The Volokh Conspiracy
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From Levay v. United States, handed down Wednesday by a federal district court:
On February 17, 2017, Plaintiff Ross Levay filed a complaint alleging that the United States and various government officials have committed gross negligence, breach of contract, First Amendment violations, and breach of oath by failing to prevent "incitement to imminent lawlessness" by "Radical Islamic Terrorists."… [On July 11, 2017], the Court … concluded that Levay's suit was frivolous and would be dismissed. On July 21, 2017, Levy filed a "Motion to Amend Judgment[,]" [asking, among other things, that the court] amend the previous order to remove the holding that the suit is "frivolous[.]" …
In his complaint, Levay explains that "there have been a high and increasing number of Islamic motivated violent acts targeting Jews and our places of worship.". Levay is a Jew and contends that the "incitement to imminent violence" found in the Quran and "cited by ISIS, Al Qaeda" and others has deprived Levay of "the freedom of religious expression."
Levay provides an extensive list of requested relief. He wishes the Court to hold that "specific Koranic verses, presented during the trial, fail the Imminent Lawlessness Test." He also intends to prove a "direct link to specific Koranic verses extolling among specific Radical Islamic Terrorists as the underlying motive, cause and essential 'but for' for 74 specific Radical Islamic Terrorist attacks within the US." He desires a "formal declaration of incompatibility between Koranic Sharia Law … and US Constitutional Law." He also asks that the Court direct Congress to take action by outlawing certain passages of the Quran, issue a federally sanctioned and edited Koran, and withdraw tax-exempt status from mosques which do not adopt the new Quran, and institute a "National Islamic Registry Program." …
The Court found that Levay's suit was frivolous for the following reasons:
First, Levay lacks standing to bring this suit. Levay's suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury. Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence.
And, more fundamentally, Levay's requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles. The First Amendment forbids Congress from making a law "respecting an establishment of religion, or prohibiting the free exercise thereof." …
Levay contends that he has sufficiently alleged an injury which gives rise to standing because he has experienced "fear-based and chill-effect injuries [to his] right to free-exercise." Levay repeatedly contends that religious terrorism has had a "chill-effect" on his "own Free-Exercise rights," but does not specifically explain what impact the threat of religious terrorism has had on his behavior. He asks in his objections whether "a credible threat of attack on places of worship, based on a pattern of actual recent occurrences, [would] make one think twice about attending places of religious worship? Would a reasonable person, [sic] consider just staying home instead of bringing their child to a place of worship?" But those questions fall short of actually demonstrating that Levay's own right of free exercise has been impacted by religious terrorism.
The landmark Supreme Court case on "fear-based" standing is Laird v. Tatum (1972). In Laird, the plaintiffs were challenging the Army's "alleged 'surveillance of lawful and peaceful civilian political activity.'" The Court explained that an individual's fear that an "agency might in the future take some other and additional action detrimental to that individual" does in some cases create a "chilling effect" that can give rise to standing.
But, the Supreme Court explained, in all cases where standing existed "the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging." The Supreme Court found that the plaintiffs in Laird had not adequately alleged an injury that could give rise to standing…. "Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; 'the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.'"
The fear-based injury which Levay alleges here is analogous to the injury alleged in Laird. Levay repeatedly establishes his generalized fear that he or his loved ones may be victims of religiously-motivated violence. But he has provided no examples of specific harm or impact that the threat of religious violence has actually inflicted on him, personally. Nor are there any plausible, well-pleaded allegations in the complaint which would support a finding that objective harm to Levay is imminent. Rather, Levay's fear is manifestly subjective and thus, as explained in Laird, insufficiently specific to give rise to standing….
Levay next argues that this Court has authority to provide Levay the remedies he seeks because "the judiciary has usurped and taken over Congress's legislative role, even conferred constitutional rights, bypassing the amendment procedure… [But u]nlike in the examples he cites, where federal courts overturned federal statutes as incompatible with the Constitution, Levay asks this Court to direct Congress to outlaw certain passages of the Quran, issue a federally sanctioned Quran, withdraw tax-exempt status from mosques which do not adopt the new Quran, and institute a National Islamic Registry Program. The Court has no authority to order Congress to take action….
Even if the Court had authority to direct Congress to take action, the remedies which Levay requests would violate the Constitution. Levay argues that his proposed remedies do not violate the Establishment and Free Exercise Clauses of the First Amendment because "[a] religious belief system cannot be greater than the law of the land, the US Constitution." But, to the contrary, the Constitution prohibits the federal government from singling out a particular religion for hostile treatment.
Levay argues that violence committed under the guise of religion should not be protected by the Constitution. But he is not requesting the criminalization of religiously-motivated violence (because, of course, any crimes committed will be prosecuted regardless of whether they were religiously motivated or not). Rather, Levay is requesting, among other things, that the Court rewrite the Muslim holy book. It is difficult to imagine greater government entanglement with religion….
For the reasons provided above and in the July 11, 2017, opinion and order, Levay's suit is frivolous. His legal theory is manifestly foreclosed by settled law. As such, no appeal could be taken in good faith and Levay will not be granted leave to appeal in forma pauperis [i.e., without paying the usual fees required for filing an appeal]. Levay's requests to certify the suit as non-frivolous and grant him leave to proceed in forma pauperis will be denied….