Wednesday, October 31, 2012

Massachusetts High Court Grants Direct Review In Pledge Case

The Massachusetts Supreme Judicial Court last week granted an application for direct appellate review of a trial court's decision in Doe v. Acton-Boxborough Regional School District, a case brought by an atheist-humanist family challenging the constitutionality of the daily recitation of the Pledge of Allegiance in Massachusetts schools. The trial court rejected a challenge under the Massachusetts state constitution to the practice, holding that insertion of the phrase "under God" was a reference to the historical and religious traditions of the United States and did not turn the Pledge into a religious exercise nor violate anti-discrimination requirements. No student is required to take part in the recitation, but plaintiffs argued that the recitation marginalizes them and classifies them as unpatriotic. (See prior posting). The American Humanists Association issued a press release announcing the Supreme Judicial Court's grant of review, as did the Becket Fund on the other side of the case. [Thanks to Bob Ritter for the lead.]

Another Suit By Small Business Challenges ACA Contraceptive Coverage Mandate

The number of lawsuits challenging the Obama administration's mandate requiring businesses to include contraceptive coverage in their health insurance policies continues to grow.  On Monday, an Indiana limited liability company that manufactures vehicle lighting and safety systems, along with its Catholic owners, filed suit claiming that complying with the mandate would violate the owners' religious beliefs. The company employs over 1100 people in several countries. The complaint (full text) in Grote Industries, LLC v. Sebelius, (SD IN, filed 10/29/2012), alleges 1st and 14th Amendment, RFRA and Administrative Procedure Act violations. Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

In Israel, Park Closure To Outsiders Leads To Religious Discrimination Suit Against City

Arutz Sheva reported yesterday on a religious discrimination lawsuit filed in Israel against the city of Modi'in because it closed its popular Anabe Park to non-residents of the city last month during the holiday of Sukkot.  The move was seen as directed against the haredi (ultra-Orthodox) residents of the neighboring city of Modi'in Illit.  Apparently Modin mayor Chaim Bibas was reacting in part to a threat last summer by haredi to bar secular Israelis from visiting a heritage site in Modi'in Illit. Also residents of Modi'in have complained that the park is being taken from them by the many haredi that visit the park. The suit was filed by the Association for Civil Rights In Israel.

Tuesday, October 30, 2012

Ethiopia Files Terrorism Related Charges Against Muslim Demonstrators

AFP reports that in Ethiopia yesterday, 29 Muslims (including 9 prominent leaders) were formally charged with "intending to advance a political, religious or ideological cause" by force and "planning, preparation, conspiracy, incitement and attempt of terrorist acts." Two NGO's were also charged with rendering support to terrorism. The 29 charged were jailed in July after a demonstration in which they charged the government with trying to impose the moderate Al Ahbash Sufi branch of Islam on them. They also claim that the government fixed the results of elections for leaders of the Supreme Council on Islamic Affairs. 34% of Ethiopia's population is Muslim.

Statute of Limitations Ruling In Milwaukee Archdiocese Bankruptcy Upheld

In In re Archdiocese of Milwaukee, (ED WI, Oct. 29, 2012), a Wisconsin federal district court ruled on appeals of 3 claimants from orders of a bankruptcy judge relating to claims by abuse victims filed in the bankruptcy reorganization of the Catholic Archdiocese of Milwaukee. The claims generally allege that the Archdiocese knowingly allowed pedophile priests to continue in their positions without warning victims or their families. The court held that the bankruptcy court applied the correct standard in denying summary judgment on a statute of limitations defense in the claims of two victims who alleged fraud. Issues of fact remain on whether the statute has run. The court affirmed the bankruptcy court's dismissal on state statute of limitations grounds of same two claimants' failure to warn claims, saying: "The federal courts are not the appropriate forum to re-write Wisconsin tort law." The court upheld the bankruptcy court's dismissal of claims by a third victim who had settled his claims in mediation. While he alleged fraudulent statements, he did not allege he relied on them in settling.

Reporting on the decision, the Milwaukee Journal-Sentinel says that the dismissal of the claim by the victim who settled allows the Archdiocese to file similar objections to 90 other claimants in the bankruptcy proceedings. An attorney for 350 of the 574 claimants in the bankruptcy says he will now press the archdiocese to pursue coverage under two recently discovered insurance policies.

Monday, October 29, 2012

Supreme Court Denies Cert In Oklahoma Personhood Amendment Case

Th U.S. Supreme Court today denied certiorari in Personhood Oklahoma v. Barber, (Docket No. 12-145, cert. denied 10/29/2012) (Order List).  In the case, the Oklahoma Supreme Court in In re Initiative Petitition 395, (OK Sup. Ct., April 30, 2012) held that a proposed state constitutional amendment that would have defined as a person "any human being from the beginning of the biological development of that human being to natural death" was inconsistent with the U.S. Supreme Court's abortion rights rulings and thus the proposed amendment could not appear on the Oklahoma ballot. The Oklahoman reports on the Supreme Court's refusal to review the decision.

White House Sends Best Wishes To Muslims Celebrating Eid al-Adha

Last Friday, President Obama released a statement sending best wishes to Muslims in the United States and around the world who were celebrating  Eid al-Adha, as well as to those who are performing the Hajj. The statement said in part:
Throughout the year, Muslims join members of many faiths in serving  those suffering from hunger, disease, and conflict.  Muslim communities will continue this practice as they celebrate Eid by distributing food and charity to those in need.  Such acts of compassion underscore the shared values of the Abrahamic religions and people of all faiths.

Texas Parochial School Group Will Provide Religious Accommodation In Tournament Scheduling

The Texas Association of Private and Parochial Schools has changed its rules to provide for religious accommodation for teams in basketball tournament scheduling. JTA reported last week that the move was taken after the association began facing pressure from members to become more inclusive.  Last February, TAPPS became embroiled in a high profile controversy over its refusal initially to reschedule a Friday evening game for a Houston Jewish day school. (See prior posting.)

Recent Articles of Interest

From SSRN:
Recent Issues of Online Journals:

Sunday, October 28, 2012

Trial Court Denies Vermont Diocese Summary Judgment In Abuse Case

In Parks v. Roman Catholic Diocese of Burlington, Vermont, Inc., (VT Super., Oct. 18, 2012), a Vermont trial court denied summary judgment to to the Burlington Catholic Diocese in a suit against it by plaintiff who, as an altar boy in the late 1970's, was sexually abused by priest Edward Paquette.  The suit alleges negligent hiring and retention of the priest, failure to prevent the abuse and conspiring to cover it up.  The court held that when plaintiff was put on inquiry notice for purposes of the statute of limitations is a jury issue. In particular, the issue here was when plaintiff knew or should have known he was harmed by the molestation. The court also rejected the Diocese's Establishment Clause, free exercise, and due process defenses, as well as its arguments against permitting punitive damages. The result is similar to that reached by a Vermont federal district court last month in a similar suit against the Burlington Diocese brought by a different plaintiff. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Jensen v. Kline, 2012 U.S. Dist. LEXIS 151684 (WD WA, Oct. 21, 2012), a Washington federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 151677, Sept. 14, 2012) and dismissed an inmate's complaint that when corrections officers searched his cell, they mishandled, confiscated and destroyed his sacred Native American religious items.

In Barnett v. Bibb County Sheriffs Office, 2012 U.S. Dist. LEXIS 151814 (MD GA, Oct. 23, 2012), a Georgia federal district court dismissed without prejudice a suit by a pre-rial detainee complaining that jail officials failed to organize and provide religious services for inmates.

In Blum v. Clements, 2012 U.S. Dist. LEXIS 152115 (D CO, Oct. 22, 2012), a Colorado federal magistrate judge dismissed a suit by a Catholic inmate who alleged that his rights under the free exercise clause and RLUIPA were violated, and that certain prison regulations were overbroad and vague, when officials refused to permit him to keep an image of an adult Jesus being flogged, and several images of baby Jesus in various states of undress.

In Joseph v. Fischer, 2012 U.S. Dist. LEXIS 152919 (WD NY, Oct. 24, 2012), a New York federal district court permitted an inmate who is a member of Nation of Gods and Earths to proceed with his claim against the Commissioner of the N.Y. Department of Corrections for injunctive relief under the 1st Amendment and RLUIPA. Plaintiff  alleges that authorities confiscated his written materials relating to NGE, prevented NGE members from congregating to talk about NGE, and do not treat NGE the same as other faith groups.

In Ouahman v. Barnes, 2012 U.S. Dist. LEXIS 153493 (D NH, Oct. 25, 2012), a New Hampshire federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 153508, Oct. 1, 2012), and dismissed a Muslim inmate's complaint that he was not furnished a Qur'an or prayer rug, and did not received a special meal schedule for Ramadan.

In Borkholder v. Lemmon, 2012 U.S. Dist. LEXIS 153970 (ND IN, Oct. 26, 2012), an Indiana federal district court permitted an inmate to proceed with his claim that his rights under the 1st Amendment and RLUIPA were violated when his religious vegan diet was revoked because he ordered Raman Noodles (which includes a meat-based seasoning packet) from the commissary.

UPDATE: On Oct. 24, the ACLU announced a settlement in a suit against Prince County, Washington under which county jail officials have agreed to accommodate religious dietary requests of Muslims and, consistent with jail security, accommodate other religious needs of Muslim inmates. Defendants will also train jail staff on religious freedom issues.

Suit Challenges Michigan Law Restricting Political Pressure By Clergy

Last week, Dr. Levon Yuille, pastor of The Bible Church in Ypsilanti, Michigan filed a federal lawsuit challenging the constitutionality of a Michigan statute (MCL §168.931(1)(e)) that prohibits any member of the clergy from threatening excommunication, expulsion or religious disapproval for the purpose of influencing a voter at an election.  Plaintiff is also National Director of the National Black Pro-Life Congress, former Chairman of the Michigan Black Republican Council of Southern Michigan, and the host of  Joshua’s Trail, a radio talk show. He seeks an injunction, claiming that the law violates his free speech, free exercise and equal protection rights. The complaint (full text) in Yuille v. Schuette, (ED MI, filed 10/22/2012) alleges that Yuille is subject to prosecution under the law because:
Pursuant to his sincerely held religious beliefs, Pastor Yuille advises voters, including those voters who are members of his church, that to vote for a candidate that publicly supports abortion and gay marriage, such as President Barack Obama, is to act contrary to God’s Word, it is a grave sin, it is looked upon with religious disapproval, and it could endanger their soul and separate them from the body of Christ.   
American Freedom Law Center announced the filing of the lawsuit. Plaintiff also filed a motion for a temporary restraining order and prelliminary injunction and a brief in support of the motion (full text). A hearing is scheduled on Tuesday. (AFLC press release.) According to a report today by the Detroit Free Press, Michigan attorney general Bill Schuette, also a Republican, filed a response to the lawsuit arguing that it has no basis. He says he is not aware of any prosecutions in the modern era under the provision that was originally enacted over 100 years ago.

Saturday, October 27, 2012

Paper Says Some Religiously Affiliated Residential Child Care Homes In Florida Escape State Regulation and Abuse Residents

Florida law imposes state-wide minimum standards on child care facilities. However, Fla. Stat. Sec. 402.316  exempts from most of the state requirements any "child care facility which is an integral part of church or parochial schools ... or educational programs accredited by... an organization which publishes and requires compliance with its standards for health, safety, and sanitation."  The Tampa Bay Times, in an investigative article today, reports that nearly a dozen residential group homes for children which escape state supervision under this exemption have abused children in their care, and they continue to operate.  Religious homes under the exemption are supposed to be supervised by the Florida Association of Christian Child Caring Agencies, which says it has removed accreditation from at least 3 homes since 2005. Some of these nevertheless continue in violation of state law.  According to the newspaper:
Today, virtually anyone can claim a list of religious ideals, take in children and subject them to punishment and isolation that verge on torture — so long as they quote chapter and verse to justify it....
Here are some of the findings that emerged from the paper's investigation:
• State authorities have responded to at least 165 allegations of abuse and neglect in the past decade, but homes have remained open even after the state found evidence of sex abuse and physical injury.
• The religious exemption has for decades allowed homes to avoid state restrictions on corporal punishment..... 
• Children have been bruised, bloodied and choked to unconsciousness in the name of Christian discipline..... 
• Teens have been denounced as sinners, called "faggots" and "whores," and humiliated in front of their peers for menstrual stains and suspicions of masturbation....
• Florida taxpayers have supported some unlicensed homes with hundreds of thousands of dollars in McKay scholarships — a government program to help special needs students pay tuition at private schools.

Christian Political Group Urges Votes Against Illinois Judge Because of Decision Against Catholic Charities

The Springfield, Illinois State Journal-Register reported yesterday that Illinois Family Action, the political arm of the Christian-based Illinois Family Institute, has made robo-calls to 25,000 households urging voters to vote against a Republican trial court judge because he ruled that the state is not required to renew contracts with Catholic Charities to provide foster care and adoption services. (See prior posting.) The state decided not to renew the contracts because Catholic Charities refuses to serve unmarried cohabiting couples (including those in same-sex civil unions). The target of the calls, Judge John Schmidt is running against a lawyer, Democrat Tim Londrigan. The robo-calls say in part that Schmidt "recently ruled against religious liberty in upholding the radical homosexual civil unions law." Similar calls are being made in attempts to defeeat six legislative candidates who support civil unions.

Court, Accepting Magistrate's Ruling, Permits 4th Grader To Distribute Easter Egg Hunt Invites

As previously reported, earlier this month a Florida federal magistrate judge recommended issuance of a preliminary injunction to allow a 4th grade student to distribute invitations to a church-organized Easter egg hunt to fellow classmates. Now, in Gilio v. School Board of Hillsborough County, Florida, (MD FL, Oct. 24, 2012), a federal district judge has adopted the magistrate's report and recommendation and issued a preliminary injunction, concluding:
There is no evidence in this record that distribution of Easter egg hunt invitations during non-instructional time would have caused any interference with school work or discipline at [the school]..... [A]s applied to J.D.'s invitations, enforcement of the contested provisions ... was unconstitutional as view-point based discrimination because enforcement targeted proselytizing messages solely from a religious perspective.
AP reports on the decision.

Friday, October 26, 2012

6th Circuit: Transit System Can Refuse Anti-Muslim Ad

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 25, 2012), the U.S. 6th Circuit Court of Appeals held that a public transit system could refuse an ad that read: "Fatwa on your head?  Is your family or community threatening you?  Leaving Islam?  Got Questions?  Get Answers! RefugefromIslam.com."  Holding that the district court should not have granted a preliminary injunction, the 6th Circuit said:
Since the advertising space on SMART’s vehicles is a nonpublic forum, the content restrictions imposed on that space are constitutional as long as they are reasonable and viewpoint neutral.....  SMART could reasonably view the fatwa advertisement as falling within the prohibition against political advertisements, and AFDI is unlikely to succeed with its counterarguments that these rules are unconstitutional or merely a pretext for SMART’s disagreement with AFDI’s viewpoint.
The Wall Street Journal reports on the decision. [Thanks to Alliance Alert for the lead.]

Court Rejects Muslim Man's Suit Against Fast Food Restaurant For Inadequate Warning of Bacon In Sandwich

In Lopez v. Wendy's International, Inc., (ND OH, Oct. 23, 2012), a Muslim customer of a Wendy's restaurant franchise in New York City sued claiming he was not adequately warned that the restaurant's Asiago Chicken Ranch Club Sandwich contained bacon, which he is forbidden for religious reasons from eating. The cashier did not mention bacon as an ingredient when he asked what the sandwich contained.  An Ohio federal district court dismissed one of the defendants on the ground that Ohio was not the proper venue.  On the merits, it dismissed plaintiff's free exercise claim because defendants were not state actors. It dismissed plaintiff's Lanham Act claim on the ground that a one-time answer from a restaurant employee is likely not an "advertisement," and at any rate there was no intent to deceive. Finally the court refused to exercise supplemental jurisdiction over plaintiff's state law claims.

New Poll Says Americans Oppose Conscience Exemptions For Suppliers of Reproductive Health Services

Yesterday, Catholics for Choice and the ACLU released a new Belden Russonello poll that concludes Americans, by wide majorities, oppose exemptions that allow organizations and medical professionals to refuse to furnish reproductive health services on religious grounds. For example, 69% of those polled (including 68% of Catholics) oppose allowing religiously affiliated universities to deny insurance coverage for birth control.  62% oppose allowing Catholic hospitals to refuse to perform medically necessary abortions. 77% oppose allowing pharmacies to refuse for religious reasons to fill birth control prescriptions.

KY High Court Upholds Convictions of Amish Buggy Drivers; Adopts Federal Standard For State Free Exercise

Yesterday the Kentucky Supreme Court, in a 4-1-2 decision, aligned its interpretation of the free exercise provisions of the Kentucky Constitution (Sec. 1 and 5) with the U.S. Supreme Court's interpretation of the federal free exercise clause.  In Gingerich v. Commonwealth of Kentucky, (KY Sup. Ct., Oct. 25, 2012), the majority upheld the convictions of a number of Amish men for violating KRS 189.820, which (before it was amended earlier this year to create an alternative for Amish objectors) required all slow-moving vehicles to display a bright orange-yellow triangle. The defendants, all members of the Old Order Swartzentruber Amish, claim the emblem is inconsistent with their religious requirement to be plain, and displays the trinity which is a symbol not adopted by the Amish. The majority in an opinion by Justice Noble, wrote:
This Court now finds that statutes, regulations, or other governmental enactments which provide for the public health, safety and welfare,  and which are statutes of general applicability that only incidentally affect the practice of religion, are properly reviewed for a rational basis under the Kentucky Constitution, as they are under the federal constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review. As discussed above, providing this clearer standard brings Kentucky's jurisprudence in line with United States Supreme Court precedent.
 Justice Venters in a separate opinion concurred in the result, but said:
This Court is the final arbiter of the meaning of the Kentucky Constitution, and our interpretation of its terms should not be constrained by the opinions of federal courts interpreting the United States Constitution. Those opinions may be instructive and influential in our review of our state Constitution, but they do not control the meaning of the Kentucky Constitution; nor do they define the protections of liberty contained therein. We should no longer tether the meaning of the Kentucky Constitution to the pendulum of the federal court interpretations of the federal Constitution.
Justice Scott, in an opinion joined by Justice Abramson, argued:
the Kentucky Constitution unquestionably affords greater protection to the free exercise of religion than does the Federal Constitution. Accordingly, any law interfering with an individual's free exercise of religion must pass strict scrutiny or else be declared unconstitutional.
They concluded that while the state had a compelling highway safety interest, it had not used the least restrictive alternative in achieving its purpose. AP reports on the decision.

Court Bashes Prisoner Grievance System In Free Exercise Case

An Illinois federal district court this week, in a prisoner free exercise case, adopted a magistrate's report and recommendation that is highly critical of the Illinois prison system's administrative grievance system. In Spivey v. Love, 2012 U.S. Dist. LEXIS 151705 (SD IL, Oct. 23, 2012), magistrate's recommendation at 2012 U.S. Dist. LEXIS 152179, Sept. 14, 2012, an inmate sued complaining that as he was transferred to 3 different Illinois correctional facilities, his religious affiliation got incorrectly listed as Protestant rather than Jewish, and he was unable to get the error corrected.  In the process he was also denied a vegetarian diet and his Jewish Bible was confiscated. Defendants moved for summary judgment, arguing that the inmate had failed to exhaust his administrative remedies through the prison grievance system.  The magistrate's opinion (which the court adopted) denied defendants' motion, saying the following:
The IDOC has a three-step process that prisoners under their jurisdiction are required to follow in order to exhaust administrative remedies.....

The circumstances of this case are illustrative of the all-to-common scenario in cases involving prison institutions under the authority of the IDOC of failed attempts by defendants in prisoner litigation to successfully litigate the failure to exhaust administrative remedies defense. Counsel for the defendants is hardly to blame for these failures. Rather, it is a reflection of the negligent handling of prisoner grievances within the prison institutions.

With the possible exception of ... step three, it appears as if there is no documented system for tracking grievances as they make their way through the various phases of exhaustion. Under the present system, a grievant must put his faith in prison staff to deliver the grievance to the appropriate location without receiving any type of return receipt verifying that the grievance had been delivered successfully. When the prisoner does not hear anything regarding the grievance, he must beg prison staff for morsels of information regarding its status (all of this while the 60-day clock for filing grievances is ticking). If the prisoner is fortunate enough to get a response from his counselor at step one, he must restart the process of relying on prison staff to get his grievance to the right place, again absent any verification of receipt. The present system causes loads of unnecessary confusion among both the grievant and the prison staff involved in processing the grievances. In addition, the absence clear information regarding what happened to a particular grievance makes defendant counsel's task of meeting their burden of proof on the exhaustion defense next to impossible.

It would seem apparent that this mass confusion could be eliminated by the implementation of a basic grievance tracking and receipt system.

NJ Civil Rights Head Affirms Administrative Law Judge's Holding of Violation For Refusing To Rent Facilities For Civil Union Ceremony

AP reports this week that the director of the New Jersey Division on Civil Rights has upheld a January ruling by an administrative law judge that the Methodist-affiliated Ocean Grove Camp Meeting Association violated the state's anti-discrimination laws when in 2007 it refused on religious grounds to rent out its boardwalk pavilion to a lesbian couple to use for their civil union ceremony. [Thanks to Alliance Alert for the lead.]

Thursday, October 25, 2012

5th Circuit: Music Director's ADEA and ADA Claims Barred By Ministerial Exception Doctrine

In Cannata v. Catholic Diocese of Austin, (5th Cir., Oct. 24, 2012), the U.S. 5th Circuit Court of Appeals dismissed claims under the Age Discrimination in Employment Act and Americans With Disabilities Act brought against the Diocese of Austin by a former Music Director at a Catholic church. Plaintiff, Phillip Cannata, worked only evenings and weekends. He  oversaw the Music Department's budget, managed  the  sound  systems and maintained equipment and the music areas.  He also rehearsed with members of the choir and cantors and accompanied them on the piano during services while running the soundboard. Concluding that the Supreme Court's Hosanna-Tabor decision at least modifies prior 5th Circuit precedent, the court held that Cannata was a "minister" for purposes of the ministerial exception doctrine:
the church has the right to determine who will  participate  in  its  religious  ceremonies. Even  assuming  Cannata  was "merely" an accompanist, Appellees have established the importance of music to the celebration of Mass and Cannata’s role in the service.  Because Cannata performed an important function during the service, there is no genuine dispute that he played a role in furthering the mission of the church and conveying its message to  its  congregants.

Virginia Ballot Measure Will Let Legislators Accommodate Passover In Scheduling Veto Session

Connection Newspapers yesterday reported on a state constitutional amendment on the ballot in Virginia next month that is designed to allow the state legislature to avoid scheduling its annual veto consideration session in conflict with Passover.  (Full text of proposed amendment.) Currently Art. IV, Sec. 6 of Virginia's constitution requires the legislature to reconvene on the sixth Wednesday after adjournment "for the purpose of considering bills which may have been returned by the Governor with recommendations for their amendment and bills and items of appropriation bills which may have been returned by the Governor with his objections." Because of the limitations on the length of the regular legislative session also set out by the state constitution, the "veto session" often coincides with Passover.  The proposed amendment will allow the legislature by joint resolution to vote to delay its veto session by one week.

Scientologist Challenges Britain's Limits On Religious Buildings In Which Marriages Can Be Performed

Under British law, in England and Wales any building that has been certified as a place of religious worship under the Places of Worship Registration Act 1855 may then, under the Marriage Act 1949, be certified as a building in which marriages can be solemnized. However, Britain's Registrar General of Births, Deaths and Marriages refuses to recognize Church of Scientology chapels as a "places of worship" so individuals wanting to marry according to Scientology ritual must first be civilly married at a registrar's office and then have the marriage blessed on Scientology premises. The Independent reports on a lawsuit argued in London's High Court on Tuesday in which Scientologist Louise Hodkin charges that the refusal to recognize Scientology chapels violates the 2010 Equality Act. She wants to be married at London's elaborate Scientology headquarters. According to a report by the Press Association, the refusal by the Registrar's office to recognize Scientology chapels stems from a 1970 Court of Appeal decision, R v. Registrar General ex parte Segerdal, in which the court denied registration to Scientology buildings, holding that adherents come together primarily for instruction in a philosophy of human life, not for religious worship. In Tuesday's High Court arguments, plaintiff's counsel argued that the form of worship by Scientologists has evolved and is now materially different from what it was in 1970 when the Segerdal case was decided.

Court Enters Stipulated Stay of Enforcement In NYC Circumcision Regulation

Pursuant to a stipulation of the parties, a New York federal district court in Central Rabbinical Congress of the USA & Canada v. New York City Department of Health and Mental Hygiene, (SD NY, Oct. 23, 2012), entered a temporary stay of enforcement of the health department's newly adopted regulation requiring informed consent from parents when a Jewish religious circumcision involves use of the oral suction technique (metzitzah b'peh). The enforcement stay remains in effect until Nov. 14 when oral arguments on plaintiffs' motion for a temporary restraining order are scheduled to be heard.  The Stipulation also provides that the city will not after that date take enforcement action as to any circumcision that took place before Nov. 14. The regulation is being challenged on free exercise and compelled speech grounds. (See prior related posting.)  Jewish Voice reports on the court's order.

Prof. Paul Kurtz, Secular Humanist Leader, Dies

Prof. Paul Kurtz, a leading figure in the secular humanist movement, died last Saturday at age 86. The New York Times carries an extensive obituary outlining his work.  Kurtz taught philosophy at the University of Buffalo from 1965 to 1991. He wrote dozens of books and articles, and founded the Center for Inquiry.  In 1973, Kurtz, along with Edwin H. Wilson, drafted Humanist Manifesto II, a document signed by 120 religious leaders, philosophers, scientists and writers. The document included this vision of the relationship between ideology and the state:
The separation of church and state and the separation of ideology and state are imperatives. The state should encourage maximum freedom for different moral, political, religious, and social values in society. It should not favor any particular religious bodies through the use of public monies, nor espouse a single ideology and function thereby as an instrument of propaganda or oppression, particularly against dissenters.
[Thanks to Scott Mange for the lead.] 

AU Asks IRS To Investigate Texas Church's Sign Supporting Romney

Americans United announced that on Tuesday it sent a letter (full text) to the Internal Revenue Service asking it to investigate whether a Leakey, Texas church has violated Internal Revenue Code prohibitions on non-profit organizations supporting or opposing political candidates.  Church in the Valley displayed a marquee sign reading: "Vote for the Mormon, Not the Muslim! The Capitalist, Not the Communist!" The sign was widely understood as support for Mitt Romney. The church's pastor said he put up the sign because he feels strongly about the election.

Wednesday, October 24, 2012

Canadian Appeals Court Finds Pastor's Anti-Gay Letter Did Not Violate Alberta's Hate Speech Law

In Lund v. Boissoin, (Ct. App. Alberta, Oct. 17, 2012), a 3-judge panel of the highest appeals court in the Canadian province of Alberta held that an anti-gay letter to the editor of a local newspaper written by Rev. Stephen Boissoin, executive director of the Concerned Christian Coalition, did not violate the province's hate speech law, even though the letter was "coarse, crude and insensitive."  The court said, in part:
Suffice to say that the letter is essentially an expression of Boissoin’s opinion that teaching children at school that homosexuality is normal, and that same sex families are equivalent to heterosexual families, is morally wrong and should not be tolerated.... And the aim of the letter was to stir apathetic people, who agreed with him, to his cause....
Does Boissoin’s condemnation of homosexuality, albeit in extreme and intemperate language, subject him to censorship by the human rights panel? The Act provides no exemption for religious leaders or public places of worship. If it is not possible to condemn sexual behaviour which is said to be central to the  identity of homosexuals, without discriminating against them and offending their human dignity, then is it possible for any pastor, priest, rabbi or imam to publicly declare that homosexuality is sinful and morally wrong? Or does it depend upon how polite the language of condemnation is?... The letter attempts to engage in public debate with respect to these matters, as the newspaper editor perceived when he deemed it worthy of publication.
Alliance Defending Freedom issued a press release reporting on the decision. (See prior related posting.

Suit Challenges Utah College's Treatment Of Christian Student Group

In Utah yesterday, a federal lawsuit was filed against Utah's Snow College (a public 2-year college) by a Christian student group that claims a school policy unconstitutionally treats student groups affiliated with religious institutions differently than other student groups.  The complaint (full text) in Solid Rock Christian Club v. Wyatt, (D UT, filed 10/22/2012) challenges both the rule that relegates to "affiliate" status student groups that are affiliated with commercial, for-profit or religious institutions, as well as limitations placed on plaintiffs' participation in the "Paint the Town" Homecoming activity.  In the activity, student groups get to paint the windows of participating local businesses to reflect the Homecoming spirit-- with this year's theme being "Then, Now and Forever."  School officials told Solid Rock Christian Club that it could not use religious symbols in the designs it painted on store windows. Solid Rock wanted to paint a design that included a cross and the message "The cross covers sin then, now, and forever." Plaintiffs' 8-count complaint charges violations of the 1st and 14th Amendments. In a press release announcing the filing of the lawsuit, Alliance Defending Freedom says it has delayed serving defendants in order to give the college time to change its mind and avoid litigation.

9th Circuit: Suit To Stop Release of Referendum Petition Signers Is Moot

In Doe #1 v. Reed, (9th Cir., Oct. 23, 2012), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision dismissed as moot a suit by Protect Marriage Washington to enjoin the state of Washington from releasing under the Public Records Act the names referendum petition signers.  At issue was the names of individuals who signed petitions supporting a referendum to overturn a state law that expanded the rights of domestic partners. In 2010 the U.S. Supreme Court rejected a facial challenge to the Public Records Law, but left open the possibility of an as-applied challenge if it could be shown that the release of names was undertaken to encourage harassment of signers. (See prior posting.) In yesterday's decision, a majority of the 9th Circuit panel held that the court cannot grant effective relief because the petitions are already widely available in searchable form on the Internet.

Judge Smith filed a concurring opinion concluding that the case is not moot because the court can prevent continued disclosure. However, he concluded that on the merits plaintiffs had not shown a 1st Amendment infringement. [Thanks to Alliance Alert for the lead.]

NM High Court Rejects Religious Sect Leader's Procedural Challenge To Convictions For Sexual Contact With Minors

In State of New Mexico v. Bent,(NM Sup. Ct., Oct. 22, 2012), the New Mexico Supreme Court rejected a procedural challenge to the conviction of a religious sect leader for sexual contact with his teenage followers and contributing to the delinquency of minors.  Defendant Wayne Bent, who had claimed that his lying naked with children was part of a religious healing ritual (see prior posting), challenged his conviction on the ground that the grand jury handed down his indictment after its statutory term of service had expired.  The state intermediate appeals court had held that the indictment was void.  The Supreme Court, however, said that "the view of jurisdiction taken by the Court of Appeals resembles more an artifact of a bygone era when courts took a hyper-technical, almost talismanic approach to the concept of subject matter jurisdiction." The Supreme Court held that any challenge to the indictment on these grounds should have been pursued to the Supreme Court through a petition for an extraordinary writ before trial when defendant's motion to quash the indictment was denied by the trial and appeals courts. AP reports on the decision, indicating that the 71-year old defendant, the leader of The Lord Our Righteousness Church, is serving a 10 year sentence.

NY High Court Refuses To Review Case Rejecting Challenge To Marriage Equality Law

Yesterday, the New York Court of Appeals-- the state's highest court-- denied a motion for leave to appeal in New Yorkers for Constitutional Freedoms v. New York State Senate, (Entry List).  In the case, a state intermediate appeals court in July  rejected a challenge to the state's Marriage Equality Law (which permits same-sex marriage). Plaintiffs had argued that private lobbying of the Republican Conference of the State Senate in favor of the law by New York City Mayor Michael Bloomberg and Governor Andrew Cuomo violated the Open Meetings Act. (See prior posting.) In a statement yesterday after the court's decision, Governor Cuomo said:
New York State has served as a beacon for progressive ideals and this statute is a clear reminder of what this State stands for: equality and justice for all. With the Court’s decision, same-sex couples no longer have to worry that their right to marry could be legally challenged in this State. The freedom to marry in this State is secure for generations to come.
The Legislative Gazette reports on the decision.

Women File Administrative Complaint Over NY Farm's Religious Objections To Hosting Same-Sex Wedding

In New York this month, two Albany women, Jennie McCarthy and Melissa Erwin, have filed a discrimination complaint with the New York Division of Human Rights after Liberty Ridge Farm, a Shcaghticoke (NY) tourist attraction, refused to host the women's same-sex wedding. According to yesterday's Lichtfield County (CT) Register Citizen, Robert and Cynthia Gifford, the farm's owners, have religious objections to same-sex marriage.  Their spokesman argued that "they ought to have the opportunity to say that this is a behavior that they just don’t agree with and they just don’t condone on their privately owned property."  The New York Human Rights Law bars places of public accommodation from discriminating on the basis of sexual orientation.

Tuesday, October 23, 2012

Vatican Releases Full Text Of Sentencing Decision Of Pope's Former Butler

News.va reports that today the Vatican made public the full text (in Italian) of the 18-month aggravated theft sentence issued by the Tribunal of Vatican City State on October 6 against the Pope's former butler, Paolo Gabriele. (See prior posting.) At a press conference, Holy See Press Office Director Fr. Federico Lombardi said that the sentence focused on the stealing of originals of documents, and did not involve a nugget of gold, a check in the Pope's name and a 16th century copy of The Aeneid, because of doubts about Gabriele's guilt in taking them and doubts about the way in which the search that located them was carried out. Lombardi also said that a psychiatric exam had not found any mental condition that made Gabriele unaware of his responsibility for his actions. Presently Gabriele remains under house arrest since an appeal by the Tribunal's promoter of justice who wanted a stronger sentence was not possible until the full text of the sentence was published.  If no appeal is filed and the Pope does not pardon him, Gabriele will serve his sentence in a prison in the Vatican, since there is no relevant treaty with Italy that would allow him to be sent to an Italian prison. Vatican Radio reports that the trial of IT expert Carlo Sciarpeletti for aiding and abetting Gabriele will open November 5th.

President Obama's Brand of Christianity Is Analyzed

CNN's Belief blog on Sunday carried a lengthy analysis of President Obama's Christian faith, titling the article The Gospel According to Obama. This excerpt gives a flavor of the article:
Historians may remember Obama as the nation’s first black president, but he’s also a religious pioneer. He’s not only changed people’s perception of who can be president, some scholars and pastors say, but he’s also expanding the definition of who can be a Christian by challenging the religious right’s domination of the national stage.
When Obama invoked Jesus to support same-sex marriage, framed health care as a moral imperative to care for “the least of these,’’ and once urged people to read their Bible but just not literally, he was invoking another Christian tradition that once dominated American public life so much that it gave the nation its first megachurches, historians say....
Some Christians, however, still see Obama as the “other.” He doesn’t act or talk like other Christians, says the Rev. Gary Cass, a conservative Christian president of the Christian Anti-Defamation Commission..... Cass says he’s never heard Obama say he’s “born-again.” There’s no emotional conversion story to hang onto.

European Court Rejects Restitution Claim By Serbian Orthodox Church

In Budimljansko-Niksicka v. Montenegro, (ECHR, Oct. 19, 2012), the European Court of Human Rights, in a Chamber judgment, rejected claims by a diocese of the Serbian Orthodox Church in Montenegro that it was entitled to restitution for property formerly belonging to its churches and monasteries that was expropriated after World War II. As summarized in the Court's press release on the decision:
The Court held in particular that the applicants had no legitimate expectation, under Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights, that they would be restituted, since the key provisions of the law on which they relied had been declared unconstitutional before they filed their request.

California Jury Awards Catholic School $1.1M In RLUIPA Case

In San Diego, California last Friday, a federal court jury awarded damages in excess of $1.1 million to a Catholic school that was denied permits by the city to build a new science classroom building and parking structure. According to the San Diego Union Tribune, the decision came in a lawsuit filed under the Religious Land Use and Institutionalized Persons Act against the city by the Academy of Our Lady of Peace after City Council overruled its Planning Commission's approval of the project.  The jury found that the city's actions imposed a substantial burden on the school's religious exercise. The court will hear arguments next month on whether it should also order the city to now issue the permits. The jury trial came after, in an earlier decision (see prior posting), the court refused to grant summary judgment to plaintiffs. [Thanks to Daniel Dalton for the lead.]

Monday, October 22, 2012

Presidential Delegation Attends Canonization of 2 Americans, 5 Others

Yesterday in Rome, Pope Benedict XVI celebrated a special mass to canonize 7 individuals, including two Americans. (Full text of Pope's homily.) As reported by CNN, the Americans are the first Native American saint, 17th century Mohawk Kateri Tekakwitha; and  German-born Marianne Cope, who came to the U.S. as a child, became a nun and devoted 30 years to helping lepers in Hawaii. Last week, President Obama announced a Presidential delegation to attend the canonization mass: the U.S. ambassador to the Vatican, Miguel Humberto Diaz; Sister Agnelle Ching, an official with the Saint Francis Healthcare System of Hawaii; and Sister Kateri Mitchell, director of the Tekakwitha Conference whose patroness is the newly named saint.

Bible Club's Equal Protection Claim Dismissed For Lack of Standing

In Youth Alive v. Hauppauge School District, (ED NY, Oct. 12, 2012), a New York federal district court dismissed for lack of standing a claim by a high school after-school Bible club that the school board violated the Equal Protection clause when, in order to comply with the federal Equal Access Act, it refused to furnish the club a paid advisor. Instead the board required the club to have a volunteer advisor.  In finding no injury-in-fact and dismissing the claim, the court said:
The use of an unpaid supervisor to monitor Youth Alive meetings has had no discernible effect on Plaintiffs' ability to exercise their First Amendment rights..... Plaintiffs speculate that a paid advisor would be less likely to cancel meetings than an unpaid advisor, which, in theory, could affect their rights to free speech and exercise of religion.... But the parties stipulated that, unlike all other clubs, if Youth Alive's unpaid supervisor cannot attend a meeting, Defendants provide a substitute volunteer to supervise the students.... Youth Alive, then, very well may be able to conduct more meetings than non-religious clubs.  In  any event, the evidence shows at most three cancelled meetings..., which is comparable to clubs with paid advisors.

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, October 21, 2012

Recent Prisoner Free Exercise Cases

In Peterson v. Lampert, (10th Cir., Oct. 15, 2012), the 10th Circuit dismissed an inmate's due process, free exercise and RLUIPA complaints growing out of the loss of religious personal property, including a crystal wand, tarot cards, feathers, incense, a prayer cloth, and a satanic Bible, after a transfer from one facility to another.

In  White v. Lindermen, 2012 U.S. Dist. LEXIS 150107 (D AZ, Oct. 18, 2012), an Arizona federal district court denied a Messianic Jewish inmate a preliminary injunction he sought to allow his family members to purchase religious items, including incense, scented oils, candles, a kippah, a talit, and herbs, for him from a vendor.

In McDaniel v. Fizer, 2012 U.S. Dist. LEXIS 147900 (D AZ, Oct. 15, 2012), an Arizona federal district court dismissed, with leave to amend, a Muslim inmate's complaint that his lacto-vegetarian diet was replaced by a vegan diet, and that he was being denied a kosher diet.

In Coulter v. Studeny, 2012 U.S. Dist. LEXIS 147230 (WD PA, Oct. 12, 2012), a Pennsylvania federal district court largely adopted a magistrate' recommendations (2012 U.S. Dist. LEXIS 150473, Sept. 21, 2012) and, among other things, rejected plaintiff's claim that her free exercise rights were violated by a special condition of her probation. She claimed that a 10 p.m. to 6 a.m. curfew prevented her from attending unspecified religious services.

In Rice v. Curry, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed without prejudice for failure to exhaust administrative remedies a claim by an inmate who was a member of the Muslim Ansar El Mohammad faith that AEM Muslims were not provided a Suhoor meal during Ramadan. The court dismissed on the merits plaintiff's complaint that AEM Muslims were not granted separate access to the interfaith chapel and that the prison refused to hire an AEM imam.

In Palermo v. Libby, 2012 U.S. Dist. LEXIS 148577 (D NH, Sept. 12, 2012), a New Hampshire federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was denied a religious diet, religious reading materials, and ritual items, and an equal protection claim that he was denied religious reading materials and ritual items.

House of Lords Debates Placing Restrictions On Sharia Arbitration Panels

As reported today by The Telegraph, in Britain on Friday the House of Lords debated a bill to place restrictions on Sharia arbitration tribunals. (Full text of Lords' debate.) The proposed Arbitration and Mediation Services (Equality) Bill would add several provisions to British law. The Equality Act would be amended to prohibit anyone providing arbitration services from doing anything that constitutes discrimination, harassment or victimization on grounds of sex. The Arbitration Act would be amended to bar any arbitration agreement or process that gives more weight to the testimony of men than women, or which gives women fewer inheritance or property rights. The amendments would also exclude from arbitration anything within the jurisdiction of the criminal or family courts. The Family Law Act would be amended to allow a court to set aside any negotiated or mediated agreement if it concludes that one party's consent was not genuine. The proposed bill also takes aim at informal Sharia councils that deal with divorce and child custody.  It prohibits anyone from purporting to determine family law or criminal maters in arbitration, and from falsely purporting to exercise the power of a court to make legally binding rulings.

Miami Archdiocese Sues Over Contraceptive Coverage Mandate

On Friday, the Catholic Archdiocese of Miami announced that, along with its Catholic Health Services and Catholic Hospice, it has filed a federal lawsuit against the Department of Health and Human Services challenging the contraceptive coverage mandate imposed under the Affordable Care Act. It says that because the Archdiocese is self-insured, the Obama administration's compromise announced in February to have insurance companies pay for objectionable services is not a solution.  In remarks (full text), Archbishop Thomas Wenski said that the suit joins nearly 50 other across the country filed by Catholic dioceses, charities,  hospitals and schools, in coordination with the Jones Day law firm that is providing its services pro bono. At a news conference, the Archbishop said that the Catholic Church supports universal health care, but a plan "should kill no one and it should cover everyone." He added that the Affordable Care Act fails this test by requirmg employers to provide drugs and services that result in the killing of unborn children, and,on the other hand, excluding "millions of immigrants." Catholic News Agency reports on the lawsuit.

Saturday, October 20, 2012

School Quickly Ends Pastor's Access To Cafeteria After Suit Is Filed

Within minutes after a lawsuit was filed by the ACLU yesterday, a Fort Wayne, Indiana middle school agreed to stop its practice of allowing a local youth pastor to regularly visit the school's cafeteria during lunch, where he stands in a prominent place, hands out materials and talks with students who are required to eat in the cafeteria.  The Fort Wayne News-Sentinel reports that the suit was filed by parents of an 11-year old who attends Summit Middle School in the Southwest Allen County school district who say no other outsider is given this kind of access to the cafeteria. The ACLU says the lawsuit will be dropped once it receives formal notice from the school district that it is changing its practices.

IRS Has Suspended Church Audits Until Rule Changes Are Finalized

BNA Daily Report for Executives dated 10/22/2012 (subscription required) reports that the Internal Revenue Service has temporarily suspended tax audits of churches pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) At an American Law Institute Continuing Legal Education conference, IRS speaker Russell Renwicks, area group manager from the Mid-Atlantic region of the Tax-Exempt and Government Entities division, said the IRS has been bombarded with complaints about churches becoming involved in the elections, but it has been unable to respond even to potentially egregious cases. The rule changes are necessitated by a 2009 Minnesota federal district court ruling. (See prior posting.)

Another Suit Challenges Contraceptive Coverage Mandate of ACA

Yesterday, yet another federal lawsuit was filed challenging on RFRA, 1st Amendment and Administrative Procedure Act grounds the contraception coverage mandate under the Affordable Care Act.  The complaint (full text) in Griesedieck v. U.S. Department of Health and Human Services, (WD MO, filed 10/19/2012), alleges that the two individual plaintiffs, who are Evangelical Christians, own a controlling interest in four industrial companies that employ a total of 175 people. Citing the requirement that the companies' policies cover drugs that have a post-fertilization mechanism of action (such as Plan B and Ella), plaintiffs assert that:
As evangelical Christians, Plaintiffs believe in the sanctity of human life from the moment of conception.  They believe it would be sinful to for them to pay for services that have a significant risk of causing the death of embryonic human lives.
American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Friday, October 19, 2012

In Mali, Islamists Destroy Historic Tombs They Consider Idolatrous

According to CNN, in northern Mali, for the fourth time this year al-Qeda linked Ansar Dine rebels have destroyed historic tombs. Some 30 armed fighters arrived in Timbuktu yesterday to reinforce local Islamists and destroyed three mausolea that have been designated by the United Nations as World Heritage Sites. The Islamists consider these Sufi shrines to be idolatrous and thus religiously prohibited.

Appeals Court: Accused Ft. Hood Shooter Can Be Forcibly Shaved

Accused Fort Hood shooter, Maj. Nadal Hasan, who has been seeking the right to wear a beard for religious reasons at his court martial trial, lost yesterday in the U.S. Army Court of Criminal Appeals.  In Hasan v. United States, (Army Ct. Cr. App., Oct. 18, 2012), an opinion of 5 judges held that Hasan's petition for a writ of prohibition should be denied. Hasan sought to prevent the government from forcibly shaving him after the military judge at his court martial ordered Hasan to be clean shaven for all subsequent pretrial proceedings and for his trial. (See prior posting.)  The majority concluded that the trial judge did not commit clear error in  concluding that Hasan was not necessarily growing his beard for religious reasons. The majority went on to hold that even if Hasan demonstrated that he was wearing a beard out of sincere religious conviction, the Army has compelling interests in requiring him to shave, and no less restrictive means are available to accomplish these interests:
The Army has a compelling interest to ensure uniformity, good order and discipline.... The Army has a further interest in the fair and proper administration of military justice. We agree with the military judge's conclusion that petitioner's wearing of the beard denigrates the dignity, order and decorum of the court martial and is disruptive under the current posture of the case.  Furthermore, in front of a military panel, it is undeniable that petitioner's failure to comply with Army grooming regulations without explanation of a suitable exception would cast him in a negative light. In this respect, the military judge has the authority ... to safeguard petitioner against the injection of prejudice into the court-martial process as a result, even where petitioner consents to that prejudice.
Two judges joined in an opinion dissenting in part, arguing that the court-martial judge should have merely ordered the government to ensure that the defendant was in proper uniform for the trial, leaving decisions about forced shaving or granting an exception to grooming regulations to the chain of command. The dissenters would not only grant the writ of prohibition invalidating the military judge's order, but would also disqualify the judge from further participation in the case because his action reasonably put into question his impartiality. Stars and Stripes reports on the decision.

Court Issues Temporary Injunction Approving Cheerleaders' Bible Banners

Just a day after Texas attorney general filed a petition to intervene on behalf of high school cheerleaders who wish to continue to display their own banners and run-throughs featuring Bible verses (see prior posting), a Texas state trial judge issued a temporary injunction granting the cheerleaders' request.  In Matthews v. Kountze Independent School District, (TX Dist. Ct., Oct. 18, 2012), the court concluded that the school district was prohibiting private religious expression. It ordered the district to cease and desist from preventing the cheerleaders from displaying banners or run-throughs at sporting events, or censoring the sentiments displayed on them. In a press release applauding the decision, Texas Attorney General Greg Abbott said:
Students' ability to express their religious views adds to the diversity of thought that has made this country so strong. Texas law supports students' right to freely express their religious beliefs without discrimination. We will not allow groups or individuals to wage a war on religion by trying to intimidate students into embracing a secular mindset.
According to a New York Times report on the decision, an Anti-Defamation League spokesman called the decision misguided, arguing that the banners are a school-sponsored religious message.

British Court Rejects Conscience Defense In B&B Owner's Refusal To Rent Room To Gay Couple

A trial court in Britain yesterday held that a gay couple suffered unlawful discrimination when the Christian owner of a bed and breakfast, Susanne Wilkinson, refused to allow them to stay in a double room because of the her religious views. The Reading Crown Court awarded each man damages of £1800 according to the London Telegraph. The court, in finding that defendant had violated regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007, said in part:
The business is conducted from her home but it is still a business with a significant number of guests. I do not agree with the submission that if the restriction is unlawful the defendant would have to remove herself from public life.
My conclusion is that the application of the regulations to the defendant bed and breakfast establishment and the finding that the refusal of the double room constituted direct discrimination, are not in breach of her [ECHR] Article 9 Rights [freedom of conscience and religion].

Thursday, October 18, 2012

2nd Circuit in 2-1 Decision Finds DOMA Unconstitutional

In Windsor v. United States, (2d Cir., Oct. 18, 2012), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that Section 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification:
A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.
None of the justifications offered for DOMA-- maintaining a uniform definition of marriage; protecting the fisc; preserving a traditional understanding of marriage; or encouraging responsible procreation-- are strong enough to justify the discrimination involved.  In concluding, Chief Judge Jacobs, writing for the majority said:
Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition.  But law (federal or state) is not concerned with holy matrimony.  Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples.  A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it.  For that, the pair must go next door.
Judge Straub dissented, arguing first that the issue is controlled by the Supreme Court's summary dismissal of a similar challenge in 1972 in Baker v. Nelson. He concluded further that DOMA should be subject only to rational basis review, and that several of the rationales advanced for the law satisfy that level of scrutiny.

AP reports on the decision. In May, the 1st Circuit also found DOMA unconstitutional. (See prior posting.)

Venice Commission Opinion Criticizes Azerbaijan Law On Religion; Government Responds

On Oct. 15, the European Union's Venice Commission  along with the OSCE's Office for Democratic Institutions and Human Rights issued a Joint Opinion (Opinion 681 / 2012) finding numerous problems with Azerbaijan's 2011 Law on Freedom of Religious Belief.  The Opinion concludes that the Law "sets a legal framework which is in several aspects contrary to international standards and would benefit from additional revisions in order to meet these standards." The Opinion sets out 15 key recommendations for change, along with 9 additional recommendations. The key recommendations include items such as expanding the law to include "belief" as well as religion, eliminating the ban on proselytism by foreigners, providing for alternative service for conscientious objectors and liberalizing restrictions on religious organizations. The government of Azerbaijan delivered its response to the Joint Opinion on Oct. 16 (full text). According to a report published in Turkish Weekly, the Head of Azerbaijani Presidential Administration Social and Political Department says he thinks that the Venice Commission now believes that the law fully meets the European standards.

8th Circuit En Banc Upholds Funeral Picketing Ordinance

In Phelps-Roper v. City of Manchester, (8th Cir., Oct. 16, 2012), the U.S. 8th Circuit Court of Appeals sitting en banc upheld against facial First Amendment challenges the current version of a Manchester, Missouri ordinance regulating picketing at funerals. The suit was brought by members of the Wesstboro Baptist Church which has a history of picketing veterans' funerals with signs deploring homosexuality.  Finding that challenges to earlier versions of the ordinance are moot, the court held that the current version is a valid content-neutral time, place, and manner regulation. The law bans picketing or other disruptive activity within 300 feet of a funeral or burial service during the period from 1 hour before to 1 hour after the service.  Applying intermediate scrutiny, the court concluded that:
mourners attending a funeral or burial share a privacy interest analogous to those which the Supreme Court has recognized for individuals in their homes... and for patients entering a medical facility.... Mourners have a similarly "significant and legitimate" interest in avoiding "potential trauma" when attending a funeral or burial....   Mourners ... must ... be in a certain place at a certain time to participate in a funeral or burial and are therefore unable to avoid unwelcome speech at that place and time.  A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....
Judge Smith wrote a separate concurring opinion "to express concern about the extension of the unique protection afforded the sanctuary of the home to funerals and burials."  He argued that emotional offensiveness alone should not be enough to justify restriction of otherwise lawful speech. [Thanks to Steven Jamar via Religionlaw for the lead.]

Swedish Appeals Court Permits Home Schooling Of Chabad Children

According to Chabad Lubavitch News, an appellate court in Sweden yesterday struck down a law that barred Chabad parents from home schooling their children through Chabad's International Shluchim Online School and private lessons.  The law requiring all students to attend state schools except in extraordinary circumstances was originally enacted to protect immigrant children who were being denied an education and who grew up illiterate.  However, the rabbi and his wife in Gothenburg who filed the lawsuit were providing a high quality education to their children. The court said that the government's refusal to recognize religious objections to state schools contravenes Sweden's international obligations. (See prior related posting.)

Texas AG Petitions To Intervene In Case To Support Cheerleaders' Signs With Bible Verses

As previously reported, last month a Texas state court issued a temporary restraining order allowing Kountze (TX) Independent School District football cheerleaders to continue to display banners, including run-through banners, containing Bible verses. The banners are not made on school property and no school money is used to make them. The Texas Association of School Boards had advised the school district to ban the run-throughs after a complaint from the Freedom From Religion Foundation. Yesterday Texas Attorney General Greg Abbott filed a petition to intervene (full text)  in the case to support the cheerleaders. In a press release announcing the filing of the petition to intervene, Abbott referred to the Freedom From Religion Foundation as "an organization with a reputation for bullying school districts." The Houston Chronicle reports on the attorney general's action.

Church Nursery School Teacher Sues After Being Fired For Living With Fiancee

The Macon (GA) Telegraph reports on a lawsuit filed in a Georgia federal district court on Oct. 3 by a woman who claims religious and gender discrimination in her termination as nursery school coordinator at Friendship Baptist Church in Warner Robins, Georgia.  Plaintiff Jessica Atkinson says that she was asked to resign after church officials complained to her about her relationship with her fiancĂ©e, asked her what she planned to do about living in sin and whether she was being a good Christian. Before filing suit, Atkinson filed a complaint with the EEOC.

Suit Charges Evangelical Church Officials Abetted Sexual Abuse of Children By Church Members

A suit was filed yesterday in state court in Montgomery County, Maryland against six pastors and church officials of the Sovereign Grace Ministries, a group of some 80 evangelical churches. AP reports that the 3 female plaintiffs:
allege a conspiracy spanning more than two decades to conceal sexual abuse committed by church members. They accuse church representatives of permitting suspected pedophiles to interact with children, supplying them with free legal advice to avoid prosecution and forcing victims to meet with and "forgive" the person that had molested them.....
The lawsuit, filed in Montgomery County, Md., includes claims of intentional infliction of emotional distress, negligence and conspiracy, among others. It says there are other victims, both male and female, who have raised allegations but are not yet identified as named plaintiffs.
Two of the current plaintiffs allege they were abused as toddlers.

Court Rejects Biblical Objection To Conviction Under Law Defining Defendant As A "Person"

In Fond Du Lac County v. Manke, (WI App., Oct. 17, 2012), a Wisconsin state appeals court rejected an unusual religious liberty defense to a speeding ticket.  Defendant Jeffrey Manke was convicted of violating a state statute that prohibits any "person" from driving over 55 miles per hour unless a higher speed limit is posted.  Manke argued that according to the Bible, he is a "man", not a "person," so that convicting him as a person violates his religion and his due process rights. The appeals court held that as a man, defendant met the definition of person under the statute. The Fox 11 News reports on the decision.

Wednesday, October 17, 2012

Cert. Filed In Challenge To Ban On Carrying Firearms In Church

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in GeorgiaCarry.org, Inc. v. State of Georgia. In the case, the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship. (See prior posting.) The petition asks the Supreme Court to review the case and rule that a law that specifically targets places of worship may violate the free exercise clause even if it does not burden a sincerely held religious belief. The Atlanta Journal Constitution reports on the filing of the cert. petition.

Mediation With Victims Fails In Milwaukee Archdiocese Bankruptcy

The Milwaukee Journal Sentinel reports that bankruptcy court-ordered mediation between the Catholic Archdiocese of Milwaukee and 575 victims of sexual abuse has failed after 3 months. Both sides confirmed on Monday that the talks have broken down. The victims represent the largest class of creditors asserting claims in the Archdiocese's Chapter 11 bankruptcy proceedings. This means that the claims will be back in court, with victims seeking to expand the assets that are considered part of the bankruptcy estate, while the Archdiocese seeks to assert defenses to reduce the number of claims eligible for compensation.

Drafts Of Proposed Egyptian Constitution Released

According to Ahram Online, two separate drafts of a proposed constitution for Egypt have been released during the last week.  The drafts, while criticized from various sides, do reflect compromises on some issues worked out between secularists and Salafists. The full text of "Part I, State and Society" as reflected in the most recently released draft has been published in English translation by Daily News Egypt. Among the proposed provisions are the following:
Article 2
Islam is the state religion, its official language Arabic, and the principles of Islamic Shari’a are the main source of legislation.
Article 3
For Egyptian Christians and Jews, the principles of their religious laws are the main source of legislation in personal and religious matters as well as in the selection of their spiritual leaders.
Article 4
Al-Azhar is an independent Islamic body and it alone addresses its internal affairs. Its scope covers the Muslim nation and the entire world. It spreads religious studies and the call to Islam. The state guarantees sufficient funds for it to achieve its goals. The law determines the method for selecting Al-Azhar’s Grand Imam, who shall be independent and cannot be removed from office.
The opinion of Al-Azhar’s Council of Grand Scholars shall be taken in matters related to Islamic Shari’a.....
 Article 10
The state is obliged to sponsor and protect ethics and public morals, empower authentic Egyptian traditions, take into account a high level of nurturing, religious and patriotic values, scientific facts, Arab culture, the historical and cultural heritage of the people, as regulated by the law....
Article 24
The state is obliged to revive and encourage the religious endowments system.
The law regulates religious endowments, determines the procedures for founding and managing them, investing them, and distributing their returns on beneficiaries as per the terms of the endowers.

Challenge To County's Prayers and In God We Trust Posting Dismissed When Plaintiff Fails To Appeaar

In Wood County, Texas yesterday, a state trial court dismissed a lawsuit that had been brought challenging the County Commissioners' routine opening of their sessions with prayer and seeking removal of the "In God We Trust" motto prominently displayed in the county commissioners' meeting room.  Plaintiff Charles Scott said he is a devout Christian and believes that elected officials cannot honor the word of God if they also honor the Constitution's freedom of religion.  According to KLTV News, the court dismissed the case for lack of evidence when Scott failed to appear in court. Scott told reporters that he was unable to go to court because the Lord did not provide him with a means to get there.

Tuesday, October 16, 2012

Kenyan Court Upholds High School's Ban on Hijabs

Last month, in Republic v. The Head Teacher, Kenya High School, (High Ct. Kenya, Sept. 18, 2012), the High Court in Narobi, Kenya upheld the uniform requirements of Kenya High School which bar Muslim girls from wearing the hijab. Among other things, plaintiffs argued that the ban violated provisions of Kenya's Constitution that assure equality before the law and which protect freedom of religion and bar religious discrimination. In rejected plaintiff's arguments, the court said in part:
The significant and critical role played by standardized dress codes and observance of rules in controlled environments... cannot be overemphasized.... In my view, the most important role played by a standardized school uniform is that it creates uniformity and visual equality that obscures the economic disparities and religious backgrounds of students who hail from all walks of life.
If the court were to allow the applicant’s quest to wear hijab in school, the 48 Muslim girls in the school would look different from the others and this might give the impression that the applicants were being accorded special or preferential treatment. This may in all probability lead to agitation by students who profess different faiths to demand the right to adorn their different and perhaps multi-coloured religious attires of all shapes and sizes which the school administrators will not be in a position to resist.... Such an eventuality should be avoided at all costs since it is in the public interest to have order and harmonious co-existence in schools.... 
It is important to bear in mind that the Republic of Kenya is a secular State.... [A]llowing the applicant’s prayer in this motion would in my opinion be tantamount to elevating the applicant and their religion to a different category from the other students who belong to other religions. This would in fact amount to discrimination of the other students who would be required to continue wearing the prescribed school uniform.
Kenya's Daily Nation today reports on the decision.