This was the question posed to the SCOTUS at yesterday's oral argument in the case of EEOC v Abercrombie & Fitch. The case involves the intersection of fashion, commerce and the freedom of religious expression under the First Amendment.

The case involves a Muslim woman, Samantha Elauf, who applied to an A&F store in Tulsa, Oklahoma 7-years ago when she was a teenager.  Although she fared well in her interview, she was not hired because of the store's no head-wear dress code.

The offending garment was the applicant's hijab. A&F fosters the "Ivy League preppie look" thus, there is no room for a hijab, caps, scarfs, or headwear of any kind.

The EEOC, along with the Council on American-Islamic Relations, took up Elauf's case and won a jury verdict of $20,000 in damages for Ms. Elauf.  A&F successfully appealed to the 10th Circuit Court of Appeals, which reversed the jury verdict, persuaded as it was by A&F's argument that the applicant did not specifically request special religious accommodation for her hijab.

Yesterday, it was oral argument at the SCOTUS with a decision expected in June. The justices exposed the appellate lawyers on both sides to rigorous questions.

Much of the argument was based on the mechanics and standards involved in addressing an applicant's private religious beliefs within the context of the employment application process.  The Justices debated among themselves about how this "awkward" conversation between employer and applicant is supposed to take place:

Employer: "So, do you plan to wear your hijab to work everyday?"

Applicant: "Well, yes actually, it is required in my religion." 

So what is a store like A&F to do when it sees an assortment of applicants, some with perhaps more stringent religious practices than others? Does our religious freedom trump a store's reasonable policies for employee dress code?

If similar recent SCOTUS decisions are to guide us, then we must take note of the unanimous decision in Holt v Hobbs (2015) which held that a Muslim prison inmate could grow his beard for religious reasons despite the prison policy of no facial hair.  That case, however, is not on all fours with this one to the extent that the offending policy in Holt was a government policy; this case involves private commerce without any government policy.

We predict that this case will result in a 5-4 decision, possibly a plurality with most of the Justices writing separately, that favors the store owner's well-reasoned employment policies.    

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Last week saw Governor Snyder veto a state house bill involving an overhaul of the concealed pistol license procedures proposed by state senator Mike Green [R-Mayville].  The bill drew the Governor's veto because it would have loosened some prohibitions against obtaining a gun for some domestic abusers.

When the proposed legislation, designed to streamline the procedure for obtaining a concealed pistol license by putting the Michigan State Police in charge, went back to the lab, Senator Green promptly stripped the offensive language and put the bill back on track; it is now on fast-track consideration in the state senate.

In vetoing the initial version of the bill, the Governor stated his concern was not to take the chance of exposing victims of domestic violence to additional intimidation and more violence.  The current state of the law proscribes a CPL from being issued to anyone under the injunctive scope of a personal protection order.

Judges involved in a case featuring a PPO can also impose additional restrictions on an individual within that judge's jurisdiction.  Also, as Green has pointed out whenever he explains his bill, federal law likewise bans the issuance of a CPL to anyone that is the subject of a PPO.

If and when the bill passes in its latest iteration, it will abolish the current system of county gun boards, and will centralize the CPL administration through the Michigan State Police.  Some see this as a positive to the extent that guns can be concealed on an applicant's person a few weeks quicker than under the old system.  Others see the local gun boards as a useful local layer of supervision that may be better equipped to detect an inappropriate applicant that perhaps should not have a pistol concealed on his person.

All of this occurs within the context of rising gun deaths across the nation.  Guns are expected to overtake vehicles as the leading cause of death of young persons under the age of 25.

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Judge T. David Law

Time heals all wounds. This time last year, the district court bench out in Novi was in complete disarray. Judge MacKenzie was being sued by the Oakland County Prosecutor and the feds were sniffing around, while down the hall, Judge Powers had his troubles with the Judicial Tenure Commission.

Now, an election has taken care of Judge MacKenzie, and Judge Powers resigned on the eve of his judicial tenure trial.  New judges are on the bench in Novi these days.

Judge Travis Reeds took the bench in January following his election victory over Judge MacKenzie. And although the list was very long with judicial hopefuls, Governor Snyder finally selected T. David Law, a First Assistant Attorney General, over many other well-qualified candidates.

Newly-appointed Judge Law will finish out the balance of now-retired Judge Powers' term and run for election in November 2016. With a name like Law, we think he'll have a great chance to get elected in Novi.

This is a very good development as the Novi District Court is a busy place. That court handles some of Oakland County's prime real estate.

So we here at the Law Blogger are glad that the dust has finally settled over there. In fact, one of our lawyers is scheduled for trial in Novi next week.

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Chief Justice Roy Moore

In the 1960s, Alabama earned a special place in U.S. history. Now, they're at it again; this time in the context of the same-sex civil rights movement.

Chief Justice Roy Moore, from his re-acquired seat on the Alabama Supreme Court, has issued a letter to each of the state's 68 probate judges, instructing [warning] them to follow state law, and to disregard a federal ruling that struck Alabama's state constitutional ban on same-sex marriage. In Alabama, marriage licenses are issued by probate judges.

Now ole Justice Moore, oft-described as a legal "firebrand", has a penchant for making headlines. A devout Baptist, West Point graduate, and Vietnam veteran, he garnered national headlines for himself when he ordered a set of gigantic granite tablets of the 10-Commandments installed in Alabama's Judicial System building. [They were removed by federal court order as was Justice Moore, by a judicial ethics panel; but he was re-elected in 2012.]

On the upside of the good justice's recent act, it does focus legal scholars [and federal jurists] on the precise nature of federalism and the supremacy clause in the 21st Century. Can a state judge contravene a ruling from the federal court on an issue of constitutional law? We here at the Law Blogger believe the answer is "no". Justice Moore, on the other hand, does not believe that the definition of marriage should be left to federal judges.

Justice Moore's letter of instruction to the lower courts caused confusion in the Alabama courts this week. Marriage licenses were issued to same-sex couples by the probate judges in the larger cities of Birmingham and Montgomery. Most probate judges in the other counties, however, declined to issue licenses to gay couples while others refused to issue licenses to any couple until the matter is sorted out. In one case, lawyers for a gay rights group unsuccessfully attempted to hold a probate judge in federal contempt of court.

On an interesting procedural note, the SCOTUS has declined to get involved; like the 11th Circuit Court of Appeals, the High Court did not issue a stay pending a review on the merits of the federal judge's decision. Usually, as here in Michigan, a federal ruling that nullifies a state's constitutional provision is stayed pending a full appellate review.

At what point do the citizens of a particular state get to decide their own fate, either through state legislation or via a state constitution? In the case of Alabama, the constitutional ban on same-sex marriage was approved by 81% of the vote back in 2006. Yet, as in the case of slavery, education and interracial marriage, are there some constitutional standards that just cannot be breached no matter how loud the local voices?  Is this one of those issues?

That is what the Supreme Court is going to decide in June. Stay tuned and we'll bring it to you right here.

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Former Assistant Attorney General Andrew Shirvell

Prosecutors are generally serious-minded individuals dedicated to law enforcement. This is especially true at Michigan's Department of the Attorney General. As such, you would not expect an Assistant Attorney General to maintain a blog; particularly a hate-blog showcasing a petulant homophobic obsession.

Yet this is what occurred some 5-years ago when former Assistant Attorney General Andrew Shirvell got a notion lodged in his craw that he was going to construct and maintain a blog solely devoted to trashing the openly-gay former University of Michigan Student Assembly President Chris Armstrong. None of the components to this story felt right at the time and sure enough, trouble followed for everyone involved.

Fast forward a half-decade and now we have a very significant 33-page published Michigan Court of Appeals' decision holding that Shirvell's blog and Facebook rants were not protected speech under the First Amendment. Although we are not fans of this individual as demonstrated by this 2012 post, this ruling does give us pause over here at the Law Blogger.

Before addressing the merits of the Court of Appeals decision, a brief review of the facts is in order. Shirvell's virulent anti-gay blog and frequent over-the-top public appearances got on the AG's radar real fast; Shirvell was "irrevocably undermined" within the AG's office. He was fired for conduct unbecoming of a state employee; he looked the part of a fool -a caricature bigot- on national television shows; he was successfully sued by Armstrong for millions; and he was denied his requested unemployment benefits.

Yet, here's the catch: he sued the state in administrative hearings that were appealed to the Ingham County Circuit Court where his First Amendment protected speech claims prevailed within the context of his request for unemployment benefits.

The important question raised in Shirvell's lawsuit against Michigan is whether, as a private citizen, he had a First Amendment right to say the things he did, even while employed by the State of Michigan as an assistant prosecutor. Does it matter in our First Amendment jurisprudence that, when this idiot mounted his soap box for the media circus he created, he was designated by the media as a representative of the Michigan Attorney General?

To the Michigan Court of Appeals, it mattered that Shirvell's speech disrupted the stated mission of the AG's office and that his conduct and speech eroded the trust the public places in the AG.  The Court of Appeals conducted a tour de force of our First Amendment jurisprudence in holding:

Here, Shirvell engaged in conduct that irreconcilably linked his speech with his employer. Specifically, Shirvell sat for televised interviews to defend his speech where he was identified as an assistant attorney general. Importantly, Shirvell agreed to the interviews despite having knowledge that he could be asked about his position as an assistant attorney general. During his first locally-televised interview, Shirvell was identified as an assistant attorney general and was asked questions about his position within the Department. Nevertheless, Shirvell subsequently agreed to two additional interviews with CNN and Comedy Central where he was again identified as an assistant attorney general and asked about his position with the Department. Although Shirvell refused to answer questions about his position, he was inextricably linked to the Department. In agreeing to the public interviews, Shirvell took deliberate steps that linked his speech to his employer.

For his part, in explaining the reasons for firing this "front line grunt", former Attorney General Mike Cox focused on Shirvell's pattern of escalating inappropriate behavior and minimized and separated the content of his blog. Cox recognized that public employees are at liberty to engage in free speech after the work day has been completed.  The former AG saw this guy as a misdemeanant-stalker who should have been charged as such by the Washtenaw County prosecutor.

We will see whether Shirvell will seek further review of the sordid mess he has created by filing an application for leave to the Michigan Supreme Court; nothing has been filed yet and the deadline fast approaches.

The funny thing about the First Amendment is that the strangest cases present the most difficult test to our rights of free speech.  Shirvell asserts that his former position with the AG's office put a "heckler's veto" into effect, crimping his free speech; he asserts that he has a right not to be fired, even considering what he did and said.

Although Shirvell has far exceeded his 15-minutes of fame, we here at the Law Blogger see the value in a full analysis of the issues he presents and would look forward to a well-reasoned opinion from the Michigan Supreme Court.  We wonder whether they will take his case.

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