Tuesday, July 29, 2014

2nd Circuit: Cross At Ground Zero Can Stay In Museum

In American Atheists, Inc. v. Port Authority of New York and New Jersey, (2d Cir., July 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected a challenge by American Atheists to the display in the National September 11 Museum of the 17-foot high "Cross at Ground Zero"-- steel beams in the shape of a cross retrieved from the World Trade Center debris after 9-11. The court summarized its holding as follows:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b.   an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c.   there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
CNN reported on the decision.

Satanic Temple Says Its Followers Can Claim Exemption From Informed Consent Abortion Laws Under Hobby Lobby Principles

The Satanic Temple announced yesterday that it was launching a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion.  Citing the Supreme Court's recent Hobby Lobby decision, the group argues that women can claim an religiously-based exemption from the informational requirements. It makes available through its website a letter that women may download and present to their physician asking for an exemption. The Temple says that it believes the body is subject to one's will alone, and that the informational statutes require biased and false information to be presented to discourage abortions. It explains:
the Supreme Court has decided that religious beliefs are so sacrosanct that they can even trump scientific fact. This was made clear when they allowed Hobby Lobby to claim certain contraceptives were abortifacients, when in fact they are not. Because of the respect the Court has given to religious beliefs, and the fact that our our beliefs are based on best available knowledge, we expect that our belief in the illegitimacy of state ­mandated ‘informational’ material is enough to exempt us, and those who hold our beliefs, from having to receive them.
Huffington Post has more details.

4th Circuit Invalidates Virginia's Same-Sex Marriage Ban

Continuing an unbroken string of victories for marriage equality proponents, the U.S. 4th Circuit Court of Appeals yesterday, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. This is the second federal appeals court to rule on same-sex marriage bans.  In Bostic v. Schaefer, (4th Cir., July 28, 2014), the majority held:
the Virginia Marriage Laws violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the extent that they prevent same-sex couples from marrying and prohibit Virginia from recognizing same-sex couples’ lawful out-of-state marriages. 
The court added:
We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life. It allows individuals to celebrate and publicly declare their intentions to form lifelong partnerships, which provide unparalleled intimacy, companionship, emotional support, and security. The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual’s life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
As reported by the New York Times, the appeal to the 4th Circuit was carried forward by two court clerks after Virginia's attorney general refused to appeal the district court's decision striking down Virginia's bans. They are expected to seek a stay of the court's decision pending an en banc appeal or a petition for certiorari to the Supreme Court.

Court Permits Church To Move Ahead on RLUIPA Claims

In Church of Our Savior v. City of Jacksonville,(MD FL, July 18, 2014), a Florida federal district court permitted a church to move ahead with its claims that denial of a conditional use permit to build a church on property in a residential area violates various provisions of RLUIPA, and that the city's Land Development Code violates RLUIPA's equal terms provision by allowing secular assemblies in residentially-zoned areas without a conditional use permit. [Thanks to Daniel Dalton for the lead.]

Monday, July 28, 2014

International Religious Freedom Report for 2013 Released

The State Department today released its International Religious Freedom Report for 2013. The Report reviews the religious freedom records of nearly 200 countries. Secretary of State Kerry spoke extensively at the roll out of the Report. (Full text of remarks.) Assistant Secretary, Bureau of Democracy, Human Rights, and Labor Tom Malinowski followed up and answered reporters' questions. (Full text.)

The Report's Executive Summary reads in part:
In 2013, the world witnessed the largest displacement of religious communities in recent memory. In almost every corner of the globe, millions of Christians, Muslims, Hindus, and others representing a range of faiths were forced from their homes on account of their religious beliefs. Out of fear or by force, entire neighborhoods are emptying of residents. Communities are disappearing from their traditional and historic homes and dispersing across the geographic map. In conflict zones, in particular, this mass displacement has become a pernicious norm.

Obama To Nominate Rabbi David Saperstein As Ambassador-At-Large For International Religious Freedom

The White House today announced President Obama's intention to nominate Rabbi David Saperstein to be Ambassador-at-Large for International Religious Freedom.  Here is Rabbi Saperstein's biography as set out in the White House press release:
Rabbi David Nathan Saperstein is Director and Counsel of the Religious Action Center of Reform Judaism, where he has served since 1974.  He is also an Adjunct Professor of Law at Georgetown University Law Center, where he teaches First Amendment Church-State Law and Jewish Law.  Rabbi Saperstein serves on a number of boards, including The Leadership Conference on Civil and Human Rights and the National Religious Partnership for the Environment.  He was a Member of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships from 2010 to 2011.  Rabbi Saperstein was a member of the U.S. Commission on International Religious Freedom from 1999 to 2001, serving as its first Chair from 1999 to 2000.  Rabbi Saperstein received a B.A. from Cornell University, an M.H.L. from Hebrew Union College, and a J.D. from American University.
Rabbi Saperstein will replace Suzan Johnson Cook who resigned last October. (See prior posting.)

Eid al Fitr Begins Today; White House Issues Greetings

Today is the beginning of Eid al Fitr, marking the end of Ramadan. (Background from Huffington Post). The New York Times reports that today's start of the Eid was confirmed last night by the area's Roohat-e-Hilal Committee, or Moon-Sighting Committee. Yesterday President Obama issued a statement (full text) wishing "Muslims in the United States and around the world a blessed and joyous celebration."

Second Florida Trial Court Invalidates State's Same-Sex Marriage Ban; Stays Order

In Pareto v. Ruvin, (FL Cir. Ct., July 25, 2014), a Florida state trial court in Miami-Dade County held that Florida's ban on same-sex marriage violates the 14th Amendment's due process and equal protection clauses.  While ordering the Miami-Dade County clerk of courts to modify its marriage license forms to encompass same-sex marriages, the court stayed its order pending expected appeals. The court excluded from its order the provision of Florida law barring recognition of same-sex marriages performed in other jurisdictions, presumably because none of the plaintiffs before the court had been married elsewhere. Earlier this month, a Monroe County Florida trial court also struck down Florida's ban on same-sex marriage. (See prior posting.) AP reports on the Miami-Dade County decision.

Church Challenges Town's Zoning Law

Liberty Institute announced the filing last week of a RLUIPA challenge to the zoning ordinance of the town of Bayview, Texas. The complaint (full text) in Cornerstone Church by the Bay v. Town of Bayview, Texas, (SD TX, filed 7/22/2014), alleges that the town's zoning ordinance violates RLUIPA and the Texas Religious Freedom Restoration Act, as well as federal and state constitutional protections, by barring all religious institutions in the town's only residential zone while allowing similarly situated non-religious institutions there. Cornerstone is seeking to operate a church and religious school on land that was donated to it.

Recent Articles of Interest

From SSRN:
From SmartCILP and elsewhere:

Sunday, July 27, 2014

ISIS On Campaign To Destroy Religious Shrines In Iraq Hits Tomb of Jonah

The Wall Street Journal reported Friday on announced plans of the insurgent group Islamic State to destroy religious shrines and graves in Iraq.  Conservative Sunni doctrine prohibits the veneration of shrines or burial sites. Carrying out its goal, on Thursday in Mosul, the group blew up the Tomb of Jonah and the Nabi Younes Mosque in which it was housed. The Journal reports:
Though its population is predominantly Sunni, Mosul was a symbol of religious intermingling and tolerance in Iraq. Nineveh, the wider province, is a Assyrian Christian center dating back thousands of years. That Jonah's shrine was in a mosque was a proud reflection of that coexistence....

Recent Prisoner Free Exercise Cases

In Legate v. Stephens, 2014 U.S. Dist. LEXIS 98442 (SD TX, July 21, 2014), a Texas federal district court adopted a magistrate's recommendation and dismissed a complaint by a Native American inmate that he was not permitted to have long hair or a kouplock, smoke from a sacred pipe, and carry a medicine bag outside his cell.

In Germain v. Shearin, 2014 U.S. Dist. LEXIS 99159 (D MD, July 21, 2014), a Maryland federal district court refused to dismiss because of a genuine issue of material fact a Muslim inmate's complaint that in 2013 inmates observing the Ramadan fast did not receive sufficient calories in their meals.

In Heath v. Lewis, 2014 U.S. Dist. LEXIS 100809 (WD PA, July 24, 2014), a Pennsylvania federal magistrate judge dismissed as moot an inmate's complaint that he was denied Jewish reading material from the chaplaincy library, and also dismissed his claim regard kosher food.

Saturday, July 26, 2014

President Signs Law Authorizing Huna Tlingits To Engage In Traditional Egg Harvests

The White House announced that yesterday President Obama signed H.R. 3110, the Huna Tlingit Traditional Gull Egg Use Act. The law authorizes the Interior Department to permit members of the Hoonah Indian Association to harvest eggs of glaucous-winged gulls twice a year in Alaska's Glacier Bay National Park.

Friday, July 25, 2014

Pope Francis To Visit U.S. In September 2015

Catholic News Service today reports that Pope Francis has accepted an invitation to visit the United States to attend the 2015 World Meeting of Families.  The announcement was made by Philadelphia Archbishop Charles J. Chaput.  The Meeting will be held in Philadelphia from Sept. 22-27, 2015. A Vatican spokesman said that the Pope is considering invitations to visit elsewhere in the U.S. as well as part of his trip, including possibly New York, the United Nations and Washington, DC. Official confirmation from the Vatican is not expected until six months before the planned trip.

In Britain, Theology Student's Unemployment Benefits Ended For Attending Communion Instead of Interview

Church Times today reports on a decision in Britain, upheld on appeal, to cut off the unemployment benefits of a theology student because he skipped a required interview to attend a Church service.  Graham Hodson was granted benefits when his student-related job ended. A month later he was ordered to have an interview with a Jobcentre Plus personal adviser. His request that the interview be moved a half-hour later so he could attend the weekly Book of Common Prayer Service was refused. He attended the Church service anyway and had his benefits terminated for failure to show up at his interview.  Administrative regulations excuse failure to appear at an interview only if it is for good cause, defined to include: "that the established customs and practices of the religion to which the person belongs prevented him attending on that day or at that time."  A First Tier Tribunal held that Hodson's actions did not fit the exception because attending Communion on Thursdays, rather than another day, was a mere preference, not an established practice and custom of the Church of England. An Upper Tier Tribunal upheld the decision on appeal because Hodson had said that he would make other arrangements to attend Communion if he were offered a full-time job.

Court Reaffirms Catholic Hospital's Plan Not Exempt From ERISA As" Church Plan"

In Rollins v. Dignity Health,(ND CA, July 22, 2014), a California federal district court reaffirmed its earlier holding that Dignity Health's retirement plan is not a "church plan" exempt from ERISA because the plan was not established by a church.  Granting a declaratory judgment, the court rejected Dignity's argument that there is a genuine dispute of fact as to whether the plan should be seen as having been established by several religious orders that controlled Dignity at the time the plan was created.  The holding in the class action lawsuit means that the Catholic health care system's pension plan is underfunded by $1.2 billion.  San Francisco Business Times reports on the decision.

$3.5 Million Belongs To Break-Away Episcopal Diocese

In Diocese of Quincy v. The Episcopal Church, (IL App., July 24, 2014), an Illinois state appellate court applied the "neutral principles" approach to hold that over $3.5 million in funds and title to a Diocesan House belong to the break-away Diocese of Quincy and were not held in trust for The Episcopal Church.  The court observed that the Episcopal Church's Dennis Canon applies to parish property, but not to property belonging to a diocese.

Microscope Technician Sues Over Firing For Creationist Research

CBS News reports on a state court lawsuit filed earlier this week by a former electron microscope technician in the Biology Department of California State University Northridge.  The complaint (full text) in Armitage v. Board of Trustees of the California State University, (CA Super. Ct., filed July  22, 2014), alleges that plaintiff Mark Armitage was terminated because of hostility to his research findings supporting the theory of creationism.  In 2012, Armitage participated in a dinosaur dig in Montana and discovered a large triceratops horn.  His microscopic examination of the horn revealed soft tissue, supporting his belief that dinosaurs roamed the planet no earlier than 4000 years ago and that the Earth is young.  Alleging religious discrimination and violation of academic freedom rights, Armitage's complaint asserts:
Plaintiff seeks to have his work published, not only as a means of career advancement, but because his work is a reflection of his religious identity.  He believes that part of the character of God is truth, and that by extension, God is the ultimate author of all truth.  Thus, making and disseminating scientific discoveries is part and parcel of how he exercises his religion.

Editor Fired For Anti-Gay Blog Post Files EEOC Religious Discrimination Claim

Yesterday, a complaint (full text) was filed with the EEOC by Bob Eschliman, former editor of the Newton (IA) Daily News.  As reported by the Des Moines Register, Eschliman was suspended and then fired by his newspaper's publisher after complaints that a posting on Eschliman's personal blog cast doubt on his ability to fairly cover issues involving gays.  The posting criticized a website-- the Queen James Bible-- that advertises a version of the Bible that edits verses relating to homosexuality to eliminate homophobic interpretations.  Eschliman, a member of the Christian Reformed Church, in his post mockingly said that "the LGBTQXYZ crowd and the Gaystapo" are attempting "to make their sinful nature right with God." Eschliman's EEOC complaint says that his post reflected his sincerely held religious beliefs, and contends:
There is no question that I was fired for holding and talking about my sincerely held religious beliefs on my personal blog during my off-duty time.... I would like to have obtained a religious accommodation for my sincerely held religious belief to share my Biblical view with the few family members and friends who read my blog. Shaw Media directly discriminated against me because of my religious beliefs and my identity as an evangelical Christian who believes in Holy Scripture and the Biblical view of marriage. Moreover, Shaw Media announced that... they would not hire or allow anyone to work at Shaw Media who holds religious beliefs similar to mine....

Thursday, July 24, 2014

Charges of Fraudulent Fundraising for Jewish Religious and Charitable Organizations Settled In Civil Judgment

As reported by Courthouse News Service, New York's attorney general yesterday anounced the entry of a civil judgment settling charges in a charity fraud case against Yaakov Weingarten and his wife Rivka who raised funds for some 19 Jewish religious organizations and Israeli medical charities.  Eight of the charities existed in name only.  Weingarten siphoned off large amounts of the funds raised and used them for personal purposes.  In May, Weingarten pleaded guilty to tax fraud and paid $90,685 in restitution to New York state tax authorities. He was also sentenced to 5 years probation during which he is barred from any fundraising activity. In yesterday's civil judgment,  Weingarten and his wife were ordered to pay over $522,000. Of that, $360,000 will go to two legitimate Israeli charities that carry out the kind of medical services that Weingarten  purported to be raising funds to support. The order also permanently shuts down Weingarten's charitable operations.

US Congress, European Parliament Focus On Case of Meriam Ibrahim

Yesterday, a subcommittee of the House Foreign Affairs Committee held a hearing titled "The Troubling Case of Meriam Ibrahim." The hearing focused on the plight of a Sudanese Christian woman, married to a U.S. citizen, who was initially convicted of apostasy and sentenced to death by a Sudanese court, her subsequent release, and efforts of her family to come to the U.S.  (See prior posting.) A video of the hearing and the prepared statements of the four witnesses at the hearing are available from the Committee's website.

Meanwhile, last week the European Parliament passed a resolution (full text) condemning Ibrahim's detention and calling for legal reform.

UPDATE: On July 24, Ibrahim, on her way to the United States, stopped off at Rome where Pope Francis met privately with her, her husband and her two small children.  The Pope blessed Ibrahim as she held her baby in her arms. (HNGN).

Colorado Same-Sex Marriage Laws Invalidated With Only Limited Stay

A Colorado federal district court yesterday issued a preliminary injunction enjoining enforcement of Colorado's state constitutional and statutory provisions that deny same-sex couples the right to marry in Colorado and deny recognition of same-sex marriages performed elsewhere.  In Burns v. Hickenlooper, (D CO, July 23, 2014), the defendants (the governor, the attorney general and a county clerk) did not oppose entry of the injunction since the 10th Circuit in a case from Utah had already held same-sex marriage bans unconstitutional. (See prior posting,) Subsequently the 10th Circuit also invalidated Oklahoma's ban on same-sex marriages. (See prior posting.) Much of yesterday's opinion focused on the question of whether the court should stay its order while the Utah case moves forward on appeal.  The court refused, but instead merely granted a one-month stay in order for defendants to seek relief from the 10th Circuit.  In refusing a broader stay, the court the rejected the argument that U.S Supreme Court action summarily granting stays in other same-sex marriage litigation requires a similar stay here:
Based on the most recent stay, it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.
Scotus Blog and AP report on the decision.  According to the Denver Post, Colorado attorney general John Suthers filed an appeal with the 10th Circuit an hour after the district court decision was handed down.

Church Split Can Be Adjudicated Using Neutral Principles of Law

In Rector, Wardens and Vestrymen of St. Mary of the Angels' Parish v. Anglican Church in America, (CA App., July 23, 2014), a California appellate court held that a dispute over who controls an Anglican parish, a majority of whose members favor reunification with the Catholic Church, can be resolved by applying neutral principles of law and without deciding ecclesiastical matters. According to the court:
At one point during the dispute, the ACA took disciplinary action against the Rector, Father Christopher P. Kelley, inhibiting him from performing any ecclesiastical duties, and ordering him to vacate the premises owned by St. Mary’s. The ACA appointed a new Rector, who then removed several members of the elected Vestry and appointed new members.
When Father Kelley refused to vacate the premises, the ACA ... filed a lawsuit against him.... Eventually, three more lawsuits were filed.... All of the lawsuits required resolution of one dispositive question: Who controls St. Mary’s?
....We conclude that the determination of who controls St. Mary’s depends upon the validity of an August 2012 vote by members of the Parish to disaffiliate from the ACA, and that the validity of that amendment can be determined by applying neutral principles of law. 

Wednesday, July 23, 2014

Suit Challenges City's Denial of Equal Public Space To Atheist

The ACLU today announced the filing of a lawsuit against the city of Warren, Michigan on behalf of an atheist who was refused space for a table in the atrium of city hall for a "reason station,"  even though the city has permitted a local pastor to operate a "prayer station" in the atrium since 2009.  The complaint (full text) in Marshall v. City of Warren, (ED MI, filed 7/23/2014), sets out free speech and establishment clause challenges based largely on the letter sent by the city's mayor denying plaintiff's request. The letter reads in part:
It is my understanding that you are affiliated with Freedom from Religion, a group that has objected to the Nativity Scene, the Prayer Station in the atrium and the Annual Day of Prayer in front of city hall.
All of these events are allowed because of the right to freedom of religion constitutional amendment. We cannot and will not restrict this right for any religion to use the atrium, as long as the activity is open to all religions. Freedom from Religion is not a religion. It has no tenets, no place of worship and no congregation. To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this. 
Also, I believe it is your group’s intention to disrupt those who participate in the Prayer Station which would also be a violation of the freedom of religion amendment.

Recent Prisoner Free Exercise Cases

In Chavis v. United States, 2014 U.S. Dist. LEXIS 96940 (D NJ, July 17, 2014), a New Jersey federal district court dismissed without prejudice a claim by an inmate that his free exercise rights were infringed when a correctional officer conducted a pat-down search of him in a "homosexual manner."

In Sharp v. Gay, 2014 U.S. Dist. LEXIS 97825 (D AZ, July 18, 2014), an Arizona federal district court, after a 3-day bench trial, held that a prison's policy allowing Native American inmates to obtain wood for sweat ceremonies only by in-kind donations from family or friends outside the prison violates RLUIPA. The court ordered prison officials to set up a group religious account to allow for inmate and outside financial contributions for the purchase and delivery of firewood. The court however rejected plaintiff's equal protection claim seeking an additional religious meeting time each week for Native Americans.

In Randolph v. Griffin, 2014 U.S. Dist. LEXIS 97369 (WD NY, July 16, 2014), a New York federal district court permitted a Jewish inmate to proceed with his claim that his free exercise rights were infringed when a correctional officer ordered him to remove his yarmulke indoors (including in his cell) and then permanently confiscated it.

AFP reports that in France on July 22, a court ruled that a prison need not furnish Muslim prisoners halal food, since they can obtain meals without pork or vegetarian meals, can purchase halal meat and recieve special meals during the main holidays.

Suit Seeks Return of Valuable Hebrew Bible Manuscript

On Monday, a suit was filed in federal district court in New York by the heirs of  David C. Arakie to obtain the return of a "priceless, ancient, handwritten set of the Five Books of Moses."  The complaint (full text) in Samuels v. Greenberg,  (ED NY, filed 7/21/2014), alleges that the Hebrew manuscript at issue-- an important resource for Biblical scholars-- was loaned by David Arakie to Zalmen Gurewicz for the purpose of academic study.  Some years later, both Arakie and Gurewicz died with the manuscript never having been returned to Arakie.  The manuscript is presently in the possession of defendants, Gurewicz's daughter and son-in-law, who say they found it in Gurewicz's suitcase. New York Daily News reports on the filing of the lawsuit.