Wednesday, August 20, 2014

9th Circuit: State Can Require Care Workers To Accompany Disabled Clients To Religious Services

In Williams v. State of California, (9th Cir., Aug. 19, 2014), the U.S. 9th Circuit Court of Appeals adopted the district court's opinion in concluding that the rights of two residential care facilities and their employees were not infringed when, under state law, employees were required to personally accompany a developmentally disabled client to attend Jehovah’s Witness services. The court rejected the argument that this infringed free exercise rights and the establishment clause by requiring Catholic employees to violate their religious beliefs by attending non-Catholic religious services. Courthouse News Service reports on the decision.

Amish Lose In Suit Forcing Them To Obtain Building Permits

WQOW reported yesterday that an Eau Claire County, Wisconsin trial judge has ruled in two of the six pending cases against Old Order Amish families, requiring them to obtain building and sanitary permits for their houses. If the families do not apply for the permits within 30 days, they will be required to leave their houses. In oder to otain the permits, the Amish would have to install smoke and carbon monoxide detectors, but their religious beliefs do not allow them to own electronic devices or plug into the public grid.

India's Former Prime Minister Immune In U.S. Courts As To Some Charges Of Participation In Killing of Sikhs

In Sikhs For Justice v. Singh,(D DC, Aug. 19, 2014), the D.C. federal district court dismissed on immunity grounds most, but not all of the claims against India's former Prime Minister for his role in the torture and killing of Indian Sikhs. The court summaried its decision:
Defendant Manmohan Singh was, until very recently, the Prime Minister of India. Plaintiffs ... have brought this suit alleging that the former Prime Minister tortured and killed Indian Sikhs during his time at the helm of that country’s government and, before then, as Finance Minister. The United States, a non-party in this litigation, has filed a Suggestion of Immunity claiming that Singh, as the sitting Prime Minister, is entitled to head-of-state immunity. Although at the time of that filing, Singh was indeed Prime Minister, he left office three weeks later. Plaintiffs, consequently, counter that Singh is no longer entitled to such immunity. They are only partly correct. Although he is no longer a head of state, Singh is entitled to residual immunity for acts taken in his official capacity as Prime Minister. Because such residual immunity does not cover actions Singh pursued before taking office, however, the allegations stemming from his time as Finance Minister survive.
Reuters reports on the decision and has more on the substantive allegations in the case.

Court Reverses Divorce Order Barring Father From Disparaging Mother's Catholic Religion

In Pierson v. Pierson, (FL App., Aug. 18, 2014), a Florida appellate court reversed the portion of a trial court's order which, in granting a dissolution of a marriage, prohibited the father "from doing anything in front of ... or around the children that disparages or conflicts with the Catholic religion." During the marriage the three children had been raised in the mother's Catholic faith, but while the parties were separated the father became a Jehovah's Witness. One of the children, during a third-grade Catholic Sunday school class, told the teacher and students that their Bible and music were wrong, their priests were bad, and he was going to grow up to be a Jehovah's Witness minister.  The appeals court concluded, however, that "the evidence did not establish the harm necessary to award the mother ultimate religious decision-making authority...."

Interlocutory Bankruptcy Court Order On Recovering Donations To Church Not Appealable

In re Nichols, (D MD, Aug. 15, 2014), is an action by the trustee for the bankruptcy estate of Lynette Tawana Nichols seeking to recover from God's Universal Kingdom Christian Church over $93,000 in contributions the church received from Nichols in the three years preceding her filing for bankruptcy. Nichols was president of the church, and the contributions greatly exceeded those she made in prior years.  The trustee claimed these were fraudulent conveyances that could be recovered for the benefit of Nichols' creditors.  The church argued that the claim was barred by the Religious Freedom Restoration Act, but the bankruptcy court issued an interlocutory order refusing to dismiss the trustee's claim.  It cited the subsequently enacted Religious Liberty and Charitable Donations Act of 1998 (RLCDA) that validates in bankruptcy good faith contributions under 15% of gross income or larger contribtuions that are similar to those a debtor made in past years.  The bankruptcy court concluded that, subject to those protections, the trustee's claim could proceed.

The present opinion involves a motion by the church to appeal the bankruptcy court's interlocutory order to the district court.  However appeal of a bankruptcy court's interlocutory order-- as opposed to an appeal once a final judgment is entered-- is available only if there is a difference of opinion among courts on a controlling issue of law.  The district court concluded that there is no controversy among courts because there is no case law indicating that application of the RLCDA violates RFRA.  Thus an immeidate appeal of the interlocutory order is not appropriate.

Tuesday, August 19, 2014

Canadian "Pastafarian" Sues To Wear Pirate Bandana For License Photo

CJAD News today reports on a lawsuit in Canada in which a woman who says she is a member of the Church of the Flying Spaghetti Monster is seeking the right to wear a pirate bandana for her driver's license photo.  Isabelle Narayana, a "Pastafarian," is suing the Quebec Auto Insurance Board claiming that its denial infringes her religious freedom in violation of Canada's Charter of Rights and Freedoms.The Montreal resident's license expired in March and she may lose her job if she cannot renew it.

Sides View Navy's Policy On Gideon Bibles In Starkly Contrasting Terms

Since June, a dispute has been simmering over the practice by some hotels on Naval Bases of accepting Gideon Bibles for placement in Navy Lodge guest rooms.  It is interesting to compare reports by the two sides on developments. Here are excerpts from an Aug. 15 release by Freedom From Religion Foundation:
The Navy Exchange Service Command (NEXCOM) issued a quiet directive on June 19 in response to a complaint by FFRF, ordering removal of religious material from Navy-run lodges by Sept. 1.....
Yesterday (Aug. 14), it was reported that the Navy had temporarily caved and ordered the return of the bibles to hotel rooms while it reviewed its policy. Theocrats are loudly declaring victory in an effort to silence the objections of the nonreligious. 
The Religious Right has orchestrated a media frenzy to intimidate the Navy into maintaining its illegal policy of providing bibles in all Navy-run hotel rooms. FFRF needs your help now to give the Navy some backbone. The Navy needs to hear from the one in five who are nonreligious and those who honor the constitutional wall of separation between state and church.
And here are excerpts from an Aug. 15 report on the same situation from Fox News:
A Navy spokesman confirms that Bibles will be returned to base lodges, and they’ve also launched an investigation to determine why God’s Word was removed from guest rooms in the first place.
Navy Exchange, which runs the base lodges, sent a directive out in June ordering the Bibles removed, after the Freedom From Religion Foundation filed a complaint. The atheist group alleged the books were a violation of the U.S. Constitution....
Navy spokesman Ryan Perry said the decision was made without their knowledge.... During the review process, Perry said the “religious materials” that were removed will be returned.
The Bibles had been donated to the Navy by Gideons International... Tim Wildmon, of the American Family Association ... [said]: “We must be alert to what the secularists are doing inside the military.... But this reversal proves that those who believe in religious freedom can make a difference when we take action.”

Group Issues Election Guides Designed To Respect Diversity and Church-State Separation

Interfaith Alliance yesterday announced the release of 3 publications for the 2014 election season, each designed to respect religious diversity and church-state constratints.  The publications, aimed at candidates, houses of worship and voters, are: Running for Office in A Multifaith Nation;  A Campaign Season Guide for Houses of Worship; and Five Questions for Candidates on the Role of Religion in American Public Life. Interfaith Alliance also announced a website that can be used by members of the public to report candidates' abuse of religion on the campaign trail. The site allows individuals to "Submit An Eye On The Election Report."

Monday, August 18, 2014

Groups Ask White House To End Anti-Muslim Training Material In Federal Agencies

Last week, a coalition of 75 religious and civil rights groups sent a letter (full text) to the White House asking it to " to take immediate action to end the use of anti-Muslim training materials and address anti-Muslim conduct exhibited by agencies throughout the federal government."  The Aug. 14 letter to Lisa Monaco, President Obama's advisor on homeland security and counterterrorism, cites especially the findings in a  July 9, 2014 article in The Intercept.

Recent Articles of Interest

From SSRN:

From SmartCILP:

Religious Non-Profit College Wins Attack on Contraceptive Mandate Compromise

In Louisiana College v. Sebelius, (WD LA, Aug. 13, 2014), a Louisiana federal district court granted summary judgment to Louisiana College on its claim that its rights under RFRA are infringed by the Affordable Care Act contraceptive coverage accommodation for religious non-profits.  The college is affiliated with the Southern Baptist Convention, and offers it employees a self-insured plan through a third party administrator that is also an SBC affiliate.  The court held that the requirement that plaintiff self-certify its objections, or else incur onerous penalties, creates a substantial burden on its free exercise because of its religious objections to facilitating access to contraceptive methods it deem abortifacients. The government failed to show that the compromise was the least restrictive means to achieve a compelling governmental interest. The Shreveport Times reports on the decision.

Sunday, August 17, 2014

Recent Prisoner Free Exercise Cases

In Haight v. Thompson, (6th Cir., Aug. 15, 2014), the 6th Circuit remanded, finding triable issues of fact, claims by Native American inmates that they should have access to a sweat lodge, and should have buffalo meat at their once a year powwow. The 6th Circuit held, however, that money damages are not recoverable under RLUIPA in suits against officials in their individual capaicites. (AP has more on the decision.)

In Williams v. King, 2014 U.S. Dist. LEXIS 110757 (SD NY, Aug. 11, 2014), a New York federal district court allowed a Shiite Muslim inmate to proceed with some of his free exercise and equal protection claims alleging that the penal facility's Muslim chaplain, a Sunni, discriminated agiast Shiites by allowing Muslim inmates to pray and fast only for the last two days of Muharram (the Sunni custom) rather than for the full ten days (the Sunni custom).

In Howard v. Webster, 2014 U.S. Dist. LEXIS 111301 (ED WI, Aug. 12, 2014), a Wisconsin federal magistrate judge permitted a Buddhist inmate to proceed with his complaint that Christianity was promoted in various ways in the prison: a painting of Jesus in the library, religious messages in hygiene bags, and Christian music piped through a TV channel. He also could move ahead with a complaint that he was not allowed to possess a necklace with an emblem of Buddha.

In Jones v. Nevin, 2014 U.S. Dist. LEXIS 111576 (D NV, Aug. 11, 2014), a Nevada federal district court dismissed a Jewish inmate's complaint that he did not have access to kosher meals and, instead, had only the common fare menu thast is so distasteful as to discourage inmates from practicing Judaism.

In Diaz v. Kessler, 2014 U.S. Dist. LEXIS 112357 (ND CA, Aug. 12, 2014), a California federal district court permitted an inmate to proceed with his claim that his Jewish religious service was terminated on one occassion in retaliation for his objections to the way other complaints were handled.

In Wortham v. Lantz, 2014 U.S. Dist. LEXIS 112487 (D CT, Aut. 13, 2014), a Connecticut federal district court dismissed a Hebrew Isrelite inmate's complaints that the common fare vegetarian diet did not satisfy his religious needs because it did not include kosher meat, as well as his complaints about not being able to purchase oils from outside vendors or purchase various other religious items.

In Harvey v. Segura, 2014 U.S. Dist. LEXIS 112877 (D CO, Aug. 14, 2014), a Colorado federal district court dismissed on qualified immunity grounds a Muslim inmate's religious objections to a strip search by a female officer, but permitted plaintiff to move ahead with his challenge to the confiscation of his kufi and his claim for punitive damages.

In Depaola v. Virginia Department of Corrections, 2014 U.S. Dist. LEXIS 112585 (WD VA, Aug. 12, 2014), a Virginia federal district court dismissed a Nation of Islam inmate's complaint that the prison's common fare diet does not meet his religious dietary needs.

Saturday, August 16, 2014

2nd Circuit: NYC Ritual Circumcision Informed Consent Rule Is Subject To Strict Scrutiny Analysis

In Central Rabbinical Congress of the United States & Canada v. New York City Department of Health & Mental Hygiene, (2d Cir., Aug. 15, 2014), the U.S. 2nd Circuit Court of Appeals reversed the district court's denial of a preliminary injunction against New York City's informed consent regulations governing metzitzah b’peh, a method of ritual circumcision used by some Orthodox Jewish mohels. (See prior posting.) The regulation, concerned about the possible spread of herpes, requires signed written consent from a parent before direct oral suction may be used in any circumcision. The Second Circuit disagreed with the district court's conclusion that the regulation is neutral and generally applicable and is thus subject only to rational basis scrutiny. The appellate court remanded for the district court to now rule on the likelihood of success on the merits using strict scrutiny, but added:
Acknowledging the weighty interests at stake in this litigation (the plaintiffs’ in the free exercise of their faith and the Department’s in the health of newborns and in informed parental consent concerning risks these newborns face), we express no view as to whether plaintiffs have satisfied this [strict scrutiny] standard, believing that careful adjudication will benefit in the first instance from the district court’s comprehensive analysis.
Reuters reports on the decision.

Appeals Court Reverses Dismissal of Negligence Suit Against Hospital Chaplain

In Lefkowitz v. Skokie Hospital, (IL App., July 25, 2014), an Illinois appellate court reversed a trial court's dismissal of a suit by an Orthodox Jewish man, Moshe Lefkowitz, who alleges that Skokie Hospital's Jewish chaplain was negligent in failing to prevent his amputated leg from being incinerated. Orthodox Jewish beliefs require amputated body parts to be  preserved or buried so that they can eventually be buried with the individual from whom they came. The appeals court said that there was a question of whether the forms Lefkowitz signed consenting to the hospital's disposal of his amputated leg were effective since Lefkowitz was blind and did not read them. The Chicago Tribune, in an article appearing in tomorrow's edition, discusses the case and also points out that Lefkowitz is a defendant in an unrelated criminal case charging him, his father (a rabbi), and his brother with stealing $10,000 in donations from a North Shore synagogue.

Church Sues JPMorgan For $13 Million In Losses From Bad Trust Investments

This week, Christ Church, an Episcopal Church in Indianapolis, Indiana, filed suit against JP Morgan Chase alleging mishandling of the church's $35 million trust whose assets came originally from gifts from Eli Lilly, Jr. The complaint (full text) in Rector, Wardens and Vestrymen of Christ Church Cathedral of Indianapolis v. JPMorgan Chase & Co., (SD IN, filed 8/13/2014), alleges that securities law violations, fraud and breach of trust led to losses of $13 million from 2004-2013.  It claims that defendants selected "high-risk, high-cost, opaque, unsuitable and poorly performing investments in order to further their own financial interests to the detriment of Christ Church." BNA Daily Report for Executives [subscription required] reports on the lawsuit.

Friday, August 15, 2014

Britain's Equality Commission Seeks Public Inupt On Religion and Belief Issues

Britain's Equality and Human Rights Commission yesterday called for input from the public as part of its three-year project to strengthen the understaning of religion and belief in public life. Yesterday's EHRC Release reads in part:
The Equality and Human Rights Commission has today launched a major call for evidence from individuals and organisations about how their religion or belief, or that of other people, may have affected their experiences in the workplace and in using the services and facilities they need in everyday life. People can give their feedback at www.equalityhumanrights.com/religion.
The Commission wants to gather as much information as possible from members of the public, employers, providers of services, legal advisors and religion or belief organisations.  This will be used to assess how employers and service providers are taking religion or belief into account and the impact this has on individuals.  The work covers all faiths and beliefs and experiences in England, Scotland and Wales. We want to hear about the issues people face and how they find solutions.  The Commission will also use the evidence as part of its work looking at how effective the current legislation is proving in practice.

In Tennessee, A Rare Win For Opponents of Same-Sex Marriage

In the face of a long string of federal cases in recent months striking down state laws that bar recognition of same-sex marriage, the opponents of same-sex marriage last week realized a rare victory. In Borman v. Pyles-Borman(TN Cir. Ct., Aug. 5, 2014), a Tennessee state trial court upheld Tennessee's ban on recognizing same-sex marriages performed in other states. The decision comes in a divorce case involving a same-sex couple legally married in Iowa, but now residing in Tennessee.  A Tennessee court presumably cannot grant a divorce unless the marriage is first recognized in the state.

In upholding Tennessee's anti-recognition law against an equal protection challenge, the court wrote in part:
In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the Federal Government cannot trump that State's law. The Supreme Court does not go the fmal step and fmd that a State that defines marriages as a union of one (1) man and one (l) woman is unconstitutional. Further, the Supreme Court does not find that one State's refusal to accept as valid another States valid same-sex marriage to be in violation of the U.S. Constitution.... 
The Court finds that marriage is·a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.... The Legislative Branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been.....
The court then adopts language from the state's brief in finding a rational basis for the state's traditional definition.

Moving to the full-faith-and-credit challenge, the court concludes:
The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee's laws, and Tennessee's own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa. 
Yesterday Liberty Counsel issued a press release announcing the decision. Earlier this month, the U.S. 6th Circuit Court of Appeals heard oral arguments in a separate challenge to Tennesseee's marriage recognition laws. (See prior posting.)

Canadian Rival FLDS Leaders Indicted For Polygamy

In Canada yesterday, the Criminal Justice Branch of the British Columbia Minstry of Justice announced that indictments charging polygamy have been filed against the leaders of two rival Bountiful, BC sects of the Fundamentalist Latter Day Saints. The indictments charge that Winston Blackmore practiced a form of polygamy with 24 women, while James Oler is charged with having polygamous unions with four women. Tgey are also charged with unlawful removal of a child from Canada. National Post has more on the indictments. In 2011, atrial court upheld the constituitonality of British Columbia's anti-polygamy laws. (See prior posting.)

NY Farm Fined For Denying Its Wedding Facilities For Same-Sex Wedding

In McCarthy v. Liberty Ridge Farm, LLC, (NY Div. Human Rights, Aug. 8, 2014), the New York State Divsion of Human Rights levied a $10,000 civil fine and awarded compensatory damages of $3,000 in a proceeding against a farm that adversises itself as a venue for weddings, but which refused to contract with the two women complainants for them to use the facilities for their same-sex wedding. The Division held that the discrimination violated the public accommodation provisions of the New York Human Rights Law.  Respondents were also required to take steps to prevent future discrimination.  The Albany Times-Union reported on the decision.

Thursday, August 14, 2014

Leonard Fine, 80, Dies

Leonard Fine, a giant in the field of religion, public policy and social justice, died today at the age of 80. The Forward, for whom he was a long-time columnist, reported on his death. Fine was a co-founder of Moment Magazine, founder of MAZON and of the National Jewish Coalition for Literacy.

4th Circuit Refuses Stay In Invalidation of Virginia's Same-Sex Marriage Ban

By a 2-1 vote yesterday, the U.S. 4th Circuit Court of Appeals issued an Order (full text)  in Bostic v. Schaeffer refusing to delay the mandate in its decision last month invalidating Virginia's ban on same-sex marriage. (See prior posting.)  SCOTUSblog reports that attorneys representing the county clerk who is defending the same-sex marriage ban on appeal say they will seek a stay from the Supreme Court before the 4th Circuit's mandate takes effect next Wednesday. A petition for certiorari has already been filed seeking Supreme Court review of the underlying decision. (See prior posting.) Washington Post has more on the plans to seek a Supreme Court stay.

Indian Court Upholds National Commission For Minorities Act

The Times of India reports today that a 2-judge panel of the Allahabad high court has upheld the constitutionality of India's National Commission for Minorities Act. Rejecting claims that the Act discriminates on the basis of religion, the court said in part:
The commission cannot be regarded as a body which is constituted as an institution in aid of or for the protection of a religion but it is an institution which has been created by the Act of Parliament to ensure that minorities are able to realise their rights to development and freedom.

Recount Looming In Slim Primary Victory of Controversial Wisconsin House Candidate

The Hill reports that a likely recount in Wiconsin's Republican congressional primary has called into question Tuesday's initial apparent victory of state senator Glenn Grothman. As of Wednesday morning, Grothman was leading by only 214 votes. (Wis. Election Watch). Grothman, running for the Republican nomination for the U.S. House of Representatives in Wisconsin's 6th District, has become controversial because of his conservative social views.  According to The Hill:
Grothman recently said it was "unbelievable" that Secretary of State John Kerry criticized Uganda's harsh anti-gay laws, and has repeatedly called homosexuality a "sin," saying it "should not flourish" in American society. He's also attacked what he's called the "war on men" during a 2010 Tea Party rally, has said that "money is more important for men" as part of explaining why he opposed equal pay legislation, and has sponsored legislation that said that single parenting is a contributing factor to child abuse.

Canada's Citizenship Oath To The Queen Does Not Violate Charter Rights

In McAteer v. Canada (Attorney General), (Ont. Ct. App., August 13, 2014), the Court of Appeal for Ontario rejected constitutional challenges to the requirement that immigrants who wish to become Canadian citizens must swear or affirm that "I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors." Two of the challengers were committed republicans whose consciences were offended by taking an oath to a hereditary monarch. They alleged that the oath violates their freedom of expression and their equality rights protected by Canada's Charter of Rights and Freedoms. Two other plaintiffs asserted that the oath violates their freedom of conscience and religion protected by the Charter:
The appellant Ms. Simone Topey is a Rastafarian who regards the Queen as the head of Babylon. She deposes that it would violate her religious beliefs to take any kind of oath to the Queen. She further deposes that on account of the oath, she would feel bound to refrain from participating in anti-monarchist movements. The evidence of Mr. Howard Gomberg, a former plaintiff in these proceedings, is that taking an oath to any human being is contrary to his conception of Judaism.
In rejecting the Charter challenges, the appeals court said:
Although the Queen is a person, in swearing allegiance to the Queen of Canada, the would-be citizen is swearing allegiance to a symbol of our form of government in Canada. This fact is reinforced by the oath’s reference to “the Queen of Canada,” instead of “the Queen.” It is not an oath to a foreign sovereign. Similarly, in today’s context, the reference in the oath to the Queen of Canada’s “heirs and successors” is a reference to the continuity of our form of government extending into the future.
The Globe and Mail reports on the decision.