were harmless Islamic references about life and death. The court described father’s email communications as “disturbing” and found that his statements were threatening. The court pointed out that his statements referenced death toward mother and the children, and that one in particular, “when you soon return to Allah,” was an “absolute” and “direct” threat to mother. Based on these findings and credibility determinations, the court did not abuse its discretion in concluding that the children were endangered and that it was appropriate to continue the restriction on father’s parenting time.

Here, the parenting time restriction order, as father suggests, does not preclude him from making any Islamic references in the future. Instead, the order precludes threatening statements involving the death of the children and mother. Thus, the court’s order did not violate father’s First Amendment right to religious freedom….

Kevin Walton, Luke W. Mecklenburg, Lawrence Myers, and Timothy P. Scalo (Snell & Wilmer L.L.P.) and Jordan Saint John (Saint John Law LLC) represented the mother.