Friday, July 31, 2015

Sympathetic Court Nevertheless Rejects Claim That Chimpanzees Are "Persons" Entitled To Habeas Relief

A New York state trial court judge yesterday in a 33-page opinion sympathetic to plaintiffs' claims nevertheless rejected attempts by animal rights activists to obtain a writ of habeas corpus on behalf of two chimpanzees used in scientific studies at State University of New York at Stony Brook.  In Nonhuman Rights Project, Inc. v. Stanley, (NY Cty. Sup. Ct., July 30, 2015), after dealing with a number of procedural and jurisdictional issues, the court moved to the central question in the case: "whether a chimpanzee is a legal person entitled to bring  writ of habeas corpus." The court pointed out that "'legal personhood' is not necessarily synonymous with being human..."  Courts use the legal fiction of personhood to treat corporations as persons. However the court decided it was bound by appellate precedent to reject the claim of personhood here. The opinion concluded:
The similarities between chimpanzees and humans inspire the empathy felt for a beloved pet.  Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.  Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of law, if only to the modest extent of affording them greater consideration.  As Justice Kennedy aptly observed in Lawrence v. Texas, albeit in a different context, "times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress."... The pace may now be accelerating. (See Obergefell v. Hodges....)
In a press release on the decision, the Nonhuman Rights Project said it will promptly appeal the decision to the Appellate Division.  New York Times reports on the decision.

Judge Acquits Hasidic Rabbi Accused of Sexually Molesting A Boy

In Rockland County, New York yesterday, a state trial court judge, after a bench trial, found Hasidic Rabbi Moshe Taubenfeld not guilty on charges of sexually abusing a minor from 2001 to 2006.  The Lower Hudson Journal News reports that the young man accusing Taubenfeld said that the abuse began when he was 8 years old and contnued until he moved out of the village of New Square at age 13,  The judge said there was reasonable doubt after hearing the evidence in the multi-week trial. But supporters of the boy charge that Judge Rolf Thorsen's decision was political because he owes his recent election to the judiciary to the New Square Hasidic community.  The defendant, father of 20, is well respected tutor and marriage counselor in the New Square community; his wife and a young daughter were killed in a terrorist attack on a bus in Israel.

Thursday, July 30, 2015

Inspector General Issues Report On Protection of Conscience Rights In the Military

Last week (July 22), the U.S. Department of Defense Inspector General issued a report on Rights of Conscience Protections for Armed Forces Service Members and Their Chaplains.  The 2014 Defense Authorization Act called for the report, which was to focus on the extent to which the Armed Forces are complying with regulations designed to protect the conscience, moral principles and religious beliefs of members of the military and military chaplains.  In a posting earlier this week, God and Country Blog is critical of the report for looking too narrowly at issues regarding negative consequences short of formal reprimands flowing from religious expression.

Religious Order Sued By Two Victims For Sex Abuse From 35 Years Ago

As reported in a press release on Tuesday from Jeff Anderson & Associates, two new clergy abuse lawsuits were filed this week in state court in Minnesota:
Civil lawsuits were filed today by two men who were sexually abused as minors by clergy at Crosier Seminary in Onamia, Minn. Doe 51 and Doe 56 were molested by multiple priests and brothers of the Canons Regular of the Order of the Holy Cross (“Crosier”) religious order. Several of the clergy named in the complaints also interacted with and sexually abused children throughout Minnesota, including at parishes and schools in the Archdiocese of St. Paul and Minneapolis, and the Diocese of St. Cloud.
Doe 51 was sexually abused from approximately 1979-81 by Father Gerald Funcheon, Brother Gabriel Guerrero and Brother Roman Fleischhacker, when Doe 51 was approximately 15-17 years old. Doe 56 was sexually abused in approximately 1979-80 by Funcheon, Brother Wendell Mohs and Father Roger Vaughn, when Doe 56 was approximately 14-15 years old. The perpetrators were assigned to Crosier Seminary at the time they abused Doe 51 and Doe 56, who attended the seminary.
The complaint (full text) in Doe 56 v. Canons Regular of the Order of the Holy Cross and (full text) in Doe 51 v. Canons Regular of the Order of the Holy Cross, (MN Dist. Ct., filed 7/28/2015) charge defendant religious order with negligence, negligent supervision and negligent retention of the offending clergy. The Minnesota Child Victim Act enacted in 2013 extended the statute of limitations in child sex abuse cases, including creating a retroactive 3-year window for victims whose claims were previously barred.

Pennsylvania Court Retroactively Validates Same-Sex Marriage After Death of One Spouse

In what is apparently the first case of its kind, on Wednesday a Bucks County, Pennsylvania trial court retroactively validated a same-sex common law marriage.  As reported by the Doylestown Intelligencer, the decision allows the widowed Dr. Sabrina Maurer to recover spousal survivor benefits under two separate insurance policies, and allows her an inheritance tax refund.  Maurer and Dr. Kimberly Underwood were married in a 2001 Episcopal religious ceremony, even though same-sex marriages were not then recognized in Pennsylvania.  However common law marriages were recognized if they took place before 2005. Underwood died in 2013.  Same-sex marriages became legal in Pennsylvania in 2014.

Consent Decree Bars Religious Activities By Colorado School District

Denver 7 News reports that a consent decree (full text) was filed this week in Basevitz v. Fremont RE-2 School District, (D CO, July 28, 2015).  The lawsuit, filed in May by a high school teacher in the district, claimed that Florence, Colorado High School extensively promotes evangelical Christian activities through arrangements with a church, The Cowboy Church at Crossroads. (See prior posting.)  Under the settlement, school district employees may not in their official capacities engage in religious activities with students; and the district will ban all school-sponsored prayers or other religious expression before school-related captive audiences. Also the school district will ban school sponsorship of religious groups and religious activities, distribution of religious literature by district employees, and school-sponsored prayer request boxes.

CAIR Files Suit Against Gun Store That Declared Itself a "Muslim-Free Zone"

CAIR Florida announced yesterday that it has filed suit in federal district court against a Florida gun store that earlier this month declared itself a "Muslim-free zone." The complaint (full text) in CAIR Florida, Inc. v. Teotwawki Investments, LLC (SD FL, filed 7/29/2015), alleges that the store, Florida Gun Supply, is a place of entertainment and of exhibition and is thus covered by the public accommodation provisions of the 1964 Civil Rights Act.  42 U.S.C. § 2000a bars discrimination on the basis of race, color, religion or national origin in places of public accommodation. According to USA Today, the gun store's attorney says that no Muslim is being discriminated against because of religion, and if anyone is being turned away it is because of public safety.

Meanwhile, as reported by ABC News, on Tuesday an honorably discharged Desert Storm veteran who later became a Muslim traveled from California to Florida to test the gun store's policy by signing up for one of its gun training classes. However he was told by ATF agents that the gun store was closed for the day.

ABA Opens Nominations In This Year's Blawg 100 Competition

The ABA Journal yesterday opened nominations for this year's Blawg 100-- its annual listing of the best legal blogs.  Last year Religion Clause was added by the ABA to the Blawg 100 Hall of Fame and so is not eligible for nomination.  However there are many great legal blogs out there-- so take a minute and go to the ABA's Blawg 100 Amici page to make the case for your favorite.  The winners will appreciate this recognition of the time and energy they devote to keeping you informed.

Wednesday, July 29, 2015

NY May Require Charities To File Information on Major Donors

In Citizens United v. Schneiderman, (SD NY, July 27, 2015), a New York federal district court held that the New York Attorney General can constitutionally require registered charities to file a copy of their federal Form 990, Schedule B disclosing the names, addresses, and contributions of their major donors in order to solicit funds in the state. According to the court:
On this record, the Court is satisfied that the Schedule B policy bears a substantial relation to the important governmental interests of enforcing charitable solicitation laws and protecting New York residents from illegitimate charities.... In light of the important governmental interests that the Schedule B policy serves, the Court cannot find on this record that it places unjustified burdens on charities' rights of speech and association.
The court also rejected prior restraint and due process arguments. Reuters reports on the decision.  In May, the 9th Circuit reached a similar result. (See prior posting.)

Ten Commandments Challenge Dismissed On Standing Grounds

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, (WD PA, July 27, 2015), a Pennsylvania federal district court dismissed a challenge to a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school, finding that plaintiffs lacked standing because they have not been injured by the presence of the monument.  They had only a few contacts with it, and there is no evidence that in the future they will be required to visit the high school as part of their ordinary routines. TribLive reports on the decision.  Freedom From Religion Foundation in its press release on the case points out that a companion challenge to a similar monument in Pennsylvania's Connellsville Area School District is still ongoing.

Wheaton College Ends Student Health Insurance In Response To Contraceptive Coverage Rules

Chicago Tribune reported yesterday that Wheaton College has made a last-minute decision to stop offering its students health insurance policies in order to protect its position in ongoing litigation. The College is in the midst of a high-profile challenge to the Obama Administration's rules accommodating non-profits that object to providing insurance coverage for contraceptive services.  Earlier this month, the 7th Circuit denied the college a preliminary injunction (see prior posting). Central to Wheaton's challenge is its argument that the accommodation which allows it to opt out of furnishing coverage directly still requires it to furnish information that triggers the objectionable coverage then being furnished by the insurer to its plan beneficiaries.  Wheaton has now posted a page on its website linking to a nearly hour-long video giving students who had expected to enroll in the student plan information on obtaining health insurance from other sources and announcing financial assistance for students who find their insurance costs increased.

British Judge Says Coroner Must Try To Accommodate Religious Objection To Invasive Autopsy

In Britain yesterday, a High Court judge ruled that a coroner acted improperly in rejecting a request by a Jewish family that a non-invasive alternative to an autopsy (such as a CT scan) be used in determining the cause of death of an 86-year old woman who died in a London hospital shortly after she was admitted.  According to the Jewish Chronicle:
[Justice Mitting] said a non-invasive procedure should be considered when the family requested it on religious grounds if there were a “reasonable possibility” that it could establish the cause of death; if there were “no good reason” to order an invasive autopsy; and if it would not impair the findings of an invasive autopsy should that subsequently prove necessary.
The non-invasive procedure should also be done “without imposing an additional cost burden on the coroner,” the judge said.
The ruling will impact both Jewish and Muslim families.

In India, Sikh Group Plans Suit Against Educational Board Over Dress Code For Test

In India, a Sikh organization (the Shiromani Gurdwara Parbandhak Committee) is planning to file suit against the Central Board of Secondary Education challenging the strict dress code it imposed on those taking the All India Pre-Medical Entrance Test.  As reported yesterday by Sikh24, the dress code was drawn up after India's Supreme Court ordered the test re-administered because some students allegedly used electronic devices to cheat on the original exam. In some test centers, Sikh students were required to remove certain of the five sacred symbols ( Panj Kakaars ) that Sikhs are required to wear. Apparently authorities were concerned that items such as the krirpan  or the kara could conceal electronic devices.

Tuesday, July 28, 2015

50 Islamic Texts Finally Removed From Russia's Federal List of Extremist Materials

Forum 18 reported yesterday on the difficulty of getting Russian authorities to remove books from the Federal List of Extremist Materials, once they have been placed on the list. In mid-July, Russia's Justice Ministry did delete 50 of the 68 Islamic texts banned by a local court in 2012.  Even after successful appeals, it took authorities at least four months to remove the titles. According to the report:
... 11 of the 50 works are already banned in different editions. Of ten other religious texts removed from the Federal List after difficult and protracted efforts, seven (Muslim and Falun Gong) were soon re-banned. Three Jehovah's Witness brochures removed from the List in 2014 and 2015 have not been re-banned. 

Court Refuses To Dismiss EEOC's Suit Against Meat Plant Alleging Failure To Accommodate Muslim Employees

In Equal Employment Opportunity Commission v. JBS USA, LLC, (D CO, July 17, 2015), a Colorado federal district court refused to dismiss a suit brought by the EEOC charging that a Swift & Co. beef processing plant in Colorado failed to reasonably accommodate Muslim employees' need to leave the production line to pray at or near sundown. A large number of Muslim employees were terminated in 2008 after they and the company could not reach agreement for accommodations during Ramadan. The suit also charged a pattern of retaliation, discriminatory discipline and discharge.The EEOC previously lost a similar suit involving the same company's processing plant in Nebraska. The court held that the EEOC is not collaterally estopped by that case. Moving to the substantive issues, the court concluded that genuine issues of material fact remain both as to the reasonableness of the company's and the EEOC's proposed accommodations and as to whether the EEOC's proposal imposes an undue hardship on the company. Similarly disputes of fact remain as to the EEOC's discrimination and retaliation claims-- including issues of whether a one-time layoff of numerous employees amounts to a pattern or practice of discrimination. An EEOC press release summarizes the decision which is discussed at greater length at Workplace Class Action Blog.

Boy Scouts End Ban on Gay Adult Leaders and Employees, But Allow Church-Sponsored Troops To Refuse Gay Leaders

In a press release yesterday, the Boy Scouts of America announced:
On Monday, July 27, the National Executive Board ratified a resolution that removes the national restriction on openly gay adult leaders and employees. Of those present and voting, 79 percent voted in favor of the resolution. The resolution was recommended for ratification by the Executive Committee earlier this month. The resolution is effective immediately.
Chartered organizations will continue to select their adult leaders and religious chartered organizations may continue to use religious beliefs as criteria for selecting adult leaders, including matters of sexuality. This change allows Scouting’s members and parents to select local units, chartered to organizations with similar beliefs, that best meet the needs of their families. This change also respects the right of religious chartered organizations to choose adult volunteer leaders whose beliefs are consistent with their own.
Religion News Service yesterday reported on the 14-page Legal Memo (full text) that the Scouts received from their outside counsel titled Effect of Changes in Adult Leader Standard on Religious Chartered Organizations. The memo reads in part:
The change in the BSA policy would still allow units chartered by religious organizations that as a matter of religious belief consider homosexual conduct inconsistent with their religion to limit adult leadership in accordance with that belief. Units not chartered by religious organizations could not exclude homosexuals who otherwise meet the BSA’s high adult leader standards and the chartered organization’s standards.
All other leader requirements, including “duty to God,” would remain in effect for all chartered organizations....
We understand that some religious organizations are concerned that if they exclude homosexuals from leadership in Scouting units that they charter after the BSA changes its policy they will be vulnerable to lawsuits from the potential leaders they exclude. Those concerns should be allayed by the legal defenses that religious organizations have under place of public accommodation statutes and the First Amendment to the Constitution of the United States.
 The Boy Scouts removed restrictions on gays becoming scout members in 2013. (See prior posting.)

Federal Prison System Agrees To Recognize Humanism As A Religious Belief

The American Humanist Association announced yesterday that it has entered an Enforceable Settlement Agreement (full text) with the Federal Bureau of Prisons in a suit brought by a federal prisoner in Oregon who sought to form a Humanist study group and have Humanism recognized as his religious affiliation. (See prior related posting.) The settlement agreement, applicable to the entire federal prison system, is summarized by the AHA in its press release:
Under the terms of the enforceable settlement, the Federal Bureau of Prisons will acknowledge humanism as a worldview that deserves the same recognition as theistic religious beliefs. The Manual on Inmate Beliefs and Practices will include a section on humanism, and inmates may identify as humanists for official assignment purposes. The prison will also authorize humanist study groups and permit humanist inmates to annually observe Darwin Day.

Monday, July 27, 2015

North Carolina Supreme Court Upholds School Voucher Program

In Hart v. State of North Carolina, (NC Sup. Ct., July 23, 2015), the North Carolina Supreme Court in a 4-3 decision reversed the trial court and upheld against constitutional attack the state's Opportunity Scholarship Program which offers some low-income students scholarships to attend private schools. The majority held that the state constitutional provision on the state school fund was intended "to protect the 'State school fund' in order to preserve and support the public school system, not to limit the State’s ability to spend on education generally." The provision requiring "a general and uniform system of free public schools" also does not bar the state's voucher program:
The uniformity clause applies exclusively to the public school system and does not prohibit the General Assembly from funding educational initiatives outside of that system.
The majority went on to hold that the appropriations for vouchers satisfy the public purpose requirement, and that taxpayer plaintiffs lack standing to  assert religious discrimination claims on behalf of students. Justices Hudson, Easley and Ervin dissented. AP reports on the decision.

The court also issued a short opinion in a companion case, Richardson v. Staterelying on its holding in Hart.

Suit Threatened Over Kentucky Juvenile Prison Rule Limiting Counselors' Statements About Homosexuality

Liberty Counsel is threatening a lawsuit against the Kentucky Department of Juvenile Justice (DJJ) over its policy that provides:
DJJ staff, volunteers, interns, and contractors, in the course of their work, shall not refer to juveniles by using derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community. DJJ staff, volunteers, interns, and contractors shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity.
In its press release last Friday, Liberty Counsel indicated that it has sent a demand letter (full text) to DJJ insisting on the reinstatement of a counselor and mentor, Christian pastor David Wells, who apparently had his volunteer prison minister status revoked when he refused to sign a form promising to refrain from telling any juvenile inmates that homosexuality was sinful. The demand letter argues in part:
DJJ 912 violates the First Amendment by prescribing an official state religious “orthodoxy:” now, only a religious belief that homosexuality is not “sinful” may be expressed in DJJ facilities, 

Recent Articles of Interest

From SSRN:

Michigan Supreme Court: Wrong Oath For Jurors In Murder Case Does Not Require New Trial

An interesting decision from the Michigan Supreme Court last week illustrates the distance we have moved from the original conception of oaths as invocations of Divine retribution for straying from that which was promised.  In People v. Cain, (MI Sup. Ct., July 23, 2015), the jury in defendant's murder trial were sworn in with the wrong oath, though no one noticed at the time.  The Clerk swore them in using the oath given at voir dire -- to truly answer questions relating to their qualifications to serve as jurors-- instead of the oath to return a true and just verdict based only on the evidence and the judge's instructions. In a 5-2 decision, the majority held that:
the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out, the two primary purposes served by the juror’s oath. Thus, we cannot say that the error here of failing to properly swear the jury seriously affected the fairness, integrity, or public reputation of the judicial proceedings.
Justice Viviano (joined by Justice McCormack) dissented, saying in part:
the oath was, and has always been, a defining criterion of “jury.” In light of this deep etymological pedigree, it seems quite implausible that the Framers, who lived in a time in which society placed great emphasis on oaths, intended anything other than a sworn jury when they drafted the Sixth Amendment. 

Sunday, July 26, 2015

Recent Prisoner Free Exercise Cases

In Littell v. Kennell, 2015 U.S. Dist. LEXIS 93757 (CD IL, July 20, 2015), an Illinois federal district court held that a Muslim inmate stated a valid First Amendment claim alleging that Muslims were not permitted to congregate for prayer, but because he is no longer held by the Illinois Department of Corrections injunctive relief is not available; only nominal (and possibly punitive) damages are.

In Snodgrass v. Robinson, 2015 U.S. Dist. LEXIS 95026 (WD VA, July 21, 2015), a Virginia federal magistrate judge recommended that a Muslim inmate be permitted to proceed against various defendants on his RLUIPA, free exercise and due process challenges to a policy that denied inmates the right to participate in the Ramadan fast if they had missed more than three consecutive religious services.

In Aragon v. Erlanger, 2015 U.S. Dist. LEXIS 96185 (D CO, July 23, 2015), a Colorado federal magistrate judge recommended that a Messianic Jewish inmate be permitted to proceed against the food services supervisor on his complaint that Passover meals and messianic Jewish diets were prepared without special preparation cleaning of the kitchen area and equipment to meet kosher requirements. A claim against the outside rabbi who advised on kosher standards was dismissed,as was a complaint that Messianic Jews should have been permitted to celebrate Passover on a different date than Jewish inmates.

In Dearwester v. Sacramento County Sheriff's Department, 2015 U.S. Dist. LEXIS 96413 (ED CA, July 22, 2015), a California federal magistrate judge recommended that  plaintiff,a Christian inmate who believed that the New Testament required his eating a kosher diet, be permitted to move forward with his First Amendment damage claim based on denial of kosher meals.

In Blankenship v. Setzer, 2015 U.S. Dist. LEXIS 96871 (WD NC, July 23, 2015), a North Carolina federal district court permitted to proceed on his complaint that he was not allowed to take his Bible with him when he was being transported to court in another county, and that his Bible was confiscated for not having a cover.

NYT Magazine Chronicles Plight of Christians In the Middle East

Today's New York Times Magazine carries a long article, captioned in its online version: Is This the End of Christianity in the Middle East?,with the subtitle: "ISIS and other extremist movements across the region are enslaving, killing and uprooting Christians, with no aid in sight." The article comments:
It has been nearly impossible for two U.S. presidents — Bush, a conservative evangelical; and Obama, a progressive liberal — to address the plight of Christians explicitly for fear of appearing to play into the crusader and ‘‘clash of civilizations’’ narratives the West is accused of embracing. In 2007, when Al Qaeda was kidnapping and killing priests in Mosul, Nina Shea, who was then a U.S. commissioner for religious freedom, says she approached the secretary of state at the time, Condoleezza Rice, who told her the United States didn’t intervene in ‘‘sectarian’’ issues. Rice now says that protecting religious freedom in Iraq was a priority both for her and for the Bush administration. But the targeted violence and mass Christian exodus remained unaddressed. 

Obama Takes Kenya To Task Over Gay Rights; Kenyan President Responds

At a news conference (full text) yesterday on his visit to Kenya, President Obama criticized Kenya for its treatment of gays and lesbians. Kenyan President Kenyatta responded:
PRESIDENT OBAMA: ... Similarly, with respect to the rights of gays and lesbians, I’ve been consistent all across Africa on this.  I believe in the principle of treating people equally under the law, and that they are deserving of equal protection under the law and that the state should not discriminate against people based on their sexual orientation.  And I say that, recognizing that there may be people who have different religious or cultural beliefs.  But the issue is how does the state operate relative to people.  
If you look at the history of countries around the world, when you start treating people differently -- not because of any harm they’re doing anybody, but because they’re different -- that’s the path whereby freedoms begin to erode and bad things happen.  And when a government gets in the habit of treating people differently, those habits can spread.  
And as an African-American in the United States, I am painfully aware of the history of what happens when people are treated differently, under the law, and there were all sorts of rationalizations that were provided by the power structure for decades in the United States for segregation and Jim Crow and slavery, and they were wrong.  
So I’m unequivocal on this.  If somebody is a law-abiding citizen who is going about their business, and working in a job, an obeying the traffic signs -- (laughter) -- and doing all the other things that good citizens are supposed to do, and not harming anybody -- the idea that they are going to be treated differently or abused because of who they love is wrong.
And the state does not need to weigh in on religious doctrine.  The state just has to say we’re going to treat everybody equally under the law.  And then everybody else can have their own opinions....
PRESIDENT KENYATTA: ... With regard to the second question, just like President Obama, I think we also need to be able to speak frankly about some of these things.  And the fact of the matter is that Kenya and the United States, we share so many values -- our common love for democracy, entrepreneurship, value for families.  These are things that we share.  But there are some things that we must admit we don’t share -- our culture, our societies don’t accept.  It is very difficult for us to be able to impose on people that which they themselves do not accept.  
This is why I repeatedly say that, for Kenyans today, the issue of gay rights is really a non-issue.  We want to focus on other areas that are day-to-day living for our people:  The health issues that we have discussed with President Obama.  These are critical.  Issues of ensuring inclusivity of women, a huge section of society that is normally left out of the mainstream of economic development.  What we can do in terms of infrastructure; what we can do in terms of education; in terms of our roads; in terms of giving our people power, encouraging entrepreneurship.  These are the key focuses.  
Maybe once, like you have overcome some of these challenges, we can begin to look at new ones.  But as of now, the fact remains that this issue is not really an issue that is on the foremost mind of Kenyans, and that is the fact.
Homosexual acts between men are punishable by 14 years (and in some cases 21 years) in prison in Kenya. (Background.)

$1M Gift To Emory Will Support Expanded Religious Freedom Education

Emory Law School's Center for the Study of Law and Religion announced last week that it has received an anonymous $1 million gift for a 4-year project called "Restoring Religious Freedom: Education, Outreach, and Good Citizenship," The fund will support internships and externships for students, lectures, conferences and  will begin a new series of publications on law and religion practice guidelines.

Texas Supreme Court OK's Referendum Petitions On Houston's Equal Rights Ordinance

As previously reported, in May 2014 the Houston, Texas City Council passed an Equal Rights Ordinance that attracted significant opposition because of its ban on discrimination on the basis of sexual orientation or gender identity. Opponents circulated petitions to get a repeal referendum on the ballot.  The City Secretary certified that there were sufficient signatures on the petitions, but the City Attorney disputed that conclusion and City Council refused to move ahead with the reconsideration of the Ordinance that is required when a valid referendum petition is filed. (See prior posting.) Litigation ensued in various courts.  In In re Jared Woodfill, et. al.,  (TX Sup. Ct., July 24, 2015), the Texas Supreme Court conditionally granted a writ of mandamus to proponents of the referendum, holding:
The Charter ... gives the City Council no discretion to reevaluate the petition; instead, it requires “immediate[]” action by the City Council following the City Secretary’s certification....
The City Council is directed to comply with its duties, as specified in the City Charter, that arise when the City Secretary certifies that a referendum petition has a sufficient number of valid signatures. Any enforcement of the ordinance shall be suspended, and the City Council shall reconsider the ordinance. If the City Council does not repeal the ordinance byAugust 24, 2015, then by that date the City Council must order that the ordinance be put to popular vote during the November 2015 election. The writ will issue only if the City Council does not comply.
Josh Blackman's Blog has more on the decision, as does the Houston Chronicle.

Friday, July 24, 2015

Indiana Deputy Clerk, Fired For Refusing To Issue Same-Sex Marriage Licences, Sues [UPDATED]

Linda Summers, a former deputy clerk in the Harrison County, Indiana Superior Court Clerk's Office, last week filed a federal court lawsuit alleging violation of her First Amendment free exercise rights. religious discrimination in employment.  The Louisville Courier Journal reports that after the U.S. Supreme Court denied review of a case from Indiana upholding marriage equality, County Clerk Sally Whitis sent an e-mail to all employees telling them that even if it conflicted with their religious beliefs, they were required to process licenses for same-sex couples. Summers responded with a hand-delivered letter asking that she not be required to do so based on her religious beliefs.  She was fired for insubordination. The lawsuit seeks damages and a change in employment practices.

UPDATE: Despite the Courier Journal's quote from plaintiff's counsel that the lawsuit is "just a generic First Amendment free exercise case", now that I have a copy of the complaint it appears that the suit is based on Title VII of the 1964 Civil Rights Act.  Here is the full text of the complaint in Summers v. Whitis, (SD IN, (filed 7/17/2015).  [Thanks to Greg Lipper for the copy of the complaint.]

Cert. Petition Filed In Challenge To Non-Profit Contraceptive Coverage Accommodataion

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Little Sisters of the Poor Home for the Aged, Denver Colorado v. Burwell.  In the case, the U.S. 10th Circuit Court of Appeals upheld against RFRA and constitutional challenges the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

Satanic Temple Chooses Detroit To Unveil Statue Aimed At Oklahoma or Arkansas Statehouse Lawns

The Detroit News reports that The Satanic Temple has chosen Detroit as the site to unveil its 9-foot tall bronze statute of the goat headed Baphomet-- a statue that it hopes to place next to an existing Ten Commandments monument on the Oklahoma state capitol grounds in Oklahoma City, or next to one on the Arkansas state capitol grounds in Little Rock.  The original plans for the Oklahoma location have become less certain after the Oklahoma Supreme Court earlier this month ruled that the Ten Commandments monument must be removed. (See prior posting.)  According to an interview with a Satanic Temple leader published in Wednesday's Detroit Metro Times, Detroit was chosen for the unveiling of the $100,000 sculpture because the city has a strong local chapter and is the location of The Satanic Temple's first chapter house.

Plans for the unveiling, however, have faced difficulties. The owner of the space in Detroit's Eastern Market district where the unveiling was originally planned backed out after a campaign against the statute by the pastor of Detroit's St. Matthew Baptist Church. Salon Magazine discusses at length the threats to destroy the statue posted on Facebook. So now the unveiling is scheduled for tomorrow at a location that will be revealed only to ticket holders through e-mail on the day of the event. The Satanic Temple's website-- though which tickets may be purchased-- extends an invitation reading in part:
The Satanic Temple invites you to join us for a night of chaos, noise, and debauchery at The Unveiling, a hedonistic celebration introducing the controversial Baphomet monument accompanied by provocative performances and installations.
Never before seen in public, The Satanic Temple Baphomet monument is already the most controversial and politically charged contemporary work of art in the world.... The event will serve as a call-to-arms from which we’ll kick off our largest fight to date in the name of individual rights to free exercise against self-serving theocrats.

9th Circuit Rejects Free Exercise Challenge By Pharmacies To Required Filling of Emergency Contraception RX

In Storman's, Inc. v. Wiesman, (9th Cir., July 23, 2015), the U.S. 9th Circuit Court of Appeals upheld against constitutional challenge rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require a pharmacy to deliver all prescription medications, even if the owner of the pharmacy has a religious objection. An individual pharmacist with religious objections may refuse to fill the prescription if another pharmacist working for the pharmacy does so.

The court held that these rules are both facially and operationally neutral, and are generally applicable, so that  heightened scrutiny need not be applied to plaintiffs' free exercise challenge:
The possibility that pharmacies whose owners object to the distribution of emergency contraception for religious reasons may be burdened disproportionately does not undermine the rules’ neutrality.
The court also rejected plaintiffs' substantive due process challenge, rejecting the argument that there is a fundamental liberty interest in owning, operating or working at a licensed professional business free from regulations requiring activities that one sincerely believes lead to the taking of human life. Alliance Defense Fund immediately announced that it would appeal the court's decision. The Olympian reports on the 9th Circuit's decision.